D (SC 31/2019) v NEW ZEALAND POLICE [2021] NZSC 2

D (SC 31/2019) v NEW ZEALAND POLICE [2021] NZSC 2 [9 February 2021]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 31/2019[2021] NZSC 2BETWEEN D (SC 31/2019)AppellantAND NEW ZEALAND POLICERespondentHearing:FurtherSubmissions:30 October 201914 and 26 November 2019 and 26 June 2020Court: Winkelmann CJ, William Young, Glazebrook, O'Regan andEllen France JJCounsel: J D Munro and J N Olsen for AppellantA M Powell and M R G van Alphen Fyfe for RespondentJudgment: 9 February 2021JUDGMENT OF THE COURTA The application to adduce further evidence is granted.B The appeal is allowed.C The registration order made by the District Court unders 9(1) of the Child Protection (Child Sex OffenderGovernment Agency Registration) Act 2016 is quashed.____________________________________________________________________SUMMARY OF RESULT[1] The Court has, by majority, allowed the appeal and quashed the order madeunder s 9(1) of the Child Protection (Child Sex Offender Government AgencyRegistration) Act 2016 (the Registration Act) placing the appellant on the Child SexOffender Register.[2] The appeal raised two primary issues. The first was whether the RegistrationAct applied to the appellant, given he committed the qualifying (registrable) offencebefore the Act came into force. The second was the relevance of the New Zealand Billof Rights Act 1990 when the court is deciding whether to make a registration orderunder s 9 of the Registration Act.[3] Winkelmann CJ, O'Regan and Ellen France JJ have held that s 9 of theRegistration Act does not apply to offenders such as the appellant who committed aqualifying offence before the Act came into force but were convicted and sentencedafter that date. They consider that the Registration Act is not sufficiently clear todisplace the presumption against retrospective penalties in s 6 of the SentencingAct 2002. The appellant is therefore not eligible to be placed on the register.1[4] William Young and Glazebrook JJ have concluded that the appellant is eligibleto be placed on the register. They consider that s 9 of the Registration Act applies toall offenders convicted of a qualifying offence and sentenced to a non-custodialsentence after the Act came into force, irrespective of when the offence was committed(as well as all those convicted before and sentenced after). Their view is that this isthe only available interpretation of s 9.2[5] In terms of the correct approach to s 9 of the Registration Act, Winkelmann CJ,Glazebrook and O'Regan JJ have held that the exercise undertaken by the court whenconsidering making a registration order is a two-stage process.3 First, the court mustbe satisfied that the offender poses a real or genuine risk to the lives or sexual safetyof a child or children generally.4 Second, the court must be satisfied this risk is ofsufficient gravity to justify the making of a registration order with the consequentimpacts on the rights of the offender.5[6] William Young and Ellen France JJ consider that where an offender issentenced to home detention and poses a real or genuine risk to child safety, there will1 At [77] and [82] per Winkelmann CJ and O'Regan J and [159] per Ellen France J.2 At [266](a) per William Young J and [252] and [257] per Glazebrook J.3 At [104] per Winkelmann CJ and O'Regan J and [260] per Glazebrook J.4 At [104]–[105].5 At [101] and [106]–[108].not be a great deal of scope for the court to exercise its discretion against making aregistration order.6 They do not read into s 9 a requirement that an order cannot bemade unless the sentencing judge regards the incidents of a registration order asproportionate to the particular risks posed by the offender.[7] In assessing the risk posed by the appellant, Winkelmann CJ, O'Regan andEllen France JJ consider it legitimate to take into account the updating reports of theclinical psychologist who treated the appellant since his original sentencing. Counselfor the respondent accepted that the Court consider these reports as updating evidenceof risk.7 William Young and Glazebrook JJ query the legitimacy of consideringupdating evidence that shows how the risk posed by the offender has changed sincethe time of sentencing. They are of the view that the risk posed by an offender shouldbe assessed at the time of the original sentencing.8[8] Applying their approach to s 9 to the appellant's case, Winkelmann CJ andO'Regan J were satisfied that the appellant poses a real risk to the sexual safety ofchildren. However, in their view, this risk is not of sufficient gravity to justify themaking of a registration order. They would have accordingly allowed the appeal evenif they had found that the Registration Act did apply to the appellant.9 Glazebrook Jagrees with their approach, but takes a different view of its application to the facts ofthe present case. She would have dismissed the appeal.10[9] William Young J considers that at the time the appellant was sentenced, heposed a real or genuine risk to the lives or sexual safety of one or more children orchildren generally. The making of a registration order was therefore appropriate. Hewould have dismissed the appeal.116 At [296]–[299] per William Young J and [150] and [158] per Ellen France J.7 At [41] per Winkelmann CJ and O'Regan J and [159] per Ellen France J.8 At [305]–[309] per William Young J and [262] per Glazebrook J.9 At [128] and [135].10 At [260]–[264].11 At [310].[10] Given her view that the Registration Act does not apply to the appellant,Ellen France J does not consider it necessary to express a view as to whether aregistration order should have been made under s 9 if the Act did apply.12[11] As is apparent from the intituling, the Court has also decided that it isappropriate for the judgment (and leave judgment) to be anonymised.13REASONSPara No.Winkelmann CJ and O'Regan J [12]Ellen France J [149]Glazebrook J [160]William Young J [266]WINKELMANN CJ AND O'REGAN J(Given by O'Regan J)Table of ContentsPara No.Introduction [12]Issues on appeal [15]The legislation [18]The offending [28]The Courts below [31]District Court [31]High Court [33]Court of Appeal [35]Updating evidence [40]The two High Court approaches [45]Retrospectivity [49]Retrospective penalties [52]Is a registration order a "penalty"? [55]Relevant provisions of the Registration Act [60]Registration Act as first enacted [61]Registration Act as amended in 2017 [69]Our analysis [75]Bill of Rights [85]Freedom of movement, freedom of association and freedomof expression [88]Privacy [92]Retrospective punishment [93]12 At [159].13 At [147] per Winkelmann CJ and O'Regan J, [267] and [314] per William Young J, [265] perGlazebrook J and [159] per Ellen France J.The relevance of the Bill of Rights to the decision to make aregistration order [96]Our approach [103]Application to this case [114]Seriousness of the qualifying offences [116]Period of time since the offence was committed [119]Age of the appellant [120]Age of victims [121]Difference in age between the victims and the appellant [122]Written assessment of the risk posed by the appellant [123]Our assessment of the risk posed by the appellant [126]Should a registration order be made? [129]Anonymisation [136]Result [148]Introduction[12] The appellant pleaded guilty to two offences under the Films, Videos, andPublications Classification Act 1993 (the FVPC Act). The first of these was an offenceof making an objectionable publication, knowing or having reasonable cause tobelieve that the publication was objectionable, an offence under s 124(1) of the FVPCAct. The second was an offence of having in his possession an objectionablepublication, knowing or having reasonable cause to believe that the publication wasobjectionable, an offence under s 131A(1) of the FVPC Act.[13] The appellant was sentenced to nine months' home detention in the DistrictCourt.14 The Judge also made an order that the appellant be placed on the Child SexOffender Register established under the Child Protection (Child Sex OffenderGovernment Agency Registration) Act 2016 (the Registration Act).15 Under s 9(1) ofthe Registration Act, such an order may be made when a court imposes a non-custodialsentence in respect of a conviction for a "qualifying offence". The offence unders 131A(1) was a qualifying offence as the publication involved subjects under 16 anddealt with sex.1614 New Zealand Police v [D] [2018] NZDC 665 (Judge David Sharp) [DC judgment] at [11].15 At [15]–[17].16 Child Protection (Child Sex Offender Government Agency Registration) Act 2016 [RegistrationAct], sch 2 cl 1(b)(iii).[14] The appellant appealed to the High Court against the making of the registrationorder (but did not appeal against his sentence of home detention).17 That appeal wasdismissed.18 The appellant then sought leave to appeal to the Court of Appeal againstthe High Court judgment. Leave was granted.19 However, the appeal itself wasdismissed.20Issues on appeal[15] The argument at the hearing of the appeal focused on whether, and, if so, howthe New Zealand Bill of Rights Act 1990 (the Bill of Rights) is to be taken into accountin decisions under s 9 of the Registration Act. That was the approved question onwhich leave to appeal was given.21[16] Closely related to this issue was the scope and effect of the retrospectivityprovisions in the Registration Act. As will become apparent, the retrospectivity issuebecame determinative of the appeal. Counsel made additional submissions after thehearing on that issue. We also amended the grant of leave by adding an additionalapproved question: whether the Child Protection (Child Sex Offender Government AgencyRegistration) Act 2016 applies retrospectively to offenders who committed aqualifying offence before the date on which the Act came into force and wereconvicted and sentenced after that date.[17] An additional issue which arose for consideration was whether this judgment(and this Court's leave judgment) should be anonymised.The legislation[18] The Registration Act came into effect on 14 October 2016, but was intended toapply retrospectively. During the parliamentary process, the Attorney-General issueda report under s 7 of the Bill of Rights in which he concluded that the Bill was17 Section 9(4) of the Registration Act provides that a registration order is a sentence for the purposesof Part 6 of the Criminal Procedure Act 2011 (appeals).18 [D] v New Zealand Police [2018] NZHC 563 (Lang J) [HC judgment].19 [D] v New Zealand Police [2018] NZCA 337 (Miller, Mallon and Gendall JJ).20 [D] v New Zealand Police [2019] NZCA 30, [2019] 2 NZLR 778 (Kós P, French and Gilbert JJ)[CA judgment].21 D (SC 31/2019) v New Zealand Police [2019] NZSC 58.inconsistent with ss 9 and 26(2) of the Bill of Rights22 and could not be justified unders 5.23[19] The purpose of the Registration Act is set out in s 3, which provides:3 PurposeThe purpose of this Act is to establish a Child Sex Offender Registerthat will reduce sexual reoffending against child victims, and the riskposed by serious child sex offenders, by—(a) providing government agencies with the information neededto monitor child sex offenders in the community, includingafter the completion of the sentence; and(b) providing up-to-date information that assists the Police tomore rapidly resolve cases of child sexual offending.[20] A person who is sentenced to a term of imprisonment for a qualifying offenceis automatically placed on the register.24 Where a person is sentenced to anon-custodial sentence in respect of a conviction for a qualifying offence, the courtmay make a registration order, but is not obliged to do so. This power is contained ins 9 which relevantly provides:259 Court may make registration order(1) If a court imposes on a person a non-custodial sentence in respect ofa conviction for a qualifying offence, the court may order that theperson must be placed on the register and must comply with thereporting obligations of this Act.(1A) For the purposes of subsection (1), the date on which the person wascharged with the offence is irrelevant.(2) A court may make an order under this section (a registration order)only if the court is satisfied that the person poses a risk to the lives orsexual safety of 1 or more children, or of children generally.(3) For the purpose of assessing the risk posed by the person, the courtmust consider the following matters:22 Section 9 deals with the right not to be subjected to disproportionately severe treatment orpunishment; s 26(2) deals with the right not to be subject to double jeopardy.23 Christopher Finlayson Report of the Attorney-General under the New Zealand Bill of Rights Act1990 on the Child Protection (Child Sex Offender Register) Bill (6 May 2015) at [41].24 See ss 7(1)(a) and 12.25 Subsection (3) was added at the select committee stage "to give extra guidance to judges whenassessing the risk posed by the offender": see Child Protection (Child Sex Offender Register) Bill2016 (16-2) (select committee report) at 2.(a) the seriousness of the qualifying offence:(b) the period of time that has elapsed since the offence wascommitted:(c) the age of the person:(d) the age of the person at the time of the offence:(e) the age of any victim of the offence at the time of the offence:(f) the difference in age between the victim and the person at thetime of the offence:(g) any written assessment of the risk posed by the person:(h) any submission or evidence from any victim of the offence:(i) any other submission or evidence relating to the risk posed bythe person:(j) any other matter that the court considers relevant.[21] Qualifying offences are divided into three classes, depending on the level ofseriousness.26 The qualifying offence committed by the appellant is in class 1, theleast serious category.[22] The length of the reporting period for a registrable offender is eight years for aclass 1 offence, 15 years for a class 2 offence and life for a class 3 offence.27 Theeight-year period also applies to an offender who has been sentenced to a non-custodialsentence for a qualifying offence and is subject to a registration order.28 So, for theappellant, eight years is the relevant period.26 Schedule 2.27 Section 35(1).28 Section 35(1)(d).[23] Once a registration order has been made, the registrable offender is required toreport "relevant personal information" to the police. The relevant provision is s 16(1),which provides:16 Relevant personal information to be reported(1) For the purposes of this Act, the relevant personal information to bereported by a registrable offender consists of the followinginformation:(a) his or her name, together with any other name by which he orshe is, or has previously been, known:(b) in respect of each name other than his or her current name, theperiod during which he or she was known by that other name:(c) his or her date of birth:(d) the address of each of the premises at which he or shegenerally resides or, if he or she does not generally reside atany particular premises, the name of each of the localities inwhich he or she can generally be found:(e) the name, sex, and date of birth of each child who generallyresides in the same household as that in which the offendergenerally resides:(f) in respect of each child who generally resides in the samehousehold as that in which the offender generally resides, thename of the principal caregiver:(g) his or her postal address for service of notices and documentsunder this Act:(h) if he or she is working,—(i) the nature of the work; and(ii) the name of his or her employer (if any); and(iii) the address of each of the premises at which theoffender generally works or, if he or she does notgenerally work at any particular premises, the nameof each of the localities at which he or she generallyworks:(i) details of his or her affiliation with any club or organisationthat has a child membership or child participation in itsactivities, including any online club or organisation:(j) the make, model, colour, and registration number of anymotor vehicle owned by, or generally driven by, the offender:(k) details of any tattoos, scars, or permanent distinguishingmarks that he or she has (including details of any tattoo ormark that has been removed):(l) if, at the time of making an initial report, he or she has 1 ormore valid passports, the passport number, place of issue, anddate of expiry of each passport:(m) details of any telecommunications service used, or intendedto be used, by the offender, including—(i) the name of any landline or mobile telephone serviceprovider used, or intended to be used, by the offender;and(ii) any phone numbers used, or intended to be used, bythe offender:(n) the name of any Internet service provider, and the details ofany routing or modem device, used, or intended to be used,by the offender:(o) details of any username for any online social networks, onlinegaming accounts, or online storage accounts used, or intendedto be used, by the offender:(p) details of any website domain owned or website administered,or intended to be owned or administered, by the offender:(q) details of any email addresses used, or intended to be used, bythe offender.[24] Offenders must make an initial report,29 make annual update reports,30 andreport any changes to certain aspects of the reported information.31 They must alsoreport any travel plans,32 and their ability to change their name is restricted.33[25] The reporting requirements in s 16 apply to all offenders, regardless of theoffence for which they have been convicted and the seriousness of that offence. Theperiods of registration are also fixed. So a decision under s 9 to place someone on theregister is a binary decision. A judge does not have a discretion to place an offenderon the register for a period less than the eight years provided for in s 35 and also has29 Section 17.30 Sections 18 and 19.31 Section 20.32 Sections 21–23.33 Part 2 subpt 4.no discretion to excuse the offender from some of the reporting requirements if theyare not relevant to the offence for which the offender was convicted.[26] Failure to comply with the reporting obligations without reasonable excuse isa criminal offence.34 Knowingly providing false or misleading information is also anoffence.35[27] The register is not a public register. Access to the information contained in theregister is restricted to those authorised by the Commissioner of Police (theCommissioner) in accordance with guidelines to be issued by the Commissioner.36Provision is made for specified government agencies to share the informationcontained on the register for the purpose of monitoring the whereabouts of registeredoffenders, verifying their personal information, managing the risk that they maycommit further sexual offences against children and managing any risk or threat topublic safety.37 The appellant queries how much monitoring is really happening,however. We will revert to this later.The offending[28] The summary of facts to which the appellant pleaded guilty describes theoffending that led to his conviction under s 131A. The offending was discovered aftera search warrant was executed on the appellant's home. 1,260 video files and1,890 photographs of child pornography were found stored on his computer. Thesephotographs were classified in the summary of facts according to the SAP scale, whichranks images of child pornography from level 1 (nudity or erotic posing with no sexualactivity) up to level 5 (images of sadism or bestiality).38 The images found on theappellant's computer included images in each of the five categories on the SAP scale.34 Section 39.35 Section 40.36 Section 41.37 Section 43(1).38 The SAP scale was adopted by the Court of Appeal of England and Wales in R v Oliver [2002]EWCA Crim 2766, [2003] 1 Cr App R 28. See also R v Zhu [2007] NZCA 470 at [12]–[15].[29] A precise description of the nature of the photographs stored on the appellant'scomputer appears in the judgments of the Courts below and it is not necessary for usto repeat it here.39[30] The charge on which the appellant was convicted under s 124(1) of the FVPCAct involved a video in which the appellant himself appeared with another adult male.It did not, however, involve subjects under the age of 16 and was therefore not aqualifying offence for the purposes of the Registration Act.40 There appears to havebeen some confusion about whether the offence under s 124(1) was a qualifyingoffence in the appellant's case. We will revert to this aspect later.41The Courts belowDistrict Court[31] The sentencing report provided to the District Court by the Department ofCorrections recorded that the appellant's risk of reoffending was assessed as mediumand the risk of harm to potential victims was high. The sentencing Judge also hadbefore him a report from a clinical psychologist, Dr Rogers, who had treated theappellant over 31 one-hour sessions. She advised that prior to this treatment, theappellant's overall risk of sexual reoffending was considered to be moderate. Thistook into account an actuarial assessment under the Static-99R model, which assessedthe appellant as falling within the low-moderate risk category relative to other adultmale sex offenders. She reported that the appellant had, in the course of his treatment,developed increased insight into his offending and strategies to manage his risk. Thisled her to opine that his overall risk of sexual reoffending following treatment waslow-moderate and that any future sexual offending was likely to be limited tobehaviour exhibited in the index offence (viewing child pornography). Sherecommended continuing treatment.[32] Judge David Sharp noted the seriousness of the offending, the vulnerability ofthe children depicted in the photographs and videos and the risk assessment that there39 HC judgment, above n 18, at [25]–[29]; and CA judgment, above n 20, at [24]–[25].40 Schedule 2 cl 1(b)(i).41 See below at [116]–[118].was a low to moderate risk of reoffending.42 He said that when considering theprotection of children, the presence of a low to moderate risk was a factor ofsignificance, and determined that an order should be made.43High Court[33] Lang J recorded that there had been two different approaches to cases unders 9 of the Registration Act in the High Court.44 We will revert to these approacheslater.45 He considered that the matters set out in s 9(3) that are to be taken into accountfor the purpose of assessing the risk posed by the offender also informed the discretionas to whether a registration order should be made in the event that the court determinedthat the threshold test set out in s 9(2) was made out.46[34] Having considered those factors, as well as an updating report from Dr Rogers,the Judge determined that the threshold in s 9(2) was met.47 He then concluded,applying the same factors, that a registration order should be made. He saw this as theonly realistic way in which the appellant's use of the internet could be monitored inthe future.48 He dismissed the appeal.Court of Appeal[35] The Court of Appeal had before it a third report by Dr Rogers updating thereports presented to the District Court and High Court. The Court accepted this asupdating evidence.49 Dr Rogers reported that the appellant had engaged in11 maintenance sessions with her and had commenced a SAFE treatment programme.She expressed the view that the appellant's dynamic risk factors had improved andthat he likely posed a low risk of viewing or possessing child pornography in future.[36] The Court considered the two approaches adopted by the High Court (referredto earlier) and said it considered the correct position was that the court needed to be42 DC judgment, above n 14, at [15]–[17].43 At [17].44 HC judgment, above n 18, at [11]–[14].45 See below at [45]–[48].46 At [18].47 At [55]. We discuss his evaluation of these factors below at [116]–[125].48 At [56].49 CA judgment, above n 20, at [31] and [43]. See also Order A.satisfied that the risk posed by an offender was real, genuine, or actual and not fancifulor remote.50 It considered that the factors set out in s 9(3) informed both theconsideration of the threshold test set out in s 9(2) as well as the decision as to whetherto make a registration order if that threshold is met.51[37] The Court noted that Parliament had determined that an offender sentenced toany period of imprisonment for a qualifying offence was automatically placed on theregister. It considered that this indicated that where the qualifying offence wassufficiently serious to attract a starting point exceeding two years' imprisonment, therewould need to be a good reason to justify not making a registration order in a casewhere the offender is found to pose a real risk to the lives or sexual safety of children.52[38] The Court noted the offences committed by the appellant, but did not commenton the fact that the offence under s 124(1) of the FVPC Act was not a qualifyingoffence and therefore not relevant to the decision to make a registration order.53[39] Having evaluated the criteria set out in s 9(3) of the Registration Act, the Courtdetermined that the order was correctly made and dismissed the appeal.54Updating evidence[40] As occurred in both the High Court and the Court of Appeal, the appellantsought to adduce updating evidence from Dr Rogers, outlining progress in histreatment since the report presented to the Court of Appeal. The respondent did notobject to the admission of this evidence. We are satisfied that this evidence is fresh,credible and cogent,55 relating both to the appeal against the making of the registrationorder and the application for anonymisation, and accordingly we admit it (as did boththe High Court and Court of Appeal in relation to the updating evidence).5650 At [19].51 At [20].52 At [22].53 At [23]. See below at [117].54 At [42]. We discuss the Court's assessment of the s 9(3) criteria below at [116]–[125].55 Lundy v R [2013] UKPC 28, (2013) 26 CRNZ 699 at [120]; and Mark v R [2019] NZCA 121at [16].56 The report of Dr Rogers was not an affidavit or formal statement, but the respondent agreed to itsadmission as updating evidence and we admit it under s 9(1)(a) of the Evidence Act 2006.