CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v CHISNALL [2019] NZHC 3126 [28 November 2019]

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v CHISNALL [2019] NZHC 3126[28 November 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2016-404-756[2019] NZHC 3126IN THE MATTER OF New Zealand Bill of Rights Act 1990, s 26BETWEEN CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSApplicantAND MARK DAVID CHISNALLRespondentATTORNEY-GENERALRespondent to Cross-ApplicationHearing: 24 and 25 June 2019Counsel: No appearance for ApplicantB Keith and G Edgeler for RespondentA Todd and M McKillop for Respondent to Cross-Application28 November 2019JUDGMENT OF WHATA JThis judgment was delivered by me on 28 November 2019 at 4.30 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate: .Solicitors: Crown Law, Wellington[1] Mr Chisnall applies for declarations of inconsistency with various rightsaffirmed by the New Zealand Bill of Rights Act 1990 (BORA) in respect of theextended supervision order (ESO) and public protection order (PPO) regimes.1 Theseregimes enable the detention of persons who have committed serious sexual orviolence offences after the completion of their sentences for that offending. Theapplication does not relate to any specific ESO or PPO. Rather, Mr Chisnall seeks toimpugn the powers enabling such orders. The Attorney-General opposes bothapplications, including on the basis that Mr Chisnall does not have standing.[2] As set out by the Court of Appeal in Taylor, to find inconsistency, "the Courtmust identify a limitation upon a protected right and find the two incompatible, in thesense that the limitation cannot be justified in a free and democratic society".2 TheBORA rights in focus affirm two immunities, the immunity from increased penaltyand the immunity from second penalty. The central issue to resolve therefore iswhether an ESO and/or a PPO impose an unjustifiable penalty.The questions[3] Given this, the following questions are raised by Mr Chisnall's application:(a) Does Mr Chisnall have standing to make an application forinconsistency?(b) What is a penalty?(c) Is an ESO a penalty?(d) If so, is an ESO justified per s 5 BORA?(e) Is a PPO a penalty?(f) If so, is a PPO justified per s 5 BORA?1 The ESO regime is set out in the Parole Act 2002 at sections [107A]-[107Z]. The PPO regime isset out in the Public Safety (Public Protection Orders) Act 20142 Taylor v Attorney-General [2017] NZCA at [6].(g) Are there other unjustified rights infringements?(h) Should declarations of inconsistency be made?Declarations sought[4] Mr Chisnall has sought the following specific declarations:1. Declaring that section 13(1) of the Public Safety (Public ProtectionOrders) Act is inconsistent with section 26(1) of the New Zealand Bill ofRights Act, as informed by Articles 15 and 26 of the InternationalCovenant on Civil and Political Rights.2. Declaring that section 13(1) of the Public Safety (Public ProtectionOrders) Act is inconsistent with section 26(2) of the New Zealand Bill ofRights Act, as informed by Articles 14(7) and 26 of the InternationalCovenant on Civil and Political Rights.3. Declaring that the manner and method of obtaining information for apsychological report in support of the application for a public protectionorder breached, and the making of a public protection order against MrChisnall would breach, his rights under sections 9, 18, 22, 23(5), 24(e)25(a), (c) and (d), and 27 of the New Zealand Bill of Rights Act 1990, asinformed by Articles 9, 10, 12, 14, and 26 of the International Covenanton Civil and Political Rights.4. Declaring that section 107I(2) of the Parole Act 2002 is inconsistent withsection 26(1) of the New Zealand Bill of Rights Act, as informed byArticles 15 and 26 of the International Covenant on Civil and PoliticalRights.5. Declaring that section 107I(2) of the Parole Act 2002 is inconsistent withsection 26(2) of the New Zealand Bill of Rights Act, as informed byArticles 14(7) and 26 of the International Covenant on Civil and PoliticalRights.6. Declaring that the manner and method of obtaining information for apsychological report in support of the application for an extendedsupervision order breached, and the making of a public protection orderagainst Mr Chisnall would breach, his rights under sections 18, 22, 23(5),25(a), (c) and (d), and 27 of the New Zealand Bill of Rights Act 1990, andArticles 9, 10, 12, 14, and 26 of the International Covenant on Civil andPolitical Rights.[5] As noted, my judgment will focus on the applications for declarations 2 and 5.Standing[6] Mr Chisnall has multiple convictions for very serious sexual offending. He wasdue for release on 27 April 2016, having served a full 11-year sentence for two countsof sexual violation by rape. On 15 April 2016, the Chief Executive Officer applied fora PPO or, in the alternative, an ESO. An interim detention order was granted.3Mr Chisnall's appeals against the interim order to the Court of Appeal and theSupreme Court were not successful. Both Courts concluded that an interim detentionorder was necessary to meet the very high risk of imminent serious sexual offendingposed by Mr Chisnall's release.4 The Courts also found that the risk to public safetycould not be met by less restrictive options.[7] The High Court then made a final PPO on 14 December 2017. The Court wassatisfied that Mr Chisnall posed a very high risk of imminent serious sexual offendingwere he to be released into the community unsupervised.5 Further, the Court was notpersuaded that the ESO with intensive monitoring would be sufficient to mitigate thevery high risk that Mr Chisnall posed.6 On 23 October 2019, the Court of Appealquashed the PPO.7 The Court found that the High Court approached the availability ofan ESO in the wrong way. The Court stated that, notwithstanding that the risk thresholdfor a PPO had been established, the statutory regime envisages that the Court could besatisfied that the (lesser) controls provided by an ESO may nevertheless be sufficientto mitigate the risk. Mr Chisnall is now subject to an interim protection order pendingreconsideration of the PPO application by the High Court.[8] Given this background, as Mr Chisnall appears to qualify for detentionpursuant to either the PPO regime or the ESO regime, he has standing to make thepresent applications. In short, he has a legitimate interest in the assessment of therights consistency of those regimes.3 Chief Executive of the Department of Corrections v Chisnall [2016] NZHC 784 [Chisnall HC].4 Chisnall v Chief Executive of the Department of Corrections [2016] NZCA 620 [Chisnall CA(2016)]; Chisnall v Chief Executive of the Department of Corrections [2017] NZSC 114, [2018]1 NZLR 83 [Chisnall SC].5 Chief Executive of the Department of Corrections v Chisnall [2017] NZHC 3120 at [114].6 At [119].7 Chisnall v Chief Executive of the Department of Corrections [2019] NZCA 510 [Chisnall CA(2019)]. This decision was brought to my attention after the hearing by Counsel for Mr Chisnall.An opportunity to submit on it was not sought by the parties.Background[9] The ESO and PPO regimes enable (among other things) the supervision anddetention of persons who, following completion of a sentence for sexual or violentoffending, are assessed as presenting a high risk of sexual offending or a very highrisk of violent offending. They form part of a matrix of regimes that provide for themanagement of persons who are considered to present a danger to the public. Thismatrix includes preventive detention; an indeterminate sentence which may beimposed in respect of sexual or violent offenders who are likely to commit anotherqualifying offence if released at the expiry date. 8[10] It also includes the Mental Health (Compulsory Assessment and Treatment)Act 1992 (MHCAT Act) and the Intellectual Disability (Compulsory Care andRehabilitation) Act 2003 (IDCCR Act). Those Acts enable detention in cases ofdangerous persons with specified mental health disorders and preventive measures fordangerous persons with specified intellectual disabilities. The ESO and PPO regimesthen provide for the management of a residual category of dangerous persons whopresent with certain risk characteristics but do not fall within the scope of preventivedetention at the time of sentence, MHCAT Act or the IDCCR Act.[11] The legislative background to the ESO and PPO regimes is addressed below at[72]- [82] and [129]-[133].BORA[12] Mr Chisnall's primary claim is that the ESO and PPO regimes are inconsistentwith the right affirmed by s 26(2). His secondary claim is that, as a corollary of thatinconsistency, the regimes also infringe ss 9, 18, 22, 23(5), 24(e), 25(a), (c) and (d)and s 27 of the BORA. The Attorney-General, however, frames the key issues asfollows:(a) Whether the powers to make ESOs and PPOs are prima facieinconsistent with the BORA and cannot be justified; and8 First introduced in 1954 per the Criminal Justice Act 1954, s 24.(b) Whether the retrospective effect (if any) of the ESO and PPO is primafacie inconsistent with s 26 and cannot be justified.[13] With the benefit of full argument, the central issue raised by Mr Chisnall iswhether the ESO and PPO regimes unjustifiably infringe the rights affirmed by s 25(g)and s 26(2). The extent to which those regimes otherwise infringe other rights affirmedby BORA is secondary to this issue, which I address briefly below at [150]-[153].Given this, I focus on the rights affirmed by ss 25(g) and 26(2) and their significance.Immunity from increased and second penalty[14] Section 25(g) states:25. Minimum standards of criminal procedureEveryone who is charged with an offence has, in relation to thedetermination of the charge, the following minimum rights:(g) The right if convicted of an offence in respect of which thepenalty has been varied between the commission of theoffence and sentencing, to the benefit of a lesser penalty.[15] Section 26 states:26 Retroactive penalties and double jeopardy(1) No one shall be liable to conviction of any offence on accountof any act or omission which did not constitute an offence bysuch person under the law of New Zealand at the time itoccurred.(2) No one who has been finally acquitted or convicted of, orpardoned for, an offence shall be tried or punished for it again.[16] Section 26(1) is not engaged by an ESO or PPO because those regimes do notinvolve a further "conviction".[17] The Attorney-General refers to breach of s 25(g) as an "increased penalty" andto breach of s 26(2) as a "second penalty". I agree that is the outcome of a breach ofthose sections, but I prefer a front-end description, that is to describe the rightsaffirmed by those sections as providing an immunity from increased and/or secondpenalty.[18] The significance of the immunity from increased penalty was explained byGault J (speaking for himself, Richardson P and Keith J) in Poumako.9 He said:[6] To summarise at this point:• The principle against retrospective criminal liability and retrospectiveincreased penalties is well established.• Its fundamental character does not allow for any "reasonable limits"(although questions may arise about the extent of a criminalproscription as appears in the controversial litigation about maritalrape) ; and• The reasons for the principle in terms of prior direction or deterrenceand the consequent possibility of knowing compliance, and justice, innot being subject to unknowable penalties, are long established andimpregnable.[19] Further emphasising the impregnable nature of this immunity, Gault J alsoobserved:10 it is difficult to imagine any possible justification for the retrospectivechanges in penalty.[20] Similarly, as Thomas J also explained in the same case, though dealing moregenerally with retrospective legislation:11• [Retrospective legislation] is contrary to "a constitutive principle ofthe rule of law – there can be no crime without law. Dicey in hisfamous Introduction to the Study of the Law of Constitution (10th ed,1959) at 102 and 108, was firm in the view that the principle a personshould only be convicted and punished on the basis of existing lawwas a major component of the rule of law But Professors Wade andBradley can have the last word. In Constitutional and AdministrativeLaw (10th ed, 1985) at p 614 the distinguished authors simply confirmthat retrospective legislation is repugnant to the rule of law.[21] Reinforcing its normative force, the BORA affirms New Zealand'scommitment to the International Covenant on Civil and Political Rights 19669 R v Poumako [2000] 2 NZLR 695 (CA).10 At [33].11 At [75].(ICCPR). Section 25(g) in fact broadly corresponds to art 15 of the ICCPR.12 Thatarticle states:Article 15(1) No one shall be held guilty of any criminal offence on account of anyact or omission which did not constitute a criminal offence, undernational or international law, at the time when it was committed. Norshall a heavier penalty be imposed than the one that was applicable atthe time when the criminal offence was committed. If, subsequent tothe commission of the offence, provision is made by law for theimposition of the lighter penalty, the offender shall benefit thereby.(2) Nothing in this article shall prejudice the trial and punishment of anyperson for any act or omission which, at the time when it wascommitted, was criminal according to the general principles of lawrecognized by the community of nations.[22] The immunity from retrospective increased penalty affirmed by art 15(1) of theICCPR was said by Gault, Keith and McGrath JJ in Pora to be:13not subject to any possible limit (as for instance are the rights to freedom ofexpression and freedom of association) and is not subject to derogation in timeof emergency threatening the life of the nation (again unlike those freedomsand also other rights in respect of criminal proceedings).