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New Zealand Human Rights Commission Submissions |
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 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
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
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