One of the oldest tactics in spin is releasing bad news late on a Friday afternoon, when the media is too keen on the weekend - and too far past its deadline - to pay attention. Unfortunately, our spin-obsessed, PR rather than policy government now seems to be applying this idea to legislation.
Back in 2003, the then-Labour government passed the Parole (Extended Supervision) and Sentencing Amendment Bill, amending the Parole Act and Sentencing Act to allow extended supervision of high-risk child sex offenders. Under the law, those convicted of and who had already completed their sentence for a "relevant offence" prior to the bill coming into force could be subjected to residential restrictions equivalent to home detention for the first twelve months, and ongoing conditions such as reporting, treatment, and electronic monitoring for up to ten years after the completion of their sentence. The Attorney-General at the time rightly warned [PDF] that this constituted double jeopardy and unreasonable search and seizure in violation of the Bill of Rights Act. Parliament passed it anyway.
Now the government - no doubt motivated by David Garrett - has decided that that does not go far enough. So today it introduced a Parole (Extended Supervision Orders) Amendment Bill, giving the parole Board the power to impose electronically monitored home detention for up to 24 hours a day for the full ten years of an ESO - which, remember, is imposed after the completion of any sentence.
That bill is now law. Somehow, this afternoon, it was introduced and passed through all three stages without urgency. And this despite the Attorney-General warning that it pissed all over the BORA [PDF], imposing retroactive penalties, double jeopardy, and arbitrary detention.
The government's spin line is that this is merely "closing a loophole" in the original law introduced inadvertently in 2007. But the government's own Attorney-General called bullshit on that:
The explanatory note to the Bill suggests this power existed in the scheme as initially enacted in 2003 [sic], but was inadvertently removed by the 2007 amendments. however, this Bill has the appearance of introducing a new power. the pre-2007 scheme did not contain explicit power to impose such conditions for longer than 12 months. Rather, the Board could impose residential restrictions "as if the person were on home detention" for the first 12 months, and otherwise could only impose on-going special conditions under s 15 of the Parole Act 2002. Section 15 include (prior to 2007) the power to prohibit the offender from entering or remaining in certain areas. I doubt that s 15 could have been extended to allow what would be effectively long term home detention. I therefore consider the proposed power did not exist under the pre-2007 regime.The regime is unquestionably penal - the ability to impose home detention settles that. It is applied retrospectively and to those who have already completed their sentence. "The imposition of residential restrictions appears to be an additional sentence for the same criminal offending which is imposed at the end of the first sentence". It also seems to be a second bite at the cherry of preventative detention (or rather, the parole conditions thereof); if a Judge doesn't consider someone enough of a risk to sentence them to preventative detention and its extended parole regime, the Parole Board can second-guess them and do it anyway (so that's two counts of double jeopardy). Then there's this:
The Parole Board's power to order what is effectively long term detention of offenders is based on their assessment of the risk of their future offending. The proposal in effect allows for long term detention without charge or trial.No-one likes child-sex offenders, but even they have a fundamental right not to be arbitrarily detained or punished retrospectively, or punished multiple times for the same crime. By passing this, we've weakened those protections for ourselves.
As I said, the bill is now law. The original bill received a full debate and select committee process, and from the Hansard, it is clear that the serious human rights issues it raised were fully debated in Select Committee. This bill went through in less than an hour. Less than an hour to fundamentally violate human rights by introducing retrospective arbitrary detention for crimes already punished. Did everyone just want to go home for the weekend or something?
To say I am "disappointed" is an understatement. This was a fundamental abuse of the Parliamentary process. And it was a betrayal of all of us who expect our laws to be carefully considered and seriously debated, not to mention publicly consulted on. Parliament has not done its job here, and its "honourable" members should hang their heads in shame.
Finally, I am particularly disappointed in the Greens. As noted above, this bill was not rammed through under urgency; it was introduced and passed through all stages rapidly by leave of the House. That means the Greens agreed with that process. You'd have thought that the tabling of a s7 report saying it violated the BORA would be a big, flashing red light telling them to deny leave and call for full debate and consideration by a select committee. But apparently not. The party which has been our foremost defender of human rights and good Parliamentary process failed yesterday. I would love to hear their excuse why.
