Child Protection (Child Sex Offender Government Agency Registration) Amendment Bill

Thank you, Madam Chair, for the opportunity to take a call in regards to Part 2 of the Child Protection (Child Sex Offender Government Agency Registration) Amendment Bill. I have a few questions for the Minister in relation to clause 5, and my questions specifically relate to new clause 11, which is the “Exception for a particular appellant and decision as it relates to them”, and which says that “new clauses 5 to 8 do not—apply to the particular appellant” in the Supreme Court case which has brought this piece of legislation here to the House, and does not affect the judgment as it relates to that appellant.

My understanding of this issue is that, based on the advice from the Minister, this clause has been included based on the judgment, due to the fact that the Supreme Court found that the registration should be quashed on the point of law that the Supreme Court found that Parliament was not clear enough in its intent, that the retrospective provisions were retrospective enough, effectively. That’s what the Supreme Court found.

The question I have is what advice the Minister’s received on this particular issue, and was the insertion of this clause based upon the fact that the decision would be based on the point of law or based upon the new evidence which the Supreme Court accepted at the time of their hearing, whereby two of the Supreme Court Justices concluded that based on that new evidence, they did not believe that the registration order should have been made in the first place, notwithstanding their view of the point of law. And two of the Supreme Court Justices said that the registration order should remain. Effectively, they said that it should remain. One Supreme Court Justice didn’t make a determination based on the new evidence at the time. So, in my view, that issue is inconclusive based upon the new evidence. So my question to the Minister is whether the insertion of this clause is therefore based upon the conclusion that this case be decided on the point of law, which we’re not overturning today.

Thank you, Madam Chair, and I thank the member for the question. My understanding of it is this, and I may not articulate it as well as the many lawyers that are in the Chamber. This person took a matter to the High Court, to the Court of Appeal, and then to the Supreme Court. The Supreme Court Justices decided that there was not sufficient gravity to justify the making of a registration order. So in the Supreme Court, the decision was made about whether that person in the court—remember, they’re appealing the original decision to have them on the register in the first place—the Supreme Court found that it was not of sufficient gravity to justify the making of a registration order. What we have here is a situation which is very delicate. As a Parliament, we should not be reviewing individual cases, and there is a principle of the separation of powers here. So in this case the insertion of clause 11 is to provide for the fact that it has been decided that this person, by the virtue of the Supreme Court decision, would not have sufficient gravity to have a registration order. So that’s the compartment with which we deal with this particular situation.

The other thing we need to consider is that this person may go back to court, should we exclude clause 11, and then we may find ourselves in this situation where we come back to correct this again. Now, don’t get me wrong, I have some sympathy for the position that you are trying to articulate, but in this case we would not be supporting the removal of clause 11.

Thank you, Madam Chair. Thank you to the Minister in the chair, Poto Williams, for the clarification. My understanding of the case was that the issue around whether there was enough evidence was actually not concluded completely, in that two Justices said the new evidence did conclude that issue, that there was new evidence and therefore the offender shouldn’t be registered. Two Justices said the registration should remain, and one Justice didn’t actually make a conclusion on that matter, which means that the paragraph 3 in the judgment would indicate to me that the decision to have the offender removed from the register was based purely on the point of law, which is the issue that we are, essentially, legislating on today.

So effectively, from my reading and my understanding of this judgment, we’re effectively passing legislation here today to reverse the Supreme Court’s interpretation, clarify the matter, and say, “Actually, no, Parliament’s intention is we intended this to be retrospective.” So we’re essentially disagreeing with the Supreme Court on—well, we’re essentially clarifying Parliament’s intention that this is their view of the old legislation. We’re essentially clarifying the position. As they, in my reading of it, didn’t actually come to a conclusion as to whether this new evidence should be taken into account, whether it was relevant for the removal of the individual’s registration, we’re in a position where we’re effectively saying, of the 600 people who qualify for potential removal, if we don’t act tonight—we’re saying 600 of them, we will ensure they can go back on the registry, but there’s just this one guy which we’re going to leave off based upon this decision.

So that’s my understanding of the case, and I’d appreciate if the Minister could clarify that particular issue and any advice she’s received. She did allude to in her answer the issue that if we were to remove new clause 11 of Schedule 1, inserted by (clause 5, she said, potentially there could be further action taken by this individual in terms of court action. But my read of it would be that this particular individual would then fall under new clause 8 of Schedule 1 and would require a prosecutor to, potentially, take the issue further, if that’s what they decided to do.

