Parole (Extended Supervision Orders) Amendment Bill

Hon SIMON POWER (Minister of Justice) Link to this

I move, That the Parole (Extended Supervision Orders) Amendment Bill be now read a second time. The extended supervision regime enables serious child sex offenders to be monitored for up to 10 years after their release from prison. This bill removes two potential loopholes from the extended supervision regime that were created by the Parole Amendment Act 2007. These loopholes could potentially undermine the effectiveness of extended supervision orders and therefore put the safety of children at risk. That is an unacceptable risk to be allowed to remain.

Before I talk about the detail of the amendments I will talk more generally about the extended supervision regime and what it aims to achieve. Before I do that, I thank all parties of the House for the attention they are paying to this legislation and for their assistance in its passage.

Extended supervision orders were created in 2004 to manage the release of child sex offenders who were not sentenced to preventive detention but still presented a high risk of reoffending on release. These orders require child sex offenders to be on parole-type conditions for up to 10 years after release. I am advised by officials that 132 offenders are currently subject to extended supervision orders.

Extended supervision orders apply exclusively to child sex offenders because of the unique nature of this kind of offending. Research indicates that a minority of child sex offenders pose a high risk of reoffending. Aside from the nature of their offending, what makes these offenders different from other kinds of offenders is that their rate of reoffending does not decline over time. It is this ongoing risk that prompted the creation of extended supervision orders and similar regimes in other jurisdictions, such as the United Kingdom and Canada. Research has shown that treatment can reduce reoffending rates in child sex offenders. A case in point is New Zealand’s own successful Kia Mārama programme. However, when these offenders are reintroduced into the community they need support and monitoring, at least initially, to reduce the chance of relapse.

Prior to the 2007 Parole Act amendments, the Parole Board could impose home detention - type conditions on offenders for up to 12 months, subject to an extended supervision order. The board could also impose an electronically monitored curfew, which restricts the offender’s whereabouts at certain times. The electronically monitored curfew could be imposed at any time during the term of the order.

In 2007 the Parole Amendment Act created residential restrictions. Full-time residential restrictions replaced what was commonly known as back-end home detention. Part-time residential restrictions essentially consolidated the conditions for an electronically monitored curfew. It was intended that the 12-month limit on conditions for extended supervision orders would apply to full-time, but not part-time, residential restrictions, thus maintaining the pre-2007 position. However, the language of the 2007 amendments created doubt about whether part-time residential restrictions could be imposed beyond the first 12 months of an extended supervision order. This bill ensures that this extension is possible by clarifying that part-time residential restrictions can be imposed beyond the first 12 months following the offender’s release from prison and for the remaining term of the extended supervision order. This measure helps to reduce the opportunity for child sex offenders to reoffend, as they can be confined to their residence at certain times—for example when children are going to and from school.

I assure members that safeguards are in place to ensure that offenders will not be unnecessarily subjected to a part-time residential restrictions condition. At any time before or after an extended supervision order comes into force, the offender or a probation officer may apply to the Parole Board for variation or cancellation of that condition. The offender has the right to appear before the board to state his or her case. The offender may also apply to the board for a review of the decision, and may seek judicial review of the board’s decision. I am satisfied that these safeguards appropriately balance the interests of offenders against those of the wider community.

The 2007 amendments also, unfortunately, created doubt as to whether the Parole Board could impose residential restrictions if an offender did not agree to comply with them. Requiring an offender’s agreement to comply makes sense when a prisoner is applying for parole, and a refusal to comply with release conditions could see him or her refused parole. However, an extended supervision order is a mandatory order that applies when the offender is released. So to require someone who has already reached the end of his or her sentence to agree to comply with the conditions of a mandatory order would be nonsensical. If the offender was required to agree, the board would have no option but to impose less restrictive conditions when faced with an uncooperative offender. I am sure the House sees the difficulty in that set of circumstances.

The Parole Board needs to be certain that it has the tools to keep the public safe when child sex offenders are released from prison. This bill puts the matter beyond doubt. Although offenders will still have to understand the restrictions imposed, the bill will make it clear that they do not have a choice about whether the restrictions apply. The restrictions will apply if the Parole Board thinks they are necessary.