[41] Although all members of the Court agree that the report of Dr Rogers isrelevant to the anonymisation issue, both William Young J and Glazebrook J query thelegitimacy of considering this report, as well as the updating reports filed in theHigh Court and Court of Appeal, in the context of the assessment of risk.57 We do notthink it is necessary to address that issue in the present case, given that it was commonground that Dr Rogers' reports were relevant to the assessment of risk. Counsel forthe respondent expressly recorded in his oral submissions that the respondent did notobject to the Court considering this evidence as updating evidence of risk. The casewas argued on the basis that the updating evidence was relevant in that context, as ithad been in the Court of Appeal. The respondent did not challenge the decisions ofboth the High Court and Court of Appeal to take into account the updating reportsprovided by Dr Rogers in those Courts. We have therefore taken into account thereports of Dr Rogers not only in relation to the anonymisation issue, but also in relationto the risk assessment exercise.[42] Dr Rogers recorded that the appellant completed SAFE treatment after thedelivery of the Court of Appeal judgment and volunteered for further SAFE treatment.He also had self-referred for treatment related to his own experience of sexual abuse.She said the appellant was self-motivated to overcome his offending and issuesrelating to his own early experiences.[43] Dr Rogers outlined various challenges faced by the appellant, including loss ofemployment and loss of friendships consequent upon the discovery of the nature ofhis offending. This resulted from the public availability on the internet of the Courtof Appeal judgment, which included detailed personal information unknown to closefamily members. His reaction to this illustrated his positive coping style becomingmore stable in the face of difficulty.[44] Dr Rogers considered that this positive, proactive coping style is protectiveagainst further offending. She saw the appellant's reported lack of urge to revert topornography, withdraw or seek support from online chat groups as suggesting that hisrisk of reoffending remains low. However, she considered that the public availability57 See the reasons given by William Young J below at [305]–[309] and Glazebrook J below at [262].of the Court of Appeal judgment (to which we will revert below) creates a personalrisk to the appellant with regard to his mood difficulties and suicidality.The two High Court approaches[45] As noted earlier, the Court of Appeal sought to resolve a conflict in theapproaches adopted in various High Court decisions made under s 9. Thesecontrasting approaches are described in broad terms below.[46] In Johnston v Police, Dobson J expressed the view that the level of riskrequired under s 9(2) to engage the power to make a registration order was that theoffender would, as a matter of definition, be "a serious child sex offender" referred toin s 3, which sets out the purpose of the Registration Act.58 He considered that if thelevel of risk posed by an offender was not of that magnitude, then the Registration Actregime would apply beyond the scope intended by Parliament as reflected in itsstatutory purpose.59[47] Dobson J considered that, once the necessary level of risk was established toengage s 9(2), the court was required to balance the utility of having the offender'sdetails on the register against the impact that registration would have on the offender.This required consideration of the offender's privacy interests, the additional stigmacaused by registration and their right not to be subjected to disproportionately severetreatment or punishment in terms of s 9 of the Bill of Rights.60[48] An alternative approach was proposed by Simon France J in Goose v Police.61Simon France J was concerned about the emphasis given by Dobson J to the term"serious child sex offender" in s 3, and the suggestion by Thomas J in Fowler v R thatthe level of risk required under s 9(2) must be "more than 'real and genuine'".62Simon France J considered that this risked raising the threshold too high, particularly58 Johnston v Police [2017] NZHC 1718 at [30]. The approach in Johnston was followed inFowler v R [2017] NZHC 1892; Escott v R [2017] NZHC 2853; and T v R [2018] NZHC 3274.See also Police v Carter [2018] NZDC 2034, [2019] DCR 254 at [68]–[69].59 At [31].60 At [22].61 Goose v Police [2017] NZHC 2453. The approach in Goose was followed in Praditsin v NewZealand Customs Service [2017] NZHC 48; and Pauling v R [2019] NZHC 1929.62 Fowler, above n 58, at [30].if combined with the further balancing analysis proposed by Dobson J in Johnston atthe second stage when considering whether to exercise the discretion to make aregistration order.63 He believed that the discretion would not often be exercisedagainst the making of an order in circumstances where an offender had been sentencedto home detention.64Retrospectivity[49] In the present case, the Registration Act applied to the appellantretrospectively. The appellant committed the qualifying offence prior to thecommencement of the Act, but was convicted and sentenced after the Act came intoforce. The relevant dates are as follows:(a) the appellant committed the qualifying offence in May 2016;(b) the Registration Act came into effect on 14 October 2016 (thecommencement date);(c) the Registration Act was amended on 8 March 2017 but withretrospective effect to 14 October 2016;(d) the appellant was charged on 20 April 2017;(e) he pleaded guilty after receiving a sentence indication on 16 October2017; and(f) he was sentenced on 17 January 2018.[50] There are two discrete issues in relation to retrospectivity. The first is whetherthe Registration Act applies retrospectively to an offender in the position of theappellant. That is, whether a registration order can lawfully be made in relation to aperson who committed a qualifying offence before the commencement date and wasconvicted and sentenced after that date. If it can, the second is whether the court63 Goose, above n 61, at [26]–[27].64 At [29]–[30].should take into account the retrospectivity aspect in deciding whether a registrationorder should be made. We will deal with the first of these now. We will deal with thesecond when we come to our analysis of the application of the Bill of Rights in relationto the decision to be made by the court under s 9 of the Registration Act.65[51] The first of those issues was not raised in the written submissions of the partiesnor at the hearing in this Court. Counsel for the appellant did not initially argue thata registration order could not be made against the appellant because it was aretrospective punishment. The issue had not been raised in the Courts below, either.This Court sought further submissions from the parties on that issue after the hearing.Retrospective penalties[52] Section 6 of the Sentencing Act 2002 provides as follows:6 Penal enactments not to have retrospective effect to disadvantageof offender(1) An offender has the right, if convicted of an offence in respect ofwhich the penalty has been varied between the commission of theoffence and sentencing, to the benefit of the lesser penalty.(2) Subsection (1) applies despite any other enactment or rule of law.[53] The right conferred on an offender by s 6 of the Sentencing Act is reflected ins 25(g) of the Bill of Rights. This confers on those who are charged:the right, if convicted of an offence in respect of which the penalty has beenvaried between the commission of the offence and sentencing, to the benefitof the lesser penalty:[54] The principle codified in s 6 of the Sentencing Act and s 25(g) of the Bill ofRights is a truly fundamental one.66 Butler and Butler consider that s 6(2) provides "asignificantly more powerful protection than s 25(g)" as it overrides other enactments65 See below at [93]–[95].66 Ross Carter Burrows and Carter Statute Law in New Zealand (5th ed, LexisNexis, Wellington,2015) at 629.inconsistent with the right.67 The authors of The New Zealand Bill of Rights explainthe relationship between ss 6 and 25(g) as follows:68The presence of s 4 in the Bill of Rights means, of course, that it is possiblefor an enactment both to enhance the potential sentence for an offence and torequire that the new sentence be applied even to those already convicted. Ifthe enactment is clear and unequivocal in producing that result, then it mustprevail despite its inconsistency with s 25(g). It is ironic, then, that theprotection against retrospective penalty increases is arguably less unders 25(g) of the Bill of Rights than it is under s 6(1) of the Sentencing Act 2002.This is because s 6 of the Sentencing Act affirms both the right againstretrospective penalty increases and (in s 6(2)) provides that the right is toapply 'notwithstanding any enactment or rule of law to the contrary'.Section 6(2) is, therefore, the exact opposite to s 4 of the Bill of Rights. As to contrary enactments passed subsequently, there would be a powerfulclaim that s 6(2) should supply the interpretive principle upon which theconflict between s 6(1) and the subsequent enactment must be resolved—namely, that the principle in s 6(1) is to prevail so that the other enactment isdenied its effect (with sentencing therefore to proceed on the basis of the lawotherwise in force at the time of the offence). Indeed, the argument would runthat, unless the interpretive principle in s 6(2) was expressly repealed oroverridden in the particular case, it must prevail. In that sense, s 6 of theSentencing Act provides more protection against inconsistent legislation thans 25(g) of the Bill of Rights.Is a registration order a "penalty"?[55] Before turning to the specific provisions of the Registration Act, we examinebriefly whether a registration order is a "penalty" for the purposes of s 25 of the Billof Rights and s 6 of the Sentencing Act. Argument before us proceeded on the basisthat a registration order is a penalty. But it is necessary to consider whether that is infact so.[56] In his report under s 7 of the Bill of Rights, the Attorney-General expressed theview that registration and the subsequent reporting obligations constitute a"punishment".69 The Attorney-General referred to Belcher v Chief Executive of theDepartment of Corrections, where the Court of Appeal held that an extendedsupervision order (ESO) was a "punishment" for the purposes of ss 25 and 26 of theBill of Rights.70 In R v Ofa, Judge Earwaker held that a registration order amounts to67 Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed,LexisNexis, Wellington, 2015) at [23.9.5].68 Paul Rishworth and others The New Zealand Bill of Rights (Oxford University Press, Melbourne,2003) at 707 (footnotes omitted).69 Finlayson, above n 23, at [11].70 Belcher v Chief Executive of the Department of Corrections [2007] 1 NZLR 507 (CA) at [49].a "penalty" for the purposes of the Bill of Rights and s 6 of the Sentencing Act.71 Andin Bell v R, the Court of Appeal observed that the effect of a registration order ispunitive, "even if its primary purpose is the protection of further potential victims fromharm".72[57] The analogy between a registration order and an ESO is appropriate. Like anESO, the trigger for a registration order is sentence for a criminal conviction. A personsubject to a registration order is defined as a "registrable offender" and is referred toas such throughout the Act.73 The Registration Act imports the appeal provisions ofthe Criminal Procedure Act 2011 for appeals against registration orders.74 Failure tocomply with reporting obligations without reasonable excuse is an independentoffence punishable by up to one year's imprisonment.75 These factors, which wererelied upon in Belcher, strongly suggest that a registration order is a "penalty".76[58] We accept that the purpose of the Registration Act is to reduce sexualreoffending against children.77 But that does not change the fact that a registrationorder restricts a person's liberty (albeit to a considerably lesser extent than an ESO).78And as the Court of Appeal noted in Belcher, that the aim of the legislation is to reduceoffending is not decisive in determining whether a consequence of criminal offendingis a penalty.79[59] We conclude that a registration order is a penalty for the purposes of s 6 of theSentencing Act and s 25(g) of the Bill of Rights.Relevant provisions of the Registration Act[60] As mentioned earlier, the Registration Act was amended retrospectively, so ananalysis of the relevant statutory provisions needs to address both the original and theamended version.71 R v Ofa [2017] NZDC 2371, [2017] DCR 764 at [16].72 Bell v R [2017] NZCA 90 at [26]. See also Taitapanui v R [2018] NZCA 300 at [33].73 Registration Act, s 7(1).74 Section 9(4).75 Section 39. See above at [26].76 Belcher, above n 70, at [47].77 Registration Act, s 3.78 See below at [88]–[91].79 Belcher, above n 70, at [48].Registration Act as first enacted[61] Section 7(1) of the Registration Act as first enacted (and now) provides:7 Who is a registrable offender?(1) A registrable offender is a person whom a court has, in respect of aconviction for a qualifying offence,—(a) sentenced to imprisonment; or(b) sentenced to a non-custodial sentence and made subject to aregistration order.[62] Section 9(1) of the Registration Act as enacted provided:If a court convicts a person of a qualifying offence and imposes anon-custodial sentence in respect of that offence, the court may order that theperson must be placed on the register and must comply with the reportingobligations of this Act.[63] Section 5 of the Registration Act (both as enacted and now) provides that thetransitional, savings, and related provisions in sch 1 have effect according to theirterms. Clause 1 of sch 1 as enacted was in these terms:1 Retrospective application(1) This Act applies to registrable offenders who, on the date this Actcomes into force, are, in respect of a qualifying offence,—(a) serving, in custody, the sentence of imprisonment that wasimposed for that offence; or(b) serving, on parole or other form of conditional release fromcustody, the sentence of imprisonment that was imposed forthat offence; or(c) subject to an extended supervision order or an interimsupervision order following that sentence; or(d) subject to a public protection order or an interim detentionorder following that sentence.[64] Clause 1 imposed further, retrospective punishment, contrary to s 26(2) of theBill of Rights, on those who at the commencement date were serving sentences ofimprisonment (or subject to associated restrictions) in respect of qualifying offencescommitted before that date. There is no dispute that the Registration Act appliesretrospectively to these offenders. We will call these cl 1(1) offenders.[65] Sections 7 and 9 are triggered by sentencing for a qualifying offence. There isnothing in the wording of ss 7 and 9 to the effect that they apply to those whocommitted qualifying offences before the Registration Act came into force. But thereare indications they were intended to apply to those who committed qualifyingoffences before the commencement date:(a) "Qualifying offences" are listed in sch 2. Schedule 2 includes a numberof offences pursuant to provisions which are noted as having beenrepealed.80 This makes it clear that the legislature envisaged thatoffences committed prior to the commencement date could berelevantly "qualifying".81(b) The transitional provisions in sch 1 pick up offenders who were, at thecommencement date, subject to sentences of imprisonment imposed forqualifying offences.[66] The Attorney-General's report to the House under s 7 of the Bill of Rightsidentified that the Bill as introduced was inconsistent with s 26(2) of the Bill ofRights.82 This related to cl 1(1) offenders, because offenders who had been convictedand sentenced were to be subject to further punishment by being entered on theregister. However, the report did not address the situation faced by offenders whocommitted a qualifying offence before the commencement date but had not beenconvicted and sentenced (or had been convicted but had not been sentenced) beforethat date. They were to be subject to a greater punishment than applied at the time oftheir offending, which engages s 25(g) of the Bill of Rights and s 6 of the SentencingAct. But this was not drawn to the attention of Parliament in the report.[67] In her speech on the introduction of the Bill, the responsible Minister, theHon Anne Tolley MP, made it clear that Parliament intended the Registration Act toapply retrospectively on a comprehensive basis. She said:8380 For example, cl 1(a)(iii) lists as a qualifying class 1 offence "section 136 [of the Crimes Act 1961](conspiracy to induce sexual intercourse), if the victim is under 16 (repealed)".81 This was necessary to accommodate the application of the Registration Act to cl 1(1) offenders.82 Finlayson, above n 23, at [2] and [40]–[41].83 (15 September 2015) 708 NZPD 6634.The [B]ill applies to persons convicted after the Act comes into force. It alsoapplies retrospectively to those serving a sentence of imprisonment, includingwhen they are on parole or release conditions or are subject to an extendedsupervision order for a qualifying offence on the date the Act comes into force.[68] This indicates that Parliament was aware the Bill was inconsistent with s 26(2)of the Bill of Rights (cl 1(1) offenders). However, there is no indication thatParliament considered the Bill was inconsistent with s 25(g) of the Bill of Rights ands 6 of the Sentencing Act (as it would be if it applied to those not yet sentenced at thecommencement date for a qualifying offence committed before that date).84Registration Act as amended in 2017[69] After the Registration Act came into force, it became apparent that there weregaps in the retrospectivity provisions (not directly related to the issues now before us).An urgent amending Act was passed to address these gaps: the Child Protection (ChildSex Offender Government Agency Registration) Amendment Act 2017. TheAmendment Act had retrospective effect: it received the Royal Assent on 8 March2017, but s 2 provided that it would be taken to come into force on 14 October 2016,the date on which the Registration Act itself had come into force. As counsel pointedout, this meant Parliament retrospectively amended the retrospectivity provisions.[70] Following the Amendment Act, cl 1 of sch 1 is now in these terms:1 Retrospective application(1) This clause applies to a person who, on 14 October 2016, is, in respectof a qualifying offence,—(a) serving, in custody, the sentence of imprisonment that wasimposed for that offence; or(b) serving, on parole or on release from custody on releaseconditions, the sentence of imprisonment that was imposedfor that offence; or(c) subject to an extended supervision order or an interimsupervision order following the sentence of imprisonment thatwas imposed for that offence; or84 The Minister's speech does not refer expressly to those who committed a qualifying offence andwere convicted before the commencement date, but sentenced after that date.(d) subject to a public protection order or an interim detentionorder following the sentence of imprisonment that wasimposed for that offence; or(e) no longer serving the sentence of imprisonment that wasimposed for that offence, but still subject to release conditionsfollowing the sentence expiry date of that sentence.(2) This clause applies to a person who—(a) was convicted before 14 October 2016 of a qualifyingoffence; and(b) on or after 14 October 2016, in respect of that conviction,—(i) was or is sentenced to imprisonment; or(ii) was or is sentenced to a non-custodial sentence andmade subject to a registration order.(4) A person to whom this clause applies—(a) is a registrable offender for the purposes of section 7(1) andthis schedule (if subclause (1) or (2) applies); and(c) is subject to all other provisions of this Act with any necessarymodifications.[71] The amendment also inserted a revised s 9(1) and a new subs (1A):(1) If a court imposes on a person a non-custodial sentence in respect ofa conviction for a qualifying offence, the court may order that theperson must be placed on the register and must comply with thereporting obligations of this Act.(1A) For the purposes of subsection (1), the date on which the person wascharged with the offence is irrelevant.[72] The new s 9(1) provides that the trigger for the making of a discretionary orderis the imposition of a sentence rather than, as it might have been considered before,conviction and then sentencing. This amendment brings s 9(1) into line with thewording of s 7 in relation to offenders sentenced to imprisonment.[73] Section 9(1A) seems to be premised on the assumption that the date of chargemight be material to the application of s 9(1). But it is not. The constraints on theretrospective application of s 9(1)—that is, to offences committed before thecommencement date—are s 6 of the Sentencing Act and s 25(g) of the Bill of Rights.Both are triggered by the date of the commission of the offence, not the date of charge.This was alluded to in the parliamentary debates in relation to the amendments but noaction was taken to remedy it.85[74] The Attorney-General's report under s 7 of the Bill of Rights in relation to theBill that became the Amendment Act identified inconsistencies with both s 26(2) ands 25(g) of the Bill of Rights.86 In relation to s 25(g), the report stated that the Billseeks to clarify that the Registration Act applies to persons who have been convictedof a qualifying offence before the commencement date but who are sentenced afterthat date.87 This was said to be inconsistent with s 25(g) and not demonstrablyjustified under s 5 of the Bill of Rights.88 It does not refer to those who committed aqualifying offence before the commencement date but were neither convicted norsentenced until after that date (the position the appellant is in). Presumably this wasbecause the report dealt only with the provisions of the Bill that became theAmendment Act, and did not address the provisions of the Registration Act asoriginally enacted. In any event, the Amendment Act did not provide for those whocommitted a qualifying offence before the commencement date but were neitherconvicted nor sentenced until after that date.Our analysis[75] The analysis in R v Hansen sets out the approach to the application of the Billof Rights.89 Section 25(g) of the Bill of Rights is engaged. However, where the issueof retrospectivity arises in the context of a penal enactment to which s 6 of theSentencing Act applies, we do not consider there is any need to resort to a Hansen85 Both in Committee by David Clendon MP ((7 March 2017) 720 NZPD 16386) and at third readingby Jan Logie MP ((7 March 2017) 720 NZPD 16399).86 Christopher Finlayson Report of the Attorney-General under the New Zealand Bill of Rights Act1990 on the Child Protection (Child Sex Offender Government Agency Registration) AmendmentBill (7 March 2017) at [2] and [50].87 At [45].88 At [48]. See also the reference to s 6 of the Sentencing Act 2002 at [49].89 R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1.analysis. In those cases, even without considering the Bill of Rights, if it is intendedthe legislation will impose a greater penalty than that applicable at the time the offencewas committed, the legislation needs to be clear to achieve that result.[76] This approach reflects the common law principle of legality. Lord Hoffmannin R v Secretary of State for the Home Department, ex parte Simms described thatprinciple in the following terms:90Parliamentary sovereignty means that Parliament can, if it chooses, legislatecontrary to fundamental principles of human rights. The constraints upon[the exercise of this power] by Parliament are ultimately political, not legal.But the principle of legality means that Parliament must squarely confrontwhat it is doing and accept the political cost. Fundamental rights cannot beoverridden by general or ambiguous words. This is because there is too greata risk that the full implications of their unqualified meaning may have passedunnoticed in the democratic process. In the absence of express language ornecessary implication to the contrary, the courts therefore presume that eventhe most general words were intended to be subject to the basic rights of theindividual.[77] In this case, we do not consider that the Registration Act is sufficiently clear todisplace the presumption, reflected in s 6 of the Sentencing Act, that those whoseoffending pre-dated the coming into force of the Registration Act (and who wereconvicted after that date) cannot be the subject of a registration order.