I’d also like to speak to the Minister, please, on new clause 11 of Schedule 1, inserted by clause 5(7), just because clause 11’s first bullet point is that the decision—

💬 Hon Member: What clause are we on?

Sorry—“Exception for particular appellant and decision as it relates to them”. Clause 11 provides that the new clauses 5 to 8 do not apply to the particular applicant. So does this mean that if that applicant went on on another case and was convicted of something else, that this would now not apply to him for any potential future cases?

I’ve just tabled an amendment to this bill, which, effectively, removes clause 11 so as to ensure that this legislation doesn’t actually provide a particular exception for the particular individual in the Supreme Court case. I believe there’s a number of reasons why this particular tabled amendment should be considered by the committee of the whole House, and that first and foremost my reading of the judgment indicates that this judgment discussed two issues: the first was the issue of retrospectivity, in which it found that the Parliament was not clear enough in its intent and therefore quashed, effectively, the registration for this particular individual and said he is not eligible to be placed on the register. The Supreme Court then went on and debated other issues, which included whether it was legitimate to take into account updating reports of the clinical psychologist who treated the appellant since his original sentencing.

Effectively, what happened was that the court decided that, yes, the Supreme Court could take into account those updated reports, and then they made a decision as to whether, based on that decision, they were satisfied that the appellant posed a risk to the sexual safety of children. Two of the Supreme Court Justices said they believed he did not continue to pose a sexual safety risk; one decided, based on the facts, on the new evidence, that he did continue; one Justice considered that, actually, the evidence should be considered at the time and then, based on that, that the registration was appropriate; and one Justice did not decide on that issue. So, basically, she said, “Given her view”—this is paragraph 10 of the judgment—“the registration does not apply to the appellant and Justice Ellen France does not consider it necessary to express a view as to whether a registration order should have been made under section 9.”

So, I guess, the concern on this side of the House around this clause is, effectively, that we are confirming a position about the risk of this particular individual, which was an issue which was not actually decided upon by the Supreme Court. They did decide on the point of law and, on that point of law, six hundred and something individuals could be removed—and we’re saying, actually, we don’t want those people removed; we don’t believe that should happen—but, in this particular instance, this individual is being removed by that point of law but we’re here, in clause 11, saying we’re giving effect to the Supreme Court’s decision that the prior legislation was not retrospective enough for this one individual. And, on this side of the House, I don’t believe that’s something we can accept, and that we should be removing clause 11 and then allowing this individual for the process that all of the other 600 individuals would have to be going through to ensure that their registration is retained, or that decision would have to be made, or clause 8 allows for a prosecutor to apply to the court regarding individuals, around their registration. So that’s what we’re, effectively, doing and arguing for, and we would appreciate the Minister’s views and potential support to that tabled amendment.

Thank you, Madam Chair. I just want to add a perspective to the intervention from Mr Brown on the tabled amendment in his name, deleting clause 11. I want to look at it from the constitutional perspective, because this is, on the face of it, quite a drastic action by this committee. But as Mr Brown describes, if one looks deeper into the decision of the Supreme Court, there were obviously quite different views amongst the Justices about what to do, firstly, in respect of whether or not even the legislation passed by this House in 2017 was insufficient to prevent someone convicted in that window between the commission of the offence and the passage of the law. I’m moved by Justice Young’s consideration in paragraph 9. I quote the judgment: “[Justice Young] considers that at the time the appellant was sentenced, he posed a real or genuine risk to the lives or sexual safety of one or more children or children generally. The making of a registration order was therefore appropriate. He would have dismissed the appeal.”

Now, we work in this House as a democracy, and so—in this case, at least—did the Supreme Court. They were 3:2 in favour of allowing the appeal. They were 2:1:1 on the matter of whether the individual, the appellant, should have been given relief from a registration order. So I reconcile the apparent constitutional conundrum, where this House is being asked to consider the deletion of this clause, by applying the same democratic process that the Justices did. We have a choice now to determine whether or not, on the balance of our view of this case, a registration order should be made. As I said in my first reading speech, the idea of us passing legislation effectively expunging, potentially, part of the registration order—the Supreme Court has, effectively, done that. If indeed that’s the case, then this is a clause that isn’t necessary. But, actually, I think when one looks at the legislation and the offending and asks oneself whether or not this was a case that members of Parliament foresaw would have qualified for a registration order, I think the answer is yes.

