Offender drug and alcohol testing bill lacks judicial oversight

The lack of judicial involvement in drug and alcohol testing legislation is problematic, the New Zealand Law Society says.

The Drug and Alcohol Testing of Community-based Offenders and Bailees Legislation Bill enables the Department of Corrections and the Police to require some community-based offenders and people on bail to undergo drug and alcohol testing to ensure they’re complying with conditions prohibiting the use of drugs and alcohol.

The Law Society has presented a submission on the bill to Parliament’s Law and Order Committee.

The Law Society questions the way the bill will be implemented, who the decisions-makers should be and the consistency of parts of the bill with the Bill of Rights Act 1990.

Law Society spokesperson Graeme Edgeler says powers proposed by the bill to make people be continuously monitored by a drug or alcohol monitoring device is a “major infringement of liberty”.

“It will be possible to justify it in some circumstances, but certainly not in respect of all people who are subject to alcohol or drug abstention conditions,” he says.

Mr Edgeler says the legislation will prohibit judicial involvement in the imposition of bail, sentence and release conditions requiring the wearing of drug or alcohol monitoring devices.

“There should be judicial oversight of decisions to impose continuous monitoring. No person should be required to wear an alcohol monitoring bracelet without a judge’s approval,” he says.

In its submission the Law Society says that while it appreciates there may be resourcing concerns, the solution is not to place sole discretion with the Police or Corrections and forbid judicial involvement.

Mr Edgeler says bail or sentence conditions imposed by the Parole Board or a judge should be made with agreement from the appropriate agency. This is similar to what happens with electronically monitored bail, or home detention, which require a feasibility assessment.

“This is particularly concerning with respect to the changes to the Bail Act. It is inherent that bail applies to individuals who have not been proven guilty of any offending,” he says.

The Law Society’s submission suggests the bill uses standard conditions in the Bail Act that could be adopted as needed, allowing a judge to impose a monitoring condition if it is considered appropriate by Police.

“This staggered approach would enable a judge to tailor the regime as appropriate to the alleged offender and the alleged offending,” Mr Edgeler says.

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