Ex-judge says move-on orders unworkable and 'callous'

A retired district court judge says the Government's proposed move-on orders are unworkable, "callous" and threaten to imprison children for offences that could never actually land them behind bars.

Justice Minister Paul Goldsmith says the Government has "no policy to criminalise homelessness" and the orders are needed to "reclaim" streets and town centres for businesses, residents and visitors.

Anthony Fitzgerald, who sat as a district court judge for 27 years and for 15 of those presided over a specialist homelessness court — the New Beginnings Court in Auckland — made the comments in an interview with Q+A's Tova O'Brien.

The move-on orders would give police new powers to order people, including children as young as 14, to leave public places or ultimately face prison. The behaviours targeted include rough sleeping, begging, obstructing businesses and disorderly conduct.

Fitzgerald said police did not need the new powers because existing law already covered the behaviour the Government was concerned about.

"There are already powers to deal with behaviours of that sort," he said.

"If the police suspect that someone's acting in a disorderly manner, or in an intimidating manner, or threatening, assaulting, stealing, possessing illegal drugs, they already have the power to respond to those sorts of behaviours."

Fitzgerald said the existing sentencing options available to judges were so narrow that prison often became the default outcome for homeless people.

"There's a very short list of sentencing options for any judicial officer in Section 10A of the Sentencing Act, and for homeless people, the list is even shorter than for others.

"The first option on what people call nuisance offending would be a conviction and discharge, or ordered to come up for sentence if called upon, which would mean they'll just be back out on the street. The next option is a fine, but for people living in extreme poverty, like the homeless are, that's not realistic.

"If people understand what the life of a homeless person is like, then in most cases, community work and supervision are unrealistic.

"If you're homeless, you can't have electronically monitored sentencing options, so you're left with prison. That's all that a judicial officer in a conventional court has to choose from," stated Fitzgerald.

He said even the harshest available penalty offered no lasting solution.

"The most severe sentence for most nuisance offending is three months, so someone would get out after six weeks. Someone who's homeless would just be rotated straight back out, slightly worse than they went in, because their meagre possessions would have been taken, and they'd just be put out again to start off again."

He said connecting people facing low-level charges to housing and social support through organisations such as the Auckland City Mission, Lifewise and the Salvation Army delivered a sustained reduction in reoffending in his experience.

That came along with significant drops in prison time and hospital admissions.

"It was blindingly obvious to me if you simply fixed the reason that someone was repeatedly coming into court, all the negative consequences would largely go," he said.

'We have limited tools to deal with disorderly behaviour' - Goldsmith

Justice Minister Paul Goldsmith defended the proposed move-on orders, saying disorderly behaviour in public places had become a serious and growing problem for businesses, residents and visitors.

"Our streets and town centres have endured unprecedented levels of disruption in recent years. Many people no longer want to be there. Businesses, residents and visitors are paying the price," Goldsmith said.

"You would be hard-pressed to find anyone who lives, works or visits our city centres that hasn't witnessed disorderly behaviour. That's why so many people and central city businesses support move-on orders. Many are just trying to make a living, but have to face disruptive people camped outside their store, day in day out."

Goldsmith said the Government already provided extensive welfare support but lacked the tools to respond to disorderly conduct in the moment.

"We currently have many tools to help those who are in need, including access to one of the most generous welfare systems in the world, but we have limited tools to deal with disorderly behaviour. It means many disruptive, distressing, and potentially harmful acts can occur before police officers have any means of intervention. This legislation changes that."

He rejected the suggestion the policy amounted to criminalising homelessness.

"The Government has no policy to criminalise homelessness. What we do have, is a policy to give Police the power to issue move-on orders to people displaying disorderly behaviour in public places. Only people who refuse those orders, will face prosecution. A move-on order is not a criminal charge."

For the full interview, watch the video above

Q+A with Jack Tame is made with the support of New Zealand On Air