So in recommending the deletion of clause 11, I’m at pains to point out that we are not attempting to ride over the Supreme Court’s ruling, which is constitutionally difficult, but rather it should be seen as this House considering, by its numbers, the same question that the Supreme Court did. Now, whether or not that amendment is successful will be a matter for the committee, but I don’t want members to think we are setting a precedent here where the stuff we don’t like the Supreme Court doing we can simply ride roughshod over. I don’t think that is what we are trying to do here. I think we need a careful consideration of our House’s intent, the Supreme Court’s careful consideration of what that intent was, and to step back from it and say, “What is the right thing to do for New Zealanders? What is the right thing to do for the children, some of whom have been hideously harmed by the images that this individual sought gratification from?” I think that when we look at it through that lens, I believe, Mr Brown believes, and the National Party believes it is appropriate for the individual who was the appellant in this case to be subject to a registration order.

Thank you, Madam Chair. I’m grateful to have the opportunity to engage in a debate that’s clearly hugely important on a number of different levels. The substantive risks and the stakes could hardly be higher, as the Hon Michael Woodhouse has alluded to. But constitutionally too, this is a hugely important moment for our democracy, our nation State—dare I say it. I don’t want to overdramatise, but we face a very fundamental question in this House today of who makes the rules, as a distinct question from who makes the rulings.

It might sound almost too obvious to say, but we need to consider very carefully the role of the legislature in legislating and the role of the judiciary in adjudicating. Comity goes both ways. It’s not acceptable for a Parliament to tell the courts what to do in any individual case, but so too it is true that the courts should not do the role of lawmaking in the sense of the laws of the statute book. Indeed, they are to apply them, and they are, of course, to interpret them as necessary in an individual case, and interpretation may take the form of preferring, in the event of ambiguity, an interpretation that’s consistent with the New Zealand Bill of Rights Act. That’s all fine. That is all right. That is all proper. Indeed, that is all good.

But what we have here in front of us is not only a piece of legislation and a New Zealand Bill of Rights Act report but also a Supreme Court judgment that together present a very troubling picture in terms of a degree of confusion that I believe has now arisen in relation to specific cases, the interpretation of the Acts of Parliament, and, dare I say, the attitude—and it doesn’t give me any pleasure to say—of some members of the bench in relation to the respective roles of these branches of Government.

Speaking to Part 2, particularly, of the bill, colleagues have raised a couple of technical difficulties in relation to proposed clause 11 of Schedule 1, in clause 5(7). The member from the ACT Party Nicole McKee raised what I think is actually a really good point in relation to the apparent effect of clause 11, which is to say that, in relation to the particular appellant in the case D v New Zealand Police, the law is not to apply to that person. It seems to me an open question, whether or not intended by this Parliament, whether the particular person who is the particular appellant in that case may be exempted from the effect of this law going forward—so not even addressing the question of retrospectivity in terms of the offending that he or she—and I understand he—has apparently undertaken, but, actually going forward as well.

I think the construction of clause 11, if I’ve understood its effect correctly, may erroneously—and that is to say: in a way that’s unintended—excuse or exempt that particular person who was the appellant in that case from such judgment going forward. God forbid that he should behave in such a way again that would place in danger the children of New Zealand, such that that would even become a relevant question. I hope that it’s a merely academic point. I hope that it’s a moot point. But, nevertheless, it’s an important one for constitutional reasons, and I give credit to the ACT member Nicole McKee for having raised it in this committee. That’s an additional argument in favour of the withdrawal, the removal, of clause 11, as has been recommended, and indeed tabled, by Simeon Brown.

My other question mark is in relation to proposed clause 12 of Schedule 1, in clause 5(7). I think I’m right in my understanding, but I would be grateful for any guidance the Minister can provide in this regard. I think what we have here is an overriding of any inconsistent other law, so any law arising from that particular case is going to be overridden by clauses 1 and 5 to 8 of Schedule 1, notwithstanding that clause 11 as it currently stands says that those don’t apply to that particular appellant. So we’ve got almost a situation of competition between two different clauses there, but I think I’m right in saying that the intent of the Minister, and, no doubt, the Parliament as a whole, will be to say that that case has no precedent value but, in respect of that particular person, it should apply.

