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Bill conflicts with international child protection laws

MEDIA RELEASE – For immediate use, 2 August 2012

Bail Amendment Bill conflicts with international child protection laws

The proposed Bail Amendment Bill is inconsistent with United Nations Guidelines for the Prevention of Juvenile Delinquency, the New Zealand Law Society says.

Presenting the Law Society’s submission to the Law and Order Select Committee on 1 August, Sonja Cooper said the proposed Bill was in direct conflict with the United Nations Convention on the Rights of the Child.

“Placing children in custody should be a last resort as many more young offenders will spend lengthy periods in police cells.

“Whenever possible, detention pending trial shall be replaced by alternative measures such as close supervision, intensive care, placement with a family or in an educational setting or home,” Ms Cooper said.

She added the Bill did not take into account the increased funding and resources required to handle an influx of young offenders being placed in police custody, which should only be a last resort and for the minimum necessary period.

“We are aware young people do commit crimes but they need to be treated differently because they are vulnerable.

“It is too often that young people end up in custody and we have to be careful we don’t fall behind the rest of the world in terms of our international obligations,” Ms Cooper said.

The Law Society says the Bail Amendment Bill’s blanket approach to reverse the onus of proof in certain bail provisions also conflicts with the New Zealand Bill of Rights Act 1990, which affirms rights which protect liberty and fairness in the criminal justice system.

The Bill places the onus of proof in bail decisions on the defendant, if charged with murder or a Class A drug offence, or with an extended list of specified offences, when the defendant has previously been convicted of one of those offences.

The Law Society says these provisions should not be enacted as they conflict with the presumption of innocence, which has been described as the "golden thread" of the common law.

Ms Cooper said there was a “fundamental inconsistency” between the purpose of the Bill (to make it harder for those accused of serious offences to get bail in order to improve public safety) and the right to liberty of the person and the presumption of innocence’.

She said imprisonment (including on remand) is the most severe deprivation of the right to liberty of the person known to our law. It is of prime importance that powers of detention be approached in light of that right.

“The purposes served by the presumption of innocence are as relevant pre-trial (and therefore to bail) as they are during trial,” Ms Cooper said.

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