[23] This right was similarly described by Elias CJ and Keith J as non-derogablein R v Mist.14 Furthermore, as Keith J (speaking for himself and Elias CJ) alsoexplained in Mist:[29] While a primary rationale of the principle of non-retrospectivity isaccessibility and foreseeability with deterrence as a consequence, it has otherrationales. One is simple fairness: the state, through its institutions, shouldmake determinations of criminal guilt and impose serious penalties only byreference to the law in force and applicable to the accused at the time ofthe crime.[24] Like s 25(g), the normative worth of the immunity afforded by s 26(2) isreinforced by its correspondence to art 14.7 of the ICCPR, which states:12 Section 25(g) was designed to give effect to art 15 – see R v Mist [2005] 2 NZLR 791 (CA), at[15] and [16].13 R v Pora [2001] 2 NZLR 37 at [79].14 R v Mist, above n 12 at [13]. Article 4.1 provides for derogation of rights in times of publicemergency. Article 4.2 provides that no derogation of art 15 (among others) may be made underthe provision.Article 14(7) No one shall be liable to be tried or punished again for an offence forwhich he has already been finally convicted or acquitted in accordancewith the law and penal procedure of each country.[25] Furthermore, insofar as s 26(2) provides immunity from a retroactive orretrospective second penalty, it is similarly impregnable. Section 26(2) is also,however, directed to a broader principle, namely double punishment, which mayinclude but is not limited to retroactive penalty. As the Court of Appeal said in Daniels,it is "concerned with criminal process and prevents the punishment function of thatprocess being revisited"15 and "it accords with the long standing common lawprinciples of autrefois acquit or autrefois convict".16[26] The facts in Daniels are illustrative of the prospective effect of the immunityafforded by s 26(2) and its significance. In that case, Mr Daniels had been convictedof rape and sentenced to nine years' imprisonment. The victim subsequently issuedcivil proceedings seeking exemplary damages. At issue was whether s 26(2) providedimmunity to such proceedings. The majority decided that it did not provide anautomatic immunity to the claim for exemplary damages, because it applied only tocriminal proceedings. However, they concluded that the avoidance of doublepunishment nevertheless operated to preclude the civil claim once it was accepted thatexemplary damages are punitive.17[27] Thomas J, in dissent, would not impose an absolute bar on a claim forexemplary damages. In his view, s 26(2) was restricted to criminal proceedings only.His observations about the normative and prescriptive significance of the immunityfrom double punishment, however, resonate in the present context. He said:18Section 26(2) of the New Zealand Bill of Rights Act 1990 provides that noone who has been finally acquitted or convicted of an offence shall be tried orpunished for it again. It affirms two elementary principles of the criminal law;one, that a person cannot be put in jeopardy of being prosecuted for the same15 Daniels [1998] 3 NZLR 22 (CA) at 33.16 At 34.17 At 47.18 At 57.offence a second time, and, the other, that no one shall be punished for thesame offence twice.Both principles have their roots in the history of criminal law and reflectnotions of criminal justice which are deeply ingrained in the socialconsciousness of the community. The idea underlying protection againstdouble jeopardy is that the state, with all its resources and power, is not to beallowed to make repeated attempts to convict an individual for an allegedoffence, thereby subjecting him or her to embarrassment, expense and ordealand compelling them to live in a continuing state of anxiety, as well asenhancing the possibility that, even though innocent, they may be found guilty.See Green v United States 355 US 184 (1957), per Black J at pp 187 – 188.The principle of protection against double punishment prevents a person fromsuffering the patent injustice of being punished twice for the same offence.[28] As Thomas J also noted:19Double jeopardy and double punishment remain an affront to common notionsof fairness.[29] Thus, contrary to the submission otherwise by Ms Todd,20 s 26(2) providesimmunity from "prospective" as well as retrospective second penalty. This immunity,however, does not appear to carry the same prescriptive weight as the immunity fromretrospective penalty. Unlike art 15, the right affirmed by art 14 is not listed as a non-derogable right. I return to the significance of this below.Justification[30] Section 5 of BORA sets the frame for the justification inquiry. It states:5 Justified limitationsSubject to section 4, the rights and freedoms contained in this Bill ofRights may be subject only to such reasonable limits prescribed bylaw as can be demonstrably justified in a free and democratic society.[31] Mr Keith submits that given the impregnability and non-derogability of theimmunity to retrospective penalty affirmed by s 25(g) and s 26(2), there can be nojustification for breach of them. But as Ms Todd submits, any irrebuttable assumptionof that kind is irreconcilable with the plain meaning and effect of s 5. Rather, as I willnow explain, the assessment of justification is a key step in the interpretative process.19 At 58.20 I return to this issue below at [84].Interpreting BORA[32] While the methodology to be used to interpret BORA to assess rightsconsistency is not without some controversy,21 the approach adopted by the majorityin Hansen appears now to be the orthodoxy in circumstances where the intention ofParliament is clear.22 As Tipping J summarised in Hansen:23Step 1. Ascertain Parliament's intended meaning.Step 2. Ascertain whether that meaning is apparently inconsistent with arelevant right or freedom.Step 3. If apparent inconsistency is found at step 2, ascertain whether thatinconsistency is nevertheless a justified limit in terms of s 5.Step 4. If the inconsistency is a justified limit, the apparent inconsistency atstep 2 is legitimised and Parliament's intended meaning prevails.Step 5. If Parliament's intended meaning represents an unjustified limit unders 5, the Court must examine the words in question again under s 6, tosee if it is reasonably possible for a meaning consistent or lessinconsistent with the relevant right or freedom to be found in them. Ifso, that meaning must be adopted.Step 6. If it is not reasonably possible to find a consistent or less inconsistentmeaning, s 4 mandates that Parliament's intended meaning beadopted.[33] As to justification per s 5, he also stated:[104] This approach can be said to raise the following issues:(a) does the limiting measure serve a purpose sufficientlyimportant to justify curtailment of the right or freedom?(b)(i) is the limiting measure rationally connected with itspurpose?(ii) does the limiting measure impair the right or freedomno more than is reasonably necessary for sufficientachievement of its purpose?(iii) is the limit in due proportion to the importance of theobjective?21 See comments by Elias CJ in R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1 at [6].22 R v Hansen, above n 21.23 At [92].[34] And further:[123] Whether a limit on a right or freedom is justified under s 5 isessentially an inquiry into whether a justified end is achieved by proportionatemeans. The end must be justified and the means adopted to achieve that endmust be proportionate to it. Several sub-issues inform that ultimate head issue.They include whether the practical benefits to society of the limit underconsideration outweigh the harm done to the individual right or freedom. TheCourt's function is not immutably to substitute its own view for that of thelegislature. If the Court agrees with the legislature that the limit is justified, nofurther issue arises. If the Court does not agree, it must nevertheless ask itselfwhether the legislature was entitled, to use Lord Hoffmann's word, to cometo the conclusion under challenge. It is only if Parliament was not so entitledthat the Court should find the limit to be unjustified.[124] In this way and to this extent the Court's function is one of review. Itis not one of directly substituting the Court's own judgment. But the moreintensely it is appropriate to review Parliament's appreciation of the matter,the closer the Court's role will approach a simple substitution of its own view.This is the regime under which the Courts manage the ever-present potentialfor tension between democratically elected representatives and unelectedJudges concerning when and to what extent a parliamentary majority maylimit individual rights and freedoms.[35] Those who claim the limit is reasonable and justified carry the onus to satisfythe Court that this is demonstrably so.24[36] In cases, however, where there is no meaning that was obviously intended byParliament, the approach taken by the Court of Appeal in Moonen may be preferable.25In short, this involves first identifying the scope of the relevant right. It then effectivelyinvolves engagement with s 6 at steps 1 and 2 of Hansen, so as to identify the meaningwhich constitutes the least possible limitation on the right in question, before movingto the justification assessment.26 For reasons explained below, I have preferred thisapproach to the interpretation of the PPO regime.What is a penalty?[37] While several decisions across multiple jurisdictions were tabled by counselfor my consideration,27 three judgments – one home grown, and two from a very24 At [108].25 Moonen v Film and Literature Board of Review [2000] 2 NZLR 9 (CA) at [17]-[19].26 At [17].27 Including Morgan v Superintendent, Rimutaka Prison [2005] 3 NZLR 1 (SC); R v Rodgers [2006]1 SCR 554; Engel v Netherlands (1979-1980) 1 EHRR 647; B v Chief Constable of Avon andSomerset [2001] 1 WLR 340; MB v Secretary of State for Home Department [2008] 1 AC 440distant jurisdictions – provide a most helpful frame for the assessment of whether alegislative scheme imposes a penalty: Belcher v Chief Executive Officer of theDepartment of Corrections28, Ilnseher29 and KRJ.30 The Crown accepts Belcher ispersuasive authority about the nature and effect of the ESO regime. Ilnseher providesa recent statement by the European Court of Human Rights (ECHR) on the applicationof arts 5 and 7 of the European Convention of Human Rights to preventive detention.As I will explain below, those articles are comparable to ss 22 and 25(g) of the BORA.KRJ, a decision of the Canadian Supreme Court, identified the type of punishment thatmight qualify as a penalty in the present context.Belcher[38] The Court of Appeal in Belcher addressed the effect of the ESO regime, as itwas in 2007. Mr Belcher was the subject of an application for an ESO. He sought adeclaration that the relevant provisions of the Parole Act 2002 relating to ESOs wereunjustifiably inconsistent with the BORA. The Court referred to a policy paper for theCabinet Social Development Committee, wherein the Minister of Justice identified a"critical gap in the ability to monitor offenders beyond the end of parole", notingparticularly concerns about a group of child sex offenders. The same paper noted thatthe scheme was likely to be contentious insofar as it encroached on civil liberties andhad retrospective effect. The Court also referred to the advice of the Attorney-Generalwho said that:14. the provisions of the bill that allow for the more significantrestrictions of liberty (i.e. significant restrictions of movement andassociation, electronic monitoring, and 12 months home detention) availableunder the ESO to be (retrospectively) imposed on transitional eligibleoffenders and current inmates and parolees, constitute a prima facieinfringement of s 26(2) of the Bill of Rights Act that is not capable ofjustification under s 5 of the Act.[39] Having summarised the ESO scheme as it then was, the Court concluded thatan ESO was punitive, having regard to the following factors:(HL); Kansas v Hendricks 521 US 346; 138 L Ed 2d 501 (1997); Vinter v United Kingdom (2013)63 EHRR 1; R v Vinter [2009] EWCA Crim 1399; R v Bamber [2009] EWCA Crim 962; R vMoore [2009] EWCA Crim 555; James, Wells and Lee v United Kingdom (2013) 56 EHRR 12;and R (James) v Secretary of State [2009] UKHL 22.28 Belcher v Chief Executive of the Department of Corrections [2007] 1 NZLR 507 (CA).29 Ilnseher v Germany [2018] ECHR 991 (Grand Chamber).30 R v KRJ [2016] 1 SCR 906.[47] (a) The triggering event is a criminal conviction;(b) The respondent to an ESO application is, throughout the ESOlegislation, referred to as "the offender";(c) Eligibility for an ESO (in non-transitional cases) depends upon anapplication either before sentence expiry date or while the offender isstill subject to release conditions;(d) An application for an ESO is made to the "the sentencing court";(e) Where an application is made, a summons may be issued to secure theattendance of the offender and the provisions of ss 24 – 25 of theSummary Proceedings Act 1957 apply (s 107G(2));(f) Alternatively, the appearance of the offender can be secured by theissue of a warrant for the offender's arrest (s 107G(3)), in which casess 22 and 23 of the Summary Proceedings Act and s 316 of the CrimesAct apply;(g) The offender must be present at the hearing (s 107G(4));(h) If the proceedings are adjourned, the offender, if not already incustody, can be remanded to the new date at large, on bail or incustody (although only for periods of up to eight days (s 107G(5) –(6));(i) Sections 71, 201, 203, 204 and 206 of the Summary Proceedings Act,ss 138 – 141 of the Criminal Justice Act 1985 and the Costs inCriminal Cases Act 1967 apply to applications for ESOs (s 107G(7) –(10));(j) Victims are to be notified of hearings and may make submissions inwriting or, with the leave of the Court, orally (s 107H(5));(k) The consequences of an ESO are in effect a subset of the sanctionswhich can be imposed on offenders and extend to detention for up to12 months (in the form of home detention) (ss 107J and 107K);(l) The right of appeal is borrowed from the Crimes Act (s 107R);(m) It is an offence to breach the terms of an ESO and an offender is liableto up to two years' imprisonment; and(n) Applications for ESOs are classed as being criminal for the purposesof the Legal Services Act 2000 (s 107X).