CHILD PROTECTION (CHILD SEX OFFENDER REGISTER) BILL DEPARTMENTAL REPORT FOR THE SOCIAL SERVICES COMMITTEE

Transcription

1 CHILD PROTECTION (CHILD SEX OFFENDER REGISTER) BILL DEPARTMENTAL REPORT FOR THE SOCIAL SERVICES COMMITTEE 5 February 2016

2 Contents Section A Section B Introduction and summary of submissions General policy issues Section C Clause by clause analysis Section D Summary of recommended changes to Bill Appendix 1 Index of Submitters 2

3 SECTION A: INTRODUCTION AND SUMMARY OF SUBMISSIONS Background 1. The Child Protection (Child Sex Offender Register) Bill establishes a Child Sex Offender Register that will reduce sexual offending against child victims, and the risk posed by serious child sex offenders, by: providing government agencies with the information needed to monitor child sex offenders in the community, including after the completion of the sentence; and providing up-to-date information that assists the Police to more rapidly resolve cases of child sexual offending. 2. The Bill requires all child sex offenders to register if they were aged 18 years or over when the offence was committed, are convicted of a qualifying offence and are sentenced to imprisonment, or sentenced to a non-custodial sentence and directed to be registered at the discretion of the sentencing Judge. 3. An offender found guilty of a corresponding offence in an overseas jurisdiction and sentenced to imprisonment or who has been subject to reporting requirements in that jurisdiction will also be on the register if he or she resides, or intends to reside, in New Zealand. 4. All registered offenders when residing in the community will be required to provide a range of personal information to a central register administered by New Zealand Police, annually and whenever their personal information changes. Their duration on the register will be for eight years, 15 years or life depending on the offence committed and the sentence received. 5. At present Police, Corrections and other relevant agencies are limited in their ability to mitigate the risks presented by child sex offenders living in the community because of the lack of legislation to allow them to obtain and share up-to-date information about individual child sex offenders. analysis 6. The Select Committee received 140 written submissions on the Bill, including 9 anonymous submissions. Of these, 22 submitters gave oral presentations to the Committee. were received from a range of submitters, including non-government organisations, professional associations and individuals including both victims of child sex abuse and perpetrators. 7. A list of the submissions received is attached as Appendix A. Summary of submissions 8. This section contains a high level summary of submissions on the Bill. 9. Ten submitters supported the Bill outright, 31 supported the Bill but considered that the register should be publically accessible, a further 67 submitters only supported the Bill if the register is made publically accessible, 5 supported the Bill with some amendments, 7 supported the intent of the Bill, but did not 3

4 explicitly state support for the Bill in its current form, 8 submitters opposed the Bill, and 12 expressed no explicit view. 10. The majority of submitters (98) expressed the view that the Register should be publically accessible. 4

5 SECTION B: GENERAL POLICY ISSUES 11. This section discusses the main themes that emerged from the submissions. The section has been split into three parts: Public access to the Register Human Rights implications Evidence base for the Register. Public Access to the Register 12. As currently drafted, the Bill restricts access to information on the Register to: those persons or class of persons authorised by the Commissioner of Police in accordance with guidelines; specified agencies; a corresponding registrar; or an affected person. There are no provisions for public access to information on the Register. 13. This aspect of the Bill received 98 1 submissions expressing a strong view that the Register should be publicly available. The submissions received from victims, and the family of victims, of child sexual abuse all supported public access to the register. 14. In summary, the reasons given for public access were as follows: It is the right of the public to know who the child sex offenders are, and where they live, so they can protect their children The prime purpose of the register is to notify the public, and the public need access to the register for it to be fully effective in reducing sexual offending against children An open and honest justice system should ensure public safety by having an open register An open register allows the public to be proactive before any event occurs The public should be able to check the register before they put their children into the trust of others, or if they have suspicions about people in their community Child sex offenders need to be held to account The register should act as a deterrent If a child complains of abuse they are more likely to be believed if the public knows who is on the register Only the victim should be able to request that the offender s details not be released to the public 1 1,2, 4,5,6,7, 8, 9,12, 13, 14, 15, 16,19,20, 21,22,23, 24, 25, 27, 29, 30, 31, 32, 34, 35, 36, 38,39, 41, 42, 43, 44, 46, 47, 50, 51, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 70, 71, 73, 74,75, 76, 80, 82, 83, 84, 85, 87, 88, 89, 90, 91,92,93,95,100,101, 102, 104, 105, 106, 109, 110,111, 113, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 127, 128, 129, 131, 132, 133, 134, 136 5

