SUBMISSION

TO THE PARLIAMENTARY STANDING COMMITTEE ON LAW, JUSTICE & HUMAN RIGHTS

ON THE COMMUNITY-BASED CORRECTIONS BILL 2016 BILL NO. 33 OF 2016

BY THE SOCIAL DEMOCRATIC LIBERAL PARTY OF FIJI

16 November 2016

_________________________________________________________________________________________________________________________________ Social Democratic Liberal Democratic Party Telephone: (679) 330 1544 Digi: 7376366 Voda: 9707587

66 McGregor Road Fax: (679) 331 1132

​@SodelpaHQ

GPO Box 17889, Suva, Fiji Email: [email protected]

​www.facebook.com/SodelpaHQ

TABLE OF CONTENTS ITEM

​PAGE

Introduction Consultation

2 2

General comment on community sentencing options

3

Impact of community sentencing on victims Recommendation 1

4 4

Does the CBC Bill apply to all offences? Recommendation 2

4 4

Principles on effective sentencing and corrections policy

5

Restorative Justice Considerations Recommendation 3

6 6

The need for community input into the Community Based Corrections Scheme Recommendation 4

7 7

Annual Report on the CBC Scheme Recommendation 5

7 7

Training of Judicial Officers, staff of DSW, Corrections, Police Recommendation 6

7 8

Reparation to Victims Recommendation 7

8 8

Five-yearly assessment of the effectiveness of the CBC Scheme Recommendation 8

8 8

Analysis of the Community Corrections Bill No. 33 of 2016 Section 1 of the Bill Recommendation 9 Recommendation 10 Section 20 and 21 Recommendation 11

8 8 9 9 9 9

Conclusion

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APPENDIX 1: PRINCIPLES OF EFFECTIVE SENTENCING AND CORRECTIONS POLICY

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Fiji Social Democratic Liberal Party: Submission on the Community Based Corrections Bill No. 33 of 2016

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SUBMISSION ON THE COMMUNITY CORRECTIONS BILL NO. 33 OF 2016 BY THE SOCIAL DEMOCRATIC LIBERAL PARTY OF FIJI 16 November 2016 Salutations The Chairman and Members of the Parliamentary Standing Committee on Law, Justice and Human Rights, this submission on Bill No. 33 of 2016, the Community Corrections Bill is made by the Social Democratic Liberal Party of Fiji. On behalf of the Party Leadership and its members, I thank you for this opportunity to make known the Party’s views on the Bill. At the outset, the party commends the tabling of this Bill which is aimed at providing the Courts with community corrections sentencing options and at improving the administration of community based sentencing. Community based sentencing is aimed at rehabilitating and reintegrating offenders back into the community.The Party views the Bill as a good initiative by the Government, to improve on the existing community sentencing options and its administration. Community based sentencing diverts non-serious offenders away from prison, where they are more likely to reoffend and to step up on the ladder to commit more serious crimes. We are also gratified that the Bill is not being fast-tracked, that Parliament has referred the Bill to this Committee for consultation, which is an opportunity for the public and our community to make known their views on the proposed change to the law on community corrections in Fiji.

Introduction The Bill repeals and replaces the Probation of Offenders Act, Cap. 22, enacted as a Colonial Ordinance in 1952, sixty-four years ago, and which has never been amended. As Prime Minister in 1994, my SVT Government initiated the Community Work Act which enabled convicted persons to be sentenced to perform community work, but only with their consent. This may include work at a hospital, at a charitable, educational, cultural or recreational institution, or at an institution for old, infirm or handicapped persons. It may also include work for a provincial, tikina or village council, or work on land occupied or administered by the State or a public body. The 2016 Community Corrections Bill would work alongside the 1994 Community Work Act. The Party commends the Ministry of Social Welfare for reviewing this archaic piece of legislation in partnership with the United Nation’s Emergency Fund for Children (UNICEF). Fiji Social Democratic Liberal Party: Submission on the Community Based Corrections Bill No. 33 of 2016