[40] The Court also noted:[48] We do not see it as decisive that the aim of the ESO scheme is toreduce offending and that the incidents of an ESO order are associated withthis aim as opposed to the direct sanctioning of the offender for purposes ofdenunciation, deterrence or holding to account. The same is true (or partlytrue) of many criminal law sanctions (for instance, preventive detention andsupervision) which are nonetheless plainly penalties.[41] The Court thus concluded:[49] We recognise that the authorities relied on by the Crown could supporta different conclusion. But, in the end, we have concluded that the impositionthrough the criminal justice system of significant restrictions (includingdetention) on offenders in response to criminal behaviour amounts topunishment and thus engages ss 25 and 26 of the NZBORA. We see thisapproach as more properly representative of our legal tradition. If theimposition of such sanctions is truly in the public interest, then justificationunder s 5 is available and, in any event, there is the ability of the legislature tooverride ss 25 and 26.[42] The Court also found that the ESO was intentionally retrospective.Nevertheless, the Court did not think it was able to determine whether a declaration ofinconsistency should be made and reserved leave for further consideration of thatissue. It transpired that the Court did not in the end make a declaration because it didnot consider it could make such a declaration in criminal proceedings.31Ilnseher[43] In Ilnseher, the ECHR found that the preventive detention of Mr Ilnseher didnot infringe arts 5(1) and 7 of the European Convention of Human Rights. Thosearticles broadly correspond to ss 22, 25(g) and 26(2) of the BORA respectively. Article5(1) states:(1) Everyone has the right to liberty and security of person. No oneshall be deprived of his liberty save in the following cases and inaccordance with a procedure prescribed by law:(a) the lawful detention of a person after conviction by acompetent court(b) the lawful arrest or detention of a person for non-compliancewith the lawful order of a court or in order to secure thefulfillment of any obligation prescribed by law(c) the lawful arrest or detention of a person effected for thepurpose of bringing him before the competent legalauthority on reasonable suspicion of having committed anoffence or when it is reasonably considered necessary to31 Belcher v Chief Executive of the Department of Corrections (No. 2) [2007] NZCA 174, at [17].prevent his committing an offence or fleeing after havingdone so(d) the detention of a minor by lawful order for the purpose ofeducational supervision or his lawful detention for thepurpose of bringing him before the competent legalauthority(e) the lawful detention of persons for the prevention of thespreading of infectious diseases, of persons of unsoundmind, alcoholics or drug addicts or vagrants(f) the lawful arrest or detention of a person to prevent hiseffecting an unauthorised entry into the country or of aperson against whom action is being taken with a view todeportation or extradition.[44] Article 7 states:(1) No one shall be held guilty of any criminal offence on account ofany act or omission which did not constitute a criminal offenceunder national or international law at the time when it wascommitted. Nor shall a heavier penalty be imposed than the onethat was applicable at the time the criminal offence was committed.(2) This Article shall not prejudice the trial and punishment of anyperson for any act or omission which, at the time when it wascommitted, was criminal according to the general principles of lawrecognised by civilised norms.[45] The Court said that, insofar as concerns art 5(1), one of the proper grounds forpreventive detention was identified, in that case, namely an "unsound mind". TheCourt observed that "unsound mind" need not be co-extensive with domestic lawrelating to mental disorders.32 Mr Ilnseher suffered from persistent sexual sadism, sothis ground was satisfied. In addition, the Court found that the detention was necessaryand effected in an appropriate institution for mental health patients;33 that is aninstitution with an individualised therapy programme.34 The Court thereforeconcluded:35Given the domestic courts established a considerable danger for theindividuals concerned of becoming the victims of one of the most seriousoffences punishable the Court is satisfied that the applicant's deprivationof liberty had also been shown to have been necessary in the circumstances.32 From [145].33 At [167]-[168].34 At [167]-[168].35 At [168].[46] In relation to art 7, the Court set out some key principles as follows:36(a) Article 7 should be construed and applied in such a way as to provideeffective safeguards against arbitrary prosecution, conviction andpunishment.(b) It is necessary to go behind appearances and assess whether a particularmeasure amounts in substance to a "penalty".(c) Whether the measure is a penalty is informed by 'whether the measurein question was imposed following conviction for a "criminaloffence"'.(d) Other relevant factors include the nature and purpose of the measure,the procedures involved in its making and implementation, and itsseverity.(e) The specific conditions of the execution of the measure in question maybe relevant in terms of the assessment of the nature, purpose andseverity of that measure.(f) Some aspects are static, for example, whether the measure in questionwas imposed following conviction. In contrast, the nature and purposeof the measure and its severity are dynamic; and the actual way themeasure was executed throughout the period of detention musttherefore be taken into consideration.[47] In Mr Ilnseher's case, the preventive detention was extended because of andwith a view to treating a disorder so that it was not a penalty.37 It was also relevant thatthe domestic regime had made a clear distinction between preventive detention for atherapeutic purpose and the imposition of a penalty. This was contrasted to an earlier36 At [204]–[208].37 At [212]-[213].domestic position, where the detention was effected in an ordinary prison in a separatewing.38[48] In finding that Mr Ilnseher's detention was not a penalty, the Court observedthat:(a) The treatment of Mr Ilnseher was aimed at reducing the threat personspose to the public to such an extent that the detention may be terminatedas soon as possible.39(b) Preventive detention could only be ordered under a new precondition –namely, he was found to suffer from a mental disorder and thiscondition was "independent of the initial sanction imposed for acriminal offence."40(c) The medical and therapeutic provision was central to the specificmeasures of care provided to the applicant. This fact altered the natureand purpose of the detention of persons such as the applicant andtransformed it into a measure focused on the medical and therapeutictreatment of persons with a criminal history.41(d) By contrast, a preventive detention "not executed with a view totreating the detainee's mental disorder, even if implemented inaccordance with the new legislative framework, still constitutes apenalty" 42(e) The length of the detention was not decisive because release wasdependent on the assessment of risk because of a mental disorder andsubject to judicial reviews.[49] The Court concluded:38 Referring to M v Germany [2009] ECHR 49.39 At [223].40 At [225]-[226].41 At [227].42 At [228].236. In view of the foregoing considerations, the Court, having assessedthe relevant factors in their entirety and making its own assessment, considersthat the preventive detention implemented in accordance with the newlegislative framework in the applicant's case during the period here at issuecan no longer be classified as a penalty within the meaning of Article 7 § 1.The applicant's preventive detention was imposed because of and with a viewto the need to treat his mental disorder, having regard to his criminal history.The Court accepts that the nature and purpose of his preventive detention, inparticular, was substantially different from those of ordinary preventivedetention executed irrespective of a mental disorder. The punitive element ofpreventive detention and its connection with the criminal offence committedby the applicant was erased to such an extent in these circumstances that themeasure was no longer a penalty.KRJ[50] The Supreme Court in KRJ was tasked with the assessment of whether arestraint on contact and/or internet access qualified as unjustified retrospectivepunishment. The Court was concerned with the potential infringement of Section 11(i)of the Canadian Charter of Rights and Freedoms. This section corresponds to s 25(g)of the BORA. The majority found that a measure constitutes a punishment if it is aconsequence of conviction that forms part of the arsenal of sanctions to which aaccused may be liable in respect of the offence, and either it is imposed in furtheranceof the purposes and principles of sentencing or it has a significant impact on thedefendant's liberty.43 The Court concluded that the retrospective imposition of arestraint on contact and on internet use was punishment. It found however that therestraint on internet use was justified.44Summary[51] With the assistance of the foregoing, I consider that the following factors arerelevant to whether a measure may qualify as a penalty:(a) The measure is imposed following a conviction;(b) The measure forms part of an arsenal of sanctions imposed infurtherance of sentencing purposes and principles and/or has asignificant impact on the liberty of the person;43 KRJ, above n 30 at [41].44 At [114].(c) The purpose of the measure is punitive or partially punitive;(d) The process used to impose the measure is a criminal process;(e) The measure is given effect to in a prison or a prison-like institution ormay result in imprisonment;(f) The measure is non-therapeutic or not implemented in a therapeuticway;(g) The severity of the conditions of the measure.The ESO regime[52] To evaluate the rights consistency of the ESO and PPO regimes, it is necessaryto examine the applicable statutory schemes in depth. However, while each regimeoverlaps insofar as they apply broadly to the same cohort of qualifying persons, theirorigins, procedure and effect are sufficiently distinct to warrant separate consideration.I therefore deal first with the application in relation to the ESO regime.Purpose[53] The ESO regime is part of the Parole Act 2002, the purpose of which is "toreform the law relating to the release from detention of offenders serving sentences ofimprisonment, and to replace the provisions of Parts 4 and 6 of the Criminal JusticeAct 1985."45 Section 107I also states that for ESOs specifically, the purpose is "toprotect members of the community from those who, following receipt of a determinatesentence, pose a real and ongoing risk of committing serious sexual or violentoffences."45 Section 3.Scope[54] Only "eligible offenders" as defined at s 107C may be subject to an ESO. Mostrelevantly:107C Meaning of eligible offender(1) In this Part, eligible offender means an offender who—(a) is not subject to an indeterminate sentence but is a person whohas been sentenced to imprisonment for a relevant offence(and that sentence has not been quashed or otherwise setaside) and has not ceased, since his or her latest conviction fora relevant offence (that has not been quashed or otherwise setaside), to be subject to any or all of the following:(i) a sentence of imprisonment (whether for a relevantoffence or otherwise):(ii) release conditions (whether suspended or not):(iii) an extended supervision order; .[55] Further:(2) To avoid doubt, and to confirm the retrospective application of thisprovision, despite any enactment or rule of law, an offender may bean eligible offender even if he or she committed a relevant offence,was most recently convicted, or became subject to release conditionsor an extended supervision order before this Part and any amendmentsto it came into force.[56] The meaning of "relevant offence" is defined in s 107B and includes a widerange of sexual and violence offences set out in the Crimes Act 1961.[57] The offender must also display or possess several "high risk" or "very highrisk" behavioural characteristics. These are stated in s 107IAA:(1) A court may determine that there is a high risk that an eligible offenderwill commit a relevant sexual offence only if it is satisfied that theoffender—(a) displays an intense drive, desire, or urge to commit a relevantsexual offence; and(b) has a predilection or proclivity for serious sexual offending;and(c) has limited self-regulatory capacity; and(d) displays either or both of the following:(i) a lack of acceptance of responsibility or remorse forpast offending:(ii) an absence of understanding for or concern about theimpact of his or her sexual offending on actual orpotential victims.(2) A court may determine that there is a very high risk that an eligibleoffender will commit a relevant violent offence only if it is satisfiedthat the offender—(a) has a severe disturbance in behavioural functioningestablished by evidence of each of the followingcharacteristics:(i) intense drive, desires, or urges to commit acts ofviolence; and(ii) extreme aggressive volatility; and(iii) persistent harbouring of vengeful intentions towards1 or more other persons; and(b) either—(i) displays behavioural evidence of clear and long-termplanning of serious violent offences to meet apremeditated goal; or(ii) has limited self-regulatory capacity; and(c) displays an absence of understanding for or concern about theimpact of his or her violence on actual or potential victims.Effect[58] Conditions of an ESO may include standard release and special conditions.Standard release conditions include:46(a) Reporting in person to a probation officer;(b) Prior written consent of a probation officer to change residentialaddress;46 Section 107.