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Parole Amendment Bill (Consistent) (Section 22) [2012] NZBORARp 53 (19 September 2012)

Last Updated: 28 April 2019

Parole Amendment Bill

19 September 2012

ATTORNEY-GENERAL

Parole Amendment Bill (PCO16323/8.0) — Consistency with the New Zealand Bill of Rights Act 1990

Our Ref: ATT395/163

1. I have examined the Parole Amendment Bill (PCO16323/8.0) for consistency with the New Zealand Bill of Rights Act 1990. I have concluded that whilst the Bill raises some issues under the Bill of Rights Act it is not inconsistent with that Act.
   
2. The Bill proposes a number of amendments to the Parole Act 2002. The explanatory notes state that they are to reduce the number of unnecessary parole hearings (but not to increase the length of time an offender spends in prison)[1] and improve efficiency by simplifying pre-hearing processes and clarifying when an offender’s attendance at a parole hearing is required.[2] The proposed changes do not affect the earliest date at which an offender would become eligible for parole nor the actual length of an offender’s sentence.
   

Interval between parole reviews

3. The Bill provides for increases in the maximum interval between parole reviews and the maximum duration of a postponement order, which raises an issue with s 22 of the Bill of Rights, the right to be free from arbitrary detention.
   
4. The Bill provides that if the Parole Board declines to release an offender on parole, it must ordinarily specify a date within the following two years for the offender’s next parole review, instead of every year as is currently the case.[3] In addition, whilst the Bill restricts the Board’s ability to make postponement orders[4] to offenders serving determinate sentences of ten years or longer or indeterminate sentences,[5] it increases the maximum duration of a postponement order from three to five years.[6]
   
5. The Parole Act requires that the substantive justification for continued imprisonment of an offender beyond their parole eligibility date is that their release on parole would be inconsistent with community safety.[7] The

United Nations Human Rights Committee has held that to ensure that an offender’s continued detention beyond their parole eligibility date does not become arbitrary, there must be regular, periodic reviews of the individual offender’s case, by an independent body, to determine if continued imprisonment is substantively justified.[8]

6. Courts and treaty bodies have refrained from ruling as to the maximum period between parole reviews before detention becomes inherently arbitrary. The

Human Rights Committee has held that 12-month intervals between parole reviews, with judicial review rights, meant that continued imprisonment was not inherently arbitrary.[9] The European Court of Human Rights has held that a two-year interval between parole reviews did not render detention arbitrary, because the decision to fix that interval was approached with flexibility and due

regard to the individual’s circumstances;[10] however, it has also held that similar and even shorter review periods, fixed without flexibility and due regard to the

individual’s circumstances, or with very limited ability to obtain earlier review,

meant that detention had become arbitrary.[11]

7. I consider that the following safeguards ensure that the proposed increases in the maximum interval between parole reviews and the maximum duration of a postponement order should protect an offender from arbitrary detention beyond their parole eligibility date:
   
   • 7.1 The Board has discretion over the length of the actual interval between parole reviews,[12] including when making postponement orders,[13] and is required in each instance to give individualised

consideration to the date of the offender’s next parole review. The Board must in each instance be guided by the principle that offenders must not be detained any longer than is consistent with community safety.[14]

7.2 Parole reviews are undertaken at hearings at which an offender has the right to be present and make submissions.[15] Postponement orders are made at hearings of which an offender has notice and the right to be present, make submissions and be represented.[16]

7.3 When refusing to release an offender on parole, the Board may set risk milestones, early achievement of which means that parole may be reviewed earlier.[17]

7.4 Earlier review is available on the Board’s initiative[18] or the application of the offender.[19] The Department is also obliged to notify the Board (triggering the possibility of an earlier review) of a significant change in an offender’s circumstances or early achievement of risk milestones.[20]

7.5 Offenders may seek internal and judicial review of Board decisions.[21] In addition, offenders may appeal to the High Court against the making of a postponement order.[22]

Other matters considered

8. The Bill provides for the mandatory application of the statutory standard release conditions[23] to all paroled offenders, but does not amend the content of the conditions nor the duration for which they apply. Previously the Board was required to impose them. Whilst the standard release conditions may prima facie limit several rights affirmed by the Bill of Rights, including freedom of expression (s 14), manifestation of religion and belief (s 15), association (s 17) and movement (s

18(1)), they would be justifiable limitations (s 5) in the interest of community safety.

9. The Bill provides for the retention of unattended hearings in very limited circumstances.[24] This does not infringe an offender’s right to natural justice (s 27(1)) as they will have the right to request to attend and make submissions.
   
10. This advice has been prepared in consultation with Daniel Perkins, Associate Crown Counsel. In accordance with Crown Law protocol, it has also been peer reviewed by Austin Powell, Crown Counsel.
    

Yours sincerely

Jane Foster Crown Counsel

Bookmarks

[1] Explanatory note to the Bill at page 3.
[2] Explanatory note to the Bill at page 1.
[3] Clauses 9 and 10, which amend s 21(2) and insert new s 21A(a) into the Parole Act 2002.
[4] The effect of a postponement order is that the two-year interval in s 21(2) does not apply and an offender need not be reconsidered for parole for its duration: see cl 12 which inserts new s 27 into the Parole Act 2002.
[5] Clause 12, which inserts new s 27(1)(a) into the Parole Act 2002.
[6] Clause 12, which inserts new s 27(3) into the Parole Act 2002.
[7] Parole Act 2002, s 7(2)(a). The parole eligibility date represents the point at which Parliament and the courts have judged that the offender’s continued imprisonment may no longer be necessary to ensure community safety.
[8] Rameka v New Zealand (2003) 7 HRNZ 663 at [7.3].
[9] Ibid.
[10] Dancy v United Kingdom (55768/00) Section III, ECHR at page 10.
[11] See, eg, Hirst v United Kingdom (40787/98) Section III, ECHR at [42]–[43].
[12] Clause 10, which inserts new s 21A(a) into the Parole Act 2002.
[13] Clause 12, which inserts new s 27(2) into the Parole Act 2002.

[14] Parole Act 2002, s 7(2)(a).

[15] Parole Act 2002, s 49(3)(a).

[16] Clauses 12, which inserts new ss 27A(1) and (3) into the Parole Act 2002.

[17] Clauses 10 and 12, which insert new ss 21A(b) and (c), 27(4) and (5) into the Parole Act 2002.

[18] Parole Act 2002, s 26(1).

[19] Clauses 11 and 12, which insert new ss 26(2) and 27(6) into the Parole Act 2002.
[20] Clauses 11 and 12, which insert new ss 26(3) and 27(5) into the Parole Act 2002.
[21] Parole Act 2002, s 67 and Judicature Amendment Act 1972, s 4(1).

[22] Parole Act 2002, s 68(1).

[23] Parole Act 2002, s 14(1).

[24] Clause 19, which inserts new ss 49A and 49B into the Parole Act 2002.

In addition to the general disclaimer for all documents on this website, please note the following: This advice was prepared to assist the Attorney-General to determine whether a report should be made to Parliament under s 7 of the New Zealand Bill of Rights Act 1990 in relation to the Parole Amendment Bill. It should not be used or acted upon for any other purpose. The advice does no more than assess whether the Bill complies with the minimum guarantees contained in the New Zealand Bill of Rights Act. The release of this advice should not be taken to indicate that the Attorney-General agrees with all aspects of it, nor does its release constitute a general waiver of legal professional privilege in respect of this or any other matter. Whilst care has been taken to ensure that this document is an accurate reproduction of the advice provided to the Attorney- General, neither the Ministry of Justice nor the Crown Law Office accepts any liability for any errors or omission