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Family and Whanau Violence Legislation Bill (Consistent) (Sections 14, 17, 18) [2017] NZBORARp 8 (3 March 2017)
Last Updated: 5 January 2019
3 March 2017
Attorney-General
Family and Whanau Violence Legislation Bill (PCO19891/1.50) – Consistency
with the New Zealand Bill of Rights Act 1990
Our Ref: ATT395/261
- We
have considered the Family and Whanau Violence Legislation Bill for consistency
with the New Zealand Bill of Rights Act 1990 (“the
Bill of Rights
Act”), scheduled for consideration by the Cabinet Legislation Committee on
9 March 2017. We have considered
the attached version 1.50 of the Bill.
We understand further consideration is being given to some of the proposed
amendments and a revised version
of the Bill may be issued. We do not expect
those amendments, if made, will change this advice.
- In
our opinion the Bill is consistent with the Bill of Rights Act.
Outline of the Bill
- This
omnibus Bill will amend the Domestic Violence Act 1995 (renaming it the Family
and Whanau Violence Act 1995 as well as making
related amendments to the Bail
Act 2000, Care of Children Act 2004, Crimes Act 1961, Criminal Procedure Act
2011, Evidence Act 2006,
and Sentencing Act 2002.
- The
broad purpose of the legislation is to ensure the legislative framework
underpinning the response to family violence is more complete
and fit for
purpose, and supports better a co-ordinated and effective response to family
violence.
- The
provisions of the extant Act and the Bill which require consideration for their
consistency with the Bill of Rights Act are as
follows:
- 5.1 Part 2
which provides for protection orders;
- 5.2 Part 2A
which provides for programmes and prescribed services;
- 5.3 Part 3
which provides for occupation tenancy and furniture orders;
- 5.4 Part 6A
which provides for the issue of Police Safety Orders.
The provisions described above engage a number of the rights guaranteed by
the Bill of Rights Act: freedom of association (s 17);
freedom of movement and
residence (s 18); freedom from unreasonable search and seizure (s 21); right
not to be
arbitrarily detained (s 22); rights of persons arrested or detained (s 23);
and minimum standards of criminal procedure (s 25).
- Where
the Bill causes any limitation of these rights the limitations will be justified
for the purpose of s 5 of the Bill of Rights
Act if they are rationally
connected to a pressing social objective and cause a minimal impairment to the
exercise of the right.
In this case the pressing social objective is the
protection of vulnerable people from family violence.
Consistency with ss 14, 17 and 18 - Freedom of expression, association, movement
and residence
- The
ambit of freedom of association is “broad and encompasses a wide range of
associational activities ...”.1 It has been held
to include the right of an individual to associate with any other
individual.2
- Everyone
lawfully in New Zealand has the right to freedom of movement and residence in
New Zealand (s 18(1) Bill of Rights Act). Liberty
of movement and residence is
considered a fundamental right in a free and democratic state and includes the
right of an individual
not to move. The right is closely aligned with the right
to freedom of association.
- The
right to freedom of expression has been interpreted in broad terms and protects
written or spoken
communications.3
Protection orders /
Programmes and prescribed services
- The
Bill provides for protection orders and occupation and tenancy orders which will
limit the freedom of movement and association
of the person identified as the
offender by preventing them from going to certain places, which may include the
place that was their
usual residence, and associating with specified people with
whom they have or have had a close personal relationship. They will also
be
inhibited from communicating with those persons, limiting their right to freedom
of expression. In providing for the identified
offender to be compelled to
attend programmes and receive prescribed services, they may be compelled to go
to particular places and
associate with people they would otherwise choose not
to.
- The
Bill replaces the standard conditions for protection orders (Part 2, ss
19–20C). The standard no-contact condition is intended,
in part, to
control a respondent’s contact with a protected person. To this end, a
respondent and/or associated respondent
must not make any contact with a
protected person that is not authorised. Authorised contact includes contact
that occurs with the
express consent of the protected person to the making of
that contact. This may extend to, for example, living in the same dwelling
house
as the protected person, entering in or remaining on land or in a building if
the protected person is present, and making contact
by telephone, internet, or
any other digital communication. Contact by a
1 Turners & Growers Ltd v Zespri
Group Ltd (No 2) (2010) 9 HRNZ 365 (HC) at [72].
2 B v JM [1997] NZFLR 529 (HC) at 532.
- Moonen
v Film and Literature Board of Review [1999] NZCA 329; [2000] 2 NZLR 9 (CA) at [15]:
“This right is as wide as human thought and
imagination”.
respondent with a protected person may also be
permitted if reasonably necessary in an emergency, or if authorised by the
Family Court
- The
proposed amendments in Part 2 align with proposed amendments to Part 2A of the
Domestic Violence Act for programmes and prescribed
services. On making a
protection order, the Act must compel a court to direct a respondent to
undertake an assessment for and attend
a non-violence programme. A court is also
given the discretion to direct a person to undertake an assessment for
prescribed services
and engage with a prescribed service (s 51E).
