In the section 7 reports on the 2017 and 2021 amendment bills, two Attorneys-General confirmed that the right affirmed in section 25(g) is truly fundamental. In the section 7 report on the bill, the Attorney-General stated that evidence is limited as to the effectiveness of sex offender registers in improving public safety. Therefore, he considered that the intrusion on that right was not in due proportion to the importance of the objective of the bill and could not be demonstrably justified.

The Attorney-General noted that his section 7 report on the 2021 amendment bill considered that the principal Act would impair an offender’s rights less if it limited the duration of reporting requirements. Alternatively, the Act could include a review mechanism allowing for offenders’ reporting requirements to be deregistered or suspended. Although these options would still deny the right affirmed by section 25(g), they would be less severe. The Attorney-General pointed out that he could not consider these options because they were not included in the bill.

The previous Justice Committee sought advice on whether the proposed new reporting requirement could be amended. Specifically, it asked whether the amendment could be designed so it would impair the rights affirmed in section 25(g) no more than was reasonably necessary to sufficiently achieve the objective of the bill. We received advice that the bill could be amended to limit the information a registered offender would need to provide to the Commissioner for putting on the Register. For example, the bill could require only information about the countries that an offender intended to visit and their dates of entry and departure. Each jurisdiction could then decide how to respond to that information. Those jurisdictions could also choose to request additional information from the offender when they arrived at the border.

We also received advice that it would be operationally impossible for the Commissioner to monitor the extent to which the registered offender stayed at the notified addresses while overseas. The Commissioner has no reciprocal agreements with overseas jurisdictions requiring them to monitor registered offenders while in their jurisdictions or to report non-compliance to the Commissioner in New Zealand. Overseas jurisdictions also have no legal obligations to do so. Further, individual agreements with each jurisdiction would be needed because there is no common approach to sharing information or managing the risks presented by child sex offenders. We were advised that this would be complex and involve substantial work even in the unlikely event of each jurisdiction agreeing.

We spent some time discussing these matters. The Member in charge of the bill pointed out that child sex offending is largely carried out by a relative or other person known to the victim. He explained that the bill is intended to give family members and those in the vicinity of the offender overseas the same protections as they have domestically. We acknowledge the concern that enforcement would be difficult but note that this is also the case for offenders travelling in New Zealand. The Member in charge of the bill also suggested that Interpol and Police Liaison Officers² could have a role in requesting an address check of an offender if there are concerns. However, it would still be up to the local jurisdiction to determine whether to action any requests.

Section 26(2) of NZBORA provides that no one who has been finally acquitted, convicted of, or pardoned for an offence shall be tried or punished for it again. In 2021, a Supreme Court decision confirmed that a registration order under the Act constitutes a punishment for the purpose of NZBORA.³ In his report on the bill, the Attorney-General said he considers that the additional reporting requirements constitute a punishment for the purposes of section 26(2).

The Attorney-General interpreted the bill as only applying prospectively. To reach this view, he applied section 12 of the Legislation Act 2019 (which reenacted section 7 of the Interpretation Act 1999), which states the general principle that legislation does not have retrospective effect. He observed that the Legislation Design and Advisory Committee’s Legislation Guidelines state that, if retrospective legislation is intended, it must be stated in the legislation. As the bill contains no specific transitional provisions for retrospective application of the amendments proposed to be made by the bill, the Attorney-General considered that the additional reporting requirements would only apply to people who became registrable offenders after the bill’s enactment.

The Attorney-General concluded that if the bill were applied retroactively, it would be inconsistent with section 26(2) of NZBORA. The previous committee requested advice about the risk of the bill being interpreted as applying retrospectively. It was advised that nothing specifically stated in the bill suggests that the amendments in the bill are intended to apply retrospectively. However, because the principal Act is retrospective (clauses 1 and 5 of Schedule 1 of the principal Act), retrospectivity could be assumed to automatically apply. However, we note that those clauses ensure retrospective application only to people who are registrable offenders because of offending before 14 October 2016. They also do not provide clearly for the bill’s amendments to apply retrospectively. We understand that not applying the additional reporting requirements retrospectively would create operational challenges. This is because the two groups of registered offenders would need to be managed differently after the legislation came into force. Consequently, the Commissioner would be unable to identify or manage the risks presented by those offending after commencement to the same extent as those offending before commencement.