(c) The offender must not reside at any address at which a probation officerhas directed the offender not to reside;(d) The offender must not leave New Zealand;(e) If a probation officer directs, the offender must provide biometricinformation;(f) The offender must take part in a rehabilitative and reintegrative needsassessment if and when directed to do so by a probation officer;(g) Non-association with persons under 16 or any victim of the offence.[59] Special conditions may be imposed by the sentencing court on an interim basisand by the Parole Board on the application of the Chief Executive.47 These mayinclude conditions about residential restrictions, participation in a programme,prohibiting consumption of drugs and alcohol, prohibition on entering specified areas,and electronic monitoring.48[60] When the Chief Executive makes an application for an ESO, they may alsoapply to the sentencing court for an intensive monitoring condition (IMC). This typeof condition may also be imposed by the Parole Board. An IMC is a conditionrequiring an offender to submit to being accompanied and monitored up to 24 hours aday.49[61] Section 107T makes it an offence to breach an ESO:An offender who is subject to an extended supervision order or interimsupervision order and who breaches, without reasonable excuse, anyconditions attaching to that order commits an offence and is liable onconviction to imprisonment for a term not exceeding 2 years.47 Sections 107IA and 107K.48 See s 15.49 Section 107IAC(2).Process of imposing an ESO[62] An application for an ESO is made to a "sentencing court" by the ChiefExecutive of Corrections, pursuant to s 107F:50 It must be accompanied by a healthassessor's report, as defined in s 4 of the Sentencing Act 2002.[63] Subsections (2A) and (3) then set out the requirements for a health assessorreport:(2A) Every health assessor's report must address one or both of thefollowing questions:(a) whether—(i) the offender displays each of the traits and behaviouralcharacteristics specified in section 107IAA(1); and(ii) there is a high risk that the offender will in future commit arelevant sexual offence.(b) whether—(i) the offender displays each of the behavioural characteristicsspecified in section 107IAA(2); and(ii) there is a very high risk that the offender will in future commita relevant violent offence.(2) To avoid doubt, in addressing any matter to be referred to in the healthassessor's report, the health assessor may take into account anystatement of the offender or any other person concerning any conductof the offender, whether or not that conduct constitutes an offence andwhether or not the offender has been charged with, or convicted of,an offence in respect of that conduct.[64] Before an application for an ESO is finally determined, an interim supervisionorder (ISO) may be imposed.51 This may include standard or special releaseconditions.[65] The procedure for the application for an ESO is set out in s 107G. The ChiefExecutive must ensure the offender who is the subject of the application is served witha copy of the application, the health assessor's report, any affidavits accompanying50 See s 107I.51 Section 107FA.the application, and a notice setting out the procedure and the offender's rights in termsof the application as soon as practicable after the application has been made.52[66] An offender who is the subject of an ESO application must be present at thehearing of the application.53 A Judge, Registrar, Justice, or Community Magistrate mayissue a summons to an offender about whom an ESO application has been made, whilea Judge may issue a warrant for the arrest of an offender if they are of the opinion it isnecessary to compel the offender's attendance. 54 The Court is also empowered to bailan offender pending and during the ESO hearing.55[67] Subsections 107G(7) (11) incorporate various provisions of the CriminalProcedure Act 2011 to deal with the management of criminal records, contempt ofcourt, procedural irregularity, the content of summons, warrants or other forms, andsuppression. The Costs in Criminal Cases Act 1967 also applies.[68] Subsections 107I(2)-(5) then govern the process for making an ESO:(2) A sentencing court may make an extended supervision order if,following the hearing of an application made under section 107F, thecourt is satisfied, having considered the matters addressed in thehealth assessor's report as set out in section 107F(2A), that—(a) the offender has, or has had, a pervasive pattern of serioussexual or violent offending; and(b) either or both of the following apply:(i) there is a high risk that the offender will in futurecommit a relevant sexual offence:(ii) there is a very high risk that the offender will in futurecommit a relevant violent offence.(3) To avoid doubt, a sentencing court may make an extended supervisionorder in relation to an offender who was, at the time the applicationfor the order was made, an eligible offender, even if, by the time theorder is made, the offender has ceased to be an eligible offender.(4) Every extended supervision order must state the term of the order,which may not exceed 10 years.52 Section 107G (1).53 Section 107G (4).54 Section 107G (2)-(3).55 Section 107G (5)-(6).(5) The term of the order must be the minimum period required for thepurposes of the safety of the community in light of—(a) the level of risk posed by the offender; and(b) the seriousness of the harm that might be caused to victims; and(c) the likely duration of the risk.Rehabilitative provisions[69] The Parole Act expressly provides for rehabilitation while subject to an ESO.As noted, a standard condition may be imposed so that the offender must take part ina rehabilitative and reintegrative needs assessment when directed to do so by aprobation officer. Furthermore, under s 107K, as mentioned, the Board may imposespecial conditions onto an offender subject to an ESO. These conditions can include,as per s 15(3)(b), a condition "requiring the offender to participate in a programme (asdefined in s 16) to reduce the risk of further offending by the offender through therehabilitation and reintegration of the offender."Review and release conditions[70] Section 107RA sets out the review requirements for ESOs. In summary, theobject of the review is to assess the risk presented by the offender. To this end, theESO must be reviewed, if an offender has not ceased to be subject to an extendedsupervision order since first becoming subject to an ESO, on the date that is 15 yearsafter the date on which the first ESO commenced; and thereafter, 5 years after theimposition of any and each new ESO.56 Following the review, the Court must eitherconfirm the order or cancel it. The Court may only confirm the order if, based on thematters set out in s 107IAA, it is satisfied that there is:(a) a high risk that the offender will commit a relevant sexual offencewithin the remaining term of the order; or(b) a very high risk that the offender will commit a relevant violent offencewithin the remaining term of the order.56 Section 107RA.[71] Furthermore, either the offender subject to the ESO or the Chief Executive canalso apply to have the order cancelled at any time on the grounds that the offenderposes neither a high risk of committing a relevant sexual offence, nor a very high riskof committing a relevant violent offence, within the remaining term of the order.57Parliamentary materials[72] Save in two respects, I have not found it necessary to rely on the parliamentarymaterials for assistance. It is evident that little if any consideration was given to a civilESO regime and the risk of recidivism appears to have been largely assumed. Iotherwise consider that the Parole Act 2002 and the Public Safety (Public ProtectionOrders) Act 2014 (PSA) broadly speak for themselves. However, given the emphasisplaced on some of the background materials by the Attorney-General, I make thefollowing observations.[73] The protective object and potentially punitive effect of ESOs is identified invarious parliamentary materials in the lead up to the inception of the ESO regime,including Cabinet papers and the report of the Attorney-General, as noted by the Courtof Appeal in Belcher.58 I do not repeat reference to them here. The punitive nature ofthe regime was also identified by the then Attorney-General in his reports toParliament in 2009 and in 2014. Relevantly, the Attorney-General observed in 2014:59Double jeopardy arises because the restrictive conditions add a further penaltyto the sentence the offender has already served. Many if not most offenderseligible for an ESO would have been eligible at the time of sentencing for anindefinite sentence of preventive detention but either it was not sought or theCourt chose not to impose it. In this way the ESO regime constitutes anadditional criminal punishment imposed after sentence.[74] The Attorney-General concluded:57 Section 107M.58 See also Margaret Wilson Report of the Attorney-General under the New Zealand Bill of RightsAct 1990 on the Parole (Extended Supervision) and Sentencing Amendment Bill at [12] and [15];Cabinet Legislation Committee Parole (Extended Supervision) and Sentencing Amendment Bill:Approval for Introduction (5 November 2003) at [7] and [8]; Justice and Electoral CommitteeParole (Extended Supervision) and Sentencing Amendment Bill at 5; Andrew BridgmanDepartmental Report: Parole (Extended Supervision Orders) and Sentencing Amendment Bill (3May 2004) at 6 and 8.59 Christopher Finlayson Report of the Attorney-General under the New Zealand Bill of Rights Act1990 on the Parole (Extended Supervision Orders) Amendment Bill (27 March 2014) at [14].For the present, an ESO remains as a criminal penalty. For that reason, thelimitation on s 26 of the Bill of Rights Act arising from the Parole (ExtendedSupervision Orders) Amendment Bill is not demonstrably justified in a freeand democratic society and the Bill is therefore inconsistent with the Bill ofRights Act.[75] The protective purpose, the scope and form of the ESO regime, and itsjustification, was also identified in Cabinet papers and departmental reports. TheRegulatory Impact Statement (RIS) of 3 November 2014, provides a helpfulsummary.60 It said:61Legislation for extended supervision orders has previously been found to benon-compliant with the New Zealand Bill of Rights Act 1990. Courts havedetermined that the order is criminal, rather than civil, in nature. Proposals toenhance extended supervision orders need to carefully consider the humanrights balance of the regime, weighing the rights of the individual against theright of the public to be safe from harm.Given the risk of serious harm posed by these offenders, there is a strongargument that the proposed enhancements strike an appropriate human rightsbalance.[76] The RIS stated that public safety is jeopardised because:62(a) an ESO can only be imposed for up to 10 years, but some offendersmay continue to pose a risk after that period;(b) there are no long-term options for managing the risk of serious harm ifan offender does not meet the criteria for a PPO; and(c) the current standard condition allows "even the highest risk child sexoffenders on the most intensive form of management under an ESO" tohave regular contact with young children.[77] The RIS then described the policy objective of the Bill as follows:63The primary objective is to minimise the risk of serious harm to the publiccaused by offenders who, following the completion of a finite sentence, are60 Department of Corrections Regulatory Impact Statement: Enhanced Extended Supervision Orders(3 November 2014).61 At [5].62 At [15].63 At [16]-[17].considered to pose a high risk of committing serious sexual offences or a veryhigh risk of serious violent offences.Secondary objectives include cost effectiveness and justice sector integrity,including the human rights of offenders, the rights of the public to be free fromharm and public confidence in the justice system.[78] The RIS concluded that non-regulatory options, such as voluntary participationby offenders after release from prison in activities and support networks that reducethe risk of offending, would not be sufficient as offenders would be able to opt out ofsuch activities and there would be no further overarching monitoring andmanagement.64[79] The RIS went on to consider enhancements to ESOs:65To address the serious risks to public safety posed by the highest risk offendersat the end of a finite sentence, enhancements to extended supervision ordershave been considered that would:• enable extended supervision orders to be applied for as long as theyare needed, subject to an offender's risk of re-offending, withmandatory review by the courts every five years• expand the scope of extended supervision orders beyond high risk sexoffenders against children to include a small number of high risk sexoffenders against adults and a very small number of high risk violentoffenders.[80] In relation to the length of ESOs, the RIS noted:66Enabling extended supervision orders to be renewed on an on-going basis isthe preferred approach as it provides for the greatest level of public safety,while mitigating potential human rights concerns through regular mandatorycourt review and incurring additional costs only in relation to the on-goingmanagement of those offenders that continue to pose a high risk of seriousharm.[81] In its conclusion, the RIS identified the potential impact of the Bill on humanrights:67Given the criminal nature of the extended supervision order legislation, theproposed enhancements may be considered further punishment of sentencedoffenders contrary to human rights in the New Zealand Bill of Rights Act.64 At [18]-[20].65 At [21].66 At [27].67 At [69]-[70].However, given the risk of serious harm posed by these offenders, there is astrong argument that the proposed enhancements strike an appropriate balancebetween the rights of the public to be free from harm and the rights ofoffenders.Revising the legislated criteria to more clearly establish that only the highestrisk offenders would be eligible for an extended supervision order may alsohelp justify the enhancements in accordance with section 5 of the NewZealand Bill of Rights Act.