Child Protection (Child Sex Offender Government Agency Registration) (Overseas Travel Reporting) Amendment Bill

Members, we now come to Part 2. This is the debate on clause 6, amendment to Schedule 1, and the Schedule. The question is that Part 2 stand part.

It feels like just a moment ago we were discussing Part 1, but now we’re on to Part 2. Part 2 is our part around the amendment to Schedule 1, which inserts the parts set out in the Schedule of this bill, as the last part. Of course, the Schedule, being inserted in new Part 2 of Schedule 1 of the Child Protection (Child Sex Offender Government Agency Registration) Act 2016—the way I understand it, it’s an interpretation section, and that is the clarifying provision to ensure that retrospectivity is clear in this instance. I refer back to the report of the former Attorney-General, who I thought wrote a well-written, very insightful report a couple of years ago. If any members have it in front of them, I actually thought it was quite a good way to approach the issue. The Attorney-General wrote that he interpreted the bill in line with the Interpretation Act and the legislation design advisory guidelines, which state that if retroactive application is intended, it must be stated in the legislation.

Now, what you have in part in new clause 13 of new Part 2 is the “Interpretation”, which defines what a “specified registrable offender” means. You’ve got paragraphs (a), (b), and (c) there, which actually list different dates as to when offending may or may not apply. So the way that works in practice is that paragraph (a) defines offending occurring before 14 October 2016, which is when the Principal Act was passed into force, I believe, under—well, it was under the Key Government, so it must have been, probably, Minister Tolley back then. Then, paragraph (b) has offending on or after 14 October 2016 and before commencement. So that’s that period after the original Act came into force and before this amendment bill has come into place. Then you’ve got subsection (c), which is offending on or after commencement.

The combination of those paragraphs, I understand is—and I may be well off track and members opposite can jump to their feet and let me know if I’m getting any of this wrong—that the intention of this clause is to deal with the retrospectivity aspect of it. That is important because it is a fundamental principle of the rule of law, and it’s actually stated in our New Zealand Bill of Rights Act that when Parliament passes laws that have or may have retrospective effect on individuals or on people—or on anyone, really—that retrospectivity must be stated as explicitly and as clearly as possible. We actually had this discussion in the Justice Committee.

The reason that principle is important is because the rule of law will tell you that in order for law to be good, it must be known and it must be understood, and it must be known ahead of time. We’ve always got to know what the law of the land is, and what the rules are that apply to us. The inherent unfairness that exists when a law is passed to condone or make illegal activity retrospective of the current situation—if a new Government comes along and says “What you did 10 years ago is now unlawful, despite the fact that what you did at the time was lawful”, that is a serious breach of the rule of law. So when Parliament does that, it does it very deliberately, it does it very carefully, it does it very rarely, and it makes sure that when it does it, it is explicit and it leaves no room for doubt.

I don’t want to comment on any particular court case, but we’ve seen what happens to laws that are ambiguous and unclear when they go through to the courts. The courts will give a rights-consistent interpretation, and where a statute is seen to be possibly retrospective or not retrospective, the courts will fall on the side of caution and they will interpret that section as not having retrospective effect. Then, of course, what happens is that Parliament then needs to return to the House and make clear the changes that say that the law does have retrospective effect. So I wanted to highlight that one very, very clearly because it is an important part of our constitution; it is an important part of legislating. It’s something that we always need to be cognisant of, and it’s something that we actually discussed at length in the committee.

In my final 43, 42, 41 seconds, I did want to make a comment on the other aspects of the section 7 report, which talked about inconsistencies. I wanted to bring a point that the member Greg O’Connor actually made: this is now, by my counting, the fourth time that Parliament has considered this piece of legislation. It has considered amendments to the legislation. It has passed them in full knowledge, with full support of the public, with democratic mandate. If that is not the elaboration of demonstrably justified changes to the law, I do not know what could be. If that is not a justified limitation—if Parliament comes again and again and again and says that we support this as the democratic lawmaking body, I do not know what else we could go to.

