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Vulnerable Children Bill (Consistent) (Sections 24, 25, 26) [2013] NZBORARp 31 (23 August 2013)

Last Updated: 7 April 2019

Vulnerable Children Bill

23 August 2013

Attorney-General

Legal Advice

Consistency with the New Zealand Bill of Rights Act 1990: Vulnerable Children Bill

1. We have examined this Bill for consistency with the New Zealand Bill of Rights Act 1990. We have concluded that while the Bill raises questions under ss 24-26 of the Bill of Rights Act, it appears to be consistent with that Act in terms of s 7.
   
2. In short:
   

2.1 The Bill proposes broad changes to legislation and policy for the safety and/or status of children. Three of these changes include provisions that may engage the rights to fair criminal procedure and trial and the right against retrospective penalty and/or double jeopardy under ss 24-26 of the Bill of Rights Act:

• Clause 28 of the Bill prohibits employment of persons convicted of specified offences against children unless exempted;
• Part 2 of the Bill provides for the making of Child Harm Prevention Orders by the District Court in respect of persons convicted of, or found by the court on a civil standard to have committed, specified offences against children who are, further, found to pose a high risk of further serious offending. Under cl 58, such orders may prohibit living, working or associating with children and related conduct; and
• Clauses 104-107 and 114 provide a presumption that, where a person has been convicted of murder, manslaughter or infanticide of a child in his or her custody or where a child has been removed from custody for reasons of care or protection

without prospect of return, any other child is to be removed from that person’s custody. The presumption may be rebutted by the person showing him- or herself to be safe to parent.

2.2 Each of the prohibitions that apply or can be applied under these clauses has, or at least may have, a severe adverse impact upon the most basic interests of the adult concerned. It follows that, following in particular the decision in Belcher v Department of Corrections2 and previous Attorney-General reports,3 it is necessary to consider whether that impact is in substance a criminal penalty and so subject to the rights affirmed by ss 24-26 of the Bill of Rights Act. We conclude that although each of these provision apply following a conviction or, in the case of Child Harm Prevention Orders, a conviction or a finding of liability on a civil standard, none gives rise to a criminal penalty so as to engage ss 24-26 because:

• 2.2.1 Each of the provisions provides either an additional requirement beyond conviction or scope for exception from the prohibition:
  
  • (a) The prohibition on employment is subject to exemption;
    
  • (b) Child Harm Prevention Orders are made in a separate proceeding and only where the further precondition of demonstrated risk of serious reoffending is met; and
    
  • (c) The presumption as to removal from custody may be rebutted.
    
  • 2.2.2 Other than the reliance on a conviction as a threshold factor in all and some cases respectively, the employment and custody prohibitions under the Bill do not have the attributes found in Belcher to indicate a criminal penalty. Further, while the Child Harm Prevention Orders do have a limited number of those attributes, there are also significant differences: in particular, the Bill provides for much more limited preventive measures and requires those measures to be no more restrictive than necessary.
    
  • 2.2.3 In any case, the prohibition provided under each of the provisions is directly connected to the prevention of risk or harm to children.
    

2.3 It follows that while the prohibitions provided by the Bill are severe, they do not engage the criminal procedure and related rights under ss 24-26. The prohibitions also do not reach the threshold of cruel, degrading, or disproportionately severe treatment or punishment under s 9 of the Bill of Rights Act. The Bill appears consistent with the rights affirmed by that Act.

Analysis

Outline of the Bill and issues raised

3. The Bill proposes changes to legislation and policy for the safety and/or status of children in five broad areas:
   
   • 3.1 Subparts 1 and 2 of Part 1 provide for the development and implementation of a set of government priorities for vulnerable children, a vulnerable children’s plan and child protection policies;
     
   • 3.2 Subpart 3 of Part 1 provides for initial and subsequent periodic confirmation of identity and risk assessment of adults who work closely with children and prohibits such employment for persons convicted of specified offences against children, unless exempted under cl 34;
     
   • 3.3 Part 2 provides for the making of Child Harm Prevention Orders by the District Court. Such orders may be made in respect of persons convicted of or found by the court on a civil standard to have committed specified offences against children and, further, found to pose a high risk of further serious offending, and may prohibit living, working or associating with children and related conduct; and

• 3.4 Clauses 104-107 and 114 provide a presumption that, where a person has been convicted of murder, manslaughter or infanticide of a child in his or her custody or where a child has been removed from custody for reasons of care or protection

without prospect of return, any other child in that person’s custody is also to be removed from that person’s custody. The presumption may be rebutted by the person showing him- or herself to be safe to parent.

3.5 Clauses 108-113 and 115-141 provide a number of amendments to the Children, Young Persons and Their Families Act 1989, the Care of Children Act 2004 and the Kiwisaver Act 2006, concerning family group conferences and long-term or permanent care for children.

4. Three of these changes include provisions that may engage the rights to fair criminal procedure and trial and the right against retrospective penalty and/or double jeopardy under ss 24-26 of the Bill of Rights Act: the prohibition against persons convicted of specified offences from working closely with children (cl 28); the imposition of restrictions under Child Harm Prevention Orders (Part 2); and the presumption of removal from custody (cll 104-107 and 114).
   