The bill contains minor amendments to restore aspects of the law that operated prior to October 2007. I will therefore not refer this bill to a select committee. The public has the right to know that serious child sex offenders are being managed effectively once they are released from prison, and this bill will close any potential loopholes previously created in that regard. I commend this bill to the House.

Hon CLAYTON COSGROVE (Labour—Waimakariri) : Let me say from the outset that the Opposition supports the Parole (Extended Supervision Orders) Amendment Bill absolutely. I believe there has been some discussion between both sides of the House. This is an issue of public safety. This bill corrects the unintended consequences made in the Parole Amendment Act 2007 by, as the Minister said, amending the Parole Act 2002 to clarify that “part-time residential restrictions (an electronically monitored curfew) can be imposed beyond the first 12 months of an extended supervision order:”. Given the gravity of this bill, I will not waylay the House too much longer. It is appropriate that this bill is expedited swiftly. We agree that these amendments should be expedited and supported; we support this bill going through the House because the alternative could be the Parole Board declining to impose residential curfew conditions beyond the first 12 months on an extended supervision order, and that could, in essence, put public safety at risk. We also support the swift passage of this bill, given that we have had advice that the Department of Corrections could well be facing litigation from a number of high-profile sex offenders who are currently more than 12 months into an extended supervision order, and who are subject to conditions similar to part-time residential restrictions—something that the latest legal advice suggests is prohibited.

I acknowledge the Minister of Justice, Simon Power. As he has acknowledged to members on this side of the House, in a paper he put to us, this amendment was already in train before the election but it was not introduced because the legal advice at the time did not suggest that there was any urgency in respect of risk. The Government of the day sought advice, it was advised that there was no urgency in respect of risk, and that advice was taken. The new legal advice that Mr Power’s Government has received is that the 2007 amendments to the Parole Act 2002 prohibit the imposition of part-time residential restrictions—that is, electronically monitored curfews—beyond the first 12 months of an order. I am advised—and I believe the Minister’s legal advice confirms this—that this new legal advice differs significantly from the advice received by the previous Government.

I commend the Minister for bringing this advice to the House’s attention as soon as it was received. We support the bill, and we will not waylay its passage. It is important that it be passed.

KEITH LOCKE (Green) Link to this

The Green Party agreed to give leave to discuss the Parole (Extended Supervision Orders) Amendment Bill this afternoon in a rather rapid fashion through all its stages, on the understanding that it was a technical amendment of unintended consequences in the original legislation. The Minister has pointed out one of them, about offenders giving permission for a supervision order, which clearly was not intended when the House discussed the legislation back in 2004.

The other technical amendment that we were told about was that it was conceived in the original bill that electronic monitoring would be allowed beyond 12 months, yet the legislation prevented that. On that understanding—that this bill is largely technical—we gave leave. Now we are in somewhat of a dilemma, because just before this debate started the Attorney-General announced that he had given a Bill of Rights report on this bill, and in this report he argues very strongly against the House’s approving this legislation. This report puts us in a considerable quandary, because we were going to support this bill on the basis of what we understood the technicalities to be. I am in the process of reading this Bill of Rights audit because it has only just been deposited in the House.

One of the problems when I look at the legislation in the light of the Attorney-General’s report is that it says that for up to 12 months—and this is in the original bill—one can have effectively a home detention situation, and restrictions on residency in that sense. If this amendment goes through, after 12 months one will be able to have residential restrictions short of 24 hours a day, but there is nothing that says how much short of 24 hours a day. That is quite relevant, because one of the things quoted by the Attorney-General is that home detention of 14 or more hours per day based solely on risk to the public is arbitrary and in breach of article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The essence of the Attorney-General’s paper is that this is turning into a penal issue—that is, the extended supervision order regime is now moving from a civil restriction to a penal restriction. The problem there is that the people affected have not been convicted of any crime; their treatment is based on the risk that they might commit a crime. There is a problem with that, and the Attorney-General quotes the European Court of Human Rights on this. The argument that detention for the prevention of future offending is not arbitrary in nature in terms of article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms was described by the European Court of Human Rights as leading to conclusions “repugnant to the fundamental principles of the Convention”.