Oh, thank you, Mr Chair. Again, I refer to the good work done by the Justice Committee on this, because this is a matter I know they considered seriously. They also heard from the police advisers in making the decision that in creating almost two classes of offenders—which that would do—could impact seriously on the intention of the bill, which of course is to protect potential victims. So the application, the retrospective application, is only for people who are registered offenders, so the offending before 14 October 2016, of course, which is when the bill was passed. So, again, the balance—and again, I thank the good work done by the committee there, that agreeing with the concerns in considering the bill should apply retrospectively and propose the amendment that the member has spoken from, which is to ensure that it makes this intention explicit.

Thank you, Mr Chair. I didn’t get time at the end of the last contribution to just finish off and expand on that point. But if we do look at, under new Part 2, new section 16, there’s actually a very good, I think, drafting exercise that’s been undertaken there. Because what this section actually does is it says “Clauses 14 and 15 override any inconsistent other law”.

So not only have we made the retrospectivity quite clear in the law, we’ve also made it very clear to any possible legal body that may be looking at or interpreting this legislation in the future that despite any other law, these clauses override that law when they are inconsistent. That includes sections 25(g) and 26(2) of the New Zealand Bill of Rights Act 1990. That’s very, very important because we have seen some developments in jurisprudence where the courts have taken an interpretive approach to the New Zealand Bill of Rights Act which say that they may choose to not apply legislation passed by this House. That is fundamentally contrary—

Hon Dr Duncan Webb: No, they haven’t. You’re making it up.

JAMES MEAGER: —to our constitution. Well, I mean, the member opposite can make a contribution—he’s a professor of law; he’s a very smart, talented man who made a lot of contributions during the House. If he wants to give us a rundown of the Fitzgerald case and the court’s interpretation of that and how they have looked at how Parliament is passing laws, he can do so. But why else would this clause be in here? And why else would the member have supported it through the select committee? And why else will he be voting for it, hopefully today, if not for that very fact?

In fact, new section 16(2)(c) explicitly names a particular case of which these clauses will override—to avoid any doubt at all by any judicial body in the future whatsoever. So the member can make a contribution—and it’s a debating chamber, it’s the committee of the whole House stage; it’s the last chance for him to change that if he thinks it’s an egregious overstep by the only democratically accountable body in our constitution. But if he doesn’t make that contribution, then I will have to just assume that he agrees with me wholeheartedly now and forever. So, on that part, Mr Chair, and the member, I just wanted to make that part finally very clear.

Now, the only other one I wanted to draw the committee’s attention to would be new section 14, and that is the application of section 21(4). It’s a difficult one to get your head around, this one, and the reasons for it being in there, but it “applies only to a specified registrable offender who intends to travel out of New Zealand for more than 48 hours.”—“On or after commencement,”. I’m yet to actually wrap my head around how that interplays with new section 13. I know officials are in the room, so if they can just give us a quick couple of lines as to why we have 14 and 15 in place and why that’s not encompassed within 13 around—I am only making assumptions it is to do with the retrospectivity sections, but it wasn’t addressed in our select committee report.

It may have been that Dr Webb was making such vigorous contributions in committee that we were all wowed by his oratory and missed the additions of the officials in select committee and we weren’t able to actually look at that. So if the officials do have time, and if the member can explain just the purposes of 14 and 15 being separate from 13, I would very much appreciate it. I’m sure Dr Webb would appreciate me being able to sit down and sleep peacefully tonight knowing that the jurisprudence in the country won’t be drastically altered by our amendments here tonight.

So, if the member in charge could draw his attention to that—and I know he’s looking keenly at his officials—I would definitely very much appreciate that.

Thank you, Mr Chair. I’d like to draw the member’s attention to section 15, under Part 2. And I’d just like to ask—this is the section where it “only authorises a specified agency to disclose personal information about a specified registrable offender … to another specified agency.” And what I’d like to ask is does the member for this bill, Mr Greg O’Connor, foresee that in the future this can be expanded to not just another specified agency but agencies in general that will relate or pertain or can assist in the kaupapa that we’re trying to reach with this amendment? So can you foresee, in the future, this being expanded to not just to another specified agency but, for example—actually, I won’t give you an example now. Can you see this section in the future being expanded?