Whether prohibitions engage ss 24-26 of the Bill of Rights Act

5. The prohibitions provided in cll 28, 104-107 and 114 and in Part 2 have, or at least may have, a severe adverse impact upon the most basic interests of the adult concerned. Where the prohibition follows a conviction, that impact is in addition to any sentence or other penalty involved.
   
6. For those reasons, these provisions raise three related questions under ss 24-26 of the Bill of Rights Act:
   
   • 6.1 Whether the prohibitions amount to criminal penalties, which should be imposed only by a sentencing court following a trial conducted in accordance with criminal procedural rights under ss 24 and 25;
     
   • 6.2 Whether, in the case of convictions entered prior to passage of the Bill, they amount to retrospective penalties for the same offence, contrary to s 26(1); and
     
   • 6.3 Whether, in the case of prohibitions that follow a conviction, they amount to a second trial and/or penalty for the same offence, contrary to s 26(2).
     
7. These questions turn upon whether the prohibitions amount to a criminal penalty. That issue has been canvassed in respect of the provision for Extended Supervision Orders in the Parole Act 2002 both in the Court of Appeal decision in Belcher, above, and in reports under s 7 by successive Attorneys-General.3 As noted both in Belcher and by the Attorney- General, some other jurisdictions have taken a more restrictive view of the scope of penalty, but the present New Zealand approach is as given in Belcher.
   
8. In that case, the Court considered a number of factors also present here to be material in holding the Extended Supervision Order regime to constitute a criminal penalty:8

• 8.1 Jurisdiction to make an Extended Supervision Order is triggered, as in some of the cases covered by the Bill, by a conviction for a specified offence;
  
  • 8.2 An Extended Supervision Order may be sought either before sentence expiry date or while the offender is still subject to release conditions, as is the case here for Child Harm Prevention Orders (cl 48(3)); and
    
  • 8.3 Offenders’ victims may make submissions to the Court. Under the Bill, victims may participate, but less directly, by contributing to expert reports made in respect of an application for a Child Harm Prevention Order (cl 54).
    

9. However, a large number of other factors relied upon in Belcher are not present in any of the relevant parts of the Bill. In particular, and decisively in our view:
   
   • 9.1 Other than the reliance on certain convictions, the custody and employment prohibitions have none of the Belcher factors, both are directed to avoid risk of harm to children and each is subject to exception;5 and
     
   • 9.2 In respect of the Child Harm Prevention Order provisions:
     
     • 9.2.1 These provisions do not contain any aspects of criminal procedure, as in part relied upon in Belcher; and
       
     • 9.2.2 Unlike the provision for Extended Supervision Orders, which imposes a broad range of probation measures as standard conditions and permits highly restrictive measures as special conditions:6
       
     • (a) Child Harm Prevention Orders are limited to restrictions on living, working

or associating with children and certain reporting to police or “similar term[s]” (cl 58);7 and

(b) The terms of an order “must be the least restrictive terms necessary to mitigate the risk posed by the respondent and must be proportionate to the severity of the risk”.

10. It follows that, while these prohibitions are severe in character, they do not amount to criminal penalties and so do not engage ss 24-26.
    

Whether prohibitions amount to cruel, degrading, or disproportionately severe treatment or punishment

11. Given the gravity of the prohibitions provided by the Bill, it is also appropriate to consider whether they may engage the right against cruel, degrading, or disproportionately severe treatment or punishment affirmed by s 9 of the Bill of Rights Act.
    
12. The decision of the Supreme Court in Taunoa v Attorney-General observed that, for example:8

“Section 9 is concerned with conduct on the part of the State and its officials which is to be

utterly condemned as outrageous and unacceptable in any circumstances.”

13. The provision for prohibitions under the Bill, although severe, do not reach that threshold:
    
    • 13.1 The prohibitions are, as outlined above, provided for in cases of established risk and with provision for exceptions; and
      
    • 13.2 In light of the threshold requirements in each case, the nature of the

prohibitions is not such as to be “unacceptable in any circumstances”.

Yours sincerely Ben Keith Crown Counsel

Footnotes

1 [2006] NZCA 262; [2007] 1 NZLR 507.

2. See, for instance, Report of the Attorney-General on the Parole (Extended Supervision Orders) Amendment Bill, AJHR J.4 (2009).
3. Above n 2, [6].

4 Above n 1, [47].

5. And see R v Field [2003] 1 WLR 882 (EWCA), [58]-[62] (holding that disqualification from employment similarly not a criminal penalty).
6. Parole Act, ss 107JA & 107K.
7. And see Adamson v United Kingdom ECtHR App No 42293/98 (Police registration not a criminal penalty).
8. [2007] NZSC 70; [2008] 1 NZLR 429, [190] per Blanchard J; see also [289] per Tipping J; [339] per McGrath J.
   

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 Vulnerable Children 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.