Parliament has debated a Supreme Court declaration that the public protection order regime is inconsistent with the Bill of Rights Act.
The Supreme Court ruled in September last year that public protection orders and extended supervision orders are unjustifiably inconsistent with the Bill of Rights Act 1990. The regimes allow offenders who have completed prison sentences for serious sexual or violent crimes to remain detained if assessed as posing a very high risk of imminent and serious reoffending, or to face strict conditions on residence and monitoring, including required accommodation on or near prison grounds. The court found the regimes breach section 26(2) of the Bill of Rights Act, which prevents individuals being tried or punished more than once for the same offence.
Corrections Minister Mark Mitchell told the House a declaration of inconsistency "does not affect the validity of an Act" but "signal[s] 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 said the government concedes some intrusion on individual rights but argues the provisions remain necessary to protect public safety. The government acknowledged the finding but said any legislative changes "will take time".
Labour's Shadow Attorney-General Vanushi Walters challenged the lack of urgency. "There just doesn't seem to be a sense of urgency in terms of the need to do it," Walters said. She noted the Law Commission released a report publicly in April last year. "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 said. She suggested Parliament may need "something like a human rights select committee" to consider such declarations.
Green MP Laurence Xu-Nan, a Justice Committee member, said the committee's consideration was nuanced and methodical, reaching unanimous recommendations. The committee recommended a new single statute regime with 4 components: a three-tiered system for graduated post-sentence orders, interim notification during sentencing of possible orders, periodic review, and continued committee monitoring. Xu-Nan said the process reflects "the ability for the legislature, executive, and judiciary to hold each other accountable".
This is only the second declaration of inconsistency Parliament has formally debated under procedures established by the 2022 Amendment Act. Such declarations formally notify Parliament that a court has found legislation inconsistent with protected rights, but do not invalidate legislation or compel law changes.