Occupation and tenancy orders
- The
Bill proposes amendments to Part 3 of the Act for orders relating to property.
A person who applies for a protection order may
also apply for an occupation
order or a tenancy order (ss 52 and 56 respectively). These orders would grant
an applicant the right
to live in a dwelling house owned by either party or in
which either party as a legal interest, or vest in the applicant the tenancy
of
the dwelling house whether either party is a sole tenant or a joint tenant with
the applicant.
The limits on freedom of movement, association and expression
are justified
- We
consider the limitations the Bill imposes on the identified offender’s
freedom of association, movement and expression are
demonstrably justified. The
effective protection of the victims of family violence requires urgent and
decisive intervention. The
limitations contemplated by these parts of the Bill
are significant for the identified offender but constitute the least intrusion
that is consistent with the Bill achieving its important aim. The identified
offender has the ability to have his or her case put
urgently before the Family
Court where they can seek variation or discharge of the orders if that is
warranted.
Consistency with s 25(c) – Presumption of innocence
- Section
25(c) of the Bill of Rights Act provides that everyone who is charged with an
offence has the right to be presumed innocent
until proved guilty according to
the law.
- The
Bill proposes amendments to provisions for the offence of breach of a protection
order and failure to comply with a direction:
- 17.1 Section
49(2), which is not amended or replaced, makes it an offence punishable by
imprisonment for a term not exceeding 3 years
to breach a protection order. It
is a defence in a prosecution for a respondent to prove that he or she had a
reasonable excuse for
breaching the protection order (s 49(2).
- 17.2 Section
51X which is amended makes it an offence to fail to comply with a direction
‘without reasonable excuse’.
- By
requiring an accused person to prove a defence to a criminal charge, the right
to presumption of innocence affirmed by s 25(c)
of the Bill of Rights Act is
limited.
However the reverse onus provision can be justified on the
basis that4 the defence relies on matters that are
exclusively within the knowledge of an accused.
Consistency with ss 22 and 23 – liberty of the person and arbitrary
detention
- Sections
22 and 23(2) of the Bill of Rights provide respectively that everyone has the
right not to be arbitrarily detained and, where
they are detained, to be charged
promptly or released.
- A
constable may arrest a person without a warrant if there is good cause suspect
contravention of a protection order, or failure to
comply with a term or
condition of a protection order or related order (s 50). Neither the extant Act
nor the Bill provide for the
release of the person arrested. A prior provision
to that effect was repealed as from 1 January 2001 (former s 51).
- In
failing to provide for the release of the person arrested, there is a risk that
a person will not be charged promptly or released,
and equally that their
continued detention will become arbitrary. The lack of any provision in this
regard may be contrasted with
the provisions for detention in Part 6A discussed
below. Nonetheless, any detention authorised by this enactment must still be
consistent
with ss 22 and 23 of the Bill of Rights Act. It could not be said
that in enacting the power of detention in this form Parliament
is authorising
an arbitrary detention or the unreasonable delay in the laying of charges.
Consistency with s 21 - right to be secure against unreasonable search or
seizure of property
- Section
21 of the Bill of Rights Act provides that everyone has the right to be secure
against unreasonable search or seizure of property.
- Section
21 of the existing Act is undisturbed by this amendment. It provides it is a
condition of every protection order that a respondent
must not possess or have
under his or her control, any weapon and must not hold a firearms licence. A
respondent to a protection
order must as soon as practicable and no later than
24 hours after service of the protection order, surrender any weapon and any
firearms licence in his or her possession. On the making of a temporary
protection order, the firearms licence is deemed to be suspended
and if the
order is made final, the licence is deemed to be revoked. The Court retains the
discretion to modify the standard terms
of a protection order.
- The
amended s 124E of Part 6A also imposes similar requirements on a person against
whom a safety order is issued (safety orders under
Part 6A are addressed
below).
- There
is no doubt that in these provisions the Bill will authorise the seizure of
property, but the given the increased danger posed
by the misuse of firearms in
incidents of family violence the seizure of the property is reasonable.
4 See R v Wholesale Travel Group Inc
[1991] 3 SCR 154; Attorney-General (Hong Kong) v Lee Kwong Kut
[1993] AC 951 (PC) at 969; Sheldrake v Director of Public Prosecutions
[2004] UKHL 43; [2005] 1 AC 264 at [41], [84]–[85] and [90]. The point was noted with
possible approval but not decided in R v Hansen [2007] 3 NZLR 1, at [43],
[66] and [227].
Consistency with s 25 – Minimum standards of criminal procedure
- Section
25 of the Bill of Rights Act provides that everyone who is charged with a
criminal offence is entitled to the observance of
minimum standards of criminal
procedure.
- An
issue is raised as to whether the seizure of any weapons and licences and the
suspension and possible revocation of licences amount
to a criminal penalty, and
require the criminal procedure protections under s 25 of the Bill of Rights
Act.5 If the orders are civil in nature, no issue
arises.