6 Keeping the register secret has a huge impact on victims A restricted register protects the offenders and denies the rights of victims The benefits of the register being available to the public outweigh the disadvantages and risks of keeping it restricted The Police lack the resources to monitor offenders 24/7 - the public are the eyes and ears for the Police Transparency is needed if we are to change the culture of abuse A closed register encourages the cycle of violence. 15. Some submitters proposed expanding access to the register to include all institutions that provide care for children (15), professionals, sexual violence specialists (97), venerable organisations, clubs (65), or School Boards of Trustees (69). 16. One submitter (75) noted that not all the information in clause 15 should be made public, but that the following items should be publicly available all names used, employment details, affiliation with clubs or organisations involving children, make and model of any vehicle used by the offender but not the registration number, tattoos, scars and permanent distinguishing marks, and online accounts and aliases. 17. Other submitters (21, 65) suggested that access to the information on the register should only be by application, with a justifiable reason to be given for wanting the information. 18. The Law Society and Privacy Commissioner (68, 78) specifically support the Bill s restriction on access to information in the register, and Save the Children (86) supports the range of information sharing proposed in the Bill. 19. Two submitters (96, 97) note that if the public have access to the information on the Register there is a likelihood of severe negative impact given the appalling example of the public engaging in bullying of the whanau of offenders. These submitters also noted the potential for negative impact on rehabilitation of the offender and the potential to force this sort of behaviour further underground. 20. Nine submitters (17, 67, 98, 103, 108, 112, 114, 130, 135) also referred to the negative impact on the families of offenders, and the rehabilitation of offenders, where information is publicly available, or where information is released unintentionally. In particular, it was noted the negative effect on the reintegration of offenders if they are constantly required to move address to avoid harassment. These offenders are unable to retain employment or access and establish the support they need to avoid reoffending. 21. There is little or no evidence to demonstrate that making the register accessible to the public improves public safety overall. There is, however, evidence that public notification can severely disrupt the life of the registered sex offender, and their family, and thereby increase the risk of reoffending. 6

7 22. The largest and most comprehensive study on the impact of registration was carried out by Prescott and Rockoff 2 (2011). They state that: We find evidence that registration reduces the frequency of sex offences by providing law enforcement with information on local sex offenders. As we predict using a simple model of criminal behavior, this decrease in crime is concentrated among local victims (e.g., friends, acquaintances, neighbors) with no evidence of less crime occurring against strangers. We also find evidence that notification has reduced crime, but not, as legislators anticipated, by disrupting the criminal conduct of convicted sex offenders. Our results instead suggest that notification deters nonregistered sex offenders, and may, in fact, increase recidivism among registered offenders by reducing the relative attractiveness of a crime-free life. This finding is consistent with work by criminologists showing that notification imposes social and financial costs on registered sex offenders, perhaps offsetting the relative benefits of forgoing criminal activity. We regard this latter finding as important, given that the purpose of notification is to reduce recidivism. 23. Jill Levenson and Richard Tewksbury 3 undertook a study in 2009 that collected data from 584 family members of registered sex offenders in the United States on the impact of the Sex Offender Register Notification (SORN) laws. In their article Collateral Damage: Family Members of Registered Sex Offenders they conclude the following: This study represents a pioneering effort to quantitatively understand the experiences of loved ones of registered sex offenders. Their voices have been, to date, largely unheard, and they are among the collateral victims of sexually violent crime. SORN policies have become increasingly restrictive over the years, exposing sex offenders and their families to public scrutiny and placing severe limits on sex offenders employment, housing, and academic opportunities. Certainly, these policies were designed to protect the public from sexually dangerous individuals, but the collateral consequences of the laws to others were presumably unanticipated. Given that there is little research to suggest that community notification laws result in decreased recidivism, their impediments to offenders reintegration and their consequences for innocent others deserve thoughtful consideration. 24. It should also be noted that New Zealand has one major advantage over other comparable jurisdictions such as the United Kingdom, United States, Canada and even Australia, in that New Zealand is a single jurisdiction. The other countries are made up of multiple jurisdictions, each with their own police force and sex offender legislation. Police in these countries are required to monitor and manage child sex offenders across boundaries and under a range of different legislation and regulations, which makes the monitoring and management of those offenders much more difficult. In New Zealand one set of legislation will provide for a child sex offender register and govern the use of the information by Police and other specified agencies, when managing and monitoring all registrable offenders living in the community across the country. For this reason, registrable offenders in New Zealand are less likely to fall between the gaps. 2 Do Sex Offender Registration and Notification Laws Affect Criminal Behavior?Journal of Law and Economics, Vol. 54, No. 1, February 2011, Columbia Business School Research Paper 3 American Journal of Criminal Justice (2009) 34:

8 25. A publically available register is unlikely to be consistent with the New Zealand Bill of Rights Act or the Privacy Act. Human Rights 26. The Attorney-General has tabled a report on this Bill pursuant to section 7 of the New Zealand Bill of Rights Act The Attorney-General s report has concluded that the Bill is inconsistent with section 9 of the Act (the right not to be subjected to disproportionately severe treatment or punishment) and section 26(2) (the right not to be subject to double punishment) and that this cannot be justified under section The inconsistency with section 9 is principally based on there being no possibility for review, at least of the lifetime reporting obligations of those who have been sentenced to imprisonment for a class 1 offence. 28. Ten submitters (10, 17, 33, 68, 78, 96, 103, 107, 132, 140) considered that there should be a review process for registered offenders, although there are a number of different proposals for how this should occur. 29. The Privacy Commissioner (78) states that registered offenders should be able to apply to the Court for review of their classification as registrable offenders and to have their classification as a registrable offender revoked on the basis they no longer pose a risk to children. 30. The Human Rights Commission (33) recommends amending clauses 35 and 36 to allow a registered offender to seek a review of a decision by the Commissioner of Police pursuant to those clauses, initially by the Commissioner and then by the District Court. 31. The Law Society (68) recommends that a registrable offender be able to apply to the Parole Board for suspension or removal of reporting obligations on the grounds that they no longer pose a risk to the sexual safety or lives of children. It considers that the Commissioner of Police is not a sufficiently neutral decision-maker to fulfil the natural justice obligations of section 27 of the Bill of Rights Act. It suggests that the Commissioner of Police could have a right to be heard by, and to appeal the decision of, the Parole Board. 32. The Attorney-General s concerns around the inconsistency of the Bill with section 26(2) (double jeopardy) is based on the retrospective application of the Bill to those serving a sentence of imprisonment (including those on parole) or subject to an extended supervision order for a qualifying offence when the Bill comes into force. These offenders will be required to register and will be subject to reporting requirements. This is viewed as additional punishment that was not applicable at the time they committed the offence. 33. The Human Rights Commission (33), New Zealand Council for Civil Liberties (66) and the Law Society (68) agree with the Attorney-General s conclusion that the Bill is inconsistent with section 26(2) of the Bill of Rights Act. The Law Society states that If the Bill is to proceed, the Law Society recommends that retrospectivity should only apply to offenders who are currently in custody serving a custodial sentence or currently subject to an extended supervision order (ESO); and offenders affected by the retrospectivity provisions should have the ability to apply to the Parole Board for suspension or removal of the 8

9 reporting obligation or for removal from the register at the conclusion of their sentence or expiry of the ESO. 34. Officials agree with the concerns expressed in relation to section 9 of the Bill of Rights Act, around the lack of review provisions for those who have been convicted of a Class One offence and are registered for life. An amendment to the Bill is proposed in the clause by clause analysis of the Bill to allow for offenders subject to life registration to apply to the court for a review of their registration after 15 years. 35. In regard to concerns regarding section 26(2), the limited retrospective nature of the Bill is considered necessary to remove the immediate risk presented by previously sentenced child sex offenders who are either in custody or already released into the community but still subject to their sentence (parole or release conditions) or an extended supervision order when the Act comes into force. Without the retrospective provisions these child sex offenders will not be subject to the Bill s reporting requirements. There are likely to be about 470 child sex offenders already in the community on parole or an extended supervision order when the Act comes into force. The 470 offenders does not include those convicted of a qualifying offence who are in custody when the Act comes into force. These offenders will be recorded as registrable offenders but will not be required to commence reporting obligations until they are released into the community. 36. The section 7 report acknowledges that the retrospective provisions would help with mitigating the risks but considers them to be more than is reasonably necessary because of the lack of any possibility to seek a review of the reporting obligations. 37. The proposed amendment to allow for a review of life registration addresses some of the concerns around the retrospective aspects of the Bill. It should also be noted that clause 51(4) stipulates that the duration on the register for those registered retrospectively will be calculated from the date of their release from prison, not the date at which the legislation is enacted. Evidence 38. Fourteen submitters (3, 10, 17, 66, 67, 68, 81, 96, 97, 108, 137, 138, 139, 140) specifically refer to the lack of international evidence for the effectiveness of registers in general, or for the approach proposed in the Bill. 39. Three individual submitters referred to the lack of evidence to support the approach taken in the Bill (3, 10, 139). 40. Dr Gwenda Willis (17), from the Auckland University School of Psychology stated that Based on my expert knowledge of relevant research, I do not support the Child Protection (Child Sex Offender Register) Bill in its current form. The proposed register is inefficient and requires substantial reworking to achieve its aims. I recommend that experts in sexual reoffending risk assessment are consulted in a revision of the proposed legislation The alarmingly high rates of childhood sexual abuse in Aotearoa New Zealand necessitate the implementation of evidence-informed policies to prevent sexual offending and reoffending. This submission is supported by the president of 9

