Parole (Extended Supervision Orders) Amendment Bill

April 5th, 2009 at 11:04 am by David Farrar

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 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 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

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13 Responses to “Parole (Extended Supervision Orders) Amendment Bill”

  1. greenfly (1,059 comments) says:

    Disquiet? No ‘trick’ involved? Only the gullible would believe that.

    [DPF: Well trying to keep the public safe from paedophiles is not something you generally would try to trick people over. It's not like selling an SOE]

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  2. AG (1,784 comments) says:

    DPF:

    “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.”

    Hang on – you can’t have it both ways here. You can’t essentially say “it was the Green’s own fault for taking the Minister at his word on the effect of the legilsation, and if they choose to believe him without checking for themselves they are idiots”; and also say “there was no ‘trick’ involved.” Plus I find it very hard to believe the AG’s opinion was not known at the time of the discussions on fast-tracking this … S.O. says that the s.7 notice has to take the form of a paper for publication in the House of Reps, so it’s hardly a last minute, two line memo on a post-it note! Alternatively, if you are saying that the Govt is rushing legislation through so quickly that the Minister of Justice/Leader of the House has no idea what the Attorney-General is doing, then that is hardly any better!

    I think Chris Finlayson is doing an admirable job in trying to rehabilitate the s.7 reporting procedure. Frankly, I think he’s been shafted by his own side on this one. And I also think the Nats probably have lost the Greens’ trust on any other “routine” law changes they might choose to make. So all round dumb, dumb, dumb.

    [DPF: I didn't say it was the Greens own fault. I just doubt that it was some sort of deliberate trick, as that is not something Simon Power does.]

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  3. F E Smith (3,302 comments) says:

    I am in two minds over this one. I agree that it is important to be able to maintain some form of supervision over the offender once their sentence is up. Having represented people who fall into this category I am well aware that a lot of the so-called ‘rehabilitation’ programmes that are found within the prison system are a bit of a joke. It is also important to acknowledge that there are sadly some people who will always be a danger to society in this manner.

    However, this is not simply an extension of parole conditions. This is really a form of sentence in its own right, more akin to the home detention (as noted in the post) than actual post release conditions. I suppose the issue I have with it is that the application of parole and post-release/detention conditions is so inconsistent up and down the country, and even within the same Probation office. A lot of the efficacy of the law depends on the attitude of the probation officer involved. Unfortunately, that can sometimes be dreadfully authoritarian and other times it can be completely and inappropriately relaxed. Perhaps that is another issue for Barry Matthews to address when he tries to reform Corrections?

    I would be interested in seeing some research into the effectiveness of the extended supervision orders. From my experience in working with clients both in prison and on Home D, I suspect a large amount of offenders would prefer to remain in prison. 12 months Home D is considered tough (I have had clients turn it down and elect a prison sentence instead) and 10 years must seem a bit of a nightmare.

    Just as an aside, take Ministry of Justice advice with a large bucket of salt. They are not committed in anyway to the concept of justice other than the punitive aspect of it. Their unashamed goal is to attain a higher conviction rate and they will happily try to rort the system to achieve that. Crown Law, on the other hand, are at least a little less craven to the idea of ‘guilty until proven innocent and even then only because the defence cheated’, at least now that Val Sim has left.

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  4. s.russell (1,564 comments) says:

    I can certainly understand the Greens being cross about this. They are justified in such an attitude. Whether this is a good law or not, it ought to have proper discussion.

    All the same, I am inclined to give the Govt the benefit of the doubt. I can see no benefit to them in playing any kind of trick over this. The good prima facie case for the change means the Govt need have no fear of it being carefully examined.

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  5. georgedarroch (316 comments) says:

    Well, once again we see a law passed that has significant rights implications, with no apparent care from the Government of the day. It happened many times under the last lot, it’s already happened a few times with this bunch. It didn’t used to be this way. National passed very few laws with adverse BORA reports in their last Government.

    But now, as long as the targets are ‘bad guys’, anything goes; people designated as criminals, gang members, terrorists, copyright infringers, pedophiles, immigrants. Labour don’t care, and the right are cheerleading.