Thank you to members for their questions. I’ll go to Nicole McKee’s first, regarding whether clause 11 would prevent this person from future placement on the register. No, this only applies to the appellant in the particular case—that is the offending that’s being dealt with by the court; this person, the appellant, would be subject to consideration for placement on the register for any future offending.

I will come to Mr Brown’s question—and I just want to clarify the answer that I should have given before, but didn’t give quite enough detail: the court actually quashed the registration order on the basis that the appellant was not eligible to be registered because he was not convicted and sentenced until after the Act commenced; basically, the issue at hand.

💬 Simeon Brown: Like everybody else.

That’s right. The court went on to—as we know, as has already been spoken about in the House—consider whether a registration order would have been made if he was eligible. And that is where we’ve come to the matter where the two judges found no, two judges found yes, and one did not express a view. That does not change our view that we will not be accepting the Supplementary Order Paper to remove clause 11.

Thank you. I would just take a very quick call in response to the Minister’s first comments about the passage of clause 11 not precluding the appellant being placed on the register. I want to just clarify that I think what the Minister means is that in order for that to happen, further offending needs to take place, and that’s the same for everyone. Whether they have committed an offence or not, in the future—if they further offend, or offend for the first time—they could be subject to a registration order. So I want to just clarify whether that’s what she intended to say, if that’s what she meant, but also point out that the placement of this offender on the register now may well prevent that future offending. That is, in part, what the register is designed to do, and potentially the likelihood that further offending could take place may be reduced.

Thank you, Madam Chair. I think my colleague Michael Woodhouse makes a very good point. The point I’d like to make, though—another argument in favour of removing this, which I’d appreciate the Minister’s consideration of—is, this clause 11 is an exception for the particular appellant as it relates to them. It says here, clauses 5 to 8 do not apply to the appellant in that case, or affect the judgment as it relates to that appellant. I can understand (b), which is the constitutional issue, but (a), essentially, gives this individual an exemption around any other offending that he may have done prior to 2016 and this legislation coming into effect. This is a very broad exception, in my opinion, to this individual, which I think needs to be taken into account very seriously.

Because what we’re doing here is essentially saying any offending which happened at any time prior to that legislation can then be brought to the court, the individual charged, convicted, and then for that person to be placed potentially on the register. There’s a discretion for the courts in some situations to place a person on the register. If this individual has—and we’re not aware of it yet—for some reason, offended in addition to the offending that he’s already been convicted of, effectively, if he is convicted of that, the courts now have no opportunity to place this individual, assuming that offending happened prior to 2016, on the registration for a separate historical offence. That is my reading of clause 11(a), because that does not necessarily relate to this particular judgment but relates to any offending that may have been done by this individual prior to the 2016 legislation coming into force.

If my reading is correct, it should concern the House that this particular individual has now been exempted in a way that every other person, who may or may not be going through the courts or who may have offended but the offence has not been yet discovered and has not been charge with, still could be put on the register, but this particular individual cannot. So I’d appreciate the Minister’s consideration on that particular point.

That’s not my reading of clause 11. My reading of clause 11—or my understanding is that the court quashed the registration order based on the offending and the conviction that was presented to the court. It’s not my reading that other offences that may or may not have happened prior to the legislation would be captured by that.

So has the Minister received advice regarding that particular point, in regards to clause 11(a), because I think it is of quite serious concern, and what does that advice say?

Thank you, Madam Chair. When I look at clause 11 and hear the arguments from my colleagues across the way there, I can understand and hear both sides of the argument, and what concerns me is our intent could be erroneous again if we don’t get the wording just right. What I mean by this is with that first bullet point, “apply to the particular appellant in” the decision, so while you, Minister, tell us that it’s about the decision that was made in the Supreme Court at that time, the argument is: is that clear enough in that bullet point? Because what we don’t want to occur is for the potential for the appellant to go on and reoffend and read that bullet point the same way that the National Party and the ACT Party have. We want to make sure that this bill goes through absolutely watertight. To be honest with you, I’m not quite sure how we go about doing that. But that’s just the concern, that I think that that particular bullet point can be read in two different ways and therefore leave a door open for that appellant and a smack on the hand to us from the Supreme Court once again. Thank you.

