Submission to: Drug and Alcohol Testing of Community-based Offenders and Bailees Legislation Bill
22 March 2015
Law and Order Committee
Auckland North Community & Development ANCAD (previously NSCSS) works across five Local Board areas, including Devonport Takapuna, Kaipatiki, Hibiscus and Bays, Upper Harbour, and Rodney. We also work at a regional level both in the area of community development as well as the provision of community and social services.
ANCAD has a membership base of over 150 community groups on Auckland’s North Shore including, arts, environment, health, migrants and refugees, Maori, Pacific, older adults, family services, education, community, youth and disability sectors.
We are affiliated to Community Networks Aotearoa in Wellington, Social Development Partners, Christian Council of Social Services and ANGOA in the social policy field.
This Bill seeks to amend the Bail Act 2000, the Parole Act 2002 and the Sentencing Act 2002 (‘the Acts’). Currently there is no explicit legislative authority that permits community-based offenders, parolees or defendants who have been released on bail (‘bailees’) subject to a condition prohibiting the consumption of drugs and/or alcohol to submit to testing. The amendments establish a legislative basis for testing and monitoring of offenders and bailees with drug or alcohol conditions.
The amendments will apply only to individuals released with drug and/or alcohol conditions under the Acts. The Commissioner of Police and the Chief Executive of the Department of Corrections may make rules that set out the details of the regimes, the procedures used for testing and monitoring, and the frequency of any testing and monitoring.
The Bill creates new offence provisions in the respective Acts. It will be an offence to refuse entry, without reasonable excuse, to a person attaching or removing a monitoring device, installing or removing monitoring equipment, or servicing or inspecting a monitoring device or equipment. It will be an offence to refuse or fail, without reasonable excuse, to undergo a testing procedure, submit to continuous monitoring, accompany an authorised person to undergo testing when required to do so, or to do anything with the intention of diluting a bodily sample or to tamper with a monitoring device.
In respect of the Bail Act 2002, a bailee breaches an abstinence condition, if they use a controlled drug or consume alcohol in breach of that condition or refuse or fail, without reasonable excuse, to undergo a testing procedure, submit to continuous monitoring, accompany an authorised person to undergo testing when required to do so; to do anything with the intention of diluting a bodily sample, or to tamper with a monitoring device.
Each year around 5,000 offenders are on community sentences and orders and approximately 15,000 bailees have an abstinence condition imposed. However, it is only in rare cases that the courts abstinence conditions are subject to testing. Testing for the presence of alcohol and other drugs to improve compliance with abstinence conditions is already widely used overseas, in the United States,the UK, as well as in Australia. The evidence shows that it works. Authorities in Australia have concluded that targeted testing of those at the highest risk of re-offending, is the most effective way of improving public safety around them. Importantly, it can assist the baileeto maintain their non-abuse of drugs and alcohol, to the benefit of both themselves as well as their community.
We support this legislation, as we know that the misuse of drugs and alcohol is a major driver of criminal activity. It is a well-known fact that much of the criminal offending that comes before the courts is fuelled by alcohol and other drug consumption. Only a very small percentage of bailees are required to attend a treatment programme as part of their sentence. However, we would like to see more thought and discussion around how bailees can be better connected to treatment options. We also have some concerns around how the testing will be carried out. We know that there are not enough treatment options and that waiting lists are long at many treatment centres. We believe there needs to be a lot more investment in treatment as an alternative to the current situation. We continue to under-invest in drug and alcohol treatment programmes, particularly community-based programmes.
This bill can provide a springboard to allow us to do something a little different with community based sentencing. Currently some treatment is available in prisons but not for bailees and on the whole most of the bailees who need treatment are not getting it.
We would like to see the testing that this bill provides for linked up with treatment programmes available in prison and for bailees. We believe that this is in the best interests of achieving a health approach to re-offending, rather than having a purely punitive criminal justice system.
We believe there are a number of questions that the select committee will need to address further; for example, the threshold for reasonableness regarding the frequency of testing, and is privacy and dignity afforded to those being subjected to testing. How intrusive is the testing and monitoring? Should the testing be random or should it be on a regular basis? Who should do the testing and how will this be monitored. What would be the outcome of non-compliance with the testing? A testing and monitoring regime could be used as a means of harassment. The select committee needs to ask who is best suited to carry out the testing and the process of how the testers will gain access either into private homes or community centres or other residential facilities. We urge that there is independent oversight and review of the testing processes that have been used. These questions need careful consideration before any regime is set in place.