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Consultation Before we delve in detail into the Bill, we wish to discuss briefly the benefits of effective consultations on reform of legislation, as well as any policy reform. One of the benefits of effective consultation, is that the people are fully aware of and have contributed to the reforms you are making, so they are supportive of the changes. This aids in the implementation and respect for the reforms and new laws, because you have the buy-in and participation of the affected community, so they can consider that they have ‘ownership’ of the reform. We therefore urge and we highly recommend that consultations are undertaken in all legislative drafting and government reform programs. While we appreciate the current consultation process, we are concerned that some provisions of the Bill would have benefitted from more consultation. In this regard, we note that the consultation process undertaken by the Ministry of Social Welfare and UNICEF have not been outlined. From the party’s recollection, we are unaware of any wide ranging consultation undertaken in the process of the drafting of this Bill. So we urge the Committee to enquire with the Ministry of Social Welfare to detail the consultative processes undertaken in the drafting of this Bill. Now on to the substantive review of the Bill. We hope not to take up too much of your time, we have only eleven recommendations in total on the Bill, which we commend on the whole. This presentation will focus only on the sections of the Bill that require re-consideration.

General comment on community sentencing options The Party recognises that there are various positive benefits arising out of providing community sentencing options to the Courts and offenders: ● When offenders are punished in the community, the state saves valuable correctional resources; and ● The offender is able to continue (or seek) employment, and maintain ties with his or her family. Offenders have much to gain from serving their sentences in the community. Whatever the benefits for offenders, however, victim interests must not be overlooked. From the victim perspective, community based penalties may allow the offender to work (and pay compensation to the victim), if the Bill enables the Court to so order.

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In appropriate circumstances, a community sanction might also facilitate restorative justice objectives of acknowledgment and reparation of the harm done to the victim.

Impact of community sentencing on victims The presence of an offender in the community - especially if he lives in the same neighbourhood or community as the victim, may cause additional suffering for the victim. This concern is only partially addressed by including as a condition of the sentence, that the offender is not to have contact with the victim. If the offender has been convicted of a personal injury offence, particularly one of the more serious crimes like rape or other serious assault against the person, the victim may fear further offending and traumatisation by the mere fact of the offender’s presence in the community and the offender’s continued proximity to the victim. In addition the imposition of a community sanction, even a community term of imprisonment, may depreciate the seriousness of the offence. Some victims may link the severity of the sentence to the harm inflicted; if the harm is considerable, and if a community sentence is perceived to be lenient or not properly enforced, community sentencing may exacerbate the suffering of crime victims.

Recommendation 1 The party respectfully recommends that the draft law include a provision that victims views be sought and considered by the Court on the option of community based sentencing, before any community based corrections order is issued by the Court; and that this provision be included in the Bill - that the Court seek the views of victims before it issues such an Order. The party respectfully recommends that the objectives of the Bill include the provision of counselling for victims as well as offenders The party respectfully recommends that the Permanent Secretary also be tasked with promoting victim support and understanding of community based corrections options and to seek their views on the effectiveness of such community based corrections sentencing programs.

Does the CBC Bill apply to all offences? The Bill is silent on whether community based sentencing applies to all crimes, including serious personal assault or offences against the person like assault occasioning grievous bodily harm, murder, sexual offences like rape, or violent robberies.

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Recommendation 2 It is recommended that community based sentencing orders cannot be made in cases of serious personal assault or offences against the person like assault occasioning grievous bodily harm, murder, sexual offences like rape, or violent robberies.

Principles on effective sentencing and corrections policy The National Conference of State Legislatures (NCSL) in the United States established seven principles to guide legislatures or Parliaments when considering effective sentencing and corrections policy. These are summarised below for ease of reference, to guide the Committee in considering the Community Based Corrections Bill (“CBC Bill”). A summary of the Principles is below, and the full extract is attached to this submission as Appendix 1.