[82] An alternative civil regime was addressed in supplementary advice to the Lawand Order Committee. It noted:68Corrections has given preliminary consideration to what amendments may beneeded to make the ESO regime civil in nature, and in particular re-creatingESOs as part of a civil framework with PPOs. This would be a substantialpiece of work requiring a wide range of issues to be identified and resolved.It is important that the ability to safely manage high risk offenders on ESOsand protect the community from the risk of serious harm not be compromisedby work to make the regime civil in nature. Given the urgency of the ESO Bill,Corrections considers that retaining the existing regime, although deemedcriminal in nature, provides the best means at the current stage of achievingthe objective of protecting public safety and upholding the rights of victimsand offenders.Is an ESO a penalty?[83] Mr Keith submitted that the Court of Appeal in Belcher found that the ESOregime breached s 25(g) and s 26(2) of the BORA insofar as it imposed a retrospectivepenalty.69 While that finding related to an earlier version of the ESO scheme, hecontended that the present regime is materially the same and thus it follows that it alsobreaches those sections. More broadly, Mr Keith submitted that the assumption of riskupon which the ESO (and PPO) scheme is premised lacked scientific rigour. He is alsocritical of the absence of any meaningful assessment of alternative methods ofaddressing the risk.[84] Ms Todd accepted that Belcher, while not binding on me, is strong authorityfor the proposition that the ESO regime imposes a retrospective penalty. Shesubmitted, however, that since Belcher the regime has been modified specifically to68 Department of Corrections Parole (Extended Supervision Orders) Amendment Bill – InformationRequested by the Committee (3 November 2014) at [4]-[5].69 From [48] onwards.respond to identified behavioural traits and risks which are relevant to whether it issubstantively inconsistent with those rights. Furthermore, she submitted that the ESOand PPO regimes do not impose a second penalty penalty per s 25(g) or s 26(2) inrelation to persons who offended after those regimes came into force. That is because,she contended, a person under a qualifying offence is liable to be detained as part ofthe penalty for that offence under the Parole Act and under the Public Safety Act. Thisis reinforced by the fact that the availability of an ESO forms part of the assessmentabout whether preventive detention should be imposed.ESO – assessment[85] The ESO regime enables (among other things) supervision or detention of anyperson who has committed a qualifying sexual or violence offence and who meets thecriteria for risk of committing a similar offence. It may be imposed for an initial periodof up to 10 years with reviews every 5 years thereafter. It mirrors the pre-Belcherregime insofar as it is directed to "protect" the public from qualifying offenders bysubjecting them to ongoing restrictions on movements, including intensive monitoringfor the first year and electronic monitoring. It also employs the same criminal justiceprocedures, including application to the sentencing court, summons to and warrant forthe arrest of an offender, presence of the offender at the hearing, bail and relevantprovisions of the Criminal Procedure Act 2011, including rights of appeal.70 An ESOapplication also remains a criminal proceeding for which legal aid may be granted.71[86] The post Belcher amendments reduce some of the punitive elements of theprior regime. The present regime introduced much more complex and higherthresholds of qualifying risk. This includes the requirements for the offender todisplay a "high risk" and "very high risk" of committing relevant sexual offences orviolent offences respectively, and to display specific behavioural characteristics. Theprovisions relating to "transitional eligible offenders" have been removed. Theseprovisions made clear that the ESO scheme applied to offenders who ceased to beeligible offenders before the scheme came into effect. The new regime alsoincorporates, as a standard condition, a power to impose a requirement to attend a70 Section 107G, s 107R.71 Section 107X.rehabilitative programme. The same requirement could only be imposed as a specialcondition under the pre-Belcher regime.[87] But the current ESO regime continues to punish – that is to (among otherthings) detain an eligible "offender" who presents a risk to the public without the needfor a fresh offence. It is a scheme that carries multiple factors said to exemplify apenalty regime. Overall, it is as much, if not more punitive than it was when the Courtof Appeal reviewed it in Belcher in 2007. It now applies to a much larger class ofeligible offenders. It continues to be embedded within the criminal justice regime.While not binding on me, the corresponding conclusion of the Court of Appeal thatthe ESO regime is a penalty and thus engages s 25(g) and s 26 is highly persuasive asto the effect of the present ESO regime.[88] The Court also said that "there can be no room for doubt that the intention oflegislature in enacting the ESO legislation was that it should apply retrospectively andthat orders could be imposed retrospectively in the absence of the consent of theoffender."72 I agree with this conclusion insofar as concerns the present ESO regimegiven the clearly intentional retrospective effect of s 107C(2).[89] There is one residual issue not obviously addressed in Belcher, namely whethers 26(2) is engaged in relation to "prospective" ESOs, that is in respect of ESOsimposed on an offender who committed his qualifying offending after the ESO regime,as amended in 2014, came into force. As mentioned, s 26(2) provides immunity fromretrospective and prospective second penalties. But Ms Todd contends that whateverthe procedure for imposing ESOs, there is no breach of s 26(2) if every component ofthe penalty is provided for in the law on the day of the commission of the offence.However, an ESO is predicated on qualifying offending for which a finite sentencemust first be served and is only imposed after a second criminal justice procedure iscompleted.73 The decision to impose and the nature and scope of the ESO is then basedon an assessment of apparent risk, rather than the commission of a further offence.Put another way, but for the qualifying offending and subsequent criminal justiceprocess, no ESO could be imposed. Accordingly, the prospective imposition of an72 Belcher, above n 28, at [56].73 See also R v Peta [2007] NZCA 28, [2007] 2 NZLR 627 at [2] and [13].ESO engages the immunity from double punishment affirmed by s 26(2). Thisinterpretative outcome is consistent with an interpretation that gives that immunityfrom double punishment practical and effective force.74[90] I am therefore satisfied that an ESO imposes a limit on the rights andimmunities against increased and second penalties affirmed by s 25(g) and s 26(2)BORA.[91] I turn then to examine whether this limitation is justified per s 5 BORA.Is a ESO justified?[92] I have found it necessary to approach the issue of justification by reference toretrospective and prospective penalty separately, as they engage different principles;dealing first with retrospective ESOs.[93] Ms Todd submitted that Parliament's choice to empower the courts toretrospectively detain persons who present a high risk or very high risk of sexual orviolent offending is a reasonable and proportionate response to an enduring problemcaused by the gap resulting from the repeal of the all-purpose mental health legislation,the Mental Health Act 1969. Ms Todd also submitted that Parliament should beaccorded a considerable margin of appreciation of latitude in its choice of ESOs asreasonable and justifiable means. I agree, in part. The express legislative object ofprotecting the public from a high risk of sexual offending and/or a very high risk ofviolent offending is rationally connected to the limitation on the immunity fromretrospective increased penalty imposed by an ESO. The impairment also appears tobe reasonably necessary and proportionate as it may be tailored to the nature and scaleof the qualifying risk individual cases.[94] For my part, no legislative fact or scientific evidence is necessary to prove therational connection to and the reasonableness of this impairment and/or theproportionality of the impairment to the importance of the objective. Management ofa high or very high risk to the public of sexual or violent offending is a legitimate74 As to the requirement to give affirmed rights their practical and effective force, see R v Mist, aboven 12 at [45].objective, and the scheme proceeds on the basis that there will be expert assessmentof the identified risks and behavioural characteristics prior to the imposition of anESO. While that assessment may be difficult to make, and perhaps fraught, it isnonetheless a reasonable method.[95] Furthermore, as noted in Ilnseher the severity of the conditions of the measureand the actual way in which the measure is implemented are relevant to thedetermination of whether the measure materially infringes the principle of immunityfrom retrospective and/or second penalty. For example, an ESO genuinely directed tothe rehabilitation and therapy of a high-risk person may be a reasonable andproportionate response to object of public protection.75 There is also evident scopewithin the present ESO regime to apply a genuinely rehabilitative and therapeuticapproach directed to the offender's risk factors. In a choice between a therapeuticapproach and a non-therapeutic approach, it can be fairly assumed I think that a Judge(or Parole Board) would look where possible prefer the former over the latter, becausethe Court and the Parole Board is obliged to prefer a rights consistent outcome. MrChisnall's case is illustrative of this. 76[96] Nevertheless, having regard to the otherwise impregnable and non-derogablenature of the immunity from retrospective penalty and its deep normative andconstitutional significance, the public protection purpose is not sufficiently importantto justify that limitation on the immunity from retrospective penalty. Indeed, if thatwere so, the immunity could be justifiably subject to limitation for a wide range ofoffending risks,77 thus emasculating the immunity from retrospective penalty at afundamental level.[97] Put another way, in cases of retrospective penalty, Parliament's justificationmust hit the bull's eye of a very small target – to use Tipping J's metaphor.78 Anyother approach would too readily permit an unknowable State punishment ofpotentially indefinite duration. Even with judicial oversight, that is a repugnant idea.75 Ilnseher v Germany, above n 29.76 Chisnall SC above n 4, Chisnall CA (2019), above n 7.77 For example: illegal drug dealing; drunk, dangerous or careless driving; and more generally anywelfare regulatory offending that endangers the public.78 R v Hansen, above n 21, at [119].Public protection per se, even from significant possible harm, is not sufficiently crucialin my view to justify a limitation on the immunity from retrospective penalty of thetype and duration (potentially indefinite) empowered by the ESO regime. The lack ofsubstantive consideration of a civil, expressly non-punitive regime also reinforces thisconclusion.[98] The position is different in relation to the prospective second penalty imposedby the ESO regime. The prospect of a ESO post-sentence will be knowable at the timeof the offending. Furthermore, as Mr Keith acknowledged, the availability of an ESOin many cases is a factor that will militate against the imposition of a sentence ofpreventive detention which carries the prospect of imprisonment without release. TheESO is therefore a mechanism for managing the long-term risk to the public withoutthe immediate imposition of the most severe sentence that can be lawfully imposed.79Judges familiar with the decision to impose preventive detention will understand theprescriptive significance and value of an alternative regime which enables theassessment of risk to be undertaken at the time of release rather than at sentence. Allof this bears on the reasonableness and proportionality of an ESO. The severity of theconditions of ESO and their implementation also have heightened relevance in thiscontext.[99] Accordingly, while there remains something unfair about subjecting anoffender to the prospect of an indefinite number of post sentence ESOs, the extent towhich a prospective ESO is an unjustified limitation of the immunity from secondpenalty needs to be worked out on the facts of the specific case, and in particular inlight of the conditions of the ESO and its implementation.An alternative meaning?[100] The clear purpose, policy and scheme of the ESO regime is to remove the riskpresented by qualifying offenders, if necessary, irrespective of retrospectivity. It is, inshort, a retrospective criminal sanction. The effect of this is that an interpretation of79 See for example R v Parahi [2005] 3 NZLR 356 (CA) at [90]. See also Franklin v R [2018] NZCA495.the ESO regime that is consistent with the immunity from retrospective penaltyaffirmed by s25(g) and s26 is unavailable.The PPO regimePurpose[101] PPOs are governed by the PSA. Section 4 sets out the Act's objective:4 Objective of Act(1) The objective of this Act is to protect members of the public from thealmost certain harm that would be inflicted by the commission of serioussexual or violent offences.(2) It is not an objective of this Act to punish persons against whom ordersare made under this Act.