[78] Section 9(1A) may have been an attempt to direct that s 9(1) should beinterpreted retrospectively.91 But it does not state in plain language that s 9 hasretrospective effect. Section 9(1A) appears to be a necessary part of achieving theobjective of retrospective application but it fails to achieve that objective. Indeed, thefact that express provision is made in sch 1 for where the Registration Act is to applyretrospectively, yet sch 1 does not cover the present situation, points to a contraryconstruction. In light of that, there is nothing in s 9 to suggest that the provision isgenerally retrospective in effect.[79] A comparison with s 107C of the Parole Act 2002, which defines an "eligibleoffender" for an ESO, is instructive. Subsection (1) sets out the classes of eligible90 R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115 (HL) at 131.91 We agree with Glazebrook J (see below at [190] and [233]–[235]) that the legislative historysupports the view that Parliament intended s 9 to apply retrospectively.offenders. The retrospective nature of the provision is recognised in subs (2), whichprovides:92To 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.[80] There is no similar wording in s 9 (or elsewhere in the Registration Act).[81] The fact that the Registration Act is clearly retrospective in relation to somecategories of offenders may be seen as supporting the argument that it also hasretrospective application to offenders convicted and sentenced after thecommencement date for an offence committed before that date. That would bring acoherence and consistency to the retrospectivity provisions. It would also reflect whatappears to have been the parliamentary intention, as disclosed in the responsibleMinister's speech referred to earlier and in the speeches during the passing of theAmendment Act.93 But the question we must answer is whether Parliament hassignalled, by express words or necessary implication, that the presumption thatcriminal penalties are not imposed retrospectively has been displaced. We see nothingin s 9 that gives that indication. As Lord Nicholls said in B (A Minor) v Director ofPublic Prosecutions, "clumsy parliamentary drafting is an insecure basis for finding anecessary implication elsewhere, even in the same statute".94[82] We conclude that the effect of s 6 of the Sentencing Act is that the RegistrationAct does not apply to offenders who committed a qualifying offence before thecommencement date and were convicted and sentenced after that date. Section 25(g)of the Bill of Rights and the principle of legality support that view. As the appellantfalls into this category, he was not eligible to be placed on the register under s 9(1).The registration order must, therefore, be quashed. Although there was no argumentrelating to s 7, the same considerations appear to apply to that section. Whether thatwill have the consequences outlined by Glazebrook J will depend on whether92 See Belcher, above n 70, at [56]; and McDonnell v Chief Executive of the Department ofCorrections [2009] NZCA 352, (2009) 8 HRNZ 770 at [65]. See also Geoff Hall Hall's Sentencing(online ed, LexisNexis) at [PA107C.2].93 See (7 March 2017) 720 NZPD 16349.94 B (A Minor) v Director of Public Prosecutions [2000] 2 AC 428 (HL) at 466.Parliament decides to amend the Registration Act again to make it applyretrospectively to offenders in the categories she identifies.95[83] The submissions of counsel for the appellant on retrospectivity focused on thedecision of the Court of Appeal in R v Pora.96 In that case, the Court of Appealconsidered the effect of s 4(2) of the Criminal Justice Act 1985, the precursor to s 6(2)of the Sentencing Act. Section 2(4) of the Criminal Justice Amendment Act(No 2) 1999 provided for the imposition of a minimum period of imprisonmentretrospectively. The Court split on the question as to whether the later specificprovision prevailed over s 4(2) of the Criminal Justice Act.97 The difference betweenthat case and the present is that it was accepted in Pora that the later, specificprovision, s 2(4) of the Criminal Justice Amendment Act (No 2), expressed itsretrospective effect unambiguously, and thus did not leave room for a morerights-consistent interpretation.98 As that is not the case in relation to s 9(1) of theRegistration Act, we do not need to engage with the difficult issue that confronted theCourt of Appeal in Pora.[84] Our conclusion on this issue is sufficient to resolve the appeal. But we had fullargument on whether a registration order should have been made (if the appellant hadbeen eligible), and because those issues have been the subject of some inconsistencyin the courts below, we go on to deal with them.Bill of Rights[85] Before evaluating the two competing High Court approaches referred to earlier,we turn to the role of the Bill of Rights in the determination of whether a registrationorder should be made.[86] There was no dispute that the Bill of Rights is relevant to the decision. Thedifference between the parties was how the Bill of Rights was to be brought to bear.95 See the reasons of Glazebrook J below at [243]–[244].96 R v Pora [2001] 2 NZLR 37 (CA).97 Compare [49]–[50] and [56] per Elias CJ and Tipping J and [127] per Thomas J; and [116] perGault, Keith and McGrath JJ.98 See at [3] and [25] per Elias CJ and Tipping J, [116] per Gault, Keith and McGrath JJ and [127]and [169] per Thomas J.[87] In order to set a framework for the discussion, it is first necessary to determinewhich rights are affected by the making of a registration order.Freedom of movement, freedom of association and freedom of expression[88] Counsel for the appellant argued that a registration order abridges the rights tofreedom of movement (s 18) and expression (s 14) of the registered offender.99 Weaccept that is correct. In our view, it also abridges the registered offender's freedomof association (s 17).[89] In relation to freedom of expression, the interference is the coercing of thesupply of information to the Commissioner by the registered offender and therestriction on changing name.100 There is no suggestion that any other restraint on thefreedom of the registered offender to express themselves applies. The interferencewith this right is, therefore, relatively minor.[90] In relation to freedom of association, the interference is the requirement todisclose affiliations with certain clubs, organisations and social networks.101 Again,the interference with this right is relatively minor.[91] In relation to freedom of movement, a registration order requires the registeredoffender to give the Commissioner 48 hours' notice of intended travel away from hisor her registered address. This applies to all overseas travel involving an absence fromNew Zealand for 48 hours or more and any domestic travel involving an absence fromthe registered address of 48 hours or more.102 We accept this is a restraint on theexercise of the freedom of movement, preventing, as it does, travel at short notice and99 In his first s 7 report, the Attorney-General identified ss 14 and 18 as being restricted by aregistration order—in the case of s 14 because reporting obligations are a form of compelledspeech and in relation to s 18 because of the advance notification of any movement requirement:Finlayson, above n 23, at [12].100 Rishworth and others, above n 68, at 333; and Butler and Butler, above n 67, at [13.27.1].Section 53(1) of the Registration Act requires a registrable offender to obtain the consent of theCommissioner before applying to change his or her name.101 Registration Act, s 16(1)(i) and (o). See Shelton v Tucker 364 US 479 (1960) at 485–486.102 Registration Act, s 21. See also s 20(1)(a).requiring, in the case of domestic travel, the provision of the addresses at which theregistered offender intends to stay and other details.103Privacy[92] The registration order also affects the right to privacy. Although the right toprivacy is not protected by the Bill of Rights, it is an important right and the fact thatit is not included in the Bill of Rights does not diminish its importance.104 Theintrusion on the right to privacy of the offender is a relevant consideration in the s 9exercise, as Dobson J acknowledged in Johnston.105 The intrusion into the right toprivacy is not as significant as it would be if the register were public.106 But therequirement imposed on the registered offender to provide the Commissioner withreports of "relevant personal information" as defined in s 16 of the Registration Act isstill a significant intrusion on the privacy of the registered offender.107 This intrusionmay also require consideration of the potential reporting of court proceedings, and wewill revert to this issue when dealing with the anonymisation application.108Retrospective punishment[93] We have already outlined the retrospectivity issue. We have determined thatthe appellant is not eligible for registration.109 But, as we heard full argument on thepoint, we go on to consider whether, in relation to an offender to whom s 9 of theRegistration Act applies retrospectively, the breach of s 25(g) is a relevantconsideration in the exercise of the discretion under s 9(1).103 Melvaine v Police [2012] SASC 32, (2012) 112 SASR 452 at [25]. See also Butler and Butler,above n 67, at [16.4.3]; and United Nations Human Rights Committee CCPR General CommentNo 27: Article 12 (Freedom of Movement) UN Doc CCPR/C/21/Rev.1/Add.9 (2 November 1999)at [5] and [17].104 The right to privacy is a right referred to in the International Covenant on Civil and Political Rights999 UNTS 171 (opened for signature 16 December 1966, entered into force 23 March 1976), art17(1). See also Hosking v Runting [2005] 1 NZLR 1 (CA) at [92] per Gault P and Blanchard Jand [226] per Tipping J; and Brooker v Police [2007] NZSC 30, [2007] 3 NZLR 91 at [224] and[228] per Thomas J. Contrast the position taken by Elias CJ in Brooker at [40]. A right to privacywhen reporting is recognised in s 26 of the Registration Act.105 Johnston, above n 58, at [22].106 Access to the register is limited: see ss 41 and 43–47. See above at [27].107 See above at [23]–[25].108 See below at [136]–[147].109 See above at [82].[94] Counsel for the appellant argued that a registration order can be made only ifdemonstrably justified in a free and democratic society. They argued that the fact thata registration order would be retrospective "is simply another matter added into theproportionality assessment".110[95] Once it is determined that s 9 applies to an offender whose offence wascommitted before the Registration Act came into force, we do not think the issue ofretrospectivity has any role in the decision required to be made under s 9(1). As wesee it, s 9 must be applied to offenders whose offences pre-dated the Registration Actand offenders whose offences post-dated the Registration Act in the same manner.The relevance of the Bill of Rights to the decision to make a registration order[96] Counsel for the appellant, Mr Munro, argued that the Court of Appeal hadimpliedly excluded the Bill of Rights from consideration in the exercise of the s 9(1)power. He said this could be inferred because the Court recorded his argument thatthe court must determine whether the registration order can be justified in a free anddemocratic society, but then made no reference to the Bill of Rights when consideringthe correct approach to s 9.111[97] In this Court, Mr Munro renewed his submission that the power in s 9(1)needed to be considered in light of s 6 of the Bill of Rights, and thus given a meaningthat is consistent with the rights and freedoms contained in the Bill of Rights if thatmeaning is available. He cited in support of that proposition Cropp v JudicialCommittee,112 Zaoui v Attorney-General (No 2)113 and Dotcom v Attorney-General.114In all of those cases, this Court has affirmed the role of the Bill of Rights in interpretingstatutory provisions conferring discretionary powers.110 They accepted, however, that if the court was not satisfied that registration was demonstrablyjustified by reason only of its retrospective effect, s 4 of the Bill of Rights means the court mustmake the registration order.111 CA judgment, above n 20, at [17] and [19]–[22].112 Cropp v Judicial Committee [2008] NZSC 46, [2008] 3 NZLR 774 at [25].113 Zaoui v Attorney-General (No 2) [2005] NZSC 38, [2006] 1 NZLR 289 at [90]–[91].114 Dotcom v Attorney-General [2014] NZSC 199, [2015] 1 NZLR 745 at [100] and [161] perMcGrath, William Young, Glazebrook and Arnold JJ.[98] Mr Munro argued that the court should not exercise its discretion to make aregistration order unless it has been established that registration would be ademonstrably justifiable limit on the rights affected.[99] Mr Munro argued that the court should undertake the analysis described byTipping J in Hansen when determining whether the "demonstrably justified" thresholdwas met.115 That formulation was:(a) does the limiting measure serve a purpose sufficiently important tojustify curtailment of the right or freedom?(b) (i) is the limiting measure rationally connected with its purpose?(ii) does the limiting measure impair the right or freedom no morethan is reasonably necessary for sufficient achievement of itspurpose?(iii) is the limit in due proportion to the importance of theobjective?[100] Hansen was a case about the interpretation of a statutory provision, not theexercise of a statutory power. Mr Powell argued that this was a very significantdifference, and that the Hansen formulation was not an appropriate methodology inthis context. Tipping J's formulation in Hansen was, itself, based on the Canadiancase of R v Oakes.116 He noted that the Supreme Court of Canada had rejected theapplication of the Oakes methodology as an analytical tool in determining how theCanadian Charter of Rights and Freedoms117 applies to the evaluation of the exerciseof a discretionary power by a judge.118 Instead, it adopted a simpler proportionalityanalysis, balancing the interference with the Charter values at issue against thestatutory objectives of the legislation.119115 Hansen, above n 89, at [104].116 R v Oakes [1986] 1 SCR 103.117 Canadian Charter of Rights and Freedoms, pt 1 of the Constitution Act 1982, being sch B to theCanada Act 1982 (UK).118 Doré v Barreau du Québec 2012 SCC 12, [2012] 1 SCR 395 at [37]–[38]; Loyola High School vAttorney General of Quebec 2015 SCC 12, [2015] 1 SCR 613 at [3]–[4] per LeBel, Abella,Cromwell and Karakatsanis JJ; and Law Society of British Columbia v Trinity Western University2018 SCC 32, [2018] 2 SCR 293 at [57] per Abella, Moldaver, Karakatsanis, Wagner andGascon JJ. The Doré framework was, however, criticised by Côté and Brown JJ in Trinity Westernat [266] and [302]–[305]. It has also been subject to academic criticism: see, for example, Hoi LKong "Doré, Proportionality and the Virtues of Judicial Craft" (2013) 63 SCLR (2d) 501; andPaul Daly "Prescribing Greater Protection for Rights: Administrative Law and Section 1 of theCanadian Charter of Rights and Freedoms" (2014) 65 SCLR (2d) 249.119 Doré, above n 118, at [56].[101] We agree that the Hansen methodology is not appropriate in this case. Rather,we see the task to be undertaken by the court under s 9 of the Registration Act asfollows. Section 9 should be interpreted in accordance with the direction in s 6 of theBill of Rights. That requires the power to make a registration order conferred by thatsection to be exercised consistently with the Bill of Rights to the extent possible: thelevel of risk that the offender poses must be of sufficient gravity to justify the makingof a registration order with the consequent impacts on the rights of the offender. Wedo not consider any more complex an analysis is required to ensure that s 6 of the Billof Rights is applied in the interpretation of s 9 and the exercise of the power conferredby it.[102] We see this approach as consistent with that adopted by this Court in Zaoui.120This Court said those exercising the statutory power in issue in that case were requiredto exercise the power consistently with relevant provisions of the Bill of Rights andinternational conventions.121 It is also consistent with the approach taken by the Courtin Brooker v Police, albeit in a different context.122Our approach[103] We now turn to the approach that should be adopted in cases under s 9 of theRegistration Act.[104] The exercise undertaken by a court considering whether to make a registrationorder under s 9 of the Registration Act is a two-stage process. The power to make aregistration order is engaged only if the court is satisfied that the offender poses a riskto the lives or sexual safety of one or more children, or of children generally, as set outin s 9(2). The first stage of the process is to determine whether that threshold has beenmet, having considered the factors set out in s 9(3). If it has not been met, then noregistration order can be made.120 Zaoui, above, n 113.121 At [91].122 Brooker, above n 104, at [59] per Blanchard J, [91] per Tipping J and [130] per McGrath J.Brooker was not a case involving the exercise of a statutory power. It dealt with the question ofwhether the conduct of Mr Brooker amounted to disorderly behaviour within the meaning ofs 4(1)(a) of the Summary Offences Act 1981.[105] We agree with the Court of Appeal that the court making the assessment unders 9(2) must be satisfied the risk is real or genuine: it would not be correct to say thatthe risk must be "more than a real and genuine risk".123 Nor do we consider that thedetermination as to whether an offender meets the threshold in s 9(2) is assisted byreference to the phrase "serious child sex offenders" in s 3 of the Registration Act.124That phrase is not a defined term and it is not used in s 9 itself.[106] If the threshold has been met, the second stage is whether the discretion tomake a registration order under s 9(1) should be exercised having regard to the levelof risk posed by the offender. In order to embark on that assessment, the court mustassess the nature and seriousness of the risk posed by the offender.[107] Section 9(3) is introduced by the words, "For the purpose of assessing the riskposed by the person, the court must consider the following matters", which is clearlydirected to the exercise of determining whether the risk threshold in s 9(2) is made out.However, given the discretion as to whether an order should be made is to be exercisedin light of the risk posed by the offender, those factors will also have relevance to theexercise of the discretion if it has been determined that the level of risk set out in s 9(2)is met.[108] Once a judge has determined the nature and seriousness of the risk posed bythe offender, he or she must then determine whether that risk is sufficient to warrantthe making of a registration order and subjecting the offender to the requirements ofthe Registration Act.125 That assessment will involve a balancing of the protectiveobjectives of the registration order126 against the level of intrusion into the rights ofthe offender.[109] This accords with the approach taken in Australia. In Bowden v R, the Courtof Appeal of Victoria held that the inquiry under the Victorian equivalent to s 9(1) is a123 CA judgment, above n 20, at [19], referring to the comment to that effect in Fowler, above n 58,at [30].124 As suggested by Dobson J in Johnston, above n 58, at [31].125 See above at [101].126 The reduction of sexual reoffending against child victims and of the risk posed by serious childsex offenders: Registration Act, s 3, quoted above at [19].two-stage process.127 The court must first be satisfied that the offender poses a realrisk.128 It must then determine the nature and magnitude of the risk and, in light ofthat risk and the consequences for the offender, whether an order should be made togive effect to the purposes of the legislation.129 Bowden has been subsequently appliedin Victoria130 and was adopted by the Supreme Court of the Australian CapitalTerritory in Znotins v Harvey.131[110] Counsel for the appellant submitted that the sheer number of offenders enteredon the register makes monitoring all of them impractical.132 In their writtensubmissions, they said that there were 2,633 registered offenders as at1 August 2019.133 They argued that, as it could be expected that the limited resourcesavailable for monitoring would focus on the highest risk offenders, not those at thelow-risk end of the spectrum like the appellant, the utility of registration for offendersat the low-risk end of the spectrum was doubtful.[111] We acknowledge that where (as in the present case) the offences are limited toviewing material on the internet and no actual interaction with children has occurred,it is arguable that some of the requirements set out in s 16 may be of limited utility inassisting with any monitoring of the offender. To the extent the authorities endeavour127 Bowden v R [2013] VSCA 382, (2013) 44 VR 229 at [30]. The equivalent Victorian provision iss 11 of the Sex Offenders Registration Act 2004 (Vic). The Victorian Act applies to all sexoffenders, not just those who offend against children. We accept the point made by Ellen France Jbelow at [154] that the Victorian and Australian Capital Territory statutes differ from theRegistration Act in that whether registration is automatic is determined by the seriousness of theoffence rather than the sentence imposed (imprisonment as opposed to a non-custodial sentence).But this does not seem to us to require a different decision-making approach.128 At [30] and [33].129 At [40] and [42].130 Director of Public Prosecutions v Cartwright [2015] VSCA 11, (2015) 45 VR 168 at [26]–[28];and Sayer v R [2018] VSCA 177 at [92]–[93].131 Znotins v Harvey [2015] ACTSC 241 at [36]–[40]. The equivalent provisions are ss 15 and 16 ofthe Crimes (Child Sex Offenders) Act 2005 (ACT).132 A press release by the Hon Anne Tolley MP, the Minister for Social Development, at the time theRegistration Act came into force, suggested 1,750 people would be on the register at the outset (ofwhom 550 would be living in the community and 1,200 in prison), rising to 3,000 (of whom 900would be in the community) after five years: Anne Tolley "Legislation passed to establish firstchild sex offender register" (press release, 9 September 2016).133 This includes 54 who have been deported. Counsel did not mention the source of that figure butthe respondent did not contest it. We were not told what proportion of registered offenders werein prison and in the community respectively. The appellant says the number of registered offendersin New Zealand is 0.054 per cent of the population, compared to 0.036 per cent in theUnited Kingdom. The United Kingdom percentage figure is based on the number of offenders onthe United Kingdom register (24,000) as noted in R (F(A Child)) v Secretary of State for the HomeDepartment [2010] UKSC 17, [2011] 1 AC 331 at [51], so may not be accurate now.to monitor these matters, it could be regarded as wasted effort, as noted by the SupremeCourt of the United Kingdom.134 However, that is the nature of the statutory regime.The assessment of the extent of the intrusion into the rights of the offender will beaffected by the fact that there is no flexibility in the orders that can be made.[112] Finally, we do not think that it is appropriate to approach that task with apresumption that an order should be made where an offender has been sentenced tohome detention. No such presumption is provided for in the Registration Act and it isnot necessary to meet the purpose of the Registration Act (set out in s 3) to read insuch a presumption.[113] We acknowledge that there may be a tension between cases where an offenderhas been sentenced to a short term of imprisonment and those where the offender hasbeen sentenced to home detention for child sex offences of similar seriousness. In theformer case, the offender will automatically be a registrable offender. In the lattercase, the making of a registration order is a matter left to be assessed by the sentencingjudge. There may be cases where imprisonment was imposed only because theoffender was not able to provide a suitable address for home detention. In such a case,it is unfortunate that the consequences of that inability lead not only to the offendergoing to prison, but also to registration, when the offender may have been able toconvince the court not to make a registration order if home detention had beenimposed. This is, however, what the Registration Act provides for and we do notconsider the fact that registration is automatic for an imprisoned offender bears on thecourt's task in determining whether an offender who is not imprisoned should besubject to a registration order.Application to this case[114] We now turn to the application of s 9 to the present case. Given the differencesbetween our approach and that taken by the Court of Appeal, it is appropriate for us tomake the determination afresh.134 See the comments of Lord Phillips in R (F(A Child)), above n 133, at [51], where he referred tothe registration of large numbers of low-risk offenders as imposing "an unnecessary andunproductive burden on the responsible authorities".