10 the New Zealand Psychological Society (140), and the Robson Hannan Trust (81). 41. The New Zealand Council for Civil Liberties states it can point to no significant evidence elsewhere to show that this approach has any tangible effect (66). 42. The New Zealand Family Violence Clearinghouse states that we do not support the establishment of a child sex offender register. This is because there is little to no evidence registers reduce rates of child sex offending. We believe the high level of resourcing a register would require would be far more effectively spent on initiatives which have evidence of effectiveness (67). 43. The New Zealand Law Society notes that the Regulatory Impact Statement for the Bill identifies that there is limited research evidence available and the Attorney-General s report refers to the fact that numerous studies have noted the scarcity of evidence that child sex offender registers deliver significant benefits in terms of improved public safety (68). 44. The Social Service Providers Aotearoa, START, Waves Trust and WellStop and STOP all consider that there is insufficient international evidence to support the effectiveness of registers to prevent sexual violence (96, 97, 108, 137, 138). 45. There is a wide range of international research available which presents evidence both for and against the effectiveness of sex offender registers. However, most of the evidence that is available comes from the United States, which is not a jurisdiction that is fully comparable with New Zealand. In particular, the United States is made up of multiple jurisdictions whereas New Zealand is a single jurisdiction, and registers in the United States are publically available, which limits their relevance as a comparison to the model proposed in this Bill. There is little evidence available that pertains specifically to child sex offender registers in like jurisdictions. 46. An example of the challenges with the existing evidence is demonstrated by Hal Arkowitz and Scott O. Lilienfeld 4 when they refer to the work of R. Karl Hanson and Kelly E. Morton-Bourgon of Public Safety Canada. Hanson and Morton- Bourgon conducted a large-scale meta-analysis of recidivism rates among adult sex offenders, and found an overall recidivism rate of 14 percent over a period averaging five to six years, increasing to 24 percent by 15 years. This recidivism rate of 14 percent is often quoted when referring to the effectiveness of sex offender registers. However, they also found that perpetrators of different types of sex crimes exhibit varying rates of repeat offending. They found the 15-year recidivism rate is 13 percent for incest perpetrators, 24 percent for rapists, and 35 percent for child molesters of boy victims. 47. The New Zealand Department of Corrections has operated two successful child sex offender treatment units in Christchurch and Auckland prisons for many years and employs a large team of psychologists, some of whom are experts in sexual reoffending risk assessment. Corrections has a considerable level of expertise in this field and is recognised internationally. 4 From Hal Arkowitz and Scott O. Lilienfeld, Scientific American, April 3,

11 48. In addition, Corrections utilises external expertise through the Community- Based Child Sex Offender Treatment Programme which is delivered to community-based offenders to address sexual offences against children. The programme provides individual, group and family counselling and support, as well as advice for partners and/or whanau/family members. The programme is provided by the following three external providers under a national contract: SAFE (Kaitaia, Whangarei, Waitemata, Auckland, Manukau, Hamilton, Tauranga); WellStop (Wellington and Palmerston North); and STOP (Christchurch and Dunedin). 49. While it is acknowledged that a register alone may do little to prevent reoffending, there is evidence to suggest that the effectiveness of child sex offender registers increases when accompanied by a risk management framework such as that proposed by Police and Corrections in New Zealand. Prescott and Rockoff find that a registration requirement without public notification reduces reported sex crime substantially [13%], most likely through better police monitoring and more effective apprehension of recidivists Information sharing between relevant agencies is recognised as an effective way to minimise the risk of harm from reoffending by known child sex offenders. The proposed register is being developed to addressed an identified gap in the ability for agencies in New Zealand to share up-to-date information about child sex offenders (see Ministerial Enquiry into the Employment of a Convicted Sex Offender in the Education Sector (15 June 2012)). 51. The register is just one tool for agencies to use to reduce child sex offending. It will not operate in isolation. Police, Corrections and other specified agencies will use the information contained on the register to monitor, manage and support child sex offenders in the community, based on their current level of risk as identified by internationally recognised risk assessment processes. 52. A number of submitters objected to the cost of a register, and felt that the money would be better spent on proven treatment programmes. It should be noted that many of the offenders on the register will be under the supervision of the Department of Corrections for many years (10+ years for those on Extended Supervision Orders) 6, during which time they will be supported to attend appropriate treatment and rehabilitation programmes as usual. Any registered offender who has completed their Corrections oversight, and still seeks support of some kind will be referred to the appropriate programmes. It is not proposed that the register should replace programmes. 53. In developing the current approach in the Bill, care has been taken to learn from the experiences of other jurisdictions, and to consult with experts in this field from the Department of Corrections, to develop a model that is appropriate for the New Zealand environment. In particular, the criteria for registration attempts to balance identified best practice with the rights of the offender, the victim and the community. New Zealand is going against the trend of many international jurisdictions by proposing a register that is not publically available. A more exclusive approach is being proposed towards information sharing to protect the rights of the offender and the safety of their families and to increase the likelihood of the offender s rehabilitation. Specified government agencies will be 5 J.J. Prescott and Jonah E. Rockoff, "Do Sex Offender Registration and Notification Laws Affect Criminal Behavior?" Journal of Law and Economics 54:1 (2011) 6 This will also absorb a significant amount costs to Corrections to manage high-risk offenders subject to the Register 11