I thank the member for that comment. I just want to reassure that member that the legislation that we’re passing today deals with retrospectivity. So any future offending will not be captured by that, that we are very clear that this is about ensuring that people who have committed an offence prior who were charged and convicted after the passage of the legislation are now going to be included in the ability to have registration. It does not preclude future offending. Someone who is charged and convicted of future offending that is eligible to go on to the register will do so.

Thank you. Just very straight—oh, well, firstly, just a request for clarification. My colleague Michael Woodhouse had previously asked the Minister whether it’s the case in her mind that for the appellant in the D v New Zealand Police, it’s only going to be that he would be registered in relation to any hypothetical future, such offending, in the same way that that would also apply to any other person in New Zealand to whom the law applied!

And my other question is a reasonably straightforward one: does she believe that this bill is consistent or inconsistent with the New Zealand Bill of Rights Act?

Thank you, Madam Chair. I’ve got a couple of questions on two separate matters, and that’s it in relation to this part. So the first question is in regards to the judgment by the court where they now consider it legitimate to take into account the updating reports of clinical psychologists on appeal. Now, on that particular point, whilst this legislation doesn’t necessarily deal with that issue, I’m wanting to know if the Minister has received any advice in regards to this particular issue, because, for a sentence such as this, this individual would be on the register for eight years. This, essentially, gives the ability for appeals—it would appear that it gives the ability for appeals—to take place and for individuals to then present new evidence and then to be, potentially, removed from that register before that eight-year period is over. I’m just wondering if the Minister’s received any particular advice on that issue or has any concerns about that issue.

The second is in relation to clause 12, which is the overriding of any inconsistent other laws, and this is a very important section because, essentially, this is the section we hope means we don’t have to come back here and do this again at some point, because it, essentially, overrides section 6 of the Sentencing Act and sections 25 and 26 of the New Zealand Bill of Rights Act and this judgment, and whether the language in that section is expressive enough and whether the Minister is confident that that language is expressive enough to express Parliament’s intent that we are overriding these other pieces of legislation. I do note the Supreme Court did refer to the language used by the Parole Act in relation to its retrospectivity and provided some recommendations around the type of language which could be used, such as “to avoid all doubt”, “to avoid doubt”, and whether this particular section avoids all doubt and with expressive enough language so that this is not an issue which has to be potentially traversed again.

I wish to ask the Minister a simple question from a humble electrical engineer. This legislation is all about overriding a court’s decision and saying that this Parliament doesn’t agree. We would like to see certain people registered as offenders, but it has in new clause 11 of Schedule 1 of the Act, as set out in clause 5(7), an exception that says while we’re happy to override one decision of the court, we’re not going to override another particular decision. Now, obviously, it’s been controversial and people around the House have taken different decisions about whether Parliament should override a Supreme Court decision the way that it is. I just wonder if you could explain why we seem to be prepared to override one decision but not another.

Thank you, Mr Seymour, for that. I don’t think that your characterisation of what we’re attempting to do is actually accurate. We’re not attempting to override the decision of a court. The court has made a decision which has then resulted in that particular view being applied to others. So what we’re attempting to do is tidy up the law because it was clear from the Supreme Court that our intent and the clarity of the legislation that we passed were not the same. So what we are doing with this amendment is actually indicating our intent, which is that people who have offended prior to the passage of that legislation, were charged and convicted after, are captured.

The whole point of this is about ensuring that people who have historic sex offences against children are eligible to go on to the register, and therefore be monitored and therefore supported by Government agencies—that is the whole point of what we are trying to do here. We’re not trying to override decisions of courts. We’re trying to ensure that the courts are able to use our legislation to the full effect of the intent of Parliament.

Can I come to the matter of clause 12 and clause 11—and this was a question that Mr Penk posed. There is no competition between clause 12 and 11 because they are consistent. Clause 11 is the exception and clauses 5 to 8 do not apply to the appellant, so clause 12 does not apply to the appellant.

The question is that Simeon Brown’s tabled amendment to Part 2 deleting new clause 11 from clause 5(7) be agreed to.