Amicus Curiae: Establishing A Child Sex Offender Register in New Zealand – A Reasonable Infringement of Rights?

James Peacock, content contributor

On August 13 2015 Social Development Minister Anne Tolley introduced the Child Protection (Child Sex Offender Register) Bill to Parliament. This bill will create a child sex offenders register with the purpose of “reducing sexual reoffending against child victims” and mitigating the “risks posted by serious child sex offenders”.

The proposed register would provide the police with a way to keep track of potential recidivist child sex offenders. Unlike sex offender registers in the USA the register created by this Bill would not be open to the public. As a result this would not open up offenders to the potential of vigilante justice like that seen in the UK following the News of the World publishing the addresses of convicted child offenders. However, the availability of the register between the Police and different government departments does leave open the risk of a vigilante leak to the public.

Despite being a private register, Attorney-General Chris Finlayson’s report to Parliament concluded that the proposed bill is inconsistent with the New Zealand Bill of Rights Act. The first reason for this is that the register described in the bill is an unjustified limit on s 9 of the NZBORA in that it will impose “disproportionately severe punishment” on offenders. The Bill requires that offenders regularly provide the police with a myriad of personal information, including username and passwords for their ISP along with the addresses of their home and workplaces.

Citing the UK Supreme Court case of R (F) v Secretary of State for the Home Department the Attorney-general argues that lifetime “notification requirements” would be a disproportionate interference with offender’s’ right to a private life especially considering that the information required in the proposed Bill is a lot more comprehensive than that required in the Sexual Offences Act 2003 (UK).

Furthermore, the Bill requires 48 hour notice if an offender decides to travel away from their home. The Attorney-General writes that this is a clear disproportionate infringement on the right to travel in s 18 of the NZBORA. The Bill would also require offenders currently in prison to be put on the register, despite already having a punishment handed down upon them by a judge. This is in violation of the double jeopardy principle in s 26 of the NZBORA.

As Anne Tolley explained in interviews last week, she accepts that the proposed Bill infringes on the rights of offenders and argues that the bill finds a good balance between this infringement and the power of police to fulfill their duties in protecting the public. The premise of the Bill is that if the Police have an awareness of the personal information and location of prior offenders, they will be able to more “more rapidly resolve cases of child sexual offending.”

When considering that as of 2011 the recidivism rate for prior child sex offenders was 30% the need for a way to battle this appears necessary. However, when considering that the recidivism rate for general sexual offences is 52%, it opens the question of whether it would be more appropriate to create a register for serious sexual offences as a whole instead of limiting it to a narrow subset.

The issue raised by the proposed Bill is ultimately whether or not the infringement on the rights of offenders is necessary and justifiable to reduce the rate of child sexual offending in New Zealand. The conclusion reached by the Attorney-General in the bills current state is a clear “no”. However, the need for police powers to prevent reoffending is pressing and following select committee changes, a register might be a valuable asset to further the safety of children in New Zealand.

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