[115] We begin by addressing the matters set out in s 9(3), with reference to the viewsof the Courts below.Seriousness of the qualifying offences[116] The District Court Judge took a combined starting point for the two offencesto which the appellant had pleaded guilty of two and a half years' imprisonment.135He observed that the offending was not in the most serious category of offending towhich the Registration Act related, but that it was "within itself serious".136 In theHigh Court, the Judge considered the two-and-a-half-year starting point indicated theoffending was serious.137 He found that the offending was moderately serious innature.138[117] The Court of Appeal considered the offending was moderately serious andjustified a starting point of two and a half years' imprisonment.139 In describing theoffending, the Court confined itself to the offence under s 131A of the FVPC Act,140but did not note that the starting point was set to reflect both that offending and theoffending under s 124(1).[118] We regard the offending under s 131A of the FVPC Act as moderately seriousoffending of its type. As is apparent from the description of the offending at [28]above, the amount and nature of the material found on the appellant's computer wassignificant. But we do not think the seriousness of the s 131A offending can beassessed by reference to a starting point (or, for that matter, the end sentence) that wasfor both the offences of which the appellant was convicted, when one of them was notrelevant to the registration decision. It is likely that the starting point for the s 131Aoffending on its own would have been lower than two and a half years. The Court of135 DC judgment, above n 14, at [7].136 At [15].137 HC judgment, above n 18, at [23]–[24]. However, this does not appear to allow for the fact thatthe sentencing involved the offending under s 131A and under s 124, but only the former wasrelevant to the decision to make a registration order. In his analysis of the offending, the Judgeat [29] referred to the video clip which founded the s 124 offending, in the apparently mistakenbelief that this was relevant to the determination as to whether a registration order should be made.138 At [33].139 CA judgment, above n 20, at [34].140 At [22]–[24].Appeal's reference to the two-and-a-half-year starting point may have meant itoverestimated the seriousness of the s 131A offending.Period of time since the offence was committed[119] The District Court Judge noted the offending dated back to March 2016 andthat the appellant had been on bail for 12 months without offending.141 The HighCourt Judge considered that this was not a significant factor because the offending hadbeen detected less than two years before the guilty plea was entered.142 The Court ofAppeal saw this as a neutral factor.143 Like the Courts below, we see this factor asinsignificant.Age of the appellant[120] The appellant was 26 years old when the offending was detected. The Courtof Appeal said this indicated that the offending did not involve isolated youthful sexualexperimentation.144 We agree. But the appellant's comparative youth, combined withthe fact that he had not offended before, indicates that he should have good prospectsof rehabilitation.Age of victims[121] As the appellant's offending did not involve any physical contact with anyvictim, the victims are the unknown children depicted in the videos and photographsfound on his computer. Some of the children depicted in these photographs and videoswere very young and extremely vulnerable, including infants. The District CourtJudge referred to the ages and vulnerability of the children involved as a factor infavour of making an order.145 The High Court Judge also noted this with concern.146The Court of Appeal noted that the sexual exploitation of children was a particularlyconcerning feature of the case, and the making of videos and taking of photographs141 DC judgment, above n 14, at [15].142 HC judgment, above n 18, at [35].143 CA judgment, above n 20, at [35].144 At [36].145 DC judgment, above n 14, at [16].146 HC judgment, above n 18, at [36]–[38].depicting such exploitation continues only because people like the appellant supportit.147 We agree.Difference in age between the victims and the appellant[122] As noted, the appellant was 26 when the offending was uncovered and thechildren depicted in the material found on his computer were very young. The HighCourt Judge regarded this as a matter of real concern.148 The very young age of thevictims is a matter of concern because the appellant's conduct supports theirexploitation by the makers of the videos and photographs. However, we do not seethis as adding anything to the previous factor (the age of the victims).Written assessment of the risk posed by the appellant[123] There have now been four reports from Dr Rogers, each updating the precedingone. The report provided to the District Court Judge referred to the meetings theappellant had had with Dr Rogers and the progress the appellant had made during thistreatment. She recorded that in her view the appellant's risk of reoffending hadreduced from moderate to "low-moderate". The Judge considered this report washelpful in his decision not to impose a sentence of imprisonment.149 However, heconsidered the "low to moderate" risk of reoffending was a factor of significance inhis decision to make a registration order, given the importance of the protection ofchildren.150[124] The High Court Judge considered both the original report by Dr Rogers and anupdated report she prepared for the High Court appeal. Having done this, heconcluded that the appellant still remained a risk to young children even though heposed a lesser risk than he had before he began treatment.151147 CA judgment, above n 20, at [37].148 HC judgment, above n 18, at [38]. However, his concern seemed in part to relate to what he called"potential victims", being young people who may have responded to messages left by the appellanton websites. This aspect of the offending was not, however, relevant to the registration orderdecision.149 DC judgment, above n 14, at [8]–[9].150 At [17].151 HC judgment, above n 18, at [55].[125] The Court of Appeal evaluated a further report of Dr Rogers, prepared for theappeal to that Court, as well as her two earlier reports. It considered that the DistrictCourt's assessment of the threshold risk was unimpeachable based on the informationbefore the Judge.152 Having considered the updating material, it said it was notpersuaded that it could safely be concluded that the appellant's commendablerehabilitative efforts have been so successful that he no longer poses a risk to thesexual safety of children.153 It agreed with the assessments made in the District Courtand the High Court that the appellant posed a continuing risk to the sexual safety ofchildren that justified the registration order and the attendant reporting obligations.154Our assessment of the risk posed by the appellant[126] We have considered the reports just referred to as well as the additional reportprepared by Dr Rogers for the appeal to this Court. Her assessment now is that theappellant's risk of reoffending is low, though her observations are, at least in part,based on self-reporting by the appellant.155[127] For the reasons given earlier, we see the seriousness of the appellant'soffending as at a slightly lower level than the Courts below. But the nature of thematerial found on his computer and, in particular, the young age of some of thechildren depicted in it, is of obvious concern. We now have the benefit of thesuccessive reports from Dr Rogers, which provide an accumulating narrative of thetreatment undergone by the appellant and the positive results it has had, leading to herprofessional opinion that his risk of reoffending has reduced to the level that it cannow be described as low.[128] The fact that the risk is low does not mean that the appellant does not now posea risk to the lives or sexual safety of one or more children or children generally, to usethe words of s 9(2) of the Registration Act. This risk must be real or genuine, but, asdiscussed earlier, does not need to be more than that.156 There remains a low, butnonetheless real, risk that the appellant will resort again to viewing and possessing152 CA judgment, above n 20, at [41].153 At [41].154 At [42].155 See above at [42]–[44].156 See above at [105].videos and photographs of the kind involved in his offending. But it is a reduced—and reducing—risk from that which was assessed by the District Court Judge. Weconsider this is sufficient to satisfy the threshold in s 9(2).Should a registration order be made?[129] We now turn to the second stage: whether the discretion to make a registrationorder should be exercised. The question is whether the imposition of a registrationorder is a proportionate response to the risk identified, having regard to the intrusionon the appellant's rights that this will involve.[130] Mr Olsen, who argued this aspect of the case for the appellant, pointed out thatthe appellant's offending did not involve contact offending with children and there isno evidence that he poses a risk of such offending. Dr Rogers said in the report sheprepared for the High Court appeal that there was limited evidence suggesting theappellant would transition to contact offending given the nature of his offending, thenature of his sexual fantasies and his personality characteristics. This conclusion wasalso based on research as to the differences between contact and internet offenders.As the respondent accepts, this indicates a low risk of the appellant transitioning tocontact offending.[131] The imposition of a registration order will require the appellant to comply withall of the requirements of s 16. Some of these do not appear to address the risk posedby the appellant, given the nature of the offence he committed and the low risk of atransition to contact offending. Those items in s 16(1) which are most relevant to theappellant are:(m) details of any telecommunications service used, or intended to beused, by the offender, including—(i) the name of any landline or mobile telephone service providerused, or intended to be used, by the offender; and(ii) any phone numbers used, or intended to be used, by theoffender:(n) the name of any Internet service provider, and the details of anyrouting or modem device, used, or intended to be used, by theoffender:(o) details of any username for any online social networks, online gamingaccounts, or online storage accounts used, or intended to be used, bythe offender:(p) details of any website domain owned or website administered, orintended to be owned or administered, by the offender:(q) details of any email addresses used, or intended to be used, by theoffender.[132] The appellant accepts the last four of these are relevant to him. We think thefirst is also relevant, having regard to the nature of the appellant's offending. Otherswill have less direct relevance to the appellant—for example, by allowing police tocontact him if necessary.[133] The appellant points out that registration does not mean the police can monitorhis internet traffic. He argues registration does not reduce the risk but arguablyincreases it through stigmatisation, although that appears to be based more on theeffect on the appellant of the publication of the fact he is subject to a registration orderthan the order itself.157 The respondent says that the obligations of registration relatingto the internet have a strong rational connection with the risk posed by the appellant.Counsel referred to Praditsin v New Zealand Customs Service, in which Katz Jobserved that the requirements in s 16(1)(m)–(q) may encourage a registered offenderto self-regulate their online behaviour and, in that way, facilitate rehabilitation.158[134] We accept that there are potential benefits in subjecting the appellant to therequirements of s 16(1)(m)–(q), but we acknowledge the point made by counsel forthe appellant that these requirements do not allow monitoring of the appellant'sinternet traffic. They would, however, assist in the identification of the appellant asan offender if he committed further s 131A offences. The other reporting requirementsin s 16 have no, or very limited, relevance to the appellant. There would therefore besome benefit in imposing a registration order on the appellant, but it is limited.[135] The appellant poses a low risk of internet offending. His ongoing treatment byDr Rogers has reduced this risk and there appear to be reasonable prospects ofrehabilitation. On the other side of the balance is the limited benefit of a registration157 See below at [137]–[138].158 Praditsin, above n 61, at [54].order and the intrusion into the appellant's rights that we have highlighted earlier.159Our assessment is that the level of risk that the appellant poses to the sexual safety ofchildren is not of sufficient gravity to justify the making of a registration order withthe consequent impacts on the appellant's rights. We would, therefore, have allowedthe appeal and quashed the registration order, even if we had found the RegistrationAct applied retrospectively to the appellant.Anonymisation[136] The appellant requested that the present judgment be anonymised (so that hisname does not appear in the intituling or in the judgment itself). In addition, he seeksanonymisation of the judgments of the High Court, Court of Appeal and of this Courtat the leave stage. He also submitted that, if he were successful in his appeal, asuppression order may be appropriate.[137] The background to this request is the fact that the publication of the judgmentof the Court of Appeal has had significant adverse impact on the appellant. Thatjudgment contains detailed information about the appellant's background and medicalhistory, the reports of Dr Rogers and the nature of the appellant's offending. Becausethe Court used the appellant's name throughout, there are some 64 references to hisname in the judgment. It seems that this is at least in part the reason why, at the timeof the hearing, the judgment was the first item appearing on a Google search of theappellant's name.[138] In an affidavit supporting the application for anonymisation, the appellant saysthat he has lost employment as a result of the details contained in the Court of Appealjudgment becoming known by his employer. The availability of the information hasalso affected his social network. The judgment also contains information that closefamily members of the appellant were previously unaware of. This has causedsignificant distress to the appellant.[139] Anonymisation of the judgment, unlike suppression, does not require the courtto make any formal order. There is Australian authority supporting the position for159 Above at [88]–[92].which the appellant contends. For example, the Court of Appeal of Victoriadetermined that it was appropriate to use a pseudonym instead of the name of theappellant in a case involving a challenge to a registration order made under the SexOffenders Registration Act 2004 (Vic) (the Victorian Act).160 The Court consideredthat, while the sentence was a matter of public record, the effect of naming an appellantin an appeal judgment could give wide publicity to the fact that the person had beenplaced on the register as a result of sex offending, when the contents of the register areintended to be confidential. The prospect of disclosure could discourage a person fromchallenging their registration.161 The Court also noted that the policy of the VictorianAct was generally against disclosure of the contents of the register.162[140] More recently, the Federal Court of Australia made a suppression order in acase involving an application for judicial review of a decision by the ChiefCommissioner of Victoria Police refusing permission for a person registered under theVictorian Act to travel overseas.163 There, Wheelahan J said:[120] In this case, the identification of the applicant or his wife would beinconsistent with the policy embedded in the Sex Offenders Registration Actthat the fact of the applicant's registration as a sex offender is generally toremain confidential. The prospect that registrable offenders may have to bepublicly identified is liable to have a chilling effect on the bringing ofproceedings such as the present.[141] In other states, courts have made suppression orders or anonymised judgmentsin cases involving appeal or review proceedings brought by persons on sex offenderregisters under legislation similar to the Registration Act.164[142] We are satisfied that anonymising the present judgment is appropriate, giventhat the Child Sex Offender Register is confidential.165 We accept the submissionmade by the appellant that publication of appeal judgments in these circumstances160 MSB (a pseudonym) v Chief Commissioner of Police [2018] VSCA 345, (2018) 57 VR 360 at [57].161 At [53].162 At [54] and [56].163 AB v Chief Commissioner of Police [2020] FCA 14. Compare Godla v Commissioner of Police,New South Wales Police Force [2020] FCA 489 at [7]–[13].164 DKG v Commissioner of Police [2019] NSWSC 523 at [6]; and Re an application for admissionas a legal practitioner by MCF [2015] QCA 154 at [24].165 Registration Act, ss 41 and 47. See above at [27]; and Hall, above n 92, at [CP(CSOGAR)A1.8].will, in many cases, undermine the confidentiality of the register and, potentially, actas an inhibition against bringing appeal proceedings that may be meritorious.[143] Although the appellant did not press the case for suppression, we neverthelessrecord that had an application for suppression been made in this case, we would nothave granted it. This is because it is essentially now too late to make a suppressionorder, given the public availability of the Court of Appeal judgment, the fact that theCourt of Appeal and High Court judgments have been cited in other cases using theappellant's name, the Court of Appeal judgment is reported under the appellant's namein the New Zealand Law Reports and, as already noted, it is readily discoverable by aGoogle search. As the Court of Appeal put it in Lewis v Wilson & Horton Ltd, "Whereinformation as to the identity of someone appearing before the Court is already in thepublic domain, it will not generally be appropriate to grant name suppression."166[144] In any event, we consider anonymisation rather than suppression is the betterresponse to the situation where a registered offender appeals against the making of anorder or commences other proceedings concerning the order. While the register isconfidential, we do not think it would be appropriate to make a suppression order incircumstances where the sentencing notes (including the decision to make theregistration order) are publicly available and not subject to any publication restriction.[145] In the present case, anonymising this Court's judgment will mean no furtherinformation about the appellant enters the public domain. We are also satisfied thatwe should recall and reissue this Court's leave judgment in anonymised form, given ittoo is accessible by Google search. It is not clear to us what the impact of this will beon a Google search. It may be that the appellant will need to request that Googleremoves the reference to the judgment once anonymisation has taken place.[146] We do not think it is appropriate for this Court to make orders in relation to thejudgments of the lower Courts. But it is open to the appellant to ask both theHigh Court and the Court of Appeal to recall their judgments and reissue them in an166 Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA) at [94].anonymised form.167 It will be up to each of those Courts to determine whether thatis the appropriate course.[147] We therefore anonymise the present judgment and will do likewise with theleave judgment. We leave it to the appellant to approach the Court of Appeal andHigh Court about the possibility of recalling and reissuing their judgments with hisname anonymised. It will be for those Courts to determine whether that would beappropriate in the present case.Result[148] The application to adduce further evidence is granted. The appeal is allowed.The registration order made by the District Court is quashed.ELLEN FRANCE JApproach to section 9[149] I agree with Winkelmann CJ and O'Regan J, for the reasons given, that thepower to make a registration order is engaged only where the court is satisfied that theoffender poses a real or genuine risk "to the lives or sexual safety of 1 or more children,or of children generally".168 It would not be correct to describe s 9(2) of the ChildProtection (Child Sex Offender Government Agency Registration) Act 2016 (theRegistration Act) as requiring some heightened risk. However, I write separately toexplain the approach I think is applicable where, in the case of a person sentenced tohome detention, the court is satisfied that the offender poses a real risk in terms ofs 9(2).[150] In summary, in such a case I do not consider there is a great deal of scope forthe court to exercise the discretion against making a registration order.167 It appears that the Supreme Court of Victoria judgment in MSB was anonymised after the Courtof Appeal (above at n 160) released its judgment ruling that anonymisation was appropriate:MSB v Chief Commissioner of Police [2018] VSC 374.168 See the reasons given by O'Regan J above at [104], with reference to the Child Protection (ChildSex Offender Government Agency Registration) Act 2016, s 9(2).[151] I consider that view is consistent with the statutory scheme. I do not see theRegistration Act as providing for much distinction to be made between those caseswhere the offender is automatically a registrable offender and those cases where themaking of a registration order is a matter for the sentencing judge. The key part of thescheme is that registration is automatic for every eligible offender provided he or sheis subject to at least the short-term sentence of imprisonment169 that must inevitablyalso underpin a sentence of home detention.170[152] That latter point arises from s 15A(1)(b) of the Sentencing Act 2002.Section 15A(1)(b) states that home detention may be imposed "only if the courtwould otherwise sentence the offender to a short-term sentence of imprisonment".Accordingly, where an offender is sentenced to a term of home detention, thesentencing judge must have determined that the offending, but for home detentionbeing available, merits a term of imprisonment. In other words, the relevantassessment of the offending to which registration is anchored is the same.[153] Further, the difference in outcome (home detention or imprisonment) will oftenreflect matters not directly pertinent to registration, but peripheral matters such as theavailability of a suitable address.171 Therefore, any major differentiation betweenthese two outcomes in terms of whether a registration order is made has the potentialfor arbitrary results.172[154] This characteristic – the absence of any difference in the underlying assessmentof offending – distinguishes the New Zealand statutory scheme from that in Victoria173and in the Australian Capital Territory.174 The legislation in both Australianjurisdictions provides that, in some situations, registration follows automatically.175 Inother situations the court may make an order which achieves the same result.176 Thedistinction made between the two situations (automatic as opposed to those where a169 Section 7(1)(a).170 Goose v Police [2017] NZHC 2453 at [29]–[30].171 At [30].172 Praditsin v New Zealand Customs Service [2018] NZHC 48 at [30]–[32] and [57(b)].173 Sex Offenders Registration Act 2004 (Vic) [Victorian Act].174 Crimes (Child Sex Offenders) Act 2005 (ACT) [ACT Act].175 Victorian Act, ss 3(1), 6 and 7; and ACT Act, ss 8 and 10.176 Victorian Act, ss 6, 7 and 11; and ACT Act, ss 8, 10 and 15.court order is required) is based on the nature of the offending in issue. Broadlyspeaking, sexual offences against children are in the automatic category.177 Othersexual offending is in the category where a court order is required.178 Accordingly,while the approach to the discretion taken in these two jurisdictions is of someassistance, I see the New Zealand statutory scheme as different in this respect.179[155] There is also support for the approach I favour in s 9 itself. The text andstructure of s 9 suggest that the work to be done by the court largely takes place whenthe court is assessing whether the offender poses the requisite risk. Section 9(1)provides that the court "may" order that the offender be placed on the register.Section 9(2) makes it clear that the court "may" only do so if satisfied the requisiterisk is present. The section then goes on, in s 9(3), to set out the matters that must beconsidered for the "purpose of assessing" that risk.