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Child Protection (Child Sex Offender Register) Bill - Submission to the Social Services Committee [2015] NZHRCSub 11 (28 October 2015)

Last Updated: 3 December 2015

Submission on Child Protection (Child Sex Offender Register) Bill

Social Services Committee

28 October 2015

_Introduction

1. The Human Rights Commission (“Commission”) welcomes the opportunity to provide this submission to the Social Services Committee on the Child Protection (Child Sex Offender Register) Bill (‘the Bill’).

2. The purpose of the Bill is to establish a Child Sex Offender Register (CSOR), administered by the Commissioner of Police. The Commission supports the primary objective of the CSOR, which is to prevent future sexual offending against children.

3. The Bill raises a number of human rights considerations which have been traversed in both the Regulatory Impact Assessment (RIS) and the Attorney-General’s report under section 7 of the New Zealand Bill of Rights Act (NZBORA).

Summary of the Commission’s position

4. The Commission broadly agrees with the findings of the Attorney-General’s report on the Bill as regards its impact on human rights. Our position can be summarised as follows:

4.1 The Bill has a protective purpose, namely the prevention of sexual offending against children in the future, which aligns with the human rights of people to life and personal security.

4.2 However, human rights principles also require that restrictive measures introduced for protective purposes should be proportionate to the interests sought to be protected. On this basis, the Commission agrees with the Attorney-General’s finding that the Bill’s introduction of lifelong CSOR registration, which may be invoked retrospectively and

without the possibility of independent review, constitutes disproportionately severe treatment.

4.3 The Commission agrees with the Attorney-General’s observation that there is no apparent barrier to establishing an independent review procedure for persons subject to CSOR registration. The Committee should therefore consider amending Clauses 35 and 36 of the Bill to enable a person subject to CSOR to initiate a review to the Commissioner of Police, with additional recourse to an independent judicial appeal avenue.

4.4 The Bill contains an apparent drafting discrepancy which the Committee will need to address. The Explanatory Note to the Bill states that CSOR registration is limited to 8 and 15 year periods for offenders convicted of Class 2, Class 3 offences and non-custodial sentence outcomes. However, as noted by the Attorney-General, the actual content of the Bill provides that the above limitations only apply to reporting obligations, not registration itself. The Committee will need to address this point and clarify this Bill’s intention in this regard. The Commission is of the view that the proportionality principle would favour the approach described in the Bill’s Explanatory Note.

5. Furthermore, the Commission notes that the implementation of CSOR will be very costly, with little evidence that it will have any impact on re-offending. In light of this, the Committee should consider whether such spending would be more effectively used to enhance rehabilitation programmes and victim support services.

Human rights issues engaged by the Bill

6. As noted in the introduction, both the RIS and the Attorney-General’s section 7

report identified a number of human rights issues that arise from the Bill.

Regulatory Impact Statement (RIS)

7. The RIS developed by Police and Department of Corrections notes that the establishment of a CSOR raises a number of human rights and privacy implications¹. The Bill’s limitation of the CSOR to adult offenders aged 18 or over, and to those offenders who had either been sentenced to imprisonment, or otherwise referred for registration by the sentencing judge, accordingly appears to have been designed to reflect human rights and associated policy considerations.² The RIS also indicates that the Bill’s provision of a discretionary power vested in the Commissioner of Police to suspend the reporting obligations of offenders who no longer pose an offending risk was introduced to mitigate against adverse human rights outcomes.

8. The RIS indicates that the CSOR will cost approximately $146 million to implement and administer over 10 years. Around $60 million in new spending will be required, with the rest of the cost absorbed by agencies.³ The RIS notes that a cost-benefit analysis has not been undertaken due to insufficient evidence being available to accurately quantify harm prevention and goes on to conclude that CSOR is unlikely to have a significant impact on offending rates, with the numbers of convictions prevented estimated to be low.⁴ However, the RIS notes that the CSOR is likely to benefit overall offender risk management and enhance Police detection and investigation of re-offending.⁵

9. As noted above, given that CSOR will incur considerable expense and have a relatively insignificant impact on offending, the Committee ought to consider whether it would be more effective to target that spending at enhancing the capabilities and scope of rehabilitation and community reintegration programmes for offenders and support services for victims.

Attorney-General’s NZBORA report

10. In his report on the Bills’ consistency with the NZBORA, the Attorney-General identifies much more significant human rights issues than those reported in the RIS.

_{Most notably, the Attorney-General found that the Bill is inconsistent with both the}

¹ New Zealand Police, Regulatory Impact Statement, Child Protection Offender Register and Risk Management Framework, 6 June 2014, para 38 , accessed http://www.police.govt.nz/sites/default/files/publications/child- protection-offender-register-and-risk-management-framework-ris.pdf

² ibid paras 57-60

³ ibid para 78

⁴ ibid para 84

⁵ ibid para 85

right not to be subject to disproportionately severe treatment under s 9 and the right to protection from double jeopardy under s 26(2), to an extent that cannot be justified under s 5.