So we have a bit of a problem. The Minister has said that there are now 130 people with an extended supervision order. I have also received some other statistics that show that, of the 164 people on extended supervision orders in the period since 2004, only six have reoffended. If we fit that together with the Attorney-General’s comments, there could be a situation whereby more people are being subjected to these orders than should be the case. Now, under this amendment, serious child sex offenders could effectively be the subject of a home detention for up to 10 years, except that it is not quite home detention because it is not for a period of 24 hours. It is not allowed to be for 24 hours beyond the first year; it could be a little less than that for the following 9 years.

We are getting into a rather difficult position. We have to look at the conclusion of the Attorney-General—that is, the fact that this bill’s goals could be achieved without contravening the right against double detention or double jeopardy does not provide justification for the inconsistencies in the bill. The State should not detain citizens solely on the basis of preventing future offending; nor should it punish offenders twice for the same offence. That is the double jeopardy argument.

I think we have to look at the large number on extended supervision orders in the light of the law and order debate that has taken place in this country over the last few years. We saw evidence of it today in one of the questions asked in Parliament. There was reference to the Auckland youth who killed another Auckland youth while out on bail for another violent offence. It may or may not have been right, in that case, to give that person bail. I am not getting into the technicalities of that case. I am just saying that in the context of this debate we have the police putting pressure on the judges when making their case by saying: “Look, we can’t risk it. If someone commits an offence while out on bail, or a former sex offender commits an offence, and we haven’t got them”—as in the case that was brought up earlier during question time—“in custody, on remand, or, in the case of sex offenders, we do not have an extended supervision order on them, then we are falling short of our duty and the public will get us.”

There is a tendency to put more people under these restrictions than is necessary, which does not help rehabilitation. There are certainly no apologies from the Green Party to anyone who is engaged in sex offending, but the statistics provided to us today show that sex offenders have the lowest rate of reoffending of any criminals. They are the statistics. Originally the law was designed—and I was part of that original debate in 2004—to cover a group of sex offenders who were seriously in danger of reoffending. The extended supervision orders were designed for them, and that is what we were told they were designed for. The other point is that the whole extended supervision order business has been extended beyond sex offenders to apply to parolees in general, for any offence. The Department of Corrections has to give reports on that, so to some extent we can study whether that order is being used excessively now.

As there were only two speakers before I started speaking, I have not even finished reading properly the Attorney-General’s assessment of the bill in relation to the New Zealand Bill of Rights Act. I think the Green Party will have to cast an abstention, because we have not been given the full information to be able to consider, on behalf of the New Zealand public, exactly which course we should take. Thank you.

DAVID GARRETT (ACT) Link to this

As I understand it, this Parole (Extended Supervision Orders) Amendment Bill returns the situation concerning supervision orders, or whatever they are called, to the 2007 status quo before an amendment created residential restrictions and inadvertently extended the 12-month limit. It is interesting that the previous speaker made much of the report made pursuant to section 7 of the New Zealand Bill of Rights Act, which I confess to not having seen, either. However, in my view the very fact that this report exists is because the present Attorney-General is being extremely diligent in the discharge of his duties. Clearly that was not the case in 2007, under the previous Government, when the Parole Amendment Act 2007 was passed. As has become very clear in the short time of this Government, the previous Labour Government was extremely cavalier in its attitude to section 7 reports. To some extent this Government has created a little difficulty because of its own diligence, but one could hardly criticise it for that.

Although I have not read this report, I am very aware that the last time the issue of a section 7 report highlighting a supposed or possible breach of the New Zealand Bill of Rights Act arose, when I read that report, it was very, very different from the way it had been characterised both in the media and by the Opposition. In a nutshell, the Attorney-General’s report in that case said that the proposed “three strikes” law, or elements of it, may breach sections of the New Zealand Bill of Rights Act. As the lawyers in the House will know, there is an absolute world of difference in law between the words “may” and “does”. When I looked more closely at the report, it was even less threatening, if you like, in that the bulk of it reaffirmed the constitutional position in this country—that Parliament is sovereign—and quoted from several New Zealand Supreme Court cases, which in turn quoted with approval Canadian Supreme Court cases very firmly asserting that position. Without having read this report, I am somewhat sceptical that it is as devastating as the previous speaker may have suggested.