12 allowed to share information, and authorised Police and Corrections staff will be permitted to advise affected persons where a significant risk to a child is identified. Employment checks will also be available for those who employ people to work with children, through the standard Police vetting service. 12

13 SECTION C: CLAUSE BY CLAUSE ANALYSIS 54. This section outlines submissions on the individual clauses of the Bill. Some of the analysis below necessarily repeats some of the discussion in the previous section of this report which addressed the main issues raised in submissions. 55. s that propose specific amendments to clauses are made subject to Parliamentary Counsel's views as to the exact form these amendments should take. Clause 1 - Title 56. Clause 1 states the title of the Act to be the Child Protection (Child Sex Offender Register) Act The NZ Council for Civil Liberties Incorporated stated that It is more accurate to describe the purpose, and even name the Bill, as The Limitations of Freedom for Persons Convicted of Sex Offences involving Children. 58. A Labour Party member of the Committee also suggested amending the title, substituting monitoring order for Register. 59. The title of the Act reflects the aim of the legislation which is to establish a child sex offender register, the purpose of which is to reduce sexual offending against child victims and the risk posed by serious child sex offenders by enabling more effective information sharing. 60. The Bill simply provides the means to obtain up-to-date information from registered offenders, to store that information in a register, and to share it within the limits provided by legislation. The monitoring aspect of the work does not need to be included in the Bill as all monitoring and management functions will be carried out within the scope of existing legislation. Clause 2 - Commencement 61. Clause 2 provides for the Act to come into force on 1 July There were no submissions on this clause. 13

14 Part 1 Preliminary Matters Clause 3 - Purpose 63. Clause 3 provides that the purpose of the Act is to establish a Child Sex Offender Register that will reduce sexual offending against child victims, and the risk posed by serious child sex offenders by (a) Providing government agencies with the information needed to monitor child sex offenders in the community, including after the completion of the sentence; and (b) Providing up-to-date information that assists the Police to more rapidly resolve cases of child sex offending. 64. There were four submissions on the general purpose of the Bill. 65. Two submitters (34, 60) thought that the purpose of the Bill should be focused solely on the protection of children and the interest of the public, not the interest of the offender. 66. One submitter (66) argued that the purpose of the Bill was to place further restrictions on a small group of individuals for whom there is in general little public sympathy. One submitter (97) noted that care must be taken to ensure that the wording of the Bill reflects the intent of creating an effective tool rather than creating opportunity to do harm. 67. One submitter (65) noted that 3(a) & (b) do not sufficiently provide the mechanism to reduce the sexual reoffending against child victims or reduce the risk posed by offenders. This submitter states that the scope is too narrow, relying on self-reporting, that 3(b) is too reactive and that clause 3(a) is intended to give the offender the sense that they are being watched when Clearly the Police won t actually be watching them 24/7. The submitter goes on to say that making the database publically accessible would provide a mechanism to increase the amount of time that the offender was being watched. 68. The Bill seeks to balance the safety and rights of victims and the public with the rights of the offender. The safety of the public is enhanced when offenders are given an opportunity to successfully reintegrate into the community. Research suggests that reintegration is more difficult when the register is publicly accessible In practice, Police will not be fully relying on the self-reporting of registered offenders. Much of the information provided will be verified by Police, Corrections and other specified agencies, especially for registered offenders who are assessed as high risk. In addition, Police will have the ability to inform affected persons, where it is assessed that the offender poses a threat to the life, welfare or sexual safety of a particular child or particular children. 7 Do Sex Offender Registration and Notification Laws Affect Criminal Behavior?Journal of Law and Economics, Vol. 54, No. 1, February 2011, Columbia Business School Research Paper 14

15 Clause 4 - Interpretation 70. Clause 4 provides an interpretation of the terms used in the Act. 71. There were no submissions on this clause. 72. Officials recommend that the definition of a qualifying offence be amended to include any repealed offence that is largely similar to a qualifying offence, but is not currently included in the Schedule. This aligns with the Vulnerable Children Act, section 2 of Schedule 2. Amend clause 4 to read qualifying offence means a class 1 offence, a class 2 offence, or a class 3 offence, and any repealed offence that is largely equivalent to a qualifying offence that is not included in the Schedule. Clause 5 Act binds the Crown 73. Clause 5 provides that this Act binds the Crown. 74. There were no submissions on this clause. Offenders to whom Act applies Clause 6 Who is a registrable offender? 75. Clause 6 defines a registrable offender as a person whom a court has sentenced to imprisonment, or sentenced to a non-custodial sentence and made subject to a registration order, in respect of a qualifying offence. 76. There were seven submissions on clause Three submitters (10, 17, 140) expressed concerns about the automatic registration of offenders convicted of a qualifying offence and sentenced to 15

