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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)
- 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.
- 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
- 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
- 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.
- 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
- 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
- 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
- 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
- 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
- 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.
- Prohibited
forms of contact (see cl 11(1)) would include:
- Watching,
loitering near, or preventing or hindering access to or from, a place the victim
visits often;
- Following,
stopping, accosting or making contact with the victim;
- Giving offensive
material to the victim;
- Encouraging any
other person to do any of the above; and
- Threatening to
do any of the above.
- 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).
- Defined
by reference to the Sentencing Act 2002, s 86A.
- Clauses
4 (definition of ‘violent offence’) and 5(1).
- Clause
9(1).
- New
Zealand Bill of Rights Act 1990, s 3(a).
8. Clauses 11(1)(c)–(e), 11(2) and 13(1).
- Clauses
14 and 15.
- Clause
18(1).
- 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).
- 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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