11. Regarding s 9, the Attorney-General highlights an apparent discrepancy in the Bill between the Explanatory Note, which sets out the government policy rationale, and the Bill’s contents. While the Explanatory Note states that the registration under the CSOR expires after 8 and 15 years for certain offences and sentence outcomes, the text of the Bill makes no provision for the expiry of an offender’s registration once they have been registered on the CSOR. Instead, the 8 and 15 year limitations refer only to “reporting requirements”. Similarly, the Commissioner of Police may only suspend reporting requirements – not registration - in cases where the offender is deemed no longer to pose any risk. In effect, the Bill provides that, once a person is registered on the CSOR, they are registered for life.⁶

12. The Attorney-General also notes that there is no avenue available to a person registered under the CSOR to have their registration reviewed, or to initiate such a review. The Attorney-General refers to the decision of the UK Supreme Court in R(F) v Secretary of State for the Home Department [2010] UKSC 17 which found that the absence of any provision for review of lifetime reporting requirements under the equivalent UK register constituted a disproportionate interference with the offender’s right to “private life” under Article 8 of the European Convention on Human Rights.

13. In that case, the UK Supreme Court also noted that it was important that the enabling legislation “include some provision for reviewing the position and ending the requirement if the time comes when that is appropriate” whilst observing that it was open to the legislature to impose a relatively high threshold for such a review process. Following the judgment, the UK Government introduced a requirement that lifetime registration requirements are reviewed after 15 years.⁷

_{14. The Attorney-General accordingly noted that:}

⁶ Report of Attorney-General under New Zealand Bill of Rights Act 1990 on the Child Protection (Child Sex Offender Register) Bill, 6 May 2015, para 5, accessed http://www.parliament.nz/resource/en- nz/51DBHOH_PAP64664_1/07068e4ddd1cf4ea0c120c931ebf93ef56643c13

^{7 Report of Attorney-General, para 22 - the review is conducted by the UK Chief Officer of Police, with a right of}

appeal to a magistrate.

“Without a similar mechanism, a registrable offender will continue to be registered...regardless of whether they pose a risk. Ongoing punishment of a person who, however serious their original offence no longer presents a risk to society and is precluded from seeking any review to demonstrate that, would, in my opinion, outrage

standards of decency.”⁸

15. The Attorney-General also found that registration under the COSR constitutes a punishment, thereby invoking the right to protection from double jeopardy under s

26(2) of NZBORA.

16. The Attorney-General focuses specifically on the retrospective effect of Clause 51 of the Bill, which requires that offenders who are currently serving a sentence for a qualifying offence, or subject to an Extended Supervision Order following sentence, are registered on the CSOR.⁹ The Attorney-General finds that this impairs the rights of this group of offenders under s 26(2) “more than is reasonably necessary” due to the Bill’s lack of any available review mechanism or limitation period.

17. The Commission shares many of the concerns expressed by the Attorney-General in his report. In particular, the Commission considers that it is essential that the Committee addresses the inconsistency that exists between the Bill’s policy rationale and its content as regards the duration of CSOR registration.

18. The human rights principle of proportionality is directly engaged when considering this particular issue. The UN Human Rights Council (UNHRC) has described the principle of proportionality as requiring that any rights-restricting measure designed to protect the safety of the public¹⁰:

• must be the least intrusive measure amongst those which may achieve the desired result; and

_{• must be proportionate to the interest that is protected}

⁸ ibid para 23

⁹ ibid para 29 – it is noted that the draft Cabinet paper estimated that this transitional provision would apply to

472 current offenders.

¹⁰ UN Human Rights Council, General Comment No 27 (Article 12), paras 14-15, 2 November 1999,

CCPR/C/21/Rev.1/Add.9,

19. A proportionate approach would necessitate that limitations are placed on the duration of registration in a manner appropriate to the circumstances of the offender, the qualifying offence and the risk to the safety of children and the general public.

20. Of additional application is the UNHRC’s recently developed draft General Comment No. 35 on the right to liberty and security under Article 9 of the International Covenant on Civil and Political Rights (ICCPR). The draft General Comment emphasises that any preventative measures that follow release from imprisonment must be proportionate, not be arbitrary and be aimed at rehabilitation and re- integration in to society¹¹.

21. Furthermore, in its General Comment on the Right to Equality before Courts and Tribunals under Article 14 of the ICCPR, the UNHRC reiterates the prohibition against double jeopardy in respect of criminal offences.¹² The UNHRC does not explicitly refer to the prohibition applying to post-release conditions, instead referring to re-trial before a court of tribunal. However, insofar as CSOR registration can be interpreted as an extension of penal procedure, its use could possibly be interpreted as inconsistent with the procedural requirements of Article 14, given the absence of an independent review mechanism.

22. The Commission agrees with the Attorney-General’s observation that there is no apparent evidence to suggest that an independent review mechanism, such as the model used in the UK, would be impracticable in New Zealand.¹³ The Commission therefore recommends that the Committee consider amending Clauses 35 and 36 of the Bill in order to enable a registered person to initiate a review, at the first instance via an administrative application to the Commissioner of Police, with an independent appeal avenue to the District Court.

Human Rights Commission Contact Person:

John Hancock

Senior Legal Adviser

_{JohnH@hrc.co.nz}

¹¹ _{ibid para 21}

¹² UN Human Rights Council, General Comment No 32 (Article 14), Part VII, CCPR/C/GC/32 (2007)

¹³ Report of Attorney-General, para 22