[102] Section 5 also contains several principles that people exercising powers underthe Act must have regard to:5 PrinciplesEvery person or court exercising a power under this Act must have regardto the following principles:(a) orders under this Act are not imposed to punish persons andthe previous commission of an offence is only 1 of severalfactors that are relevant to assessing whether there is a veryhigh risk of imminent serious sexual or violent offending bya person:(b) a public protection order should only be imposed if themagnitude of the risk posed by the respondent justifies theimposition of the order:(c) a public protection order should not be imposed on a personwho is eligible to be detained under the Mental Health(Compulsory Assessment and Treatment) Act 1992 or theIntellectual Disability (Compulsory Care and Rehabilitation)Act 2003:(d) persons who are detained in a residence under a publicprotection order should have as much autonomy and qualityof life as possible, while ensuring the orderly functioning andsafety within the residence.[103] The combined effect of the purpose and principles of the PSA was captured byElias CJ in Chisnall when emphasising the importance of alternatives to a PPO. TheChief Justice said:80[38] The availability of extended supervision orders and interimsupervision orders as alternative means of monitoring risk is a factor that bearson whether the more restrictive public protection order (and interim detentionorder pending its determination) is appropriate. The policy of the Public SafetyAct expressed in its purpose and the principles contained in s 5 emphasise thatorders made under it are not punitive and are directed at public safety. Thehigh threshold set by the legislation for public protection orders and theavailability of less intrusive means of protecting public safety in orders underthe Parole Act indicate a legislative scheme that the"very high risk ofimminent serious sexual or violent offending by the respondent" is risk whichcannot be acceptably managed by conditions under an extended supervisionorder or interim supervision order. The Public Safety Act is to be interpretedand applied in the context of human rights obligations protective of liberty andsuspicious of retrospective penalty.[39] The text of s 13 and the definition of "imminent" links the risk whichis to be addressed by the orders to provision of opportunity through removalof restraint. The Judge must be satisfied not only that the risk is a high one butthat it is likely to occur if the opportunity arises. Under the definition theperson must be expected to commit a serious sexual or violent offence as soonas he or she has suitable opportunity to do so. The criteria in s 13(2) indicatethat "imminent" in this context is not a purely temporal assessment but onelinked to opportunity. The order is aimed at preventing the opportunity arisingwhere the Judge is satisfied that an offence of the type is likely to becommitted by the respondent when he or she has suitable opportunity.[40] If conditions can be put in place without detention that would removethe opportunity or restrict it to an extent that there is no longer very high riskof imminent offending of the type, then a public protection order or an interimdetention order ought not to be made. That is clear from the scheme of thelegislation and is consistent with the protections contained in the New ZealandBill of Rights Act.Criteria[104] To be the subject of a PPO, a person must meet the threshold for its imposition.This threshold is set out in s 7:7 Threshold for imposition of public protection order(1) A person aged 18 years or older meets the threshold for the imposition ofa public protection order if—(a) the person—80 Chisnall SC, above n 4, at [37]-[40]. This view was also adopted by the majority at [83]. See alsoChisnall CA (2016), above n 4.(ii) is detained in a prison under a determinate sentencefor a serious sexual or violent offence; and(iii) must be released from detention not later than 6months after the date on which the chief executiveapplies for a public protection order against theperson; or(b) the person is subject to an extended supervision order and—(i) is, or has been, subject to a condition of full-timeaccompaniment and monitoring imposed undersection 107K of the Parole Act 2002; or(ii) is subject to a condition of long-term full-timeplacement in the care of an appropriate agency,person, or persons for the purposes of a programmeunder sections 15(3)(b) and 16(c) of the Parole Act2002; or(c) the person is subject to a protective supervision order; or(d) the person—(i) has arrived in New Zealand within 6 months ofceasing to be subject to any sentence, supervisionconditions, or order imposed on the person for aserious sexual or violent offence by an overseas court;and(ii) has, since that arrival, been in New Zealand for lessthan 6 months; and(iii) resides or intends to reside in New Zealand; or(e) the person—(i) has committed a serious sexual or violent offence; and(ii) in respect of that offence,—(A) has been determined to be a returning prisonerunder the Returning Offenders (Management andInformation) Act 2015; or(B) is a returning offender to whom subpart 3 of Part2 of that Act applies; and(iii) is subject to release conditions under the ReturningOffenders (Management and Information) Act 2015.(2) For the purposes of this Act, a person meets the threshold for a publicprotection order if the person meets the threshold at the time that thechief executive applies for that order against the person.In this section, extended supervision order means an order imposed,whether before, on, or after the commencement of this section, undersection 107I of the Parole Act 2002 on a person who was an eligibleoffender (within the meaning of section 107C(1) of that Act) becausethe person had been sentenced to imprisonment for a relevant offence(within the meaning of that section) that is also a serious sexual orviolent offence (within the meaning of section 3).[105] Under s 8, the chief executive may apply for a PPO:8 Chief executive may apply for public protection order(1) The chief executive may apply to the court for a public protection orderagainst a person who meets the threshold for such an order on the groundthat there is a very high risk of imminent serious sexual or violentoffending by the person.(2) As soon as practicable after an application is made under subsection (1),the chief executive must advise every victim of the respondent that theapplication has been made.[106] Section 9 provides that this application must be accompanied by at least tworeports that have been separately prepared by health assessors (at least one of whomis a registered psychologist). These reports must address whether the respondentexhibits "to a high level" each of the four characteristics set out in s 13(2), and whetherthe respondent presents a very high risk of imminent serious sexual or violentoffending.[107] Section 12 provides for redirection of eligible persons to the MHCAT andIDCCR regimes as follows:12 Assessment whether respondent mentally disordered or intellectuallydisabled(1) This section applies where a court is satisfied that it could make apublic protection order against a respondent and it appears to the courtthat the respondent may be mentally disordered or intellectuallydisabled.(2) The court may, instead of making a public protection order, direct thechief executive to consider the appropriateness of an application inrespect of the respondent under section 45 of the Mental Health(Compulsory Assessment and Treatment) Act 1992 or under section29 of the Intellectual Disability (Compulsory Care andRehabilitation) Act 2003.(3) Where the court gives a direction under subsection (2), the court must,if the respondent is not then detained under section 107, order theinterim detention of the respondent under that section.(4) For the purposes of any application under section 45 of the MentalHealth (Compulsory Assessment and Treatment) Act 1992 or undersection 29 of the Intellectual Disability (Compulsory Care andRehabilitation) Act 2003 made as a result of the considerationdirected under subsection (2) and for any determination arising out ofsuch an application, the respondent is taken to be detained in a prisonunder an order of committal.[108] A direction of this kind was made in Chief Executive of Department ofCorrections v R:81[3] I conclude that an alternative to a PPO, based on placement under the24/7 care of Te Roopu Taurima by consent may not be lawfully enforceableand provides too uncertain a basis for the otherwise very high risk presentedby R. I am satisfied however that a direction pursuant to s 12 should be made,and I direct the Chief Executive to consider the appropriateness of anapplication under s 29 of the Intellectual Disability (Compulsory Care andRehabilitation) Act 2003.[109] The Court may make a PPO, as set out in s 13:13 Court may make public protection order(1) After considering all of the evidence offered in a proceeding on anapplication for a public protection order, and, in particular, the evidencegiven by 2 or more health assessors, including at least 1 registeredpsychologist, the court may make a public protection order against therespondent if the court is satisfied, on the balance of probabilities, that—(a) the respondent meets the threshold for a public protection order;and(b) there is a very high risk of imminent serious sexual or violentoffending by the respondent if,—(i) where the respondent is detained in a prison, the respondentis released from prison into the community; or(ii) in any other case, the respondent is left unsupervised.(2) The court may not make a finding of the kind described in subsection(1)(b) unless satisfied that the respondent exhibits a severe disturbance inbehavioural functioning established by evidence to a high level of each ofthe following characteristics:(a) an intense drive or urge to commit a particular form of offending:81 Chief Executive of Department of Corrections v R, at 76.(b) limited self-regulatory capacity, evidenced by generalimpulsiveness, high emotional reactivity, and inability to copewith, or manage, stress and difficulties:(c) absence of understanding or concern for the impact of therespondent's offending on actual or potential victims (within thegeneral sense of that term and not merely as defined in section 3):(d) poor interpersonal relationships or social isolation or both.[110] The meaning and effect of s 13 is largely uncontroversial. It involves a three-stage test, namely:82(a) determine whether the respondent exhibits a severe disturbance inbehavioural functioning, based on the s 13(2) characteristics; and(b) if so, determine whether the respondent poses a very high risk of imminentsexual or violent offending; and(c) assess whether a lesser alternative is available.83Conditions[111] Subpart 3 sets out the status of residents. There are several conditions thatapply to residents. These include:(a) Section 20, which provides that residents must stay in theresidence they have been designated;(b) Section 21, which provides that the chief executive has the legalcustody of every resident;(c) Section 22, which requires residents to comply with lawfuldirections; and(d) Section 23, which prohibits residents from possessingprohibited items.82 Chief Executive of Department of Corrections v Chisnall, above n 5, at [41].83 Chisnall CA (2019), above n 7 at [42].[112] There is also a range of provisions containing security measures residents mustsubmit to:(a) Sections 63-67 permit searches (including rub down searches,scanner searches, x ray searches, strip searches (wherereasonable grounds exist) and searches, using dogs, of residents,residents' property and anyone who wishes to enter theresidence.(b) Section 68 requires residents to submit to drug or alcohol testswhere the manager has reasonable grounds to believe they haveused any prohibited substances.(c) Section 71 provides that the manager may, under certaincircumstances, place the resident in seclusion.(d) Section 72 provides that a manager may restrain a resident(within certain conditions) if necessary to prevent the residentendangering their own health or the health of others, seriouslydamaging property, seriously compromising their own care andwell-being or that of others, or escaping.[113] A Court may, on application of the Chief Executive, order that a person subjectto a PPO be detained in a prison instead of residence if they pose "such anunacceptably high risk to himself or to others, or to both, that person cannot bemanaged safely in the residence".84 A person so imprisoned must be treated in thesame way as a prisoner who is committed to prison because they are awaiting trial.Prison detention is subject to review within one month and must be reviewed by aCourt within one year.85Rehabilitative provisions84 Section 85.85 Sections 87 and 88.[114] Sections 28 to 40 set out the "rights" of residents. Section 27 provides that aresident "has the rights of a person of full capacity who is not subject to a publicprotection order" except to the extent that those rights are limited under the Act.[115] One of the rights in the Act is a right to rehabilitative treatment, set out at s 36:36 Right to rehabilitative treatmentA resident is entitled to receive rehabilitative treatment if thetreatment has a reasonable prospect of reducing the risk to publicsafety posed by the resident.[116] The Act also requires the manager of residences to provide management plansfor residents. This involves assessing the needs of the resident, including, under s41(2)(e), identifying "steps to be taken to facilitate the resident's rehabilitation andreintegration into the community." Pursuant to s 42(3)(c), the management plans mustthen set out "a personalised management programme for the goals of the resident thatwill contribute towards his or her eventual release from the residence and reintegrationinto the community."[117] Under s 26(1)(d), the Chief Executive may also grant a resident leave from theresidence "to attend a rehabilitation programme identified in the resident'smanagement plan."[118] Other (partially) protected rights include:86(a) earnings from work;(b) the right to legal advice;(c) the right to vote;(d) recreational and cultural activities;(e) the right to receive and send written communications;86 Sections 27-39.