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Parole (Extended Supervision Orders) Amendment Bill - Submission to the Law and Order Committee [2014] NZHRCSub 10 (1 October 2014)

Last Updated: 28 June 2015

Parole (Extended Supervision Orders) Amendment Bill
Law and Order Committee

October 2014

1. The New Zealand Human Rights Commission (“Commission”) welcomes the opportunity to make a submission on the Parole (Extended Supervision Orders) Amendment Bill (“Bill”)

2. The Bill extends the Extended Supervision Order (“ESO”) regime to offenders who have committed serious sexual offences and some serious violent offences. The range of qualifying offences is also expanded to include conspiracies and attempts (as well as any equivalent offences committed overseas). An ESO under the proposed regime can be renewed consecutively for 10 year periods.

3. The Commission acknowledges the need to protect the public and to ensure that they feel safe and secure. The government has a human rights obligation to protect people from a person who - for whatever reason – continues to present a significant risk to individuals and/or the safety of the public.

4. However, this needs to be balanced against the rights of people who have served a given sentence not to be detained simply on the presumption that they could offend again. It is a basic principle of the rule of law that once a person has been convicted of an offence and served their sentence they have paid their debt to society. Any subsequent detention could be arbitrary and amount to a retroactive penalty.

5. How to protect people in the community in such cases is acknowledged as a universal problem. New Zealand is not alone in grappling with it. Other democracies have attempted to deal with it - not always successfully but enough for certain principles to have emerged:

• the detention must not be arbitrary
• the detention must not be punitive
• the detention must be proportionate to what is sought to be achieved, and
• efforts should also be made to rehabilitate the offenders so they have the opportunity of living socially productive lives in the future.

6. Acknowledging the careful balance that must be achieved, the Bill contains safeguards against ESOs being imposed unnecessarily by inter alia requiring the Court to be satisfied that the offender has (or had) a pervasive pattern of serious sexual or violent offending before making an order. High impact conditions – that is residential restrictions of 70 hours a week or more and electronic monitoring – must be reviewed biennially by the Parole Board. The Commission welcomes the addition of these safeguards.

7. Nevertheless the Commission remains concerned that the Bill – in its current form – is inconsistent with New Zealand’s international human rights obligations and the rights and freedoms affirmed by the New Zealand Bill of Rights Act 1990 (“BoRA”).

8. The Attorney-General’s report under section 7 of BoRA found the proposed ESO scheme to limit these rights and freedoms to an extent that is not justified in a free and democratic society.^[1] The Commission agrees with the Attorney-General.

Retroactive Penalties

9. Article 14(7) of the International Covenant on Civil and Political Rights (“ICCPR”) – to which New Zealand is a party- provides:

No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.

10. This right is reflected domestically through section 26(2) of BoRA which provides:

No one who is finally acquitted or convicted of, or pardoned for, an offence should be tried or punished for it again.

11. Section 107C of the Parole Act provides that an offender may be subject to an ESO where the relevant offending pre-dated the commencement of the ESO scheme in 2004. This amounts to a retroactive penalty and is clearly in conflict with New Zealand’s international human rights obligations under the ICCPR and section 26 (2) of BoRA.

12. The Bill further extends the regime by allowing an ESO to be renewed, which in essence permits an indeterminate punishment.

13. Any future risk of offending can currently be addressed at the time of sentencing through preventive detention. Where this option is not available (in exceptional circumstances) a range of civil rather than criminal detention may be available.

Conclusion

14. The Commission considers that the Bill does not achieve the appropriate balance between public safety and the rights of offenders. The Bill breaches domestic and international human rights law and should not be passed in its current form.

15. The Commission would welcome the opportunity to work with government to consider ways in which the Bill’s policy objectives can be achieved in a manner less restrictive on the fundamental rights and freedoms that form the foundation of New Zealand’s constitutional order.

Contact person:

Michael White, Senior Legal & Policy Analyst, Human Rights Commission Direct dial: 04 471 6752

Email: michaelw@hrc.co.nz

^[1] This is the third such report of the Attorney-General finding the ESO scheme to be inconsistent with BoRA.