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Victims' Orders Against Violent Offenders Bill (Consistent) (Sections 14, 17, 18(1), s 25(c)) [2013] NZBORARp 18 (13 May 2013)

Last Updated: 1 April 2019

Victims’ Orders Against Violent Offenders Bill

13 May 2013

Attorney-General


Legal Advice

Consistency with the New Zealand Bill of Rights Act 1990: Victims’ Orders

Against Violent Offenders Bill (PCO16962/10.0)


  1. We have examined the Victims’ Orders Against Violent Offenders Bill for consistency with the New Zealand Bill of Rights Act 1990. We 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 would establish a mechanism for a victim1 of a specified serious, violent offence to obtain a non contact order against the offender. Such an order would prohibit the offender from contacting the victim2, and may also prohibit them from entering, living or working in any area specified by the court. Breach of an order would ordinarily be

punishable by up to six months’ imprisonment, or a fine of up to $5,000.3


  1. The Bill engages a number of rights affirmed by the Bill of Rights Act, including freedom of expression (s 14), freedom of association (s 17), freedom of movement (s 18(1)) and the right to be presumed innocent until proved guilty (s 25(c)).

Freedom of expression, association and movement


  1. If a non-contact order is made, it would limit the offender’s rights to freedom of expression, association and movement. However, we consider those limitations would be justifiable.
  2. Orders would only be available against a small cohort of offenders, being those convicted of a serious violent offence4, for which they were sentenced to a term of at least five years’ imprisonment.5
  3. Courts would only be able to make an order if satisfied that the victim experiences ongoing effects of the offending, that the possibility of contact with the offender would be detrimental to the victim’s recovery, that the order is reasonably necessary to avoid contact, and that it is in all the circumstances justified. 6
  4. When considering an application for an order, courts would be subject to the Bill of Rights Act.7 They would therefore be obliged to ensure proportionality between the limitation of the offender’s rights and the protection of the victim, including that the order’s conditions and duration are tailored to the specific circumstances of the case.8
  1. Finally, courts would be able vary or discharge an order, including on application by the offender.9 This guards against the limitation of their rights for any longer period than is necessary to protect the victim.

Presumption of innocence


  1. The Bill creates an offence of breaching a non-contact order ‘without reasonable

excuse’.10 The effect of s 67(8) of the Summary Proceedings Act 1957 is that ‘without reasonable excuse’ provisions generally reverse the onus of proof (at least where the defendant is proceeded against summarily), thereby limiting a defendant’s right to be

presumed innocent until proved guilty. However, upon the repeal of s 67(8),11 the Bill’s offence provision is likely to be interpreted consistently with the presumption of innocence.12

Yours sincerely

Daniel Perkins Jane Foster

Crown Counsel Crown Counsel

Footnotes

  1. Or in some circumstances, a victim’s immediate family member: cl 4 (definitions of ‘victim’ and ‘immediate family’). For ease of reference, we refer solely to ‘victims’ throughout this advice.
  2. Prohibited forms of contact (see cl 11(1)) would include:
  3. If an offender has been convicted in the previous three years of two or more offences involving the same victim, the maximum term of imprisonment is increased to two years: cl 18(3).
  4. Defined by reference to the Sentencing Act 2002, s 86A.
  5. Clauses 4 (definition of ‘violent offence’) and 5(1).
  6. Clause 9(1).
  7. New Zealand Bill of Rights Act 1990, s 3(a).

8. Clauses 11(1)(c)–(e), 11(2) and 13(1).

  1. Clauses 14 and 15.
  2. Clause 18(1).
  3. Section 67(8) will be repealed no later than 17 October 2013: Summary Proceedings Amendment Act (No 2) 2011, ss 2(3), 7(2) and Schedule. The Governor-General in Council may appoint an earlier date for its repeal: s 2(2).
  4. New Zealand Bill of Rights Act 1990, s 6.

Disclaimer

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 Victims’ Orders Against Violent Offenders 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 omissions.


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