Neil Sands
New legislation is needed to ensure the community is protected when high-risk violent and sex criminals, including paedophiles, finish their prison sentences without violating the offender’s human rights, a parliamentary committee says.
The Justice Select Committee made its recommendation after the Supreme Court last year declared that the current measures used to manage such offenders – public protection orders (PPOs) and extended supervision orders (ESOs) – were inconsistent with the New Zealand Bill of Rights Act (BORA).
PPOs allow offenders to be detained in secure facilities on prison grounds and ESOs allow them into the community, subject to special conditions such as electronic monitoring or being banned from a specific place.
The Supreme Court’s declaration resulted from a challenge lodged by serial child rapist Mark Chisnall over the conditions imposed on him when his sentence ended in 2016.
The court found PPOs and ESOs were inconsistent with BORA because they effectively impose a second punishment for the same offence.
The select committee said submissions on the topic raised concerns that PPOs and ESOs could be applied retrospectively and that such post-sentence measures impinge on “the protection against double punishment, [which] is a core safeguard against abuse of State power and a critical protection of individual liberty”.
Complex issue
However, it said that submitters also acknowledged the need to protect the community from further offending, quoting the then Justice Minister Phil Goff when he introduced ESOs in 2003:
“The right of children to be protected in these instances must come before the right to total freedom of a child sex offender released from prison who is deemed likely to offend again,” Goff told Parliament at the time.
The committee said new legislation was needed, establishing a regime that keeps the community safe but also addresses the Supreme Court’s concerns.
“We think substantive legislative change regarding post-sentence orders is needed,” it said. “We recommend that a new, single statute should replace existing legislation. We acknowledge that legislative reform will be complex, and detailed policy work will be needed to consider both public safety and the human rights of offenders and victims.”
It cited a Law Commission report released last year which proposed scrapping PPOs and ESOs in favour of a three-tier system of post-sentence measures – supervised life in the community, detention in a community-based residential facility, and preventative detention in a secure facility which would be used only as a last resort.
The select committee said the guiding principle of any new regime should be community protection, but it should also be non-punitive, focusing on preventing further harm and offering opportunities for rehabilitation.
“The new regime should include three tiers of graduated post-sentence orders to manage high-risk offenders and have an increased focus on rehabilitation and reintegration.
“Importantly, the new regime should have the effect of continuing to protect the public from any further victimisation and maintain respect for the dignity of victims.”
The committee said officials had indicated policy work would take about two years and urged its successors in the next Parliament’s Justice Select Committee to monitor progress on the issue.
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