Parole (Extended Supervision Orders) Amendment Bill

I have no problems with the substance of the Parole (Extended Supervision Orders) Amendment Bill which allows child molestors to face parole type conditions for up to ten years after their sentence.

But I share the disquiet that this law change was done with no select committee hearing, especially when the Attorney-General has said that the law change was more than just fixing a technical error.

The best analysis of this comes from Claudia Geiringer on the Vic Law School Blog:

The government argues that in doing so, the Bill is simply re-instating the status quo that existed prior to 2007. It says that an amendment to the legislation in 2007 inadvertently restricted the reach of the regime, and that this Bill reverses the position. It seems that it is on this basis that the House gave leave for the Bill to be introduced and read on the same day. (Usually, Bills must sit on the order paper for three days following introduction before they can be read.) This avoided the necessity of the government bringing a contentious motion for urgency in order to push the Bill through, though presumably it would have done so had leave of the House been refused.

It is interesting that the House (including the Greens) gave leave for this to be done.

The Greens say they gave their blessing in this case because they had been told the legislation only made a technical change. Problem is, the government’s own senior law officer – the Attorney-General – disagrees. When the Bill was introduced, the AG tabled a report under section 7 of the New Zealand Bill of Rights Act 1990 in which he concludes that the Bill is inconsistent with a number of rights and freedoms contained in the Bill of Rights – the rights against retrospective penalties and double jeopardy; and the right not to be arbitrarily detained. His particular concern is a provision that will enable the Parole Board to impose conditions similar to home detention for up to 10 years following the expiry of the sentence. The AG does not agree that this power existed prior to 2007. He thinks the Bill before the House this week brings in that power for the first time. He also says that the breach of human rights is unjustifiable because there are alternative methods by which the same result could have been achieved. The Greens now say they feel they were tricked into supporting the variation from parliamentary procedure because they weren’t told in advance about the AG’s report.

The Greens could of course have asked to see a copy of the bill in advance before agreeing to grant leave for it to go through all stages.

I also suspect there was no “trick” involved. The Justice Ministry advice presumably was that this power always existed, while Crown Law disagrees (and the Attorney-General obviously concurs with Crown Law).  It is likely the AGs opinion was only known at the last minute, and that there was no deliberate holding it back.

Regardless there is a legitimate debate about whether this is a new power, being granted. And in that case, it should go to select committee to have that debate:

But whether the interpretation is right or wrong – and I haven’t had a chance to sort that out for myself yet – is not the point. This is a process question. When the Attorney-General issues a report under section 7 of the Bill of Rights, it is a signal to the House that there is an important issue to be addressed concerning the fundamental rights and freedoms of people within our borders. In New Zealand we haven’t opted for a system of judicial supremacy so our courts can’t strike down legislation that breaches our rights. Instead, we’ve trusted to the good sense and fair mindedness of our elected representatives. Our Bill of Rights asks them to be the custodians of the Bill of Rights, and a section 7 report is one of the triggers for them to take their responsibilities seriously.

The AG’s report is not the last word on the human rights implications of legislation – it is the first word. After carefully considering the matter, Parliament may disagree with the AG. It may consider that the AG has misunderstood the law; or that the limits on rights contained in the law are reasonable in light of the extent of the problem it’s designed to address. What is often lost sight of is that the Bill of Rights does not create absolute rights – it merely warns against legislation that breaches rights in a way that is unreasonable or unjustifiable.

If the system is working properly, though, what we should not be seeing is legislation being enacted in the face of a section 7 report without MPs and the public having had a proper opportunity to scrutinise it.

I concur. Personally I am one of those who thinks the law should be supported. I think child abusers do pose a different sort of risk, and post-release supervision is appropriate. In fact rather than being continued punishment, it may help save paedophiles from their own behaviour.

But that is a debate that should be held in a considered manner.

Hat Tip: Steven Price