The New Zealand Council for Civil Liberties Inc [NZCCL] welcomes the opportunity to present a submission on this Bill, and I make this submission on behalf of the Council.
This Bill contains a proposal which is designed to reduce the risk of serious harm to children from known child sex offenders living in the community. This is to be given effect to by the creation of a child sex offender register.
The Regulatory Impact Statement acknowledges that there is limited research evidence available from other jurisdictions about the effectiveness of such registers. Accordingly no estimate of the value of the anticipated benefits has been possible. It seems clear that this is virtually a “blue skies” approach, and one might be excused for thinking that, without the provision of substantial additional assistance for those whose names will appear on the register, the proposal is directed towards significant further restrictions on a small group of individuals for whom there is in general little public sympathy.
The launch of this proposal is rather inauspicious for 3 reasons. First, it focuses on endeavouring to prevent certain actions from occurring; next, it can point to no significant evidence elsewhere to show that this approach has any tangible effect; and third, it omits reference to any criteria which may be used as a way to determine the value of anticipated benefits.
The current best estimate is that the register is likely to contain the names of 2,746 individuals at the conclusion of 10 years after its introduction. It is also apparent that the existence of such a register will carry with it a great financial cost. It is a very large cost to pay in order to limit the potential small number of future offences committed by those persons whose names will appear on the register.
For these reasons NZCCL considers that, apart from inflicting a harsh regime on this particular sector of our society, there is little justification and less economic sense in proceeding with it. Pragmatically, however, we recognise that the Government is probably committed to its enactment, and so it is more appropriate for our focus to be directed towards ameliorating the harshest impacts [or at least making them more apparent], and proposing greater transparency and accountability in its operation.
On this basis the Council has examined 3 aspects – the purpose of the Bill, the lack of assistance and supports for those whose names appear on the register, and the need for improved accountability and transparency in terms of its operation. We will also make suggestions as to how those aspects can be implemented.
PURPOSE OF THE BILL
The purpose of the Bill is described as reducing the risk of serious harm to children from known child sex offenders living in the community. The establishment of the register is designed to achieve this outcome. If it were to be completely successful there will be no further offending from those whose names appear on the register. This outcome may be capable of achievement through the use of considerable resources and the constant monitoring of those individuals. Another way in which the same outcome may be achieved is through the provision of a proper level of supports and professional assistance for those same individuals.
Apart from a brief recognition that the proposal has some human right and privacy implications, there is little further mention and no substantive description of what, if any, assistance is intended to be provided to those whose names will appear on the register.
NZCCL suggests that the primary and direct purpose of the Bill is to limit the rights and freedoms of those individuals whose names appear on the register, to such an extent that they will continue to experience the feeling of being imprisoned. The only tangible difference is that in this situation the bars they experience are invisible ones. It is more accurate to describe the purpose, and even name the Bill, as “The Limitation of Freedom for Persons Convicted of Sex Offences involving Children”.
BILL OF RIGHTS AND PRIVACY ISSUES
In particular S.18 of the BORA entitles every individual to the right of freedom of movement and residence in New Zealand. Under the proposals in this Bill, those rights will be severely constrained. Further, those constraints will continue for many years, and there are significant and ongoing obligations on those persons whose names appear on the register to notify any and every change in certain details. Even the right to travel is required to be notified in advance.
The complete absence of any mention of assistance and supports required to be given, or at least offered, to those whose names appear on the register is a disappointing omission. One can draw the conclusion that there is little interest in, or concern for, the well-being of those whose names appear on the register, and that each of them is a potential “time bomb” waiting to explode especially without any necessary supports or assistance. It is little wonder that such a tight monitoring regime is proposed. Far better and far less expensive, in the view of NZCCL, is to focus on improving their well-being and lessening their risk of re-offending. The stated purpose of the Bill is thus achieved in an alternative manner.
DIFFICULTY WITH SHARING INFORMATION
NZCCL understands the desire to ensure that the potential for re-offending is nullified, or at least minimised. The stated means whereby this is to be achieved is by enabling all those agencies which have an interest in the well-being of children to receive access to the details contained in the register.
While there is merit in a concerted approach, the wider the information is shared the more difficult it becomes to ensure that proper procedures and accountability are achieved. When an error such as the unauthorised disclosure of information occurs it is very difficult to determine which individual is directly responsible for the disclosure. It is easy to be able to discount the lapse by referring to it as a “systemic failure”.
If the Bill is to proceed it is essential that there be a comprehensive code of conduct and a practice manual which itemises each of the individuals who have access to the register, as well as their specific responsibilities. In the [hopefully] unlikely event of any unauthorised disclosure the source can be identified and the circumstances ascertained and fully explained.
ACCOUNTABILITY AND TRANSPARENCY
Clause 48 of the Bill excludes any liability for any act or omission done by a person when good faith is involved. A considerable amount of anxiety is caused both to the community, and to the individual concerned, when knowledge of their domicile within that community becomes “common knowledge”. In practical terms there is more risk to the individual than to community members once that information becomes known, and it is of course extremely difficult to ascertain just how the information became public.
While understandable, it is nonetheless a difficult issue to resolve to the satisfaction of everybody. The individual has to live somewhere, and if credence is to be given to those who oppose their neighbourhood as the location of residence, then the question becomes “where?”. The same level of objection can arise wherever the individual lives.
NZCCL recognises that, fortunately, local outrage is relatively limited. However, when it does occur, it is evidence that there has been some failure within the system. If it is impossible to identify the source, and there is an express limitation on the capacity for an individual affected in this manner to seek any financial redress, then some other avenue needs to be provided.
In view of the harsh nature of the restrictions and reporting obligations imposed on the individual, it seems fair that there be some comparable obligation on the state, and its various limbs, to accept a level of responsibility for, and make good, any failings on behalf of its operatives. Perhaps it is time to look at the possibility of some financial compensation whenever such a failing occurs. Such an approach is at least an indicator of good faith, as well as restoring some balance. Persons whose names appear on the register are also human beings, and in view of their minimal capacity to negotiate in such a situation, this at least provides some level of redress. It is also an incentive for employees of each agency to ensure that they undertake all actions with integrity and professionalism. (Paragraph updated, see Corrections below.)
In terms of transparency it is important that appropriate statistics are provided on an annual basis. The Regulatory Impact Statement indicates that high level statistical data will be published in order to promote transparency. Details of data at that level are unlikely to be adequate to provide any real indication of success, or for that matter value for money. A comprehensive range of statistics is necessary in order to assess the effectiveness of the register, and how it is operating. Whatever details are provided there is a strong possibility that some ambiguity will be involved. For example, a zero number of re-offending incidents can indicate that the regime was extremely effective. It can also indicate that the conduct of those on the register was of a higher standard that anticipated, and that a great amount of expenditure was incurred and was unnecessary. All the more reason for the proper provisions of supports and professional assistance for all those who appear on the register.
I have just become aware that the submission I sent to the Social Services Select Committee in regard to the Child Protection [Child Sex Offender Register] Bill was an earlier version that contained an error in paragraph 5.4 (starting "In view of the harsh nature...").
The purpose of this particular paragraph is to introduce the idea of some fairness and balance, and a measure of that balance can most easily be achieved through a financial means. The original version specified a particular monetary penalty. It is far too premature to even consider any quantum in this regard, and I intended my submission to portray that approach, thus this has been removed.