Another reason why we need an enforceable BORA

Back in 2003, the then-Labour government, faced with the "threat" of an unpopular child-sex offender being released from prison at the end of their sentance, enacted the Parole (Extended Supervision) and Sentencing Amendment Act, allowing them to be detained for an extra ten years. Because the bill extended a criminal punishment not imposed at trial by legislative fiat, it was found by the then-Attorney-General to be inconsistent with the right to be free from retroactive penalties and double jeopardy affirmed in the Bill of Rights Act. This view was subsequently confirmed by the Court of Appeal in Belcher v Chief Executive of the Department of Corrections.

Fast forward ten years. The initial orders issued under the Act are expiring, meaning the government faces the "threat" of unpopular child sex offenders being released from prison at the end of their (extended) sentance. So naturally, they are proposing extending the law to allow harsh post-release conditions (including effective home detention and perpetual monitoring) to be extended indefinitely. Punishment without end! That'll get the "tough on crime" vote ensure these people are rehabilitated!

But as before, the Attorney-General doesn't buy it, and has ruled that the Extended Supervision Order regime is a criminal punishment which is inconsistent with the right to be free from retroactive penalties and double jeopardy affirmed in the Bill of Rights Act.

If the BORA functioned as it was supposed to, Parliament would listen, and not pass the bill. But we've seen in recent years that the BORA does not function that way. Governments pay no attention whatsoever to section 7 reports (except in the case of member's bills), and this government in particular seems to regard inconsistency with the BORA as a virtue rather than something to be avoided. And instead of stopping to think, they're bemoaning the fact that they won't be able to ram the bill through quickly enough. If the past is anything to go by, they'll simply ignore the Attorney-General, pass the bill, and bugger the BORA.

Parliament has shown that it will not protect our fundamental human rights. And as I have said then, and repeatedly since: if they will not do the job, then we need to take the job off them and give it to someone who will: the Supreme Court.