16 imprisonment. One submitter (17) was concerned about the lack of differentiation between sex offenders which means that a non-sex offender who commits an out of the blue sex offence will be registered. Another submitter (10) expressed concerns that an 18 year old who is sentenced to prison for having sex with a 15 year old would be placed on the Register for life with no possibility of removal. This submitter considers that there exists a strong potential for inequitable outcomes for offenders committing similar offences who fall on different sides of the 18 year old dividing line. 78. One submitter (138) noted that automatic registration could place pressures on Police and judges, and increase the likelihood that defendants will contest the charge rather than plead guilty. 79. Two submitters (21, 114) favoured judges having discretion at sentencing, stating that the judge was the most informed person to make the decision whether or not an offender should be registered. 80. Two submitters (46, 138) urged caution. One expressed concerns about the legal loopholes which can allow an offender to avoid registration. The other submitter was concerned about the minimum age for registration, stating that in other jurisdictions there has been age creep where children under 18 are now being placed on the Register. 81. An offender convicted of a specified offence will only be registered automatically if sentenced to imprisonment. The sentencing judge will have discretion whether to order that the offender be registered if a non-custodial sentence is imposed. In the case of an 18 year boy having sex with his 15 year old girlfriend, the judge would be unlikely to sentence the youth to imprisonment, or order registration, unless there were some additional aspects to the offending that made it more serious. 82. It is acknowledge that the threat of registration will increase not guilty pleas. This tends to occur whenever the repercussions of offending are increased in some way. The number of benefits that will come from the register are considered to outweigh the concerns about an increase in not guilty pleas. No change recommended to this clause. Clause 7 Who is a corresponding registrable offender? 83. Clause 7 defines a corresponding registrable offender as a person who has been found guilty of a corresponding offence in a foreign jurisdiction and has been sentenced to imprisonment or been required to report personal information to a body or person exercising the functions largely similar to the Commissioner of Police under this Act. 84. Save the Children (86) welcomes the notices to be given in relation to registerable offenders entering New Zealand. 16

17 Registration orders Clause 8 Court may make registration order 85. Clause 8 provides that if the court finds a person guilty of a qualifying offence and imposes a non-custodial sentence the court may make a registration order only if satisfied that the person poses a risk to the lives or sexual safety of 1 or more children, or children generally. 86. The Judges of the District Court (40) made two proposals: that the statutory test in clause 8(2) be amended to clarify the provision s intent: this test gives the sentencing judge wide discretion. While it is not uncommon for the statutes to provide for judicial discretion, we are concerned that in this instance the test does not sufficiently convey the legislative intent of the provision that the resourcing implications of clause 8(2) on the District Courts be considered. 87. Officials agree that clause 8(2) be amended to include matters to be considered by the court in reaching a decision. 88. Police and Corrections have consulted with the Ministry of Justice (Courts) throughout the drafting of the Bill, so that the Ministry is aware of the possible resource implications. The Ministry is also represented on the Implementation Steering Group for the register. Amend clause 8(2) to provide that the court may make an order under this section (a registration order) only if the court is satisfied that the person poses a risk to the lives or sexual safety of 1 or more children or children generally. When assessing the risk posed by the person, the following matters should be considered: - the seriousness of the offence - the period of time which has elapsed since the registrable offender committed the offence or other similar offences - the age of the qualifying registrable offender - the age of the registrable offender at the time of the offence - the age of any person who was victim of any such offence (where applicable) - the difference in age between the victim and the registrable offender at the time the offence was committed - any assessment of the risk posed by the registrable offender - any submission or evidence from the victim of the offence - any caution that the registrable offender has received for an offence 17

18 - any other submission or evidence of the risk of sexual harm to a child or children posed by the registrable offender - any submission or evidence provided by, or on behalf of, the registrable offender which demonstrates that the registrable offender does not pose a risk of sexual harm to a child or children - any other matter that the court considers relevant. Part 2 Child Sex Offender Register Subpart 1 Establishment and administration of register Clause 9 Child Sex Offender Register established 89. Clause 9 provides that the Commissioner must establish a Child Sex Offender Register that contains specified information about the person and the offence/s for which that person has been convicted. 90. One submitter (87) considers that the term child sex offender is too bland a term and minimises what we are discussing. 91. The Napier branch of the Sensible Sentencing Trust (88) strongly recommends that every entry on the Register contain a copy of the judge s sentencing notes. 92. The term child sex offender is accurate for the purpose of the Bill and is consistent with the term recognised by other agencies and international jurisdictions. 93. Officials agree that clause 9 should specifically include the judge s sentencing notes in the information that must be in the register. These notes, which may detail the offending and its circumstances, will assist in assessing the risk that the offender poses. That clause 9(2) be amended to specifically include the judge s sentencing notes. Clause 10 Administration of register 94. Clause 10 provides that the Commissioner is responsible for the administration of the register and may appoint authorised Police employees or employees of the Department of Corrections for the purpose of administering the register. Clause 10(2) specifies that the Commissioner must consult with the Chief Executive of the Department of Corrections before making any significant operational decisions about the administration of the register. 95. The Privacy Commissioner (78) notes that in relation to clause 10(2) the Bill includes no provisions for independent oversight to ensure any changes are 18