- It
is generally recognised that forfeiture regimes for the seizure or confiscation
of property involved in offending are not criminal
in nature. In this Bill, the
requirements for the surrender of any weapons and licences are not criminal in
either form or substance,
in that the standard conditions:
- 28.1 do not
impact on the criminal record of the person;
- 28.2 do not
involve any penalty other than the loss of the licence or the firearm;
- 28.3 are aimed
at general preventive measures, rather than specific punishment, by reducing
family violence for the benefit of public
safety; and
- 28.4 can be
modified by the Court to suit the facts of a particular case.
- We
conclude therefore that these orders do not amount to criminal penalties and do
not give rise to any apparent inconsistency with
the Bill of Rights Act.
Part 6A Police Safety Orders
- Part
6A provides for Police safety orders. A Police safety order under this Part will
require the person who is the subject of the
order to vacate any place occupied
by the person at risk, to surrender any firearms and to refrain from threats
against or any
other contact with that person (s 124E as amended). An order has
the effect of suspending parenting orders (s 124G), will remain
in force for the
period specified in the order but may not exceed 5 days (s 124K), and may be
made without the consent of the person
at risk (s 124C). Proceedings may not be
brought against the Crown or any constable in respect of anything done or
omitted to be
done for the purpose of carrying out the requirements of Part 6A,
provided that the Crown or the constable acted in good faith and
with reasonable
care (s 124S).
- Formal
advice was tendered to you on Part 6A when the Domestic Violence Reform Bill was
introduced in 2008.6 That advice addressed the power of
a police officer of or over the rank of sergeant to make an on-the-spot safety
order where necessary
to ensure the safety of a person in a family relationship
(s 124B). Section 124B would be amended under this Bill so that a qualified
constable may issue an order against a person if there are reasonable grounds to
believe that the order is necessary to help make
a person at risk safe from
family violence. Further an order would now be available for issue against a
child where justified by
special circumstances (s 124D).
- See,
for example, Belcher v Chief Executive of the Department of Corrections
[2006] NZCA 262; [2007] 1 NZLR 507, [35]ff, and, more broadly, R Clayton & H Tomlinson
(eds) The Law of Human Rights (2ed: Oxford, 2009)[11.30]ff and
[11.358]ff.
6 Advice dated 11 November
2008.
- In
the 2010 advice to you we said,:
...the effect of a [Police Safety] order engages numerous rights
under the Bill of Rights Act, including the right of expression under
s 14 and
the right to freedom of movement under s 18. Further, and noting that the safety
order is in substance a short-term version
of protection orders made by the
Family Court under the existing legislation, the new provisions necessarily lack
the procedural
and institutional safeguards of that Court. It is therefore
necessary to consider whether these various limitations are justifiable
in terms
of s 5 of the Bill of Rights Act.
The explanatory note to the Bill indicates (at 4) that the safety order
provisions are intended to provide Police with an alternative
where a person is
believed to be at risk but where there is not a sufficient basis to arrest and
to provide persons at risk with
an opportunity to consider their options. There
are also indications of practical difficulties faced by people at risk in making
use of the existing Family Court regime.
Given those considerations, the threshold of necessity under
proposed s 124B(1)(b), the relatively short duration
of safety orders and the
requirement of seniority of authorised officers, I consider that this provision
is, on balance, a justifiable
limitation on the rights concerned.
- We
do not consider the proposed amendments change this advice in any way.
- We
have also considered the powers available to the Police and the District Court
for a person to be detained when a Police safety
order is proposed and the
implications for the rights protected by the Bill of Rights Act:
- 34.1 Section
124I as currently enacted provides for a constable who is proposing to issue a
Police safety order to detain a person
for a period not exceeding 2 hours for
the purposes of issuing and serving the order or obtaining authorisation if
necessary.
- 34.2 A person
who fails to comply with an order or a condition of an order may be taken into
Police custody (s 124L). The person taken
into custody must be brought before a
District Court within 24 hours (s 124L(4)). If this does not happen, they must
be released
or served with a summons for a future appearance date (s 124M).
- 34.3 If a
District Court is satisfied that a person has refused or failed to comply with a
Police safety order, the court may reissue
the safety order for a further period
not exceeding five days or issue a temporary protection order (s124N(2)). In
that event, the
court is authorised to detain a person in custody for a period
not exceeding 2 hours for the purposes of issuing and serving the
order (s
124N(6).
- 34.4 If a
District Court considers it appropriate, the proceedings may also be adjourned
to another time to consider whether a temporary
protection order should be
issued in addition to the safety order.
- 34.5 The Act
does not provide a District Court with any other express power to hold the
person in custody. It follows that the person
must be released once the
proceedings are concluded.
- We
consider that these provisions are a proportionate response to pressing social
concern about the impact of family violence on vulnerable
members of the
community and there are adequate provisions to ensure the detention is able to
be brought to an end before it becomes
arbitrary.
- This
advice has been peer reviewed by Senior Crown Counsel Austin Powell.
Debra Harris Crown Counsel
Noted/
Hon Christopher Finlayson
Attorney-General
4 / 3 /2017
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