[156] It is in the context of assessing that risk that the court can consider the fact thatthe consequences of making a registration order are static and apply uniformly to alloffenders subject to a registration order. That consideration will therefore involvesome assessment of proportionality (which Winkelmann CJ and O'Regan J say is tobe undertaken at the second stage)180 but the context is the assessment of risk. I seethat as consistent with the statutory purpose as set out in s 3, namely: to establish a Child Sex Offender Register that will reduce sexualreoffending against child victims, and the risk posed by serious child sexoffenders, by—(a) providing government agencies with the information needed tomonitor child sex offenders in the community, including after thecompletion of the sentence; and(b) providing up-to-date information that assists the Police to morerapidly resolve cases of child sexual offending.177 Victorian Act, schs 1 and 2; and ACT Act, s 10(2)–(3) and schs 1 and 2.178 Victorian Act, schs 3 and 4; and ACT Act, s 15. In Victoria, another distinction between the twosituations is the age of the offender. Adult offenders who commit sexual offences against childrenare automatically registrable (Victorian Act, s 7(1)(a)–(b)), whereas child offenders who commitsexual offences against children are in the category where a court order is required (s 11(2)).179 Compare the reasons given by O'Regan J above at [109].180 See the reasons given by O'Regan J above at [108].[157] It follows that I agree with the Court of Appeal that:181 in cases such as the present where the qualifying offence was sufficientlyserious to attract a starting point exceeding two years' imprisonment, the courtwill need good reason to justify not making a registration order if it is satisfiedthe offender continues to pose a real risk to the lives or sexual safety ofchildren.[158] Accordingly, if the court is satisfied that an offender subject to a sentence ofhome detention continues to pose a real risk to the lives or sexual safety of children, itis likely that it will be an infrequent case where the discretion points away fromregistration.182[159] It is not, however, necessary for me to consider how this approach would applyto the appellant. That is because I agree with Winkelmann CJ and O'Regan J for thereasons given that the appellant was not eligible to be placed on the register unders 9(1), which means that the registration order must be quashed. I also agree thejudgment should be anonymised.183 I add that, for the reasons given by O'Regan J, Itake the view that it was appropriate in this case to take into account the reports ofDr Rogers not only in relation to the anonymisation issue, but also in relation to therisk assessment exercise.184GLAZEBROOK JTable of ContentsPara No.Introduction [160]Approach to retrospectivity provisions [165]Section 25(g) of the Bill of Rights [166]Section 6 of the Sentencing Act [171]Common law presumptions [181]Conclusion [182]Structure of reasons [183]Legislative history [184]The Registration Act as enacted in 2016 [184]Parliamentary history of enactment [190]181 [D] v New Zealand Police [2019] NZCA 30, [2019] 2 NZLR 778 (Kós P, French and Gilbert JJ)at [22].182 Goose, above n 170, at [30]; and Pauling v R [2019] NZHC 1929 at [54]. See also Praditsin,above n 172, at [28]–[29].183 See the reasons given by O'Regan J above at [142].184 See the reasons given by O'Regan J above at [41].Issues that arose with the Act as first enacted [200]The amendments in 2017 [208]Parliamentary history of amendment [214]Text of the Act [224]As enacted [224]As amended [226]Conclusion on text of the Act [232]Purpose of the Act [234]Scheme of the Act [242]Demonstrably justified in a free and democratic society? [249]Is a more rights-consistent interpretation available? [252]Application of the Act to the appellant [258]Introduction[160] I write separately because I take a different view on retrospectivity.185 I alsodisagree with the view expressed in the reasons given by O'Regan J that theregistration order should in any event be set aside.186[161] I agree that registration is a penalty.187 I agree that, should a registration orderbe made, the appellant would be subjected to an additional penalty over and above thepenalty that applied at the date of his offending. I agree that this engages s 25(g) ofthe New Zealand Bill of Rights Act 1990, s 6 of the Sentencing Act 2002, the principleof legality and New Zealand's international obligations. I differ, however, as to theconsequences of this.[162] In summary, I consider that ss 7 and 9 of the Child Protection (Child SexOffender Government Agency Registration) Act 2016 (Registration Act), both asoriginally enacted and as amended in 2017, cover offenders like the appellant whowere convicted after the Registration Act came into force, even if their offences werecommitted before this date. This is the clear meaning of the relevant sections, asascertained from the text in the light of its purpose. The purpose is evident from thewords used,188 the scheme of the Act189 and the legislative history.190 It is not possible185 The majority approach to retrospectivity is set out above at [49]–[84] in the reasons given byO'Regan J. Ellen France J adopts this approach above at [159] in her reasons.186 See at [135].187 I thus agree with [55]–[59] of the reasons given by O'Regan J.188 See below at [224]–[233].189 See below at [242]–[248].190 See below at [184]–[223].to interpret the Act in any other more rights-consistent manner and it must beapplied.191 The regime therefore applies to the appellant.192[163] To explain my difference in view on retrospectivity, I first outline the generalapproach that should be taken to the retrospectivity provisions and, in particular,discuss s 25(g) of the Bill of Rights and s 6 of the Sentencing Act.[164] Having explained why I consider the appellant is subject to the regime, I thenoutline my reasons for finding that the registration order should not be overturned.193Approach to retrospectivity provisions[165] Legislation imposing a retrospective increase in penalty undoubtedly limitsrights. As noted by O'Regan J, both s 25(g) of the Bill of Rights and s 6(1) of theSentencing Act affirm the right of those convicted of an offence where the penalty isvaried between the commission of the offence and sentencing to the benefit of thelesser penalty of the two.194 So too does art 15(1) of the International Covenant onCivil and Political Rights (ICCPR),195 to which New Zealand is a party, and which isrelevant through the presumption of consistency with New Zealand's internationalobligations.196 More generally, the principle of legality encapsulates a presumptionthat Parliament does not intend to legislate contrary to fundamental human rights.191 See below at [252]–[257].192 See below at [258].193 See below at [259]–[264].194 See the reasons given by O'Regan J above at [52]–[53].195 International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature16 December 1966, entered into force 23 March 1976).196 New Zealand Air Line Pilots' Assoc Inc v Attorney-General [1997] 3 NZLR 269 (CA) at 289;Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [24] per Blanchard, Tipping,McGrath and Anderson JJ; Zurich Australian Insurance Ltd v Cognition Education Ltd [2014]NZSC 188, [2015] 1 NZLR 383 at [40]; Helu v Immigration and Protection Tribunal [2015] NZSC28, [2016] 1 NZLR 298 at [143] per McGrath J and [207] per Glazebrook J; and Ortmann v UnitedStates of America [2020] NZSC 120 at [96] and [313].Section 25(g) of the Bill of Rights[166] The approach to the application of the Bill of Rights was set out by a majorityof this Court in R v Hansen.197 Tipping J's summary was as follows:198Step 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.[167] There is an issue as to the considerations that should be taken into account atstep one of this test.199 Tipping J suggested that the "initial interpretation exerciseshould proceed according to all relevant construction principles, including theproposition inherent in s 6 that a meaning inconsistent with the rights and freedomsaffirmed by the Bill of Rights should not lightly be attributed to Parliament".200 Thiswould mean considering, at step one, statutory purpose and the presumption of197 R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1. The majority approach is that expressed byBlanchard J at [57]–[61], Tipping J at [88]–[94] and McGrath J at [192]. I note that all three ofthese Judges in Hansen recognised that the approach set out may not be appropriate in all cases:at [61] per Blanchard J, [93]–[94] per Tipping J and [192] per McGrath J. See also Andrew Butlerand Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed, LexisNexis,Wellington, 2015) at [7.10.5] and [7.19.1]–[7.19.11].198 At [92].199 See for example Claudia Geiringer "The Principle of Legality and the Bill of Rights Act: A CriticalExamination of R v Hansen" (2008) 6 NZJPIL 59 at 83–86; and Paul Rishworth "Human Rights"[2012] NZ L Rev 321 at 330–331.200 Hansen, above n 197, at [89]. This may accord with a view that the Bill of Rights is no more thana legislative manifestation of the principle of legality: see Geiringer, above n 199, at 63.Hanna Wilberg's view is that the principle of legality continues to have relevance, for example inrespect of common law rights that do not feature in the Bill of Rights: Hanna Wilberg "CommonLaw Rights have Justified Limits: Refining the 'Principle of Legality'" in Dan Meagher andMatthew Groves The Principle of Legality in Australia and New Zealand (The Federation Press,Sydney, 2017) 139 at 142.consistency with human rights. Professor Geiringer says that to take a differentapproach would "detach the initial assessment of legislative meaning from the rich,value laden context in which it has traditionally unfolded".201[168] On the other hand, if this approach is taken, it appears to leave step five withno content.202 This is because the Hansen majority held that s 6 of the Bill of Rightsdoes not permit a court to adopt a meaning that goes beyond Parliament's purpose.203Professor Rishworth has suggested instead that the meaning taken at step one shouldbe the meaning contended for by the protagonist in the litigation (usually theCrown).204 This appears to be more consistent with the approach of Blanchard J, whocalled this first step the "natural meaning",205 and McGrath J, who referred to it as the"ordinary meaning" or "natural meaning".206 It also appears to me to be a more logicalapproach, especially in cases where the consequences of that contended-for meaningcannot be justified under s 5 of the Bill of Rights.207 If the Rishworth approach istaken and all fundamental principles that point towards rights consistency are saveduntil step five, then different meanings between steps one and five may be possible.[169] It is not necessary to come to a definitive view on the correct approach tostep one.208 This is because a purposive interpretation of the provision is required atsome stage, whether at the first or fifth step. Taking such a purposive approach to theinterpretation of the Registration Act, and differing from the majority, I consider theappellant to be subject to that Act.[170] For completeness, I mention at this point that Professor Geiringer considersthat s 6 of the Bill of Rights, and thus step five of the Hansen analysis, may in certain201 Geiringer, above n 199, at 85.202 At 83–84.203 Hansen, above n 197, at [61] per Blanchard J, [156] and [158] per Tipping J and [252] perMcGrath J.204 Rishworth, above n 199, at 331. He says that this is in fact how the Hansen judges proceeded andhow the test has been applied in other cases: see at 331–334.205 Hansen, above n 197, at [57] and [60].206 At [200]–[201].207 There is controversy on how s 5 should be applied but it is not necessary to engage with that inthis appeal. See for example Kris Gledhill Human Rights Acts: The Mechanisms Compared (HartPublishing, Oxford, 2015) at 240–246; and Hanna Wilberg "Resisting the siren song of the Hansensequence: The state of Supreme Court authority on the sections 5 and 6 conundrum" (2015) 26PLR 39.208 And we did not hear argument on this issue.circumstances permit the courts to go beyond Parliament's purpose.209 It is notnecessary to decide on this point for the purposes of this appeal. For the reasonsoutlined later, this is not the type of case Professor Geiringer had in mind.Section 6 of the Sentencing Act[171] As noted above, s 6(1) of the Sentencing Act provides that an offender has theright, if convicted of an offence in respect of which the penalty has been variedbetween the commission of the offence and sentencing, to the benefit of the lesserpenalty. Section 6(2) of the Sentencing Act states that subs (1) "applies despite anyother enactment or rule of law".[172] Butler and Butler, as quoted by O'Regan J,210 consider that s 6 of theSentencing Act is therefore a "significantly more powerful protection than s 25(g)" ofthe Bill of Rights as it "overrides other enactments that are inconsistent with thatright".211 Similarly, the authors of The New Zealand Bill of Rights consider that s 6may have a very powerful effect, writing that:212As to contrary enactments passed subsequently, there would be a powerfulclaim that s 6(2) should supply the interpretive principle upon which theconflict between s 6(1) and the subsequent enactment must be resolved—namely, that the principle in s 6(1) is to prevail so that the other enactment isdenied its effect (with sentencing therefore to proceed on the basis of the lawotherwise in force at the time of the offence). Indeed, the argument would runthat, unless the interpretive principle in s 6(2) was expressly repealed oroverridden in the particular case, it must prevail. In that sense, s 6 of theSentencing Act provides more protection against inconsistent legislation thans 25(g) of the Bill of Rights.[173] The effect of the very similarly-worded precursor to s 6(2) of the SentencingAct, s 4(2) of the Criminal Justice Act 1985, was considered by the Court of Appealin R v Pora.213 The issue was the retrospective imposition of a minimum period of209 Geiringer, above n 199, at 86–91.210 See above at [54].211 Butler and Butler, above n 197, at [23.9.5].212 Paul Rishworth and others The New Zealand Bill of Rights (Oxford University Press, Melbourne,2003) at 707 (footnote omitted).213 R v Pora [2001] 2 NZLR 37 (CA). Mr Pora was subsequently cleared of all charges after anappeal to the Privy Council: Pora v R [2015] UKPC 9, [2016] 1 NZLR 227.imprisonment through s 80 of the Criminal Justice Act, as amended by s 2(4) of theCriminal Justice Amendment Act (No 2) 1999.214[174] Elias CJ, Tipping and Thomas JJ considered that s 4(2) of the 1985 Actprevailed over s 2(4) of the 1999 Act and, in that sense, was the dominant provision.215They considered that the meaning of both s 4(2) and s 2(4), taken separately, was clear,and that the issue before the Court was simply how to resolve the conflict betweenthese provisions appearing in the same Act.216 Although earlier in time and dealingwith the general rather than the specific, they held that s 4(2) should prevail as itencapsulated a fundamental principle that is consistent with the Bill of Rights, thecommon law presumption against retroactivity, s 7 of the Interpretation Act 1999 andinternational conventions, and itself stated that it applied "notwithstanding any otherenactment or rule of law to the contrary".[175] Of additional importance for these Judges was that, as they saw it, Parliamentmay not have understood that it was abrogating a fundamental right.217 Elias CJ andTipping J considered that there was no indication in the parliamentary debates thatParliament appreciated that the adoption of s 2(4) was inconsistent with the rulesagainst retrospective punishment.218 This could indicate, they suggested, that"Parliament acted under the misapprehension that a minimum period of imprisonmentaffected only the administration of parole" and was therefore not a penalty.219 Theysaid:220It is inconceivable that Parliament would have acted so casually had itappreciated the implications. In the circumstances we do not accept that it isproper to draw an inference from the temporal sequence of the legislation orfrom the more specific terms of s 2(4) that Parliament intended it to prevail.[176] Gault, Keith and McGrath JJ took a different view. Their primary focus wason the meaning of s 2(4) of the 1999 Act. They accepted that, if read to have214 The inconsistency was therefore within the same Act, the Criminal Justice Act 1985.215 Pora, above n 213, at [49] per Elias CJ and Tipping J and [171] per Thomas J.216 At [26] per Elias CJ and Tipping J and [131]–[133] per Thomas J.217 At [45]–[46] per Elias CJ and Tipping J and [153] per Thomas J.218 At [45].219 At [46]. Thomas J similarly said at [153] that "it is possible that Parliament did not perceive theimposition of a minimum period of imprisonment as a penalty. On this view, s 4(2) was notconfronted because it was not appreciated that the new provision related to an 'order in the natureof a penalty' in terms of that subsection."220 At [48].retrospective effect, s 2(4) amounted to a "serious breach of a fundamental rule of ourlegal and constitutional system and of New Zealand's international obligations".221They also accepted that the courts should "strive to interpret legislation consistentlywith that fundamental rule".222 But they considered that Parliament's words andpurpose were "so plain" that the breach could not be removed by judicialinterpretation.223 Additionally, to them, the issue as to whether Parliament properlycharacterised the power as a penalty, rather than relating to the administration of thepenalty, was irrelevant in that particular case:224Any mischaracterisation in this case affects in no way the plain parliamentarypurpose that the new threshold and the new 13-year minimum were to applyin respect of offences committed earlier if the offenders had yet to besentenced.[177] As it turned out, on the approach adopted by the majority (Richardson P andGault, Keith and McGrath JJ) to the meaning of s 2(4) of the 1999 Act, the appeal wasresolved in favour of the appellant on other grounds.225 For this reason, Richardson Pdid not express a view on whether s 4(2) of the 1985 Act or s 2(4) of the 1999 Act wasthe dominant provision.226[178] The first point to note is that in this case, unlike in Pora, it is not a question ofinconsistency within the same Act. The issue rather is the effect of s 6 on another laterpiece of legislation. Even were this not the case, I am inclined to agree with Gault,Keith and McGrath JJ that, where parliamentary purpose is clear, it must prevail overthis provision of the Sentencing Act.227 The effect of the approach of Elias CJ, Tippingand Thomas JJ (and indeed the majority in this case228) would import a requirementthat Parliament use specific words or "magic formulas"229 in later legislation toovercome a presumption created by s 6(2) of the Sentencing Act. This is beyond even221 At [116].222 At [116].223 At [116].224 At [115].225 Richardson P, Gault, Keith and McGrath JJ determined that the provision could not apply toMr Pora as the power to impose minimum periods of imprisonment under s 80 of the CriminalJustice Act 1985 was conferred prospectively on 1 September 1993 through the Criminal JusticeAmendment Act 1993, and he had been convicted for an offence committed before this date.226 At [60].227 I do, however, leave open the possibility that the position may be different where Parliament hadnot realised it was breaching a fundamental right: see above at [175].228 See the reasons given by O'Regan J above at [77]–[80].229 To use the expression of Keith J in Pora, above n 213, at [111].a manner and form provision.230 I do not believe that Parliament can bind futureParliaments in this way.[179] Instead, s 6 of the Sentencing Act must yield to a later provision that, on itstext and in light of its purpose, cannot be read in any other way. I agree therefore withthe view of Butler and Butler:231The approach of Elias CJ and Tipping J has been criticised as going too far In particular, the language of s 2(4) was clear in purport, and its retrospectivepurpose was made abundantly clear during the parliamentary debates. Whiles 2(4) did not explicitly state that it was overriding s 4(2) of the [CriminalJustice] Act or s 25(g) of BORA, it did not have to, since it is clear that thatwas what was intended.232[180] This means that there is no practical difference between the Hansen approachto s 25(g) of the Bill of Rights and the approach to s 6 of the Sentencing Act. Bothmust yield to Parliament's words interpreted in the light of their purpose.233Common law presumptions[181] In this case, I consider that the common law presumptions may be put to oneside. This is because they only apply to the extent there is not a clear parliamentarypurpose to legislate contrary to such rights.234Conclusion[182] The approaches discussed above mean that a provision that is notrights-consistent will have to be applied if no other more rights-consistent approach is230 A manner and form requirement is where the legislature binds itself to follow a particular methodin passing or revoking laws. This could be by adopting an entrenchment provision such as s 268of the Electoral Act 1993. Parliament has committed itself to only revoke these provisions with asupermajority of 75 per cent of the House. A majority of this Court in Ngaronoa vAttorney-General [2018] NZSC 123, [2019] 1 NZLR 289 at [70] accepted that the authorities"indicate the pendulum has swung in favour of enforceability [of manner and form provisions]"but preferred not to resolve the issue without argument on the point.231 Butler and Butler, above n 197, at [7.12.28]. This contrasts with their comments set out above at[54] of the reasons given by O'Regan J and above at [172] of my reasons.232 See Andrew Butler "Implied Repeal, Parliamentary Sovereignty and Human Rights in NewZealand" [2001] PL 586.233 Although I leave open whether, in relation to the Bill of Rights, it may be possible, in somecircumstances, to go beyond Parliament's purpose: see above at [170] and below at [253].234 R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115 (HL) at 131 perLord Hoffmann.possible on its text in light of its purpose.235 As will be clear from the discussion tofollow, I consider the words and purpose of the Act clear and that Parliament was alsowell aware of the apparent breach of the Bill of Rights with regard to retrospectivity.236Structure of reasons[183] In the analysis that follows, I start with the legislative history of theRegistration Act as this is important in ascertaining the parliamentary purpose. I thenconsider the Act's text, purpose and scheme. After that, I discuss (briefly) the extentto which any apparent breach of the Bill of Rights may be justified and proportionatebefore considering whether any alternative, more rights-consistent interpretation isavailable. Finally, I address how the Act applies to the appellant.Legislative historyThe Registration Act as enacted in 2016[184] Section 7(1)(a) of the Registration Act provided (and still provides) that aregistrable offender is a person the court has sentenced to imprisonment in respect ofa conviction for a qualifying offence. Section 7(1)(b) of the Act provided (and stillprovides) that a registrable offender is a person who the court has sentenced to anon-custodial sentence in respect of a conviction for a qualifying offence and has madesubject to a registration order. Qualifying offences are set out in sch 2 of the Act.237[185] Section 9 set out (and still sets out) the circumstances where the court couldmake a registration order against an offender given a non-custodial sentence. As235 With possible exceptions discussed above at [170], [175], n 227 and n 233, which do not applyhere.236 I say "apparent" in that Parliament may have considered the breach justified under s 5, contraryto the view of the Attorney-General: see below at [238] and [241].237 There are three classes of offending set out in sch 2 of the Child Protection (Child Sex OffenderGovernment Agency Registration) Act 2016 [Registration Act]. Under s 35, those imprisoned forclass 1 offences have reporting requirements for 8 years, class 2 for 15 years and class 3 for life.Those who have registration orders made against them after being sentenced to a non-custodialsentence also have reporting requirements for 8 years.enacted, s 9 on its terms was triggered on conviction.238 In relevant part it stated:9 Court may make registration order(1) If a court convicts a person of a qualifying offence and imposes anon-custodial sentence in respect of that offence, the court may orderthat the person must be placed on the register and must comply withthe reporting obligations of this Act.(2) A court may make an order under this section (a registration order)only if the court is satisfied that the person poses a risk to the lives orsexual safety of 1 or more children, or of children generally.[186] I note at this point the apparent inconsistency between s 7, which refers tosentence, and s 9(1), which refers to conviction.