PRINCIPLES OF EFFECTIVE SENTENCING AND CORRECTIONS POLICY Preamble Providing for justice and protecting the public are fundamental concerns of criminal justice systems. Sentencing and corrections policies should be designed with the goals of preventing offenders’ continued and future criminal activity. State approaches to sentencing and corrections have been characterized by traditional views that lean toward incapacitation or rehabilitation. More contemporary policies to reduce recidivism look to evidence-based strategies that hold offenders accountable, are sensitive to corrections costs, and reduce crime and victimization. The intended purpose of these Principles is to provide broad, balanced guidance to lawmakers as they review and enact policies and make budgetary decisions that will affect community safety, management of criminal offenders, and allocation of corrections resources. Seven Principles 1. Sentencing and corrections policies should embody fairness, consistency, proportionality and opportunity. 2. Legislatures should convey a clear and purposeful sentencing and corrections rationale. The criminal code should articulate the purpose of sentencing, and related policies and practices should be logical, understandable, and transparent to stakeholders and the public. 3. A continuum of sentencing and corrections options should be available, with prison space for the most serious offenders and adequate community programs for diversion and supervision of others (less serious offenders). Fiji Social Democratic Liberal Party: Submission on the Community Based Corrections Bill No. 33 of 2016

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4. Sentencing and corrections policies should be resource-sensitive as they affect cost, correctional populations and public safety. States should be able to effectively measure costs and benefits. 5. Justice information should be a foundation for effective, data-driven state sentencing and corrections policies. 6. Sentencing and corrections policies should reflect current circumstances and needs. 7. Strategies to reduce crime and victimization should involve prevention, treatment, health, labor and other state policies; they also should tap academic and private resources and expertise. Source: NCSL 2011, Report available online at http://www.ncsl.org/research/civil-and-criminal-justice/principles-of-sentencing-and-correctionspolicy.aspx​ Accessed on 8 Sept 2016

Restorative Justice Considerations Community based sentencing or corrections is seen in some countries as having a restorative justice component. Restorative justice has been defined by the Canadian Supreme Court in ​R. v. Proulx ([2000] 1 S.C.R. 61) ​as: “Restorative justice is concerned with the restoration of the parties that are affected by the commission of an offence. Crime generally affects at least three parties: the victim, the community and the offender. A restorative justice approach seeks to remedy the adverse effects of crime in a manner that addresses the needs of all parties involved. This is accomplished, in part, through the rehabilitation of the offender, reparations to the victims and to the community, and the promotion of a sense of responsibility in the offender and acknowledgment of the harm done to victims and to the community.” The Court in ​R. v. Proulx also stated that "In determining whether restorative objectives can be satisfied in a particular case, [and hence whether a conditional sentence is imposed] the judge should consider the ​offender's prospects of rehabilitation, including whether the offender has proposed a particular plan of rehabilitation; the availability of appropriate community service and treatment programs; whether the offender has acknowledged his or her wrongdoing and expresses remorse​; ​as well as the victim's wishes as revealed by the victim impact statement" (at para 113; emphasis added).