Be that as it may, this bill attempts to ensure the safety of potential victims of sex offenders, particularly children. As a father of young children myself, I am very much more concerned with their rights than with the rights of sex offenders. Frankly, whether those offenders might commit further offences is of less concern to me than the safety of my children and my neighbour’s children. The raw reality is that no sex offender will have been put under an order like this, with the flaws that have been inadvertently created, unless he—and it will invariably be a “he”—is perceived as being a very, very real risk. The State does not monitor people in the community for up to 10 years for no good reason. Although I stand to be corrected on the gravity of the section 7 report, the ACT Party will be supporting this bill.

RAHUI KATENE (Māori Party—Te Tai Tonga) Link to this

The ancient Roman lawyer and scholar Marcus Tullius Cicero once said: “Any man can make mistakes, but only an idiot persists in his error.” The Parole (Extended Supervision Orders) Amendment Bill is an attempt to prevent the error of unintended changes made through the Parole Amendment Act 2007 from becoming a persistent problem for the Department of Corrections and, ultimately, Parliament. The bill has been tabled to protect the Department of Corrections from litigation in relation to five sex offenders who are more than 12 months into an extended supervision order, but who are still subject to part-time residential restrictions.

That all sounds fairly technical, but the essence of the legislation is all to do with timing. Legal advice would suggest that the amendments made in 2007 to the Parole Act prohibited the imposition of such orders beyond the first 12 months. However, in the real world there happens to be those five high-profile, high-risk sex offenders, who are being subject to conditions similar to part-time residential restrictions yet they are all currently more than 12 months into their orders. And here is the nub of the issue: under the current legislation such restrictions are allowed to be imposed for longer than 12 months only if the offender has first agreed to comply with the restrictions. As other speakers have noted, agreeing to comply with the restrictions was not the preferred choice for the infamous five, so we find ourselves in this predicament today.

It seems that the provision of the offender needing to agree to comply with a residential restriction being extended beyond 12 months, was inadvertently made. Offenders are required to agree to comply with restrictions in order to be granted parole by the Parole Board in the first place—otherwise they are refused parole—and this provision has been transferred and applied to the extension of residential restrictions when that is clearly not appropriate. I think that this error is a perfect example of the problems with the New Zealand constitutional system, which were pointed out by a former Prime Minister, the Rt Hon Sir Geoffrey Palmer. It is a perfect example of New Zealand’s reputation of being the fastest lawmaker in the West, and a good reason for a review of our constitutional system—oh hey, that is happening later on; good!

It is of paramount importance that the error in the law remains the key focus of our reason for legislative change, rather than the release of offenders convicted of serious sexual offending against children. That is not to say that the issue of child sexual abuse is not a major issue to be addressed, if we have genuine compassion for the physical, emotional, educational, and economic well-being of children and families in New Zealand. In the Youth 2000 study of almost 10,000 young people in Aotearoa, over 20 percent of girls and over 10 percent of boys reported having been sexually abused before the age of 18. If that proportion is not horrific enough, other studies have indicated that as few as 7 percent of child sexual abuse victims ever report that abuse, and that on average it takes 16 years to disclose. There will be members in this House who bear the tragic scars of child sexual abuse; there will be members in this House who know the painful impact of sexual abuse amongst loved ones. It is a reality that not one of us can deny or should ignore.

But those offenders who sexually harm others are not the focus of the law today; it is the law itself that is coming under our scrutiny. Those offenders are entitled to treatment, education, and related services, and I take a moment to acknowledge the dedicated efforts of groups like the Stop Trust in my electorate of Te Tai Tonga, as well as organisations such as the Safe Network in Whangarei, Auckland, and Hamilton, and WellStop Inc. in the lower North Island. Child sex offenders need a lot of support to help them not to reoffend, and I want to touch on the type of community outrage that occurs from time to time when we are considering where sex offenders will reside, following the conclusion of their sentences. Although there is frequently an outbreak of neighbourhood calls of “Not in my street!”, we have to be able to balance the legitimate concern for public safety along with the individual’s right to rehabilitation. The places where these people offended may be the places where they have lived for their whole lives, and they may be the only places where they have family or any form of social support. If possible, the Parole Board will try to place child sex offenders away from schools. If they are placed in the general vicinity of a school, the Parole Board will usually impose conditions, such as part-time residential restrictions, to minimise the risk.

But for the special leave that has been extended to this bill, the focus on child sexual offenders is secondary to the key purpose of the bill. There are two particular initiatives that will result as a consequence of this bill—namely, that an electronically monitored curfew can be imposed beyond the first 12 months of an extended supervision order, and that the Parole Board can impose such restrictions on an offender without having to be satisfied that the offender agrees to comply with the restrictions. Without these restrictions in place the Parole Board is likely to decline to impose residential curfew conditions beyond the first 12 months of an extended supervision order, and this could mean a potential threat to public safety if such offenders are not monitored. Of course, in an ideal world one would hope that those offenders who have a problem with sexually abusive, sexually offending, and sexually harmful behaviours would have benefited from assessment and treatment services long before they applied for extended supervision orders. Further, not only would people who had sexually offended have been upskilled with the knowledge to prevent reoffending but their families and community would also have sufficient capacity to support offenders to maintain pro-social behaviours.

The reality is that, as the figures tell us, reconvictions for sexual offenders do occur, and the risk of reoffending is always apparent. A 2008 study of released offenders for the Department of Corrections found that 20 percent of child sex offenders were re-imprisoned in the study period. The academics tell us this is the lowest re-imprisonment rate of all offences. They qualify that statistic by suggesting that only 5 percent of those were re-imprisoned for another sex offence. But I want to place some caution on the interpretation of these statistics. Sure, the recidivism rate of released sex offenders is way below that of, say, offenders initially convicted of burglary—71 percent, of which 46 percent are re-imprisoned for the same type of offence. But this relatively low rate of recidivism—and actually, 20 percent is still 20 percent more than I would like to see—cannot necessarily be interpreted as signifying the fact that sex offenders seldom go on to commit further such offences. Sex offences against children in particular are subject to very low reporting rates. Even when a sex offence is resolved by the police, the rates of successful convictions are also relatively low. It is also the case that with convicted sex offenders, the length of time that tends to elapse between the actual offence being committed and the offender’s ultimate sentencing on that charge can be several years. Thus the validity of this type of analysis will be improved when reconvictions of sex offenders have been tracked over longer periods of time.

Notwithstanding all these riders, it is important to bear in mind that wherever there is risk, and wherever public safety is a concern, we in this House must take appropriate action to ensure that offenders are able to be monitored and that the community’s well-being is taken into account. This is a very complex area, and there is far greater depth required than in the 140 or so words that constitutes this bill. But in the interests of certainty, and our appreciation that this was a technical oversight that needs to be rectified, we in the Māori Party will support this bill throughout all of its readings.

AMY ADAMS (National—Selwyn) Link to this

When I usually rise in the House to take a call in support of a bill, I begin by talking about my pleasure in doing so. I am very much in support of the Parole (Extended Supervision Orders) Amendment Bill, and I am certainly pleased to have the chance to promote it to this House. But I have to say that those feelings are tempered with equally strong feelings of disgust that the House has to grapple with issues like this—of keeping our children safe from depraved individuals who would use them for their own selfish gratification. That this sort of scum even exists in our society revolts me, and I make no apology for the strength of my language.

I am the mother of two of the most beautiful and loved children that one would find anywhere, and I am the auntie of a bevy of equally treasured nieces and nephews. The reality that laws like this are necessary to keep them safe and the thought of what offenders, whom this bill seeks to address, have done to New Zealand children fill me with a primal rage. I am sure that people who are not parents would never understand that rage, but those who are will know exactly what I am talking about. The fact remains, however, that these crimes are committed, and we must ensure that our laws are able to properly deal with those offenders who have been convicted. Although a significant bill—the Sentencing and Parole Reform Bill—addressing the wider issues of parole is currently before the Law and Order Committee, this bill seeks solely to amend section 107K of the Parole Act 2002 in respect of the imposition of extended supervision orders to ensure that they operate as originally intended. It is a limited part of the primary Act, but a significant one.

As we have already heard, this amendment bill fixes errors in the Parole Amendment Act 2007. That amendment created residential restrictions on extended supervisions orders to ensure that the Parole Board can impose part-time residential restrictions. That effectively means there can be an electronically monitored curfew at any time during the life of the extended supervision order, which can be up to 10 years, and not just in the first 12 months. The full-time restrictions that are also possible under these orders remain limited to the initial 12-month period following release. The 2007 amendment also inadvertently applied to the parole test of the board being satisfied that the offender agreed to the conditions of the residential restriction. That is appropriate for parole, because if the offender does not agree then he or she can be made to remain in prison. If one was going to parole them, one would obviously want to see that the offender was motivated to comply with those conditions. But that is not appropriate for extended supervision orders. These are mandatory, so that sort of agreement requirement is quite inappropriate in this context. This bill removes the requirement for the offender to agree to the conditions before they are imposed, and I think there can be no doubt about the absurdity of a requirement that an offender must agree to limits on his or her freedom of movement or about the need to urgently address this matter. I am so pleased to see the House working together to ensure that this oversight can be quickly and effectively remedied.

This bill goes to the efficacy of extended supervision orders that are used upon the release of those who have committed serious sexual offences against children. If I work very hard to control my emotional response to that sort of situation, I can objectively look at what we know. We know that such orders—as I said, they can last for up to 10 years—are essential for the safety of the public at large and our children in particular. The reoffending rates of these types of criminals do not tend to decline over time. I take on board and concur with the comments made by the previous speaker, Rahui Katene, and the riders about the reported recidivism rates and the caution that needs to be taken when using those statistics.

In many cases, this sort of offending—serious sexual offences against children—occurs during the hours of darkness, so the inclusion of the ability to impose curfews over the whole course of any part of the supervision order is a critical part of preventing further harm. This is because it addresses the specific weaknesses of those individuals and removes them from further temptation, although I find it slightly repulsive to use that word. But, none the less, it does avoid their being in situations where they may give in to their baser instincts. The serious harm caused by that sort of offending goes without saying, yet it needs to be to said. When children are subjected to sexual offending, it causes scarring on a level that can never be overcome. It changes the whole fabric of who those children are, and, worst still, it often creates a cycle of further offending that can last several generations. There is certainly plenty of evidence that children who have been victims of sexual offending will often go on to become sexual offenders themselves. We need to be very cautious because we must reduce the extent of that sort of offending in our society wherever possible, not only for the children who are the victims but also for the adults that those children will grow to be.

This is insidious offending of the worst kind. It includes offenders spending long periods on building trust with their intended victims and grooming them in the most callous and calculated way. I am pleased to say that I will always stand up for the rights of children and all victims, and I consider those rights far and away the most important rights to take into account. I suggest to members that those are the rights that this House should primarily concern itself with. The rights of children must be our first consideration.

In preparing to speak on this bill today, I looked at a number of case studies around serious sex offenders and their conduct upon release. The number of times one sees reports in the media of serious offenders proceeding to start a pattern of reoffending immediately upon their release—even if it is just the early grooming behaviour—tells us, if we need any further evidence, that we must work very hard to monitor them for a long period of time after their release. The extended supervision order system that the Minister of Justice spoke about in his address is an important part of doing that. It is why we have those sorts of orders, why we are able to monitor those offenders for periods of up to 10 years after their release, and why the residential restriction system was put in place. The full-time restrictions can act for up to the first 12 months after release. The part-time restrictions need to be able to apply throughout the course of the order, if required. The offending records are horrifying. In the statistics that I found—admittedly some 6 months old—we had 126 offenders nationwide on extended supervision orders. The thought that those people, or people of similar ilk, could be roaming the streets after 12 months is scary. It is not the sort of society I want for my children. It is not the sort of society that I want to stand up as a member of this Parliament and say that we think it is OK.

I am proud to commend this bill to the House. I thank the House for its support in addressing those oversights and for addressing them urgently, and I encourage the House to always consider and put the interests of our children first and foremost.

Hon RUTH DYSON (Labour—Port Hills) Link to this

I have sought clarification from the senior whip, and I seek leave to adjust the vote in order to cast the vote of the Progressive party in support of the motion. I apologise for that.