(f) access to media;(g) visitors and oral communications with people outside the residence;(h) the right to medical treatment;(i) the right to information;(j) the right to be treated in manner that respects their cultural and ethnicidentity, language, and religious or ethical beliefs; and(k) the right to obtain a benefit.Review and release provisions[119] Section 15 provides for the yearly review of PPOs by a review panel.[120] Section 16 also requires the Court to undertake a review within every 5-yearperiod of the continuing justification of the order and the Court may direct an order todo so after 10 years.[121] Under s 17, a person who is subject to a PPO may also, with leave of the Court,apply to the court for a review of the order.[122] Section 18 sets out the requirements around reviews. The Court must beprovided with all reports provided to the review panel and may call for supplementaryreports. The Court must consider whether there is still a very high risk of imminentserious sexual or violent offending and the Court must take into account whether theaffected persons continues to exhibit a severe disturbance in behavioural functioning.If the Court is satisfied, on the balance of probabilities, that there no longer is a veryhigh risk of imminent serious sexual or violent offending by the person subject to thePPO, the Court must make a finding to that effect.Protective Supervision Orders[123] When a Court makes a finding under s 18, the Court must cancel the PPO andimpose a protective supervision order (PSO) in its place.87 A PSO can contain certainrequirements, as noted in s 94:94 Requirements may be included in protective supervision orderThe court may include in any protective supervision order under section 93any requirements that the court considers necessary to—(a) reduce the risk of reoffending by the person under protectivesupervision:(b) facilitate or promote the rehabilitation and reintegration into thecommunity of the person under protective supervision:(c) provide for the reasonable concerns of victims (within the generalsense of that term and not merely as defined in section 3) of the personunder protective supervision.[124] These requirements can include drug or alcohol requirements, the parametersof which the Act sets out in detail. A person subject to a drug or alcohol requirementmay be directed to undergo testing or submit to continuous monitoring88, but there areclear rules around how notice of this direction may be given,89 where the testingprocedure can be carried out,90 and what the information obtained from the testingmay be used for.91[125] It is an offence to breach a PSO.92 If a person is subject to drug or alcoholrequirements, it is also an offence if they refuse or fail to adhere to the requirements(for example, by refusing to undergo a testing procedure or to submit to continuousmonitoring when directed to do so) without reasonable excuse.93 It is also an offencefor a person subject to a PSO with a drug or alcohol requirement, who has beendirected to submit to continuous monitoring, to refuse to allow an authorised personentry to their residential address for purposes related to the PSO.9487 Section 93(1).88 Section 95B.89 Section 95C.90 Section 95D91 Section 95E.92 Section 103.93 Section 103A.94 Section 103B.[126] Under s 96, the chief executive or the person subject to a protective supervisionorder may apply at any time to the court for the variation or discharge of a requirementof a PSO. The court may then vary or discharge any requirement forming part of theorder. The review panel may also modify such a requirement on application by thechief executive or the person subject to a PSO, but only if satisfied the modificationwill render the requirement less restrictive.95[127] The Act also requires mandatory reviews of the PSO within every 5-yearperiod.[128] A person subject to a PSO may also, with the leave of the Court, apply to theCourt for a review of the order.96 On a review of a PSO, the Chief Executive mustprovide the Court with current reports on the person subject to the order.97 The Court'sjurisdiction to cancel the PSO is set out in s 102 if the affected person has notcommitted any sexual or violent offences nor breached any requirements included inthe order.Parliamentary materials[129] As with my assessment of the ESO regime, I have not found it necessary torely on the parliamentary materials, so I will examine the parliamentary materials onlybriefly. A Cabinet Domestic Policy Committee Paper of 10 August 2011 identified therisk presented by a very small group of offenders who appeared resistant torehabilitation usually as a result of intelligence and other cognitive deficits.98 A civildetention order was identified as a potential response. This was followed by a RISproduced by the Department of Corrections dated 20 March 2012. Among otherthings, it reviewed overseas experience and it discussed a number of options, includingcivil detention via PPOs. The RIS concluded that the PPO would best meet the publicsafety policy objective.95 Section 97.96 Section 100.97 Section 101.98 Judith Collins Management of High Risk Sexual and Violent Offenders at End of Sentence (10August 2011).[130] A Cabinet Social Policy Paper of 21 March 2012 also addressed the potentialimpact of the PPO regime and foreshadowed a legislative framework adaptableenough to ensure detainees could be managed according to their needs, while stillproviding for protections for detainees' rights. 99 The potential for conflict with theimmunity from double punishment, together with the prospect that some detainees willnever be released, was also identified. But lesser forms of supervision were notconsidered adequate. This was followed by a Cabinet decision to establish a PPOscheme on 2 April 2012100, which took shape in the Public Safety (Public ProtectionOrders) Bill of 18 September 2012.Public Safety (Public Protection Orders) Bill – 18 September 2012[131] The explanatory note to the Public Safety (Public Protection Orders) Bill (theBill) identified the tension between PPOs and human rights considerations:The Bill is a proportionate balance between the State's legitimate objective ofprotecting citizens from almost certain serious sexual or violent harm and theright of those on a public protection order to be subject to the least restrictiveform of detention to achieve that objective.While it is possible that detainees will never be released from a publicprotection order, there are credible pathways for release. The pathways wouldinclude a management plan, rehabilitation, treatment, regular and earlyreviews of status, and post-release supervision.Attorney-General's Report – 4 October 2012[132] The Attorney-General, however, concluded that the Bill complied with theBORA. He noted:101The risk of breach of ss 22 and 26 was raised at the time that the Bill wasproposed. I concluded that, unless the Bill incorporated the key safeguardsnecessary for a civil committal regime, it would not be Bill of Rightscompliant.The Bill as introduced includes such safeguards at each of the stages of themaking, administration and review or cancellation of orders. The Bill alsocontains broad interpretative principles to ensure its operation as a committal,99 Judith Collins and Anne Tolley Public Protection Orders: Establishing a Civil Detention Regime(21 March 2012).100 Cabinet Minute of Decision "Public Protection Orders: Establishing a Civil Detention Regime" (2April 2012) CAB Min (12) 11/9.101 Christopher Finlayson Public Safety (Public Protection Orders) Bill – Consistency with the NewZealand Bill of Rights Act 1990 (4 October 2012) at [5]-[6].and not punitive, regime. For those reasons, I conclude that it complies withthe Bill of Rights Act.[133] Over the course of the next two years, the Bill was subject to multiple inputs,variously addressing the form, shape and scope of the proposed civil public protectionregime, with specific regard to the balance between protection and the rights ofaffected persons, including their rights to rehabilitation.102 The PSA, as enacted, is theproduct of this lengthy process.Is a PPO a penalty?[134] Mr Keith submits that the PPO regime, like the ESO regime, imposes a freshpenalty on an offender for specified sexual or violence offending and is thus a secondpenalty. Referring to Ilnseher,103 he says that a PPO is punitive because it is predicatedon qualifying offending, is not a measure of last resort for the shortest period and doesnot have a genuinely therapeutic objective. Rather, he says, it is directed to protectingthe public from certain types of risk. While the imposition of a PPO is subject tojudicial oversight, the inherent inflexibility of the regime once the qualifying risk isidentified means that a lengthy or indeterminate period of incarceration is inevitable.In addition, Mr Keith submits there is no supporting assessment to suggest that thepersons subject to a PPO have, as suggested by counsel for the Attorney-General,immutable characteristics or that they are untreatable and, in short, that the entirepremise of the regime has a flimsy unscientific basis. This means that a PPO willinevitably infringe ss 25 and 26(2) of the BORA.[135] Ms Todd, assisted by Mr McKillop, submits that the purpose of the PPO regimeis not to punish, but rather to protect the public from significant harm. They say thereis a pressing need to manage the risk presented by persons who have engaged in certaintypes of criminal offending and who present a very high risk of imminent harm to thepublic and that the PPO regimes are proportionate to meet that pressing need.102 See Legislation Advisory Committee Public Safety (Public Protection Orders) Bill (31 October2013); Ministry of Justice and Department of Corrections Public Safety (Public Protection Orders)Bill – Initial Briefing (4 November 2013); Ministry of Justice and Department of CorrectionsAdditional Briefing: Public Safety (Public Protection Orders) Bill (3 December 2013); andMinistry of Justice and Department of Corrections Public Safety (Public Protection Orders) Bill– Departmental Report (25 February 2014).103 Ilnseher v Germany, above n 29.Furthermore, they submit there were and are no reasonable alternatives, noting thatthe offenders to which the PPO regime applies do not fit within or are not eligible fortreatment within the mental health regime or the intellectual disability regime (and ifthey are, they will be directed to those regimes).[136] They also say the parliamentary records show that careful consideration wasgiven to an eligible person's BORA rights and the PPO scheme was developed toensure it was a committal rather than a punitive regime. Indicative of this, thelegislative scheme involves a civil commitment exercise, including:(a) It involves a civil application to the High Court.(b) Civil legal aid is involved.(c) There is no requirement for the offender to be present or for the victimto be involved in the process.(d) While the trigger is criminal offending, the threshold criteria includebehavioural characteristics and very imminent risk of violent offending.(e) The mechanism of detention is not prison-like, involving as muchautonomy as possible, a right to rehabilitative treatment and a right toaccess, on a limited basis at least, news and media. There arecomprehensive review mechanisms with judicial oversight.[137] They also say that, in any event, whether the imposition of a PPO isinconsistent with BORA will depend on the precise terms of the PPO.Assessment[138] For reasons that should become obvious, in completing this assessment I havepreferred to approach the assessment of rights infringement through the lens of s 6BORA at the initial interpretative stage; that is where possible I have preferred a rightsconsistent construction of relevant parts of the PPO regime as mandated by s 6. Formy part, this has been necessitated by the presence of multiple factors, some punitive,some non-punitive and some therapeutic, within the PPO regime. Put another way, thisis not a statutory regime where the apparent intention of Parliament to limit BORArights is clear cut and thus the Hansen approach is inapposite.[139] The PPO scheme includes several apparently punitive factors that point to apenalty regime, including:(a) Any decision to impose a PPO is predicated on the existence of aqualifying sexual or violence offence;(b) A PPO is an order of indefinite duration;(c) Affected persons are detained on prison grounds;(d) Affected persons are subject to the security measures noted at ss 63-72,including for example extensive search powers;(e) The PPO may be applied retrospectively without the requirement forfurther corresponding offending, and it may do so prospectively,without end;(f) The "right to rehabilitation," is conditional on the rehabilitationreducing the affected person's risk; and(g) A person subject to a PSO may also be imprisoned (like a prisonerawaiting remand) for risk management purposes, without havingcommitted a criminal offence.[140] However, there are several important countervailing factors. First, the Act isexpressly non-punitive. The significance of that was highlighted by Elias CJ inChisnall.104 Second, all persons exercising powers under the Act must have regard tothe s 5 principles, including the principle that the autonomy and dignity of the detainedperson must be respected. This principle then corresponds to the bundle of protected104 Chisnall SC, above n 4 at [37].rights expressly recognised and affirmed at ss 27-39 of the Act. These rights are to becurtailed only so far as necessary to secure the protection of the person or the public.Third, the process for the imposition of a PPO is not a criminal process. As notedabove, the PPO regime is triggered and operates within the civil processes of the HighCourt. This is a marked difference from the ESO regime. Fourth, an eligible personmay be redirected to the MHCAT and IDCCR regimes if they qualify for treatmentwithin those regimes.