[187] Section 5 and cl 1(1) of sch 1 further provided (and still provide) that the Acthas retrospective application to those sentenced to imprisonment in respect of aconviction for a qualifying offence who were still serving their sentence (or subject tocertain associated restrictions) at the time the Act came into force on 14 October 2016.These are called cl 1(1) offenders by O'Regan J.239[188] Thus the Act, from the time of its enactment, explicitly applied to servingprisoners who had been convicted and sentenced, and thus necessarily to those whohad offended, before it came into force. It also applied to those who, at the time ofenactment, were no longer in custody but were on parole or other form of conditionalrelease, subject to an extended or interim supervision order, or subject to a publicprotection or interim detention order.240[189] Schedule 2 of the Act included (and still includes) a number of offences whichare noted as having been repealed. This makes it clear that it was contemplated that238 Section 9 was amended in 2017 through the Child Protection (Child Sex Offender GovernmentAgency Registration) Amendment Act 2017 [Registration Amendment Act], which is discussedbelow from [208].239 See the reasons given by O'Regan J at [64].240 Registration Act, sch 1 cl 1(1)(b)–(d) (as enacted). Amendments were made to these other groups(see below at [211]), but this is accurate at the time of enactment.the Registration Act, as originally enacted, would apply to offences committed before14 October 2016.241Parliamentary history of enactment[190] As noted by O'Regan J,242 it is clear from the speech on the introduction of theBill of the Minister in charge, the Hon Anne Tolley MP, that the Registration Act wasintended to apply to all those convicted after it came into force. The Minister explicitlystated that it "applies to persons convicted after the Act comes into force".243 Inaddition, she made it clear that the Act was intended to apply retrospectively to thoseoffenders covered by cl 1(1) of sch 1, even though they had (obviously) already beenconvicted and sentenced when the Act came into force.[191] The Minister stated that the "double jeopardy" retrospectivity was "considerednecessary in order to remove the not inconsiderable immediate risk presented byalready sentenced child sex offenders moving into the community after the Act comesinto force and not being subject to the Bill's reporting requirements".244 The samesentiment was expressed in the select committee report and in the Minister's speechesat the second reading and third reading.245[192] The Attorney-General's report pursuant to s 7 of the Bill of Rights concludedthat the Bill was inconsistent with s 9 (disproportionately severe treatment orpunishment) and s 26(2) (double jeopardy), and that it could not be justified unders 5.246 The Attorney-General did not address s 25(g) of the Bill of Rights or s 6 of theSentencing Act.[193] The concern expressed with s 9 was that there was no ability to review lifetimereporting obligations for those convicted of the most serious offences, even if they no241 As O'Regan J concedes at [65](a) of his reasons.242 See above at [67].243 (15 September 2015) 708 NZPD 6634.244 (15 September 2015) 708 NZPD 6635.245 Child Protection (Child Sex Offender Register) Bill 2015 (16-2) (select committee report) at 8;(1 June 2016) 714 NZPD 11623; and (8 September 2016) 716 NZPD 13567.246 Christopher Finlayson Report of the Attorney-General under the New Zealand Bill of Rights Act1990 on the Child Protection (Child Sex Offender Register) Bill (6 May 2015) [Registration Bills 7 report] at [41].longer constitute a risk.247 As to s 26(2), the Attorney-General considered thatregistration could be seen as part of the original sentence for "prospective child sexoffence convictions and therefore might not be seen as being punished 'again' for thesame offence".248 However, he considered that there was limited retrospectiveapplication to those already serving a sentence for a qualifying offence or subject toan extended supervision order following that sentence. Section 26(2) was engaged forsuch offenders, estimated in the original Cabinet paper to number around 472.249[194] In terms of whether the retrospectivity was justified and proportionate unders 5 of the Bill of Rights, the Attorney-General accepted that the objective of the Actwas sufficiently important to justify some limitation on the rights and freedomsguaranteed by the Bill of Rights, saying: "Child victims of sexual abuse are amongstthe most vulnerable and the resultant harm is often very serious and long lasting."250[195] He then considered whether there was a sufficient rational connection betweenthe limit and the objective. On balance, he found there was.251 He considered that theevidence needed to be "weighed against the severe harm caused to the victims ofsexual offences against children".252 He said: "Limited retrospective application willtherefore help to address the immediate risks presented by qualifying offenders as theymove into the community."253[196] Next, the Attorney-General considered whether the impairment on the rightwas greater than reasonably necessary to achieve the purpose of reducing the riskposed by child sex offenders. He noted that the Legislation Advisory Committee hasstated that retrospective application "may be appropriate where it is intended toaddress a matter that is essential to public safety".254 He considered this requirement247 At [21] and [23]–[24].248 At [28].249 At [29]–[30]. The Social Services Select Committee was told that as at 1 July 2016 (the date theAct was expected to come into force) there would be 969 people in prison and 360 in thecommunity affected retrospectively: New Zealand Police and Department of Corrections ChildProtection (Child Sex Offender Register) Bill: Response to Questions from the Social ServicesCommittee (5 February 2016) at 6.250 At [32].251 At [33]–[35].252 At [34].253 At [34].254 At [36].was met in this case. He also reiterated that the measure had narrow retrospectiveapplication and did not amount to an explicit deprivation of liberty.255[197] Despite these factors, he concluded that the Bill did not minimally impair therights of those offenders to whom it would retrospectively apply.256 He said that theBill could, for example, have limited the period of registration or reporting obligationsfor such offenders or included a review mechanism.257 He said:258People to whom the Bill retrospectively applies will have no effective meansto seek relief from the effects of their double punishment. Due to the risk thatthis punishment will become disproportionately severe I therefore alsoconsider the limit on s 26(2) is not in due proportion to the importance of theobjective.[198] In response to the Attorney-General's s 7 report, the Social Services SelectCommittee recommended inserting a review mechanism into the Bill to provide thatan offender put on the register for life could apply to the District Court for a review ofregistration after a period of 15 years on the register.259 The Committee noted its beliefthat this amendment would also "address some of the concerns around theretrospective aspects of the [B]ill".260[199] At both second and third reading, the Minister stated her view that the Bill asreported back with this insertion went "some way" to addressing theAttorney-General's concerns.261 On s 26(2) of the Bill of Rights in particular, the255 At [37].256 The Supreme Court of Canada recently delivered a judgment in relation to the registration of sexoffenders in Ontario: Ontario (Attorney-General) v G 2020 SCC 38. Although a discriminationcase, the first two steps of the Oakes test were applied with the same conclusions as theAttorney-General's s 7 report in this case: both parties and the Court considered that the register'spurpose – to assist in the investigation and prevention of sexual offences – was pressing andsubstantial, and that the limits it places on Charter rights are rationally connected to that purpose:at [73]. The test failed on minimal impairment. This is because an individualised assessment forthose found not criminally responsible on account of mental disorder, as was applied to thosefound guilty, could have achieved these purposes just as well while impairing the right less:at [74]–[76].257 Registration Bill s 7 report, above n 246, at [38].258 At [40].259 Child Protection (Child Sex Offender Register) Bill 2015 (16-2) (select committee report) at 4and 8. This would be inserted as new cl 36A. In inserting this mechanism, the Committeeaccepted the suggestion of the New Zealand Police.260 At 8.261 (1 June 2016) 714 NZPD 11623; and (8 September 2016) 716 NZPD 13567.Minister stated at second reading that "the retrospective provisions are nowameliorated by the new review provisions".262Issues that arose with the Act as first enacted[200] Two main issues arose in relation to the Registration Act as enacted. The firstrelated to the use of the term "conditional release" in cl 1(1). Conditional release onlycaptures within its ambit those who are subject to recall to prison, whereas it appearsthat the intention had been that all those who were still on "release conditions" wouldbe placed on the register. Parliament was told that this affected 107 offenders.263[201] The second issue was whether registration orders could be made in relation tothose offenders who were convicted before but sentenced after the Act came into force.It appears that there were 68 such offenders.264 This issue had arisen soon after theAct came into force.[202] In R v Hutcheson, Mr Hutcheson pleaded guilty in early October 2016 (beforethe Act came into force on 14 October 2016) to two representative charges of historicalindecent assault on girls under 12.265 On 9 November 2016, he was sentenced to11 months' home detention.266 Having imposed this non-custodial sentence,Judge Harrop then considered whether a registration order should be made under s 9of the Registration Act. He noted that the Act "clearly is retrospective where asentence of imprisonment is imposed" but it was less clear for those sentenced to anon-custodial sentence.267 The Judge had been told that the issue was beingconsidered by Crown Law and, until it was resolved, prosecutors were not seekingregistration for people like Mr Hutcheson.268 The Judge therefore did not make an262 (1 June 2016) 714 NZPD 11623.263 (7 March 2017) 720 NZPD 16349. See also New Zealand Police Departmental DisclosureStatement: Child Protection (Child Sex Offender Government Agency Registration) AmendmentBill (2 March 2017) [Departmental Disclosure Statement] at 5.264 Departmental Disclosure Statement, above n 263, at 5.265 R v Hutcheson [2016] NZDC 22159 at [1].266 At [36].267 At [43].268 At [43].order.269 This Crown policy was referred to in other judgments from around the sametime.270[203] The uncertainty arose because of the differences in the wording of ss 7 and 9as originally enacted.271 Section 7 appeared to apply to all those sentenced after theAct came into force. It was the only operative provision for those sentenced toimprisonment. However, those receiving a non-custodial sentence needed also to becaptured by s 9, which referred to conviction and thus could have been interpreted asrequiring both conviction and sentence to post-date the Act coming into force,especially when combined with the comments of the Minister in charge during theparliamentary process that, "The [B]ill applies to persons convicted after the Actcomes into force."272[204] Questions were also raised relating to the retrospective effect on thoseconvicted before the Act came into force and subsequently sentenced to imprisonment.These offenders argued that they should not be made subject to registration unders 7(1)(a) because of s 25(g) of the Bill of Rights. While accepting that this did amountto a retrospective penalty, the Crown seems to have considered that the text andlegislative intent was clearer for those sentenced to imprisonment and continued toseek registration for such offenders. In R v Ofa, Judge Earwaker explained why heconsidered the Crown position was correct:273[19] The Crown submitted that it would be absurd if the Register were toapply to all those currently serving sentences for qualifying offencescommitted before the commencement of the Act and to those who are in thefuture charged for historic sexual offending, but not those sentenced toimprisonment following the commencement of the Act who were chargedbefore the commencement date. Such a result, the Crown submits would bedirectly contrary to the express intent of Parliament to ensure that recentlyconvicted sexual offenders are covered by the new legislation. The Crown269 At [44].270 See, for example, R v Inga [2016] NZDC 24515 from 1 December 2016, where Judge Winterrecorded at [9] that "In this case the Crown solicitor has directed that as there is a serious questionabout the applicability of discretionary orders applied retrospectively, that Crown counsel aroundthe country have been directed not to seek discretionary orders at this time"; and R v [R] [2016]NZDC 22965, where Judge Rowe referred at [69] to "a legal issue raised by the Crown as towhether I could have retrospectively made an order".271 As set out above at [61]–[62] and described at [184]–[186].272 (15 September 2015) 708 NZPD 6634. The effect of s 7 of the Interpretation Act 1999 is that thecorrect reading of the Registration Act was that it only applied to those convicted aftercommencement. This is also discussed below at [224]–[225].273 R v Ofa [2017] NZDC 2371, [2017] DCR 764 (footnote omitted).further argue that the intent to cover those offenders can also be seen by thebreadth of the retrospective application in sch 1 of the Act. Not only does itapply to those currently serving sentences of imprisonment but it also appliesto those on parole or under extended supervision or public protection orders.The intent to include offenders whose offending occurred well before thecommencement of the Act can also be seen by the inclusion of a number ofhistoric offences long since repealed in the list of qualifying offences in theAct.[20] I accept the Crown submission that there is clear legislative intent inthe scheme of the Act providing for broad retrospectivity to encompass thoseearlier convicted of qualifying sexual offending. There is no other tenableinterpretation than that s 7 applies to all those sentenced to imprisonment fora qualifying offence after the commencement of the Act, regardless of whenthe offence was committed or when they were charged with the offence.[205] Judge Blackie in R v Oti made very similar comments.274 Other Judges appliedregistration against offenders sentenced to imprisonment who had been convictedbefore the Act's commencement without any comment on the retrospectivity issue.275[206] Judge Butler reached a different result in R v [J].276 This sentencing from3 February 2017 related to historical sexual offending, to which the offender hadpleaded guilty prior to enactment of the Registration Act. The offender was sentencedafter the Act came into force to six years' imprisonment. The Judge's decision not toorder registration was based on the timing issue. The Judge said that theRegistration Act "is not applicable in your case because you pleaded guilty to thischarge prior to that Act coming into force and effect".277 There was thus conflictingauthority on whether those convicted before the Act came into force but sentenced toimprisonment after were to be entered on the register.274 R v Oti [2017] NZDC 807 at [8]–[10]. The most recent offending was in April 2015, he pleadedguilty in September 2016 and sentencing was in November 2016. Mr Oti re-appeared before theCourt on 19 January 2017 "so that an issue [could] be determined as to the application of theprovisions of the Child Protection (Child Sex Offender Government Agency Registration) Act2016". Judge Blackie concluded that "as the clear legislative intent of the scheme that is set outin the Act, providing for broad retrospectivity to encompass those earlier convicted of qualifyingsexual offending, there can be no other tenable interpretation but that s 7 applies to not only thosepersons, it also applies to you".275 See, for example, R v Page [2016] NZHC 2762 (Edwards J) at [63], in which the last offendingwas committed in March 2015, conviction was on 17 June 2016 and sentencing was on18 November 2016; and R v Nelson [2016] NZHC 2963 (Wylie J) at [127]–[128], in which thelast offending was committed in early 2015, conviction was on 14 September 2016 and sentencingwas on 7 December 2016.276 R v [J] [2017] NZDC 2073.277 At [15].[207] By contrast, in line with the Crown's clear view described above,278 it does notappear that any issue was raised during this period in relation to those, like theappellant, who were convicted after the Act came into force for offending that predatedits commencement. Those who were sentenced to imprisonment had orders madeagainst them as a matter of course.279 Those who received non-custodial sentenceswere considered for discretionary orders with the time of offending treated asirrelevant.280 Such offenders were accepted to be subject to the regime.The amendments in 2017[208] Against this background of uncertainty about the Act's application to thoseconvicted before but sentenced after its commencement, in March 2017 theRegistration Act was amended under urgency with retrospective effect to 14 October2016, the date the Act originally entered into force.281 It is clear from both the text ofthe Child Protection (Child Sex Offender Government Agency Registration)Amendment Act 2017 (Registration Amendment Act) and its legislative history thatthese amendments were directly targeted at the issues described above.[209] Section 9(1) was amended so that it no longer referred to conviction but tosentence. It now reads:If a court imposes on a person a non-custodial sentence in respect of aconviction for a qualifying offence, the court may order that the person mustbe placed on the register and must comply with the reporting obligations ofthis Act.278 See above at [204].279 See, for example, R v Hart [2017] NZHC 211 (Davison J) at [93]–[98], in which the latestoffending was committed in July 2016, conviction was on 13 December 2016 and sentencing wason 17 February 2017; and R v Bird [2017] NZDC 3360 (Judge Barkle) at [23], in which the latestoffending was committed in January 2016, conviction was on 1 December 2016 and sentencingwas on 21 February 2017.280 See, for example, New Zealand Customs Service v Noble [2017] NZDC 2838 (Judge Burnett) at[6]–[10], in which the latest offending was committed in September 2016, the date of convictionis unrecorded but it is fair to assume it was after enactment (both because of the turnaround timeand because the Crown applied for a discretionary order), and sentencing was on 14 February2017; and New Zealand Police v [M] [2017] NZDC 642 (Judge Emma Smith) at [26], in whichthe latest offending was in September 2016, the date of conviction is unrecorded but it is fair toassume was after enactment (both because Judge Smith noted there was a delay in entering a guiltyplea (at [22]) and because the Crown applied for the discretionary order), and sentencing was on17 January 2017.281 See the reasons given by O'Regan J above at [69].[210] Added was s 9(1A), which provides that, "For the purposes of subsection (1),the date on which the person was charged with the offence is irrelevant."[211] The Registration Amendment Act also amended sch 1. Clause 1(1)(b) wasaltered and a new cl 1(1)(e) added to bring under the Registration Act those no longerin prison but subject to release conditions. A new cl 1(2) was added to sch 1 to providethat the Registration Act applies to a person convicted before 14 October 2016 of aqualifying offence and sentenced on or after 14 October 2016 in respect of thatconviction, whether to imprisonment or a non-custodial sentence. The new cl 1(4) ofsch 1 provides that a person to whom cl 1(1) or (2) applies is a registrable offender forthe purposes of s 7(1) and the schedule.[212] Finally, the Registration Amendment Act added a new cl 4 to sch 1 to theRegistration Act to enable the Commissioner of Police to apply to the sentencing courtfor a registration order under s 9 in respect of an offender sentenced between14 October 2016 (the date the Registration Act came into force) and 13 March 2017to a non-custodial sentence for a qualifying offence. However, this clause does notapply if, at the time of sentencing, the court declined to make a registration orderbecause it was not satisfied that the person posed a risk to the lives or sexual safety ofone or more children, or of children generally.282[213] Clause 4 is therefore targeted at those who may have avoided registrationorders because of the lack of certainty as to whether the legislation applied – and, inparticular, those against whom registration was never sought because of the Crownpolicy referred to above.283Parliamentary history of amendment[214] The Registration Amendment Bill was introduced under urgency. The Leaderof the House explained why this was necessary:284The House may well wonder why we are back here so quickly. It is because,in the pedantic world of legal interpretation, there could be some confusion282 Registration Act, sch 1 cl 4(3).283 See above at [202].284 (7 March 2017) 720 NZPD 16348.over exactly who should be on the register and when they should be there.The intention of Parliament was very, very clearly stated, though, and thissimply goes to a point where we are clarifying further the intention ofParliament so that there may be no misinterpretation of the intention.[215] The explanatory note to the Registration Amendment Bill recorded that itspurpose was to "amend the retrospective application of [the Act] so that all relevantchild sex offenders will be registrable under the Act as originally intended".285 Theprovisions were said to clarify the position. The explanatory note said, in relation tos 9(1), that the wording change was necessary "to clarify that the court's power tomake a registration order turns on sentencing, not on conviction (which is aprecondition)". The addition of s 9(1A) was related to this, introduced "to providethat the date on which a person was charged with the qualifying offence is irrelevantto the court's power to make the registration order".286[216] In relation to cl 1(2) of sch 1, it said that this "clarifies that a person is aregistrable offender for the purposes of section 7(1) if the relevant conviction occurredbefore the commencement of the Act but the relevant sentence is imposed aftercommencement".287 As to cl 4, the explanatory note says that it "enables theCommissioner of Police to apply to the sentencing court for a registration order undersection 9 in respect of an offender sentenced between 14 October 2016 and 11 March2017 to a non-custodial sentence for a qualifying offence".288[217] In similar terms to the explanatory note, the Minister in charge, who was nowthe Hon Paula Bennett MP, stated in her first reading speech, "This amendment [B]illamends the principal Act to reflect the original retrospective policy intent of thelegislation. There is no new policy involved."289 She then explained what that intentwas:290It was intended that the retrospective provisions of the principal Act wouldapply to all child sex offenders who had been released from prison and weresubject to release conditions under Department of Corrections oversight whenthe Act came into force. It was also intended to include all those child sex285 Child Protection (Child Sex Offender Government Agency Registration) Amendment Bill 2017(243-1) (explanatory note) at 1.286 At 2.287 At 3.288 At 3.289 (7 March 2017) 720 NZPD 16349.290 (7 March 2017) 720 NZPD 16349.offenders who had been convicted of a qualifying offence prior to the Actcoming into force but were yet to be sentenced.The second issue relates to the application of the principal Act to thoseconvicted of a qualifying offence before the principal Act came into force butwho had not yet been sentenced. The principal Act does not make itsufficiently clear that registration applies to all offenders who are sentencedafter commencement of the Act, regardless of when they were convicted.Sixty-seven offenders had been convicted but not yet sentenced when the Actcame into force.[218] This view was reiterated in the other speeches by the Minister. In particular,at Committee stage, she stated that she decided not to send the Bill to select committeebecause she was "not changing the intent of the legislation at all".291 At third reading,she explained her belief that "the public expects these offenders to be covered by theregister", and for that reason they were "acting with urgency to make Parliament'sintention clear and to remove any doubt that these people are subject toregistration".292[219] Several questions about the amendments were raised during the RegistrationAmendment Bill's passage through the House, most relevantly for our purposes byDavid Clendon MP in Committee and Jan Logie MP at third reading. Both questionedthe amendment to the wording of s 9 of the Registration Act, with Mr Clendon statingthat he struggled to see anything other than "wordsmithing" in the change. Both alsoquestioned why it was necessary to insert a clause providing that the date on which aperson is charged is irrelevant.293 No further explanations from the Minister wereforthcoming.[220] The Attorney-General filed a report on the Registration Amendment Bill.294This time the report addressed not only s 26(2) but also s 25(g) of the Bill of Rightsand s 6 of the Sentencing Act.295291 (7 March 2017) 720 NZPD 16374.292 (7 March 2017) 720 NZPD 16392.293 (7 March 2017) 720 NZPD 16386 (Clendon); and (7 March 2017) 720 NZPD 16399 (Logie).294 Christopher Finlayson Report of the Attorney-General under the New Zealand Bill of Rights Act1990 on the Child Protection (Child Sex Offender Government Agency Registration) AmendmentBill (7 March 2017) [Registration Amendment Bill s 7 report].295 At [12]–[13] it was noted that s 9 of the Bill of Rights had been addressed through the inclusionof s 38 of the principal Act following the recommendation of the Social Services SelectCommittee. See above at [198].