Well, thank you, Mr Chair. Anything’s possible. Again, with a member’s bill, I think it’s pretty important just to keep the eye on the prize and just look at what we’re trying to achieve here.

Mr Meager, interesting questions. Probably going a little bit beyond my Buller High School education a little bit, and something that you and perhaps Dr Webb might, over a coffee, be able to have a much better dissertation on. But certainly, from my point of view, I look at the broad outline of what we’re trying to achieve, and I’m very happy with the select committee’s work that saw that very important—I think the clause that you’ve discussed there, that clause 16(1) “The following clauses have effect, despite any other law if, or to the extent that, the other law is inconsistent with them”. And I think, when I saw that, again, in my humble police officer training, I thought that certainly gave me the reassurance I was looking for. But, again, I’m not a trained legal mind, so it may well be it does need more.

But just give me one moment, I have been handed a note just to see—my advice is that only the travel after the amendment. Making it very clear that specific registered offenders are catered for.

James Meager: It’s travel after the amendment date?

GREG O’CONNOR: Yes, yes. It’s making sure it’s catering for those registered offenders is my advice. Thank you.

Thank you for that clarification from the member that it is only applying to travel taking place after the amendment, so the retrospectivity doesn’t apply to travel which took place before the amendment Act. The registration may have occurred beforehand, but if the travel occurred beforehand, we’re not retrospectively going to go back and ask for information about where they had been or intended to go. No, that’s very clear, thank you.

I wanted to raise a point in and under clause 13—that’s the interpretation section; it’s the commencement clause. It’s an important one for me to raise, I think, because it says “commencement means the commencement of the amendment Act”, which is actually very clear. Part of the issue we get when we have amended a piece of primary legislation for the fourth time is that we can start running into definitional issues. We can start referring to acts and amendment acts and bills and all sorts of things. So, having that in the interpretation section is actually quite clear, that’s actually pretty helpful. I wanted to draw members’ attention—and this is something that I got tripped up on quite a few times in my past, as someone who looked at legislation for a living, and had a pretty moderate attempt at interpreting it for a billable rate; that is that when you’re looking at a bill, you’re seeing that the bolded text in the bill refers to amendment Act 2021. Those are the parts of the bill which will be changed administratively later on. So, just for any new members around the Chamber—I have been caught up with that before, and I certainly wouldn’t want them to be jumping up to their feet, leaping up and saying “There’s an error in the bill; we have to change it to 2024.”

Actually, it is relevant, because one of the amendments that’s been made to this bill was made under urgency in 2017, because, I think, an actual date in the bill was incorrectly drafted when it went through. The bill was passed; it wasn’t picked up. Then, only several months later did the bill have to reappear before the House to change a very, very minor provision. So I think that’s very important for members to take notice of when we’re talking about the actual drafting of the legislation at the committee of the whole House stage. We can never lose sight that this is one of the most important stages that we go through in the House. It’s the final chance, really, for the House to make amendments. In the old days, we’d go for a clause-by-clause analysis; we’d really get down to the commas and the semicolons and the periods and the full stops. I don’t use semicolons because I don’t know what they’re for, so I avoid them like the plague—

Simon Court: You’ll want to—you’ll want to.

JAMES MEAGER: I’ll want to at some point, says Simon Court. He’s the expert in drafting—I’ll ask him. But, no, I appreciate the clarifications. That was all I really wanted to highlight from that particular part of the clause. I guess I’ll leave remaining contributions for other members to jump up and have a good crack at this part as well, before we move on to title and commencement.

I think I’m hearing a good argument to keep lawyers out of the whole thing. That’s just my interpretation.

Part 2 agreed to.

Schedule agreed to.

Clauses 1 to 3