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Recommendation 3 The Party respectfully recommends that restorative justice be an objective of this CBC Bill. The objective should not be merely that the State will save resources by having offenders diverted from the Corrections (Prison) system, but also that community and victims have a stake in the operation of the community corrections scheme - that the Court must consider whether the offender has acknowledged his or her wrongdoing and express remorse, that the offender’s life is seriously constrained and to ensure that the community corrections scheme does not result in a lax system where offenders flout the conditions of their community sentence order, or if it appears to the victim and the community that the Court has little involvement with the administration and supervision and implementation of the community based corrections scheme. The need for community input into the Community Based Corrections Scheme The Party recommends that given the wide ranging impact of the Community Based Corrections Scheme (“CBC Scheme”), that the law establish an advisory committee to advise the Permanent Secretary on the operation of the scheme. We respectfully submit that this not be left to the PS to decide in his sole discretion, but that the advisory committee be established in the law, and that the committee is to contribute to the development of policy and the administration of the CBC Scheme by the PS. Recommendation 4 The Party respectfully recommends that the law establish an advisory committee on community corrections to advise the PS. The advisory committee should include representatives of Faith Based organisations, NGO, CSO and community representatives as well as a victim representative, as deemed appropriate by the Minister who is to appoint the members of the Committee. Annual Report on the CBC Scheme For transparency and to test the efficacy of the CBC Scheme, we recommend the PS be required to prepare an annual report on the operation of the scheme be submitting to Parliament annually. Recommendation 5 The Party respectfully recommends that an annual report on the CBC scheme be compiled and submitted to Parliament annually by the Permanent Secretary, on the effectiveness of the scheme including its effect on the recidivism rates (re-offending rates) of offenders who are sentenced to community based corrections scheme. Training of Judicial Officers, staff of DSW, Corrections, Police The Party considers that training of Judicial Officers (Magistrates and Judges) as well as officials of relevant agencies is a necessity - we recommend the Committee inquire with the Ministry of Social Welfare as to the projected timeline for coming into force of the Bill and if there is provision in the timeline for a period of education and awareness. Training will also be required for Department of Fiji Social Democratic Liberal Party: Submission on the Community Based Corrections Bill No. 33 of 2016

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Social Welfare (DSW) staff, Corrections and Police personnel as well as for the faith based, ngo and other community organisations involved in the scheme. In addition to training for DSW CBC officers and supervisors, it is recommended that sufficient budgetary allocation be sourced for this purpose. Recommendation 6 The Party respectfully recommends that there be provision in the implementation timeline and budgetary allocation for training and awareness for Magistrates and Judges on the CBC Bill, in addition to training for DSW CBC Officers and supervisors from both ngos and faith based organisations who will implement the community based sentencing program. Reparation to Victims Reparation (compensation) to victims is an important issue that the CBC Bill is silent on. Recommendation 7 The Party respectfully recommends that reparation or compensation to victims of crime be considered by the Committee, in particular to be included in the CBC as an element of restorative justice, if offenders are allowed to work and earn money during the period of their community based sentencing, that a sum or percentage be ordered by the Court to be paid as compensation to the victims, and that the Court consider the issue of reparation and seek the views of the victim when considering the grant of an Order of Community Based Sentencing under the CBC Bill. Five-yearly assessment of the effectiveness of the CBC Scheme Once operational, it is important to review the effectiveness of the CBC Scheme, on a regular basis. This is important to gauge the extent to which its objectives of meeting principles of justice and protecting the community. Recommendation 8 The Party respectfully recommends that a review of the effectiveness of the CBC Scheme be undertaken five years after the coming into force of the CBC Bill and thereafter every five years. That the review be undertaken by an independent consultant or institution like the University of the South Pacific or other outside agency as appropriate and that this review be required to be implemented by the PS under the CBC Bill. Analysis of the Community Corrections Bill No. 33 of 2016 Part 1 Preliminary Section 1 of the Bill The party seeks clarification on the Ministry’s projected timeline and preparations for the coming into force of the Bill.

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The Party respectfully recommends a one - year period of public and community awareness, before the new Act comes into force. We recognise also that specific training is required for Magistrates, Judges, as well as the Ministry of Social Welfare officials, Police and associated government departments and that the Ministry probably already has plans in place and funding for this. The Party respectfully requests the Ministry to seek the requisite budgetary allocation and to plan for a wide-ranging national campaign to inform the community about the new law, before it comes into force. The Party is willing to work with the Ministry to ensure that the information and education materials of this awareness campaign reach all of our people in all parts of Fiji and we are happy to discuss with the Ministry ways to make the campaign effective, for the good of all the people of Fiji.

Recommendation 9 The Party respectfully recommends that the new Community Corrections law undergo a period of public awareness before the law comes into force. We also respectfully submit that the committee consider recommending to Government for sufficient budgetary allocation be made for this in-depth and extensive public awareness campaign. Awareness programs must be budgeted and carried out for at least one year before the provisions come into force.