[221] The Attorney-General considered that s 26(2) did not apply to those sentencedafter the Act came into force as registration could be seen as part of the originalsentence.296 However, he considered that the retrospective application of the Actmeant that a person already sentenced for their offending faces an additionalpunishment for the same offence and this engages s 26(2).297 For the same reasons asin his first report, he concluded the limitation on rights was not justified andproportionate.298[222] In relation to s 25(g), the Attorney-General acknowledged that the amendingBill sought to "clarify" that the Registration Act applies to persons who had beenconvicted of a qualifying offence before 14 October 2016 but who were sentenced onor after 14 October 2016.299 Accordingly, he considered whether the requirement toregister and the attendant reporting obligations constitute a variation in the penalty forthe purposes of s 25(g). He concluded that they did, and that the limit was not justified,because of the lack of a review mechanism or shorter applicable period for thoseregistered retrospectively.300 He also said:301In addition to the reasons given above, I also note that s 25(g) is mirrored ins 6(1) of the Sentencing Act 2002. Section 6(2) of that Act provides that theright applies despite any other enactment or rule of law. That the rightaffirmed in s 25(g) is specifically and powerfully recognised elsewhere inlegislation emphasises its importance and further suggests the intrusion on thatright is not in due proportion to the importance of the objective.[223] This s 7 report on the Amendment Bill was not referred to in any of thespeeches during the passage of the Registration Amendment Bill.302 Parliament passedthe Bill without any amendments to its substance.296 At [20]. This was the same conclusion as in his first report: see above at [193].297 At [21]298 At [42]. He further noted at [34] that the revised retrospective application of the Bill was broader,"essentially attempting to capture all persons who were not, at 14 October 2016, completely freeof the repercussions of a prior conviction for child sex offences".299 At [45].300 At [47]–[48].301 At [49].302 David Clendon MP did, however, refer to the Attorney-General's original s 7 report, although hewas the only one to do so: (7 March 2017) 720 NZPD 16355.Text of the ActAs enacted[224] Section 7(1) of the Registration Act as enacted (and now) defined a registrableoffender as a person who a court has, in respect of a conviction for a qualifyingoffence, either sentenced to imprisonment or sentenced to a non-custodial sentenceand made subject to a registration order.303 Section 9 as enacted stated that the courtwas permitted to make an offender subject to a registration order, if the court "convictsa person of a qualifying offence and imposes a non-custodial sentence in respect ofthat offence", and the "court is satisfied that the person poses a risk to the lives orsexual safety of 1 or more children, or of children generally".304[225] On the basis of the text of ss 7 and 9 as originally enacted, therefore, all thoseconvicted after the Act came into force were subject to the regime regardless of whenthey committed their offences.305 I do not consider the text of s 9 itself was ambiguous.The ambiguity only related to those who had been convicted before the Act came intoforce but who were sentenced after the Act came into force to a non-custodial sentence.This was because of the different wording in ss 7 and 9.306 I also do not consider therewas any issue about the Act applying to those sentenced to imprisonment after the Actcame into force for the reasons set out by Judges Earwaker and Blackie.307As amended[226] The Registration Amendment Act amended s 9(1) with retrospective effect tostate that a registration order may be made if a court "imposes on a person anon-custodial sentence in respect of a conviction for a qualifying offence". On its text,it now applies, like s 7, to any person who is sentenced after the Act's commencement,303 See above at [184].304 See above at [185].305 Conviction and sentence had to follow the Act's commencement as s 7 of the Interpretation Actrequires enactments to be read prospectively and there was nothing in the Registration Act tosuggest this did not apply (other than cl 1 of sch 1 which provided the Act applied to offendersalready subject to a sentence of imprisonment). I also accept that, had this stood alone, it mayhave been interpreted consistently with s 25(g) of the Bill of Rights in the manner set out at [282]of William Young J's reasons (subject to the issue of parliamentary purpose, discussed aboveat [168]–[170] and [182]).306 See above at [203].307 See above at [204]–[205]. It follows that I consider Judge Butler (see above at [206]) was wrong.rather than, as before, to any person convicted after that date. The appellant wasclearly sentenced after the date of the Act's commencement. The Act thus, on the basisof the text of s 9(1), applies to him.308[227] This conclusion is strengthened by the fact that the Amendment Act also addeda new s 9(1A) stating that the date a person is charged is irrelevant. This is significant.Whatever the motivation behind the addition of s 9(1A), as the Crown points out, itmanifests a clear intention to apply the Act to offences committed before 14 October2016 because offences must precede a charge.309 This does not entail a reading ofs 9(1A) as the date the person committed the offence.310 It is just a clear and necessaryeffect of the words used.311[228] The majority put emphasis on the fact that "express provision is made in sch 1for where the Registration Act is to apply retrospectively, yet sch 1 does not cover thepresent situation [of those, like the appellant, who were convicted and sentenced afterthe Act came into force for an offence committed before this date]".312 In my view,the reliance on this omission is misplaced, particularly in light of the legislativehistory. It cannot, in any event, override the plain words of s 9, discussed above.[229] Schedule 1, as originally enacted, dealt with s 26(2) retrospectivity. It appliedto those already convicted and sentenced to imprisonment before the Act came intoforce.313 I accept that s 25(g) was also engaged by the Registration Act as enacted but,as noted above, the Attorney-General's report did not deal with this section.314308 I also note that sch 2, which listed qualifying offences, included repealed offences. This is anotherindication that the Act was to have retrospective effect.309 As neither David Clendon nor Jan Logie MP were told why s 9(1A) was included, we can onlyspeculate as to its purpose. The concern could have been that, as charging and conviction precedesentencing, they can be seen as inextricably linked to it. It may have been thought that it had tobe made clear that it was the actual sentencing date rather than the entry into the criminal justicesystem that had to have occurred after the Act came into force.310 Contrary to the view expressed by William Young J below at [289].311 Contrary to the view of the majority on this point: see the reasons given by O'Regan J aboveat [78]. In my view, s 9(1A) means that the wording is as clear in expressing retrospective intentas that in Pora, contrary to the view of the majority (see the reasons given by O'Regan J aboveat [83]). It will be apparent I do not agree with William Young J that s 9(1A) is problematical: seebelow at [287].312 See the reasons given by O'Regan J above at [78].313 See above at [187]–[188] and [193].314 Set out above at [192].[230] The Amendment Act was enacted to remove the uncertainty as to whether theAct applied to those convicted before but sentenced after the Act came into force.315For the members of this group already sentenced before the Amendment Act cameinto force, s 26(2) was engaged.316 As discussed below, it needed to be made clearthat all those in this group who had been sentenced since the Act came into force weresubject to the additional punishment of registration, as was done through cl 1(2).There also had to be a mechanism for the reconsideration of sentences (as provided incl 4 of sch 1) for this group if they had received non-custodial sentences in the periodup to the passing of the Amendment Act.317[231] As originally enacted, all those convicted after the Registration Act came intoforce, like the appellant, were already covered by the regime.318 Section 26(2) wasnot engaged, either at the time of original enactment or the Amendment Act, in relationto this group.319 It is thus unsurprising that this group is not mentioned in the amendedsch 1.320Conclusion on text of the Act[232] The text of the Registration Act as enacted shows that it was intended to applyto those whose offending pre-dated the Act but who were convicted after the Act cameinto force.321 This is how the Act was applied in the period between its enactment andthe Amendment Act.322[233] The text of the Act as amended, including in particular s 9(1A), makes it clearthat the Act continued to apply to this group.323 Further, as I discuss below, the purposeand scheme of the Act, which are largely excluded from the reasons of the majority,315 See above at [201]–[206].316 Assuming there was no jurisdiction to make a registration order in respect of offenders in thisgroup before the Amendment Act. Section 25(g) was also engaged but, as noted above, sch 1 atenactment dealt with s 26(2) retrospectivity.317 Given the policy referred to above of not seeking registration orders for this group: see aboveat [202].318 There had been no uncertainty as to the application of the regime to his group: see above at [207].319 See above at [193] and [221].320 See above at [225].321 It will be apparent I generally agree with William Young J's reasons below at [283]–[286].322 See above at [207].323 In addition, now to those who were convicted before the Act came into force but sentencedafterwards.also clearly show that Parliament intended s 9 to have retrospective effect to offenderssuch as the appellant.324 Indeed, I note that the majority accepts that the legislativehistory supports the view that Parliament intended s 9 to apply retrospectively.325Purpose of the Act[234] As noted above, it is clear from the text of the Act, both as enacted and asamended, that it was intended to cover those who had been convicted after the Actcame into force.[235] The Act's purpose in this regard is also clear from the legislative history. TheRegistration Act was always intended to apply and did apply to all those convicted ofqualifying offences after the Act had come into force, as is shown by the Minister'sspeech on its introduction.326 In passing the Amendment Act, Parliament waslegislating in response to the uncertainty relating to whether the Act applied to thoseconvicted before but sentenced after the Act came into force.327 No similar issue hadarisen with regard to those convicted and sentenced after the Act had come into forceand so no change was needed in relation to that group.328[236] Those who had been convicted before the Act came into force but sentencedafter that date (including to sentences of imprisonment) did need to be includedexplicitly in sch 1. Otherwise, the aim of the Registration Amendment Act – that thisgroup be included retrospectively back to 14 October 2016, the date the Act came intoforce – would not have been met.329[237] It is also important to remember that Parliament had before it two reports ofthe Attorney-General, both dealing with s 26(2) of the Bill of Rights and the secondone also dealing with s 25(g) of the Bill of Rights and s 6 of the Sentencing Act.Parliament was thus aware that the Attorney-General considered that, in order to be324 Section 5(1) of the Interpretation Act provides: "The meaning of an enactment must be ascertainedfrom its text and in the light of its purpose."325 See the reasons given by O'Regan J above at n 91 and [81].326 See above at [190].327 See the discussion above at [202] of Hutcheson, above n 265; and [206] of R v [J], above n 276.328 See above at [207].329 There were a number of offenders affected by this, due to the Crown policy described aboveat [202], and the mixed caselaw regarding offenders in this group sentenced to imprisonmentdescribed above at [204]–[206].compliant with the Bill of Rights, a review mechanism was needed or shorter periodsfor those affected by retrospectivity.[238] Despite the first report, Parliament passed the original Act, only including anamendment introducing a review of orders for life. Parliament thus may havedisagreed with the Attorney-General's report and considered that the Act was nowcompliant with the Bill of Rights without further amendment. Or alternatively it mayhave decided that it would pass the legislation even if it was not Bill ofRights-compliant (as is its right under s 4 of the Bill of Rights).[239] It is true the Attorney-General's first report did not deal with s 25(g) of the Billof Rights. It is, however, clear from the second report that his view of that sectioncoincided with his view on s 26(2). It is also true that the second Attorney-General'sreport did not deal specifically with those like the appellant convicted after the Actcame into force. This is unsurprising.330 Such reports only deal with the legislationbefore the House and do not suggest amendments to legislation already in force. Inthis case, for the reasons set out above, it was clear that the Act as enacted was intendedto, and did, apply to all those who were convicted after it came into force.[240] There is no policy reason to distinguish between those convicted and sentencedafter the Act came into force and those sentenced after the Act came into force butconvicted before. There is thus no reason to think that the Attorney-General (orParliament) would have come to a different view on the two groups. Indeed, thoseconvicted after the Act came into force did know at the date of their conviction thatthey would either automatically go on the register (if sentenced to imprisonment) or,in the case of a non-custodial sentence, that they may be placed on the register. Theyare therefore less affected by the breach of s 25(g) than a person who, for example,pleaded guilty before the Act was passed only to find at sentencing that a newadditional penalty applied.330 The majority accept that the second Attorney-General's report would not have dealt with this groupbecause it only addressed the provisions of the Registration Amendment Bill rather than theRegistration Act as enacted: see the reasons given by O'Regan J above at [74].[241] Parliament was clearly aware that passing the Amendment Act withoutamendment would, at least in the view of the Attorney-General, unjustifiably limitboth the s 26(2) and the s 25(g) rights. In passing the Amendment Act without makingthe changes suggested by the Attorney-General, Parliament again either disagreed withthe Attorney-General and reached a different conclusion as to whether the Amendmentwas rights-compliant or it accepted the Amendment Act was inconsistent in this regardwith the Bill of Rights and passed it anyway (again as it is entitled to do).Scheme of the Act[242] The majority accepts that the Act has retrospective effect for many offenderswho had offended and been sentenced to imprisonment before the Act came into force(a breach of s 26(2) and s 25(g) of the Bill of Rights).331 The majority also acceptsthat the Act has retrospective effect for those who offended and who were convictedbefore it came into force but who were sentenced afterwards (a breach of s 25(g) ofthe Bill of Rights).332 The majority says, however, that the Act does not haveretrospective effect for those convicted and sentenced after it came into force foroffences committed before the Act came into force.333[243] The Act, therefore, according to the majority, differentiates between a personconvicted on 13 October 2016 and one convicted on 15 October 2016, even if the twopersons offended on the same date and were sentenced on the same date.334 Thereseems no reason in policy why that should be the case. And it would be a very oddscheme if the Act is not retrospective for those convicted after it came into force butis retrospective for many who had already been sentenced before it came into forceand for those already convicted but not yet sentenced. Both of these (and particularlythe first) are more egregious forms of retrospectivity.[244] It must be remembered that the majority reasoning applies not only to thoseconvicted after the Act's commencement who are sentenced to a non-custodialsentence but also to those sentenced to imprisonment.335 This means that an offender331 See the reasons given by O'Regan J above at [81].332 This is implicit in the reasons given by O'Regan J: see above at [77] and [82].333 At [82].334 The Registration Act came into force on 14 October 2016.335 See the reasons given by O'Regan J above at [82].convicted on two charges of rape of a 13-year-old girl for offending occurring inJune 2016 should, according to the majority, not have been registered when he wassentenced in February 2017 to nine years and two months' imprisonment because hepleaded guilty in December 2016.336 Had he pleaded guilty in September 2016, hewould have been registrable. Similarly, an offender convicted in December 2016 oncharges including representative charges of sexual violation by rape and unlawfulsexual connection against a victim who was aged between nine and 14 when the eventstook place between March 2011 and August 2015, is not registrable, although hewould have been had he pleaded guilty three months earlier.337[245] By contrast, the majority accepts that those who, when the Act came into force,had been released from prison at their statutory release date and had reached theirsentence expiry date but who still were subject to standard release conditions are, sincethe Amendment Act, subject to the regime. So, too, is a person like Mr Hutchesoneligible for a registration order, specifically because he was convicted before the Actcame into force as opposed to after.338[246] I also note that the majority's interpretation will continue to affect a significantnumber of cases that Parliament was clearly intending to include under the Act. Thereare often significant delays before child sexual abuse is reported.339 For example, theAustralian Royal Commission into Institutional Responses to Child Sexual Abusecommissioned a research project using police and court data for two decades from themid-1990s in New South Wales and South Australia to examine delayed reporting ofchild sexual abuse.340 In New South Wales, 24 per cent of reports to police of childsexual offences were not made until five or more years later.341 For South Australiathis figure was around 19 per cent.342336 Hart, above n 279.337 R v Reid [2017] NZDC 6835. Mr Reid was sentenced in April 2017 to 16 years' imprisonmentwith a minimum period of imprisonment of eight years. He was registered, which wasuncontentious.338 See above at [202].339 This is recognised in s 127 of the Evidence Act 2006.340 Judy Cashmore and others The impact of delayed reporting on the prosecution and outcomes ofchild sexual abuse cases (report prepared for the Royal Commission into Institutional Responsesto Child Sexual Abuse, University of Sydney, Sydney, August 2016). The New South Wales datawas for 1995 until 2015 and the South Australia data was for 1992 until 2012.341 At 73.342 At 146.[247] There is no reason to believe that the situation is very different in New Zealand.It can be expected therefore that the police are still dealing with a significant numberof offences that occurred before the Act came into force and that there will continueto be offenders who are convicted and sentenced after the Act came into force foroffences committed prior to that date.[248] The clear indication from Parliament was that it did not intend any of the aboveconsequences. Rather, it sought to enact a scheme that would apply to all thoseconvicted after the Registration Act came into force.343 The interpretation of themajority runs counter to this purpose.Demonstrably justified in a free and democratic society?[249] Steps two through four of Hansen require consideration of whether there is aprima facie limitation on a right contained in the Bill of Rights and, if there is, whetherthis limitation is prescribed by law and can be demonstrably justified in a free anddemocratic society.344[250] In this case, the Attorney-General considered that the Act, as amended, is anunjustified limitation on the right contained in s 25(g). However, it is notable that theAttorney-General appears to have considered that retrospectivity itself could havebeen justified if there had been a review mechanism or a shorter period for thoseaffected retrospectively.345[251] Because of the conclusion in the next section, it is not necessary for thepurposes of this appeal to come to any conclusion on whether the Act is an unjustifiedlimitation on the right protected by s 25(g).346343 And later it clarified through the Amendment Act that the regime was to capture all those sentencedafter the commencement date and all those subject to release conditions.344 As set out above at [166].345 Registration Amendment Bill s 7 report, above n 294, at [30]–[33] and [48]. See above at [222].See also the majority reasoning in the Canadian Supreme Court case of R v KRG 2016 SCC 31,[2016] 1 SCR 906. I note that the incursion into offenders' rights was more extensive in that caseas, while also being a retrospective increase in penalty, it enabled orders prohibiting convictedoffenders from engaging in conduct rather than merely reporting requirements on a non-publicregister. On the other hand, there was an ability to tailor the orders to the offenders' circumstancesand a review mechanism in the Canadian legislation.346 Or indeed on the role of the courts with regard to s 5.Is a more rights-consistent interpretation available?[252] In my view, there is only one available interpretation if the text of the Act isread in the light of its purpose, its legislative history and the scheme of the Act. TheRegistration Act applies to all those convicted after the Act came into force, whateverthe date of their offence.347 On the approach of the majority in Hansen, s 6 of the Billof Rights cannot operate to give the Act a more rights-consistent meaning that doesnot accord with its text and purpose. Section 4 of the Bill of Rights, on this approach,means the legislation must be applied.[253] In the United Kingdom the courts have been prepared to go further than inHansen.348 As noted above, Professor Geiringer suggests that in certain cases thecourts in New Zealand should likewise be prepared to override Parliament's purposein enacting a provision. Relevant factors in considering whether they should do soinclude the importance of the right at stake, the nature of the breach, the forcefulnesswith which the purpose was expressed and the legislative history (including whatconsideration Parliament gave to human rights concerns).349[254] In this case the right to a lesser penalty is important, but there are also otherimportant rights at stake – the protection of vulnerable children from major harm, asrecognised by the Attorney-General.350 Further, the requirement to register on anon-public register is a relatively minor incursion into an offender's rights. Parliamentwas also made aware, through the Attorney-General's reports that, without the additionof a review mechanism or a shorter period, the Act breached s 25(g) of the Bill ofRights for those who offended before the Act came into force. It nevertheless decidedto pass the Amendment Act without adding any of the suggested qualifications. Thismeans that not only was Parliament's text and purpose clear, but it also was aware that,at least in the opinion of the Attorney-General, the Act breached s 25(g), and it knew347 In addition to the other groups covered by sch 1.348 See Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557, the far-reaching approach inthat case having (it is said) become the "orthodoxy" in the United Kingdom: Gledhill, above n 207,at 412.349 Geiringer, above n 199, at 89–90. See above at [170].350 See above at [194]–[195].what needed to occur to remedy that breach. This is also not a situation whereParliament was unaware that the legislation unjustifiably limited rights.351[255] In addition, assuming that the Attorney-General is correct, it is notretrospectivity in itself that is the issue – it is the lack of a review mechanism or ashorter period for those affected by retrospectivity. To make the legislation Bill ofRights-compliant, therefore, would require the Court to read in such qualifications.This is something that not even the United Kingdom courts, with a generally morefar-reaching approach, would do. In Ghaidan v Godin-Mendoza, asProfessor Geiringer points out:352 their Lordships held that the courts cannot make decisions for which theyare not institutionally equipped.353 This might be the case, for example ifmaking the legislation Convention-compatible would involve the substitutionof a detailed statutory scheme,354 if a policy choice needs to be made betweendifferent methods for achieving Convention-compliance,355 or if the decisionwould have far-reaching practical repercussions that the courts are notwell-equipped to evaluate.356[256] At least two of those factors exist in this case.357 It would therefore not be acase where a court should override parliamentary purpose, even if that werepermissible.358[257] All of the above means that ss 7 and 9 of the Registration Act apply to all thoseconvicted after the Registration Act came into force, regardless of when theyoffended.359351 Unlike, possibly, in Pora, above n 213: see above at [175]–[176]. I therefore do not need to decidewhether the Elias CJ, Tipping and Thomas JJ approach would apply.352 Geiringer, above n 199, at 80, referring to Ghaidan, above n 348.353 At [33] per Lord Nicholls.354 At [49] per Lord Steyn and [110] per Lord Rodger.355 At [33] per Lord Nicholls.356 At [34] per Lord Nicholls and [115] per Lord Rodger. See also Claudia Geiringer "It'sInterpretation, Jim, But Not As We Know It: Ghaidan v Mendoza, the House of Lords andRights-Consistent Interpretation" (2005) 3(6) Human Rights Research 1.357 For example, a review mechanism created by the courts to assess all those offenders affectedretrospectively would involve the substitution of a detailed statutory scheme.358 As noted above at [170], it is not necessary for the purpose of this case to decide whether it wouldbe permissible or not.359 From the enactment of the Registration Amendment Act, the Registration Act applied to all thosesentenced after it came into force as well as to all those subject to release conditions, and to thoseoriginally covered by sch 1. The Amendment Act itself had retrospective effect to the date theRegistration Act came into force.Application of the Act to the appellant[258] The appellant pleaded guilty after a sentencing indication received on16 October 2017 and was given a non-custodial sentence on 17 January 2018 forqualifying offences committed in May 2016. The Registration Act as amendedtherefore applies in respect of his conviction for a qualifying offence after the Actcame into force. He clearly falls under s 7. The question is whether a discretionaryorder under s 9 should have been made against him.[259] I agree that, once it is determined that s 9 applies to an offender whosequalifying offence was committed before the Registration Act came into force, theissue of retrospectivity has no role in the decision that must be made under s 9(1).360I thus agree that s 9 must be applied to offenders whose offences pre-dated theRegistration Act and to offenders whose offences post-dated the Registration Act inthe same manner.361[260] I agree with Winkelmann CJ and O'Regan J that the exercise undertaken by ajudge in deciding whether to make a registration order is a two-stage process and withwhat this entails.362[261] On the first stage of the process, Winkelmann CJ and O'Regan J assess thelevel of risk of recidivism posed by the appellant as low.363 They also note that theCrown agrees that the risk of the appellant transitioning to physical offending is low.364[262] Their conclusion as to the level of risk of recidivism is based on reports ofDr Rogers that were updated after the District Court sentencing and showed theappellant's "reduced – and reducing" risk through ongoing treatment.365 Theassessment of low risk is thus dependent on changes that have occurred aftersentencing. Like William Young J, I have reservations as to whether it is legitimate in360 See the reasons given by O'Regan J above at [93]–[95] and William Young J below at [300].361 See the reasons given by O'Regan J above at [95]. I agree also that the Hansen methodology isnot appropriate at this point: see above at [99]–[101].362 At [103]–[113].363 At [127]–[128].364 At [130]. This information was before the District Court although not as explicit as in the updatedreport for the High Court.365 At [128].the context of the Registration Act to assess risk by reference to the risk the appellantposes not at the time of sentencing but at the time of appeal, although not for all of thesame reasons.366 I take the view that risk should be assessed at the time of sentencebecause of the scheme of the Registration Act, which (mostly) does not provide for areview of registration orders even if the level of risk has changed.367 At the time ofsentencing the assessment of risk was low-moderate, and in my view it is that level ofrisk that must be considered.368[263] With regard to the second stage of the process, the issue is whether theplacement of the appellant on the register is a proportionate response to the riskidentified (low-moderate), having regard to the limitations on the appellant's rightsarising out of registration. In my view, this proportionality assessment must take intoaccount not just the level of risk of recidivism, but the seriousness of the consequencesif recidivism occurs. In this regard, the appellant's offending was moderately seriousoffending of its type. The likely harm if the offending is repeated is obvious from theamount and nature of the material on the appellant's computer.369 The intrusion on theappellant's rights, on the other hand, is relatively limited given it is not a public registerand the requirements are largely reporting requirements, meaning some relativelyminor inconvenience.370 Further, I do not agree that the requirements other than thoselisted in s 16(1)(m)–(q) are of little or no relevance to those who offend in a similarmanner to the appellant.371 The presence of children in a household where a convictedchild sex offender resides or in any work or leisure organisation in which an offenderis involved is an obvious issue.372 There is at the least the possibility of children beingexposed to harmful material. There is also always a risk that such offenders progress366 See below at [308]–[309].367 I thus agree with [309] of William Young J's reasons. I do not comment on William Young J'smain reason for not taking into account updated material: at [306]–[308]. I thus leave openwhether, in light of s 250 of the Criminal Procedure Act 2011, new information available at thetime of appeal could be considered in other contexts. In other words, I leave open whetherupdating material can be considered in other sentencing appeals.368 There were signs, however, before the District Court of reducing risk as the risk had already beenreduced by the time of sentencing from moderate to low-moderate. The updated reports were atleast relevant (and admissible) to confirm that this assessed trajectory was correct. Even thoughthe Crown did not object to the admission of the updated reports, this does not make themgenerally admissible or relevant to the assessment of risk.369 See the reasons given by O'Regan J above at [28]–[29] and [121]–[122].370 I do of course accept that these are restrictions on protected rights; for instance, the 48-hour noticerequirement affects the right to freedom of movement contained in s 18 of the Bill of Rights.371 See the reasons given by O'Regan J above at [131]–[134].372 Registration Act, s 16(1)(d)–(e) and (h)–(i).to physical as against virtual offending.373 This may be of particular concern, forexample, if offenders were to travel overseas, as normal controls may not be present.374The physical address of an offender is also important to monitor any risk.375[264] In my view, taking all the above into account, the registration order wasproportionate to the level of risk the appellant posed at the time of sentencing and theserious harm that would result from any repeat of the offending to very young andvulnerable children.376 I would have dismissed the appeal.[265] I agree with O'Regan J's discussion on anonymisation.377WILLIAM YOUNG JGeneral position[266] I would dismiss the appeal. This is because I consider that:(a) Sections 7 and 9 of the Child Protection (Child Sex OffenderGovernment Agency Registration) Act 2016, to which I will refer as theRegistration Act, apply to all those sentenced after the commencementof the Registration Act for qualifying offences, including for offencescommitted before commencement. I therefore see those sections ashaving retrospective effect.(b) The making of the registration order was appropriate because:(i) the sentencing Judge rightly assessed the appellant as posing arisk to the lives or sexual safety of children; and373 Although there is a low risk of this in the appellant's case, it is still possible the offending mayescalate.374 See ss 21–23.375 Section 16(1)(d).376 Victims of course have rights too, and, in particular, children have the right to grow up free fromviolence and abuse.377 See the reasons given by O'Regan J above at [136]–[147]. I agree that the updated report isrelevant to the issue of anonymisation.(ii) in the context of the Registration Act, this conclusion was asufficient basis for making the registration order.[267] I agree that the judgment should be anonymised, but this is for reasonsdistinctly more limited than those advanced by the rest of the Court.Registration order regimes – an overview[268] Registration order regimes have their origins in the United States.378 Anexample of such a regime is that provided by the Jacob Wetterling Crimes AgainstChildren and Sexually Violent Offender Registration Act of 1994,379 which wassupplemented in 1996 by what is usually referred to as Megan's Law.380 Less onerousregimes have since been adopted in a number of other jurisdictions, including theUnited Kingdom, Australia and New Zealand.381[269] The underlying purposes of registration order regimes have included thereduction of re-offending and facilitating the investigation of such re-offending as mayoccur. Reduction of re-offending may result from a combination of deterrence andopportunities for monitoring offender behaviour. As well, regimes which provide forpublic notification of, or access to, information in relation to offenders' criminalrecords or impose residential or other restrictions on offenders may limit opportunitiesfor re-offending. This is of some (albeit limited) relevance to the Registration Act asit provides for disclosure in the case of threats in relation to a particular child orchildren (see s 45) and also restricts the ability of offenders to change their names(see ss 52–54).378 The origins of these laws are traced in Charles Patrick Ewing Justice Perverted: Sex Offense Law,Psychology, and Public Policy (Oxford University Press, New York, 2011) at 73–83.379 Enacted through the Violent Crime Control and Law Enforcement Act Pub L No 103–322, title 17§ 170101, 108 Stat 2038 (1994) and in the United States Federal Code as the Jacob WetterlingCrimes Against Children and Sexually Violent Offender Registration Program 42 USC § 14071.380 Enacted through Megan's Law Pub L No 104–145, § 2, 110 Stat 1345 (1996) as a subsection ofthe Jacob Wetterling Act.381 For the United Kingdom, see Part 2 of the Sexual Offences Act 2003 (UK). For Australia, seeChild Protection (Offenders Registration) Act 2000 (NSW); Sex Offenders Registration Act 2004(Vic); Child Protection (Offender Reporting) Act 2004 (Qld); Child Sex Offenders RegistrationAct 2006 (SA); Community Protection (Offender Reporting) Act 2004 (WA); CommunityProtection (Offender Reporting) Act 2005 (Tas); Child Protection (Offender Reporting andRegistration) Act 2004 (NT); and Crimes (Child Sex Offenders) Act 2005 (ACT).[270] There is considerable variation in the detail of these schemes. Such variationextends to:(a) the types of offender the schemes apply to, which may be confined tothose who have offended sexually against children, as in New Zealand,or may encompass other offenders;(b) the intensity of the monitoring; and(c) the extent to which the public have access to the register or associatedinformation.[271] The usual difficulties of establishing cause and effect relationships betweenparticular crime reduction measures and offending patterns apply to registration orderregimes. They are compounded by the substantial variations in the ways in which theregimes operate (with the result that studies have limited cross-jurisdictional value)and a low baseline incidence of recidivism by those convicted of offending sexuallyagainst children.[272] Consistently with this, the regulatory impact statement which accompanied theBill preceding the Registration Act cautiously noted:382There are some constraints on the analysis in this Regulatory ImpactStatement. In particular, there is limited research evidence from otherjurisdictions about the effectiveness of sex offender registers and the bestpractice for long term monitoring of high risk sex offenders in the communityafter their sentences end. This has meant that an estimate of the value of theanticipated benefits has not been possible.In terms of the likely benefits and costs of what was proposed, the regulatory impactstatement went on to say:383There is insufficient information to undertake a cost-benefit analysis of thisproposal. Over ten years, it is estimated that 4 to 34 child sex offenceconvictions may be prevented, as well as the prevention of many undisclosed,or unreported child sex offences. The register will provide for information382 New Zealand Police and Department of Corrections Regulatory Impact Statement: ChildProtection Offender Register and Risk Management Framework (6 June 2014) at 1.383 At [13]–[14].sharing between agencies resulting in additional opportunities for pro-activeinterventions to reduce offending.The 10 year costs for this proposal are $146.054 million comprising the capitaland operating costs of setting up and running the Register as well as theoperating costs associated with managing those on the Register. This costincludes staff time.[273] I will come back later in these reasons to the significance of this analysis.The core statutory provisions[274] Section 7(1) provides:7 Who is a registrable offender?(1) A registrable offender is a person whom a court has, in respect of aconviction for a qualifying offence,—(a) sentenced to imprisonment; or(b) sentenced to a non-custodial sentence and made subject to aregistration order.[275] Primarily in issue in the appeal is s 9 of the Registration Act. It relevantlyprovides:9 Court may make registration order(1) If a court imposes on a person a non-custodial sentence in respect ofa conviction for a qualifying offence, the court may order that theperson must be placed on the register and must comply with thereporting obligations of this Act.(1A) For the purposes of subsection (1), the date on which the person wascharged with the offence is irrelevant.(2) A court may make an order under this section (a registration order)only if the court is satisfied that the person poses a risk to the lives orsexual safety of 1 or more children, or of children generally.Construed literally, s 9(1) applies to anyone who, after the commencement date,receives a non-custodial sentence for a qualifying offence.[276] Heavily relied on by the majority is s 6 of the Sentencing Act 2002:6 Penal enactments not to have retrospective effect to disadvantageof offender(1) An offender has the right, if convicted of an offence in respect ofwhich the penalty has been varied between the commission of theoffence and sentencing, to the benefit of the lesser penalty.(2) Subsection (1) applies despite any other enactment or rule of law.[277] Rather more material, from my point of view, is s 25(g) of the New ZealandBill of Rights Act 1990, which confers on those who are charged:the right, if convicted of an offence in respect of which the penalty has beenvaried between the commission of the offence and sentencing, to the benefitof the lesser penalty:Section 6 of the Bill of Rights Act provides:6 Interpretation consistent with Bill of Rights to be preferredWherever an enactment can be given a meaning that is consistent withthe rights and freedoms contained in this Bill of Rights, that meaningshall be preferred to any other meaning.[278] I agree that a registration order is a penalty and that making a registration orderin relation to offending which was before the commencement of the Registration Actis inconsistent with:384(a) s 6 of the Sentencing Act; and(b) s 25(g) of the Bill of Rights Act (thereby engaging s 6 of that Act as tothe interpretation of the Registration Act).The appellant is subject to the Registration ActOverview[279] In issue is the retrospective application of s 9(1) of the Registration Act. Theconsiderations which apply to this issue also generally apply to s 7 of the Registration384 See the reasons given by O'Regan J above at [55]–[59].Act, which provides for mandatory registration in respect of those sentenced toimprisonment. For ease of discussion I will generally focus on s 9(1).[280] The drafting of the Registration Act is convoluted and, in part, premised onsurprising misunderstandings as to the way in which the courts approach theretrospective application of statutes. As well, there is a reasonably complex legislativehistory. All of this is thoroughly reviewed in the reasons of Glazebrook J, with whom,on this aspect of the case, I substantially agree. Against the background of herexplanation, I can express my reasons in short form.The text and purpose of s 9(1)[281] While there is a good deal of jurisprudence (and debate) as to the properapplication of s 6 of the Bill of Rights Act, the fundamental principle is that it does notrequire the adoption of a rights-consistent interpretation which is inconsistent with theparliamentary purpose.385 I see this as bringing into play, and not displacing, thedirection in s 5(1) of the Interpretation Act 1999:5 Ascertaining meaning of legislation(1) The meaning of an enactment must be ascertained from its text and inthe light of its purpose.So to be specific, I do not see it as consistent with their proper role for the courts tointerpret a statutory provision so as to produce a result which is inconsistent with itstext and purpose.[282] If s 9 of the Registration Act stood alone, I would construe it as applying onlyto offences committed after the commencement of the Act. This would be on the basisthat, consistently with s 25(g) of the Bill of Rights Act, it would be appropriate toattribute to Parliament the purpose of not legislating retrospectively. I would thusconstrue it as if it read:If a court imposes on a person a non-custodial sentence in respect of aconviction for a qualifying offence committed after the commencement of this385 R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1 at [61] per Blanchard J, [156] and [158] perTipping J and [252] per McGrath J.Act, the court may order that the person must be placed on the register andmust comply with the reporting obligations of this Act.[283] That interpretation, however, is impossible for textual reasons. Mostrelevantly, "qualifying offences" are defined in the Registration Act as includingoffences under provisions which had been repealed before the commencement date.It follows that "qualifying offence" cannot sensibly be treated as encompassing onlyoffences committed after the commencement date.[284] As I understand the majority approach, s 9(1) should be read as if it said:If a court imposes on a person a non-custodial sentence in respect of aconviction for a qualifying offence either committed after the commencementof this Act or as stipulated in the transitional provisions, the court may orderthat the person must be placed on the register and must comply with thereporting obligations of this Act.[285] This approach involves a reasonably complex insertion into s 9(1) which I seeas flatly inconsistent with the purpose of the Registration Act.386 Again, there are anumber of reasons for this which are explored in the reasons of Glazebrook J. I willtherefore confine myself to two of them (which, as will become apparent, overlap):(a) Under the transitional provisions, those convicted before, but sentencedafter, the commencement date in respect of a qualifying offence aresubject to the registration order regime.387 That transitional provisionwould be completely illogical unless those convicted and sentencedafter the commencement date are likewise subject to the registrationorder regime (which, after all, is what s 9 says). On the approach of themajority, that transitional provision is a transition to nowhere.(b) On the approach adopted by the majority, the application of theRegistration Act to those who offended before its commencement dateis based on a haphazard scheme which could not have been within thepurpose of any rational legislature.386 Which Glazebrook J outlines above at [234]–[241] of her reasons, and the majority accepts at n 91.387 Child Protection (Child Sex Offender Government Agency Registration) Act 2016 [RegistrationAct], s 5 and sch 1 cl 1(2) and (4).[286] For essentially the same reasons, I see the text and purpose of the relevantprovisions of the Registration Act as so clearly requiring retrospective application asto leave no scope for the argument that s 6 of the Sentencing Act is controlling. TheRegistration Act prevails as the later and more specific statute. As will be apparent, Iadopt the approach to this issue which was favoured by Gault, Keith and McGrath JJin R v Pora.388Section 9(1A)[287] Section 9(1A) is problematical. It is expressed in clarificatory terms; as havingthe apparent purpose of making explicit something which might otherwise have beenonly implicit or perhaps open to doubt on the wording of s 9(1). If s 9(1) is to beconstrued literally – which I consider it is – the date of charge is irrelevant. So, s 9(1A)is correct – in that on the true interpretation of s 9(1) the date of charge is irrelevant.The problem with s 9(1A) is that it assumes an issue – the possible relevance of thedate of charge – which did not exist. For that reason, s 9(1A) does not add much, ifany, clarification to s 9(1), save perhaps that it provides an illustration of how s 9(1)operates – that is, as applying where charges were laid before 14 October 2016. It is,however, not unusual for "avoidance of doubt" clauses to address a doubt which is ofno moment. Provided the provision in respect of which doubt is avoided is construedconsistently with the avoidance of doubt clause, coherence is preserved.[288] While a clarificatory provision may often be surplus to requirements (becauseclarification was not required) it would be unusual for a court to conclude that aclarificatory provision is plain wrong. To construe s 9(1) as never being able to beapplied where charges were laid prior to 14 October 2016 would be to contradicts 9(1A).[289] On any view, the legislature has made a mistake; either in thinking that therewas a problem to be addressed relating to the date of charge or in the wording ofs 9(1A). Given the clear legislative purpose of maintaining retrospective applicationof s 9(1) evident from the amendments to the Registration Act and the legal irrelevanceof the date of charge, I would, if necessary, read "was charged with" in s 9(1A) as388 R v Pora [2001] 2 NZLR 37 (CA) at [116]."committed". So construed, s 9(1A) would resolve a doubt which some mayexperience as to the otherwise retrospective effect of s 9(1). Since that is a doubt thatI do not share, my conclusion as to s 9(1)'s effect is not dependent on my reading ofs 9(1A).The making of the registration order was appropriateThe jurisdiction to make an order[290] Having imposed a non-custodial sentence on the appellant in respect of aqualifying offence, the sentencing Judge was required to consider whether to make aregistration order against the appellant. For the purposes of s 9(2), the sentencingJudge was satisfied that the appellant posed a "risk to the lives or sexual safety of 1 ormore children, or of children generally".389 That conclusion was upheld in the HighCourt390 and Court of Appeal391 and is accepted by Winkelmann CJ, Glazebrook andO'Regan JJ in this Court.392 I also agree with it.[291] Accordingly I am satisfied that the sentencing Judge had jurisdiction to makea registration order.A two-stage process?[292] A registration order can only be imposed if the sentencing judge is satisfiedthat the offender "poses a risk to the lives or sexual safety of 1 or more children, or ofchildren generally". I agree that it is only if a risk is "real" that a registration ordermay be made. Other terms that might be applied are "genuine" or "tangible". I seeno basis in the statutory language for imposing a higher threshold.[293] A person who has committed a qualifying offence and poses a real risk to thelives or sexual safety of children might be thought to be an obvious candidate for aregistration order. Where, as here, the jurisdiction to make a particular order turns on389 New Zealand Police v [D] [2018] NZDC 665 (Judge David Sharp) at [17].390 [D] v New Zealand Police [2018] NZHC 563 (Lang J) at [55].391 [D] v New Zealand Police [2019] NZCA 30, [2019] 2 NZLR 778 (Kós P, French and Gilbert JJ)at [42].392 See the reasons given by O'Regan J above at [128] and Glazebrook J above at [262].Ellen France J did not comment on this issue.a conclusion which largely occupies the ground as to whether that order should bemade, it may be open to a court to conclude that the jurisdiction threshold is not onlya necessary, but also a sufficient, precondition to the making of that order.[294] As the regulatory impact statement makes clear, it was always envisaged thatthe registration order regime would prevent only a limited number of sexