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Oranga Tamariki Legislation Bill 2019 (Consistent) (Sections 14, 17, 18, 19, 22) [2019] NZBORARp 10 (7 March 2019)
Last Updated: 1 June 2019
7 March 2018
Attorney-General
Re: Oranga Tamariki Legislation Bill 2019 (PCO 21107/4.0) Our Ref: ATT395 /
290
- We
have reviewed the Oranga Tamariki Legislation Bill 2019 and found it to be
consistent with the New Zealand Bill of Rights Act 1990.
The Bill
- The
purpose of the Bill is to enact consequential amendments to a range of statutes
to give full effect to the Children, Young Persons,
and Their Families (Oranga
Tamariki) Legislation Act 2017, which modernised the legislation dealing with
children and young persons
who are in need of care and protection or who commit
offences, now called the Oranga Tamariki Act 1989. Significantly, the Act
extended
the definition of young person to include 17 year olds, which required
amendment to a number of enactments which make up the criminal
justice system
including the Criminal Procedure Act 2011, the Bail Act 2000 and the Criminal
Investigations (Bodily Samples) Act
1995.
- The
Bill also corrects what are described in the explanatory note as drafting errors
in the Children, Young Persons, and Their Families
(Oranga Tamariki) Legislation
Act 2017. A part of the Act not yet in force gave Family Courts the power to
make various interim orders
in respect of children or young persons in need of
care and protection of its own motion, even where there were no other
proceedings
in respect of that child or young person. This Bill will make clear
there was no intention to give the Court a power to make orders
without a
properly constituted proceeding being on foot. The proposed correction of this
drafting error does not raise any inconsistency
with the Bill of Rights Act.
The right to be free from discrimination is limited but not infringed by this
Bill
- Any
legislation prescribing age-limits invites consideration of s 19 of the Bill of
Rights Act, which guarantees the right to be free
from discrimination on any of
the prohibited grounds of discrimination in the Human Rights Act 1993, one of
which is age.
- The
test for discrimination in the present context is whether the Bill causes
differential treatment on the basis of age between persons
in comparable
situations, causing a material disadvantage to one of those persons. An offender
who is under 18 years of age will
get the benefit of access to a less punitive
and more therapeutic criminal justice regime. An offender who is otherwise
comparable
but over 18 is
2
excluded from that regime and that is a material disadvantage. Section 19
will not be infringed if the discrimination is demonstrably
justified in a free
and democratic society. Any civilised society that is free and democratic will
recognise that young persons who
offend require different treatment to adults,
and any such regime must define what a young person is for this purpose.
Parliament
must be free to prescribe whether that threshold should be 17 or 18
years of age for the purpose of administering criminal justice.
Section 19 is
not infringed by this Bill.
Other guaranteed rights
- Maintaining
a separate and effective criminal justice system for young persons will
necessarily involve giving powers to the Court
that will limit protected rights.
For example the Court will need powers to make orders suppressing their name and
the details of
the offending (limiting s 14 - freedom of expression),
authorising their detention in custody (potentially limiting s 22 –
freedom from arbitrary detention) or imposing conditions on their release
(limiting s 17 – freedom of association and s 18
- freedom of
movement). These powers are discretionary and are conferred on courts which are
themselves required to act consistently
with the Bill of Rights Act when making
those orders. This Bill will modify some of these powers to accommodate the
change to the
definition of young person but not alter the balance in such a way
as to require reconsideration of their consistency with the Bill
of Rights
Act.
- Altering
the definition of young person for criminal justice purposes requires
transitional provisions to accommodate those who are
already subject to
proceedings when the Bill becomes law. These changes are all procedural in
nature and do not affect the penalties
for any of the offences they might be
charged with so s 25(g) – the right to the benefit of the lesser penalty
where the penalty
has changed between commission of the offence and sentencing
– is not engaged by the transitional provisions.
- This
advice has been peer reviewed by Alison Todd (Crown Counsel).
Austin Powell
Senior Crown Counsel
|
Noted
Hon David Parker Attorney-General / /2019
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