Section 17 The Party is concerned that section 17 requires the offender to engage a lawyer to seek variation of the order. In the interest of increasing access to justice, the Party recommends that the Committee consider whether it would be appropriate to have the drafters design simple language court forms that the convicted offender can fill in and file himself (similar to Family Law Court simplified Forms) in order that he does not have to find and pay for a lawyer to do this. Recommendation 10 The Party respectfully recommends that the simple language forms be designed to enable application for variation of CBC Orders (similar to Family Court Forms) in order that avoid the cost of engaging a lawyer to file an application for variation.

Section 20 and 21 The Party is of the view that Section 20 and 21 of the Bill be reviewed - that all laws where Probation Order is mentioned to be reviewed individually rather than a blanket replacement of the “Probation Order” with “CBC Order” in order that those laws continue operating as intended (to avoid unintended consequences of a blanket replacement).

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Recommendation 11 The Party respectfully recommends that section 20 and 21 be reviewed and rather than a blanket replacement, that each law where “Probation Order” is used, it will be replaced by “Community Based Corrections Order” rather than a blanket replacement by the operation of sections 20 and 21.

These are the eleven recommendations that I present to you today on behalf of the Social Democratic Liberal Party, on the Community Based Corrections Bill. Conclusion To conclude Honorable Chair and Members of the Committee, on behalf of the the Party Leadership and our members, I expresses again our gratitude for the opportunity to appear before you today. I hope our observations and recommendations are helpful to the committee, and that we have effectively communicated the concerns we have about this Bill to you. We are happy to answer any questions you may have regarding this submission.

Vinaka vakalevu.

………………………... Major General (Retired) Sitiveni L. Rabuka Social Democratic Liberal Party of Fiji 66 McGregor Road, Suva Tel: 3301544

Digi: 7179605

Email: [email protected] Facebook: Twitter:

www.facebook.com/SodelpaHQ @SodelpaHQ

Fiji Social Democratic Liberal Party: Submission on the Community Based Corrections Bill No. 33 of 2016

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APPENDIX 1: PRINCIPLES OF EFFECTIVE SENTENCING AND CORRECTIONS POLICY

PRINCIPLES OF EFFECTIVE STATE SENTENCING AND CORRECTIONS POLICY Preamble Providing for justice and protecting the public are fundamental concerns of criminal justice systems. Sentencing and corrections policies should be designed with the goals of preventing offenders’ continued and future criminal activity. State approaches to sentencing and corrections have been characterized by traditional views that lean toward incapacitation or rehabilitation. More contemporary policies to reduce recidivism look to evidence-based strategies that hold offenders accountable, are sensitive to corrections costs, and reduce crime and victimization. State legislatures set both the tone and the framework for sentencing and corrections policies. The principles identified and described below resulted from the bipartisan NCSL work group and are not aligned with any particular opinion or approach. Their intended purpose is to provide broad, balanced guidance to state lawmakers as they review and enact policies and make budgetary decisions that will affect community safety, management of criminal offenders, and allocation of corrections resources. Seven Principles 1. Sentencing and corrections policies should embody fairness, consistency, proportionality and opportunity. ● Establish sentences that are commensurate to the harm caused, the effects on the victim and on the community, and the rehabilitative needs of the offender. ● Strive to balance objectives of treating like offenders alike with allowing discretion to select correctional options that meet individual offender needs and contribute to crime reduction. ● Consider whether sentencing and corrections policies adversely or disproportionately affect citizens based on race, income, gender or geography, including, but not limited to, drug crimes. ● Review policies that affect long-term consequences of criminal convictions, including housing and employment opportunities. 2. Legislatures should convey a clear and purposeful sentencing and corrections rationale. The criminal code should articulate the purpose of sentencing, and related policies and practices should be logical, understandable, and transparent to stakeholders and the public. ● Provide for agency mission statements that reflect the goal of recidivism reduction and the intended balance of surveillance, incapacitation, rehabilitation and victim restoration. ● Articulate corresponding requirements of agencies and expectations of courts.

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● Include in stated objectives that programs and practices be research-based, and provide appropriate oversight. ● Encourage collaboration among criminal justice, health and human services, and other relevant government agencies with intersecting (not conflicting) missions and goals. ● Include criminal justice system stakeholders in planning and deliberations. Consider a coordinating council or other structured body to facilitate policy development that includes input from a broad array of stakeholders. ● Engage and educate the public by providing meaningful and accurate messages about issues and approaches. 3. A continuum of sentencing and corrections options should be available, with prison space for the most serious offenders and adequate community programs for diversion and supervision of others. ● Ensure assessment of offender risk, needs and assets in order to provide appropriate placement, services and requirements. ● Strengthen placement decisions and supervision by encouraging coordinated interbranch efforts among courts, corrections departments, and state and local supervision agencies. ● Establish policies that consider an offender’s risk and criminal history as the basis for sentencing options and program eligibility. ● Provide clear policies for violations of community supervision. Consider administrative remedies and court options for technical violations, and offer incentives for compliance with conditions and requirements. ● Consider time-served requirements and ensure that release mechanisms and policies are clear and complete. Allow incentives for prisoners who complete prescribed programming, treatment or training. ● Provide appropriate levels of supervision and services for all offenders as they reenter the community. 4. Sentencing and corrections policies should be resource-sensitive as they affect cost, correctional populations and public safety. States should be able to effectively measure costs and benefits. ● Consider how state-level policies affect state and local correctional populations, costs, and state-local fiscal partnerships. ● Target resources to make the best use of incapacitation, interventions and community supervision. ● Partner with and consider incentives to local jurisdictions as part of adequately funded and accountable community programs and services. ● Take into account how funding reductions to prison services or to state or local supervision programs affect short-term operations and long-term program benefits. ● Consider the appropriate role of private industry in providing correctional services, and leverage re- sources and expertise of nonprofit, faith-based and other community

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organizations. 5. Justice information should be a foundation for effective, data-driven state sentencing and corrections policies. ● Build legislative and executive capacity to consider the fiscal impacts of policy actions (or inaction). ● Provide a framework for data collection, analysis and technology improvements that support and fulfill information needs. ● Facilitate and require research and evaluation of programs and practices. Use measurements and in- formation to hold systems and offenders accountable, with a focus on and expectation of reducing recidivism and increasing public safety. ● Measure successes as well as failures, and use information and data to develop policy and make budget decisions. ● Build justice information systems that allow intergovernmental sharing of critical case and client information. Pair with policies that enable appropriate information exchange at key discretion points. 6. Sentencing and corrections policies should reflect current circumstances and needs. ● Review and consider whether policies of a different era should sunset or be modernized. ● Allow adaptations to the criminal code to reflect current needs, standards and values. ● Provide for policy updates that allow use of new technologies and ways to supervise offenders and protect the public. ● Consider whether some criminal offenses warrant redefinition or reclassification, and examine proposals for new crimes or sentences in the context of whether the current criminal code is adequate. ● Ensure that victims’ rights are enforceable, and that services for victims are reviewed and refined in line with current policies, technologies and needs. 7. Strategies to reduce crime and victimization should involve prevention, treatment, health, la- bor and other state policies; they also should tap federal, academic and private resources and expertise. ● Consider investments in education and juvenile justice systems as part of efforts to reduce crime. ● Consider as part of crime prevention the needs of and the opportunity for services to children and families of incarcerated offenders. ● Connect health, employment and other related agencies to those providing correctional supervision, reentry services and prevention programs at state and local levels. Source: NCSL 2011, Report available online at http://www.ncsl.org/research/civil-and-criminal-justice/principles-of-sentencing-and-correctionspolicy.aspx​ Accessed on 8 Sept 2016

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