19 proportionate to indentified risks that are not adequately addressed under the existing framework. 96. This clause relates to operational aspects of the Register rather than policy settings and therefore independent oversight is not required. Any operational changes would need to comply with the legislative framework. However, Police would seek advice from the Office of the Privacy Commissioner if privacy settings were to be affected. Subpart 2 Reporting obligations Notification of reporting obligations Clause 11 Notices to be given when registrable offender sentenced 97. Clause 11 provides that the sentencing court must give written notice to a registrable offender sentenced in New Zealand for a qualifying offence, explaining their reporting obligations and penalties for failing to comply, and written notice to the Commissioner of Police and chief executive of the Department of Corrections. 98. The District Court Judges (40) ask that clause 11(3) be amended to clarify that it is the court registry s obligation to give written notice to Police and Corrections when a registrable offender is sentenced 99. Officials agree with this submission. Agree that clause 11(3) be amended to read: As soon as practicable after a registrable offender is sentenced, the Registrar of the sentencing court must give written notice of the fact to (a) the Commissioner of Police; and (b) the chief executive of the Department of Corrections. Clause 12 Notification to be given when registrable offender ceases to be in custody 100. Clause 12 provides that the chief executive of the Department of Corrections must give a registrable offender, who has been in custody for 14 consecutive days or more, a written notice of their reporting obligations and penalties for failing to comply, as soon as practicable before or following release from custody. 19

20 101. There were no submissions on this clause. Clause 13 Notices may be given by Commissioner 102. Clause 13 provides that the Commissioner may give a written notice to a registrable offender any time that it is suspected that the registrable offender did not receive a notice or is unaware of their reporting obligations or penalties for failing to comply There were no submissions on this clause. Clause 14 Notices to be given to corresponding registrable offenders who enter New Zealand 104. Clause 14 provides that the Commissioner of Police must give a written notice explaining the reporting obligations and penalties for failing to comply, to a corresponding registrable offender as soon as practicable after becoming aware that the offender has entered New Zealand There were no submissions on this clause. Initial Report Clause 15 Relevant personal information to be reported 106. Clause 15 provides the range of relevant personal information that must be provided by a registrable offender and defines a general residence, place of employment, and vehicle, for a registrable offender, and when a child is generally residing in the same household. 20

21 107. Ten general submissions (10, 17, 28, 65, 68, 78, 86, 88, 132, 140) were received on this clause The submissions were concerned about the one size fits all approach, the ease of compliance by offenders if the requirements are over burdensome and the potential for negative consequences if the requirements present a barrier to reintegration and rehabilitation. One submitter (68) considers that the amount of information the Bill proposes to collect is unworkable Two submitters (65, 86) expressed concerns about the reliance on self-reporting by the registered offenders and stressed the importance of information sharing between agencies Save the Children (86) expressed a particular concern about the implications of an offender s name change on the efficiency of the register if not reported by the offender One submitter (132) recommended that additional information be collected in relation to the names of the offender, addresses of relevance to the offender, and occupation The Law Society (68) considers that clause 15(1)(o) is too broad and provides the opportunity for the State to carry out surveillance over everyday activities that pose no risk to children. The Law Society recommends that in order to comply with section 5 of the New Zealand Bill of Rights Act the relevant personal information should be confined to specific categories of online accounts that may be associated with potential for sexual offending against children, such as social network accounts that enable access to sexual content The Privacy Commissioner (78) expressed concerns about the lack of security of online passwords, and the fact that it may be impossible to prove who committed the illegal activity While the Bill takes a one size fits all approach to the information to be reported under clause 15, there is flexibility within the Bill about how the information is reported and provisions to allow for the suspension of reporting under some circumstances. This flexibility will minimise the effort required to meet compliance, especially for those who are assessed as low risk. A requirement to report this information annually (unless there is a change in circumstances) is not particularly burdensome and is justified in light of the potential risk posed Restricting access to the information on the Register should minimise any negative impacts in terms of reintegration and rehabilitation. Specified agencies will use this information not only to monitor offenders but to enhance public safety by supporting registered offenders to successfully rehabilitate and reintegrate into the community The key information that is self-reported by registered offenders will be verified by Police, Corrections and other specified agencies. 21

