Rare 'inconsistency' debate starts Parliament's week

Parliament began its week by considering a rare declaration from the Supreme Court that parts of the public protection order regime are inconsistent with aspects of the New Zealand Bill of Rights Act (NZBORA). This is only the second time a Declaration of Inconsistency has been brought before the House.

The debate followed a report from the Justice Committee and the government's formal response, both tabled on 8 June.

The New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Act 2022 established the current process in step with changes to Parliament's Standing Orders. It requires the Attorney-General to notify the House of a declaration, refer it to a select committee, receive a government response, and then hold a debate in Parliament.

While Parliament is not required to amend the law that led to the judicial finding, the process gives MPs the opportunity to formally consider the finding and the government's response.

The declaration being discussed this week centres on both public protection orders (PPOs), which allow people who have completed prison sentences for serious sexual or violent offending to continue to be detained if they are assessed as posing a very high risk of imminent and serious reoffending; as well as extended supervision orders (ESOs), which impose strict conditions on where released offenders can live and how they are monitored.

In practice, these arrangements can include offenders being mandated to live in accommodation on or near prison grounds.

In September last year, the Supreme Court declared that the PPO regime, along with the related ESO regime, is unjustifiably inconsistent with aspects of the New Zealand Bill of Rights Act 1990. The relevant provision from section 26(2), protects individuals from double jeopardy: the principle that a person should not be tried or punished more than once for the same offence following conviction or acquittal.

Tuesday's debate began with Corrections Minister Mark Mitchell, who said that "a declaration of inconsistency …does not affect the validity of an Act. What it does is signal that the court considers the Act infringes on fundamental human rights in a way that is not justified in a free and democratic society."

Mitchell signalled that the government conceded that there was some intrusion on the individual rights outlined under NZBORA, but argued that, on balance, the provisions remain necessary to protect public safety.

The government's written response, a five-page document, acknowledges the Supreme Court's declaration, concerns raised by the Law Commission, and the Justice Committee's recommendations. It ultimately indicates the government will continue to consider the issues and may make legislative changes in due course.

Mitchell, on closing, said any such action "will take time" in order to "get it right."

The response to the response

Labour MP and Shadow Attorney General Vanushi Walters began by noting the debate's constitutional significance, given it is only the second declaration of inconsistency to be considered under the current process, the first being the result of the 'Make it 16' campaign, taking their case to the High Court.

Walters commented that this declaration is a lot more pressing. She said that despite the Justice Committee's recommendations for legislative action, and an indication in the government response that it would be open to adopting at least some of them, she was nervous that this would sit on the backburner.

"There just doesn't seem to be a sense of urgency in terms of the need to do it." Walters said. "Let's remember we had a Law Commission report that was released publicly last year in April. The government has had plenty of time to look into, in my view, what is a serious finding of a breach of the New Zealand Bill of Rights Act, and in a serious context: we're talking about people who have served their sentences, and now are being held and/or monitored in terms of the preventative approach."

Walters also mused that Parliament perhaps ought to allocate more time to matters relating to NZBORA.

"I do wonder whether the House is giving sufficient attention to an issue of such importance, and whether, going forward, the House may consider something like a human rights select committee to both consider these declarations as well as section 7 reports themselves."

Section 7 reports are reports from the Attorney-General alerting Parliament that proposed legislation may be inconsistent with NZBORA.

Laurence Xu-Nan, who has become the Greens' constitutional point-person, is a member of the Justice Committee. He said the committee's consideration was nuanced, methodical and that recommendations were reached "unanimously, essentially".

Xu-Nan explained that the new single statute regime he and his colleagues had landed on had four components.

These include a three-tiered system for graduated post-sentence orders, an interim measure of notification during sentencing of possible post-sentence orders, periodic review, and continued monitoring by the Justice Committee in the next Parliament, of any changes made by Corrections.

Xu-Nan shared Walters' sentiment in saying the rarity of declarations of inconsistency means that NZBORA is only sporadically discussed in Parliament, but when these do arise, it elucidates an important part of the constitutionally fundamental separation of powers.

"I want to raise the importance of something like this in terms of declarations of inconsistency and fundamentally what it means in Aotearoa New Zealand when we're looking at the rule of law and the principle of comity-the ability for the legislature, executive, and judiciary to hold each other accountable, and it's something that we forget about in our current system."

As Mitchell mentioned, declarations of inconsistency do not invalidate legislation or require Parliament to change the law. Instead, they formally notify Parliament that a court has found legislation to be inconsistent with protected rights under the New Zealand Bill of Rights Act, which itself is an aspect of New Zealand's constitution.

At the heart of the subject matter this week, is a balancing act between two competing public interests. On the one hand is protecting the public from people assessed as posing an ongoing, serious risk of violent or sexual offending.

On the other is the principle that people who have served their sentences retain and regain fundamental rights and freedoms under the New Zealand Bill of Rights Act. Neither the Supreme Court's declaration, the Law Commission's proposals, nor the Justice Committee's recommendations question the importance of protecting the public, only whether the legal mechanisms Parliament has chosen to employ to do so are consistent with New Zealanders fundamental, underlying rights.

With that constitutionally significant appetiser finished (until a government makes any legislative response), the House moved into the main course for the week: a fairly substantial bout of urgency.

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