We agree with these concerns and consider that the bill should apply retrospectively. Accordingly, we propose an amendment to the bill to make this intention explicit. We explain the amendment in more detail in our “Proposed amendments” section of this commentary.

In November 2022, the previous Justice Committee heard an oral submission from the Ministry of Justice in support of the Attorney-General’s section 7 report. The ministry pointed out that the principal Act is considered inconsistent with sections 25(g) and 26(2) of NZBORA. Therefore, any amendments would also be considered inconsistent. The ministry observed that the additional reporting requirements proposed by the bill would place additional requirements on registered offenders. This would increase the scale of the inconsistency. It concluded that the lack of evidence for the effectiveness of sex offender registers means that the limitations placed on individuals’ rights are disproportionate and therefore cannot be justified.

We recognise the tension between balancing rights and freedoms and minimising harm. We understand that the use of registers to monitor offenders reflects the significant harm that child sex offenders inflict on children, their families, and communities. We note that Waikato University is leading a phased longitudinal recidivism study to evaluate the effectiveness of the Register. It expects to report initial findings about reoffending data and other measures of effectiveness in 2027.

We note that Parliament examined the matters raised in the section 7 report when it considered the 2015 bill for the principal Act and the two subsequent amendment bills of 2017 and 2021. The Attorney-General submitted a section 7 report on all three occasions. The bills were all passed after taking these matters into account. We also consider that the additional reporting requirements that the bill proposes do not significantly increase the limitations placed on individuals who are subject to registration.

Clause 2, as introduced, provides that the legislation would commence on the day after the date on which it received Royal assent. We note that the Police would need time to complete the necessary preparation for implementation—for example, to advise registrable offenders of the new overseas travel reporting requirements. We therefore recommend amending the commencement date to 3 months after Royal assent. The 3-month period will be calculated under section 28 of the Legislation Act.

Clause 4, proposed new section 21(4)(f), would require an offender to advise the Commissioner of the passport number, place of issue, and date of expiry of each valid passport that they hold. We consider that this provision is unnecessary because an offender is already required to report this information under section 16(1)(l) of the Act, as well as any changes to this information (sections 17 to 19, 20(1)(b) and (4)). We recommend deleting it.

We note that the Act already provides for registered offenders to be subject to border alerts when travelling. We were advised that the Police and Customs Service have developed and are operating a process for monitoring registered offenders through the Customs Service Border Alert process. We acknowledge that the SOP has the potential to improve processes for information sharing. However, we consider that the same outcome could be achieved by the proposed amendment we set out below.

Section 43 of the Act enables a specified agency⁴ to disclose personal information in the register to another specified agency for:

• monitoring the whereabouts of the offender

• verifying personal information reported by the offender

• managing the risk that the offender may commit further sexual offences against children

• managing any risk or threat to public safety.

This provision is intended to allow specified agencies to share with each other relevant information that they hold about a registered offender.

The Police are the only specified agency with access to personal information held in the Register. Although other agencies hold relevant information about registered offenders, it is in their own information systems rather than the Register. We understand that some agencies consider that they are unable to disclose relevant information about a registered offender because it is not held in the Register. This can inhibit information sharing between specified agencies and impact the effectiveness of the legislation. As a result, some specified agencies are using the Privacy Act 2020 to provide information for the purposes of section 43, which was not the intent of the Act.

We recommend amending section 43(1) to better reflect the intent of the Act. Under our proposed amendment, a specified agency could disclose personal information about a registered offender to another specified agency, regardless of whether the information was in the Register.

As previously noted in our section on double jeopardy and retrospectivity, we consider that that bill should apply retrospectively. This would mean that the additional reporting requirements will apply to people who are already registrable offenders required to be on the Register. They would also apply to people who are registrable offenders because of offending in the future. Specified agencies would be authorised to disclose personal information to other specified agencies about people who are already registrable offenders required to be on the Register. They would also be authorised to disclose personal information about people who are registrable offenders because of offending in the future. Therefore, we recommend inserting transitional provisions as new Part 2 of Schedule 1.