22 117. Officials share the concerns expressed by Save the Children in relation to name change by a registrable offender and the implications for the effective management of that offender if they change their name without informing the Register. The name used by an offender is the key identifier for that person and can be linked to their biometric information. One of the main challenges for agencies attempting to either identify, track or monitor offenders, is the current ability for a person to change their name under section 21D of the Births, Deaths, Marriages and Relationships Act Information sharing provisions are currently being considered in a wider context across government in work coordinated by the Ministry of Justice Officials are proposing the addition of a provision, based on the legislation currently operating in New South Wales, requiring a registered offender to seek the approval of the Commissioner of Police before applying to the Registrar- General for a change of name. The Bill would provide a list of considerations that the Commissioner of Police must take into account prior to giving approval It is also proposed that failure to seek the Commissioner s written approval prior to applying for a change of name be an offence with a penalty of a fine of up to $4,000 or imprisonment for a term not exceeding two years. This is consistent with the penalty proposed for providing false or misleading information It is noted that a Member s Bill, the Births, Deaths, Marriage and Relationships (Preventing Name Change by Child Sex Offenders) Amendment Bill, received its first reading on 2 December The Department of Internal Affairs advises that they support the policy intent but do not support the Member s Bill itself, as the issues are being addressed by other Government initiatives (including the Child Protection (Child Sex Offender Register) Bill) Officials note the Law Society s recommendation to limit online accounts to those that may be associated with potential for sexual offending against children and also note that there are practical difficulties and limited benefits from requiring login details, passwords and details of all online accounts. It is proposed that clauses 15(1)(n) and (o) be limited to Internet Service Providers, social networks, gaming accounts, storage accounts and bank accounts (for the purpose of locating offenders who fail to report their address) It is also recommended that one further subclause be added to include details of domain ownership (this permits the person to establish a private network) and any websites administered by the offender Officials also propose that clause 15(1)(e) be amended to include the gender of any child who generally resides in the same household as that in which the registrable offender generally resides. Amend the Bill to include a provision that requires a registered offender to seek the approval of the Commissioner of Police prior to applying to the Department of Internal Affairs for a change of name, and establish an offence for failing to do so. Amend clause 15(e) to include the gender of each child who generally resides in the same household as that in which the registrable offender generally resides 22

23 Amend clause 15(1)(n) to read name and contact details of the internet service provider used, or intended to be used, and the routing or modem device IP used, or intended to be used, by the offender Amend clause 15(1)(o) to read username for any social network, gaming accounts, online storage accounts and bank accounts used, or intended to be used, by the offender. Add clause 15(1)(q) details of any domain ownership or website administered, or intended to be owned or administered, by the offender. Clause 16 When initial report must be made 125. Clause 16 provides that an initial report must be made by a registrable offender within 72 hours of release from custody, or being made subject to a registration order, or in the case of a corresponding registrable offender, within 72 hours of entering New Zealand, or demonstrating an intention to reside in New Zealand by applying for a resident s visa There were two submissions on this clause (86, 103) Save the Children (86) considers that 72 hours is too long for the initial report and that a registrable offender should make an initial report within 24 hours The Salvation Army (103) notes that it is not practical to expect that an offender will be able to provide all the information required within 72 hours and notes that some offenders struggle to find stable accommodation or work upon release Reporting within 72 hours is consistent with the existing requirement for an offender to report to the Community Probation Service following their release from prison. A registrable offender will only be required to report the required information as it pertains to them at the time of reporting. For example, if they have not been able to secure employment, they will report that they are unemployed. Ongoing reporting obligations Clause 17 Requirements to make periodic reports 130. Clause 17 provides that a registrable offender must make periodic reports to the Commissioner until their reporting period ends, to confirm their relevant personal information. 23

24 131. There were no submissions on this clause. Clause 18 When periodic reports must be made 132. Clause 18 provides that a registrable offender must make a periodic report each year starting in the first year after making their initial report, and that the periodic report must be made on the date specified by the Commissioner in writing or if no date is specified, by the end of the calendar month which is the anniversary of the date of the last periodic report There were no submissions on this clause. Clause 19 Requirement to report changes to relevant personal information 134. Clause 19 provides that a registrable offender must report a change in their relevant personal information to the Commissioner within 72 hours after that change occurs, or 72 hours after returning and remaining in New Zealand for 7 consecutive days, or being released from custody for 7 or more consecutive days The Law Society recommends that, if the Bill is to proceed, a provision similar to clause 20(5) (to provide for exceptional circumstances that may make these reporting time frames impracticable) should be incorporated into this clause Clause 20(5) refers to initial travel plans and is the only time that reporting must be made prior to the event. Clause 19 allows for the reporting of personal information up to 72 hours after the event The requirement for prior notice of initial travel arrangements, is to allow for any apparent risks associated with the travel to be identified and managed. The provision around exceptional circumstances is required to cover emergency situations, such as the sudden death of a family member, where it would be unreasonable to require notification 48 hours prior to travel. This situation is not applicable to situations that require reporting after the event. 24