[141] Fifth, every major step in the PPO process is subject to judicial oversight,including review of PPOs. This is an important safeguard. As Elias CJ put it, the PSAis to be interpreted and applied in the context of human rights obligations protectiveof liberty and suspicious of retrospective penalty.105 This reduces the prospect of theimposition of a PPO unless the qualifying criteria are clearly met. It also providessurety that a rights consistent administration of the PSO regime will be preferred.Cumulatively, these factors strongly point to a committal process for persons withclear behavioural disorders and for the specific purpose of protecting the public.[142] Overall, I am satisfied therefore that the PPO is not presumptively a penalty.This does not preclude the possibility that on the facts of a particular case, a PPO mightoperate like a penalty. Detention without rehabilitation on prison grounds might attractsuch a finding. Imprisonment of a person subject to a PPO without having committeda further offense may also qualify as a penalty. But those outcomes cannot bepresumed, for the reasons already noted.Demonstrably justified?[143] As I am satisfied that a PPO is not presumptively a penalty, it is strictlyunnecessary to examine whether the limits a PPO imposes on BORA rights aredemonstrably justified. However, given the significance of this issue to the parties, Iwill make some brief observations about it.[144] Like an ESO, a PPO is directed to public protection. That is a reasonableobjective and for the reasons already expressed (at [140]-[142]) the limitations105 Chisnall SC, above n 4 at [38].imposed by a PPO (sans the punitive components just mentioned – see also [145]below]) are rationally and proportionately connected to that objective. I alsoacknowledge that alternative options, including within the IDCCR regime wereconsidered. However, if the PPO scheme imposes a penalty, then I would hold thelimitation on the immunity from retrospective penalty or prospective second penaltyto be unjustified. A retrospective penalty and or prospective second penalty of theform, type and potentially indefinite duration envisaged by a PPO is not capable ofreasonable justification given the derogation that entails from the correspondingimmunities affirmed by s 25(g) and s 26.[145] As noted, the conditionality of rehabilitation, detention on prison grounds andimprisonment without further offending also raise the prospect of s 26(2) rightsinfringement. I propose therefore to address whether those aspects are justified forcompleteness.[146] Dealing first with the requirement that rehabilitation must reduce risk; a PPOserves to protect the public from persons who present a clear, qualifying very high riskof danger. While therapy directed to risk reduction serves that purpose, thatconditionality appears to cut across the non-punitive and dignity principles of the Act.Therapy is a prerequisite to humane treatment of a person detained, perhapsindefinitely, pursuant to a PPO. The requirement for risk reduction as a condition ofrehabilitation is therefore evidently disproportionate on the face of the legislation.However, what therapy qualifies as risk reducing must be defined in a way that issufficiently generous to conform to the non-punitive and dignity principles. This willinevitably bear on the legality of any decision not to enable therapy. Given this, theprospect of detention without therapy should be small.[147] The identification of one facility, Matawhāiti, on prison grounds toaccommodate PPO persons is also evidently discordant with the non-punitive principleas well as the dignity principle. That restriction is therefore also evidentlydisproportionate to the purpose of the Act on the face of the legislation. However, Iqualify this observation in an important respect. I understand Matawhāiti is managedby persons who are qualified to provide specialised care for PPO recipients.106 Theassessment therefore of inconsistency with the non-punitive and dignity principles,and s 25(g) and s 26 immunities, is one that should be undertaken on a case by casebasis.[148] Finally, I consider that the prospect of imprisonment at any time withoutfurther offending is disproportionate to the goal of public protection. It offends boththe immunity from retrospective and prospective second penalty in a fundamental wayand is inconsistent with the non-punitive and dignity principles of the Act. While Imake no final determination of this point, I am presently unable to find demonstrablejustification for it or read the provision in a rights compliant way.Summary[149] In the result, I do not consider that, overall, the PPO regime is a punitiveregime or that a PPO is presumptively a penalty. While there may be cases where aPPO is imposed in a punitive way or with punitive effect, the evident purpose, policyand scheme of the Act is non-punitive.Declarations 3 and 6 – other rights infringements[150] I can deal with the application for declarations 3 and 6 briefly. Mr Keithcontends, in short, the assessment processes of the ESO and PPO regimes infringe ss9, 18, 22, 23(5), 25(a), (c) and (d), and 27 of the BORA. The extent to which theseother BORA rights are infringed by the ESO and PPO regimes requires a fine grainanalysis of the operation of the regime on the facts of a case. To illustrate, it is difficultto see how those regimes arbitrarily detain affected persons in breach of s 22 (freedomfrom arbitrary detention) and of s 27 (natural justice), given the elaborate stepsrequired, including judicial oversight, to impose an ESO and PPO. Rather, there maybe cases where the process of imposing an ESO or PPO has gone so wrong, a BORAbreach comes into play.106 See discussion in Chief Executive of Department of Corrections v R, above n 76, at [18].[151] Furthermore, due process rights affirmed by ss 24 and 25 are not obviouslyengaged. As the Court of Appeal stated in McDonnell: 107[39] We do not consider it appropriate to treat an application for an ESOas being analogous with the bringing of a fresh charge against the offender.For example, it makes no sense to say that the right to be presumed innocent(of the offence which makes the offender eligible for the making of an ESO)applies to an offender who has been through a trial process and has beenproved guilty according to law. A number of the other rights guaranteed by s24 are equally inapplicable, such as the right to trial by jury (s 25(e)). We seethe ESO process as analogous with the sentencing process which followsconviction, so that the rights guaranteed by ss 24 and 25 which apply inrelation to sentencing apply equally to the ESO process. However, rightswhich are applicable to persons facing charges who have not yet beenconvicted, but which cease to be of relevance once a finding of guilt has beenmade according to law and a conviction has been entered, are not re-ignitedwhen an ESO application is made.[152] In terms of s 25(d), the Court of Appeal in McDonnell found that s 25(d) didnot apply to ESOs108 – and that even if it did, there would have been no breach becausehad the offender in that case participated in the assessment process, he would havedone so because he consented, rather than because he was compelled.109 The same canbe said of any ESO offenders: there is nothing in the Act to suggest a person can becompelled to participate in an ESO clinical risk assessment process, so no issue arisesin terms of s 25(d).[153] I therefore decline to make declarations 3 and 6 effectively in the abstract.Should declarations of inconsistency be made?[154] As the Court of Appeal noted in Electoral Commission v Tate:110[30] A Court may, of course, decline to make a declaratory judgment or orderunder the Declaratory Judgments Act 1908. Section 10 expressly provides thatthe jurisdiction conferred upon the Court to give or make a declaratoryjudgment or order shall be discretionary and that the Court may, on anygrounds which it deems sufficient, refuse to give or make any such judgmentor order. There may be a number of sound reasons why a declaratory judgmentor order should be refused. Examples of grounds on which such judgments or107 McDonnell v Chief Executive of the Department of Corrections [2009] NZCA 352, (2009) 8HRNZ 770. See also the assessment undertaken at [44]-[46] in respect of BORA s 27(1).108 Citing Burke v Superintendent of Wellington Prison [2003] 3 NZLR 206 and R v Jones [1994] 2SCR 229.109 At [43].110 Electoral Commission v Tate [1999] 3 NZLR 174.orders have been declined are cases where the question is one of mixed lawand fact, or where the question is an abstract or hypothetical question, orwhere the order would have no utility.[155] There is the added constitutional dimension here, as the Court of Appeal saidin Taylor:111[73] We begin with comity. In the language of the Parliamentary PrivilegeAct 2014:[T]he principle of comity requires the separate and independent legislativeand judicial branches of government each to recognise, with the mutualrespect and restraint that is essential to their important constitutionalrelationship, the other's proper sphere of influence and privileges[74] This principle recognises not only that each branch has a separatesphere of influence but also that they overlap, necessitating restraint on allsides. Sir Owen Woodhouse, speaking extra-judicially, described comity as aconvention made necessary by the imprecise distribution of constitutionalpowers among the three branches of government.94 Comity is reciprocal,finding expression not only in the Act but also in the Standing Orders of theHouse of Representatives, the Cabinet Manual, and numerous judicialdecisions.[75] Deference is the term used to describe a court's decision to refrainfrom exercising its jurisdiction on the ground that another decision-makerenjoys greater institutional competence or experiences democraticaccountability. These considerations may arise when the inconsistencyconcerns a protected right because, as the Bill of Rights itself recognises,rights must sometimes be balanced against other societal interests or otherrights and such evaluative decisions may lie within the province of thelegislative branch.[156] With this guidance in mind I turn to examine whether declarations should bemade.ESO[157] I have found that an ESO imposes an unjustified limitation on the immunityfrom retrospective penalty affirmed by s25g and s26(2). I have also come to the viewthat a declaration should be made. The breach of the otherwise impregnable and non-derogable immunity from retrospective penalty is simply not amenable to justification,whatever the precise terms of the ESO. The making of a declaration in suchcircumstances is also necessary to vindicate the right and is consistent with the111 Taylor, above n 2 (citations omitted).orthodox function of this Court to determine and where necessary, makepronouncements about the legality of Crown action. Furthermore, a declaration ofinconsistency can be made with precision, insofar as it is specifically directed to theretrospective application of the ESO regime per s107C(2), which states:(1) To avoid doubt, and to confirm the retrospective application of this provision,despite any enactment or rule of law, an offender may be an eligible offendereven if he or she committed a relevant offence, was most recently convicted,or became subject to release conditions or an extended supervision orderbefore this Part and any amendments to it came into force.PPO[158] I have found a PPO is presumptively not a penalty, but I consider that threeelements of the PPO regime appear to be punitive, namely the conditionality of therapyto reduce risk, the location of the PPO facility on prison grounds, and the potentialimprisonment of persons subject to PPOs without having offended. I consider,however, that the degree of inconsistency, and the extent to which that mandates adeclaration of inconsistency should be determined when the corresponding provisionsare in fact engaged and in light of the specific circumstances of the case.[159] In the result, I make no declaration of inconsistency in relation to PPOs.The answers[160] I answer the questions as follows:(a) Does Mr Chisnall have standing to make an application forinconsistency?Yes. See discussion at [6]-[8](b) What is a penalty?I have identified several factors, the presence or absence of which, tendto suggest that the measure is a penalty. See [37]-[51].(c) Is an ESO a penalty?For present purposes, there are two types of ESO, a retrospective ESOand a prospective ESO. A retrospective ESO is an ESO imposed on anoffender who committed their qualifying offending before the ESOregime came into force in respect of that offending. A prospective ESOis an ESO imposed on an offender who committed their qualifyingoffending after the ESO regime came into force in respect of thatoffending. Both types of ESO are penalties. See discussion at [83]-[90].(d) If so, is an ESO justified per s 5 BORA?A retrospective ESO is not demonstrably justified. Whether aprospective ESO is justified needs to be worked out on a case by casebasis, having specific regard to the terms of the ESO and itsimplementation. See discussion at [92]-[99].(e) Is a PPO a penalty?No, but elements of the PPO regime appear to be punitive, and a PPOmay be imposed with punitive effect. See discussion at [134]-[142].(f) If so, is a PPO justified per s 5 BORA?If, contrary to my finding, a PPO is a penalty, then it would not bejustified per s 5 BORA. See discussion at [143]-[144].(g) Are there other unjustified rights infringements?The answer will depend on the circumstances of the individual case.See discussion at [150]-[153].(h) Should declarations of inconsistency be made?Yes, in relation to retrospective ESOs – see [154]-159].Result[161] I will make a declaration that s 107I(2) of the Parole Act 2002 is inconsistentwith section 26(2) of the New Zealand Bill of Rights Act, as informed by arts 14(7)and 26 of the International Covenant on Civil and Political Rights insofar as it appliesretrospectively. The parties are to reach agreement on the wording of that declarationand file submissions within 10 working days.[162] I decline to make any other declaration.Costs[163] If necessary, submissions on costs may be filed.