    Are human rights concerns only valid when they relate to election spending?

    I’m not saying this is a good or bad law. I haven’t read it and few seem to have any firm opinions, because few have seen the bill yet.

    And kudos to David for bringing up the subject. I’d like to see less haste and more consideration and consultation in the law-making of this Government. I suspect if this style continues National are going to gradually piss off more people who aren’t necessarily antagonistic to them.

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  6. georgedarroch (316 comments) says:

    And I also think the Nats probably have lost the Greens’ trust on any other “routine” law changes they might choose to make.

    It’s likely other parties have noticed too, although they voted for this without seeming concern.

    I’d be interested to know if Labour were aware of the substance of this bill. I doubt they’d have the guts to slow for a full process it even if they did. They wouldn’t want to be accused of hugging pedophiles by shrill commentators. Much easier to dispense with process and avoid the possibility of a conflict.

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  7. Graeme Edgeler (3,267 comments) says:

    I’d be interested to know if Labour were aware of the substance of this bill.

    I think they were. The first Labour speech on the second reading indicated that this is something the previous government was looking at, the advice from officials over what was needed changed, and the matter was now considered urgent.

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  8. transmogrifier (520 comments) says:

    This goes out to all political parties, everywhere: being “tricked” into supporting a bill is not a defence at anytime, anywhere. You should always read the bill, understand the contents, and then make your decision. Just taking the word of your opposition (or even your coalition partner) is your own damn fool fault.

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  9. georgedarroch (316 comments) says:

    Thanks for clearing that up Graeme.

    I should have made clear – it is unlikely Goff had any concerns about this law. Despite claims to the contrary, he’s a relative hardliner on lawandorder, and I don’t expect to see any major opposition to National/ACT/MP/UF on these matters. I’m happy to be proved wrong, of course.

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  10. ross (1,454 comments) says:

    > I think child abusers do pose a different sort of risk.

    That depends on what sort of treatment they receive while incarcerated. If they receive appopriate treatment, the risk is low. Of course, the problem could be that offenders may feel they have no incentive to be treated…why jump through all the hoops when they’re going to be supervised upon release? But let’s face it, no offender is going to be supervised 24 hours a day, so in fact the risk may increase if more offenders refuse treatment.

    The other issue is that the Parole Board can keep an offender in prison if they pose an unacceptably high risk…so if the Parole Board releases an offender once they’ve served their full sentence, I am not sure why there needs to be supervision. If the offender poses a high risk, they should remain in prison, not released to be occasionally supervised.

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  11. hayek (81 comments) says:

    ” being “tricked” into supporting a bill is not a defence at anytime ”

    I agree with you completely, although with the way the greens speaking out about the bill was headlined in the media you can see why politicians would be loath to be seen to slowing this bill down. The media is so scandal-driven that any emotional topic like sex offenders becomes immediate ground for exploiting, even if it’s just for the sake of a lurid headline and there’s substance to the story.

    Recently I have lost so much respect for the greens but I give them credit for this: the toughest laws require an increase in due process if anything.

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  12. Rex Widerstrom (5,274 comments) says:

    georgedarroch says:

    They wouldn’t want to be accused of hugging pedophiles by shrill commentators. Much easier to dispense with process and avoid the possibility of a conflict.

    Exactly. Which is why pedophiles are always the canaries down the civil liberties mine. Harsh Big Brother laws are passed to “protect society” from them (when in fact they do no such thing, and anything short of 24/7 supervision will not have that effect). Then we’d better give police round-the-clock access even toprivate CCTV systems (as is being proposed in Australia) so they can monitor such people… the fact they get to monitor the rest of us is just tough.

    Then the same draconoan laws start to be applied to others because, well, we already have such statutes on the books, there’s been no objections (because, as Geirge points out, no one has the guts to oppose the original law for fear of being accused of being “propedophilia” which of course is utter nonsense)…

    And so it goes. First they came for the pedophiles…

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  13. lyndon (330 comments) says:

    I understand the AG’s report also laid out a couple of ways of achieving a similar effect with the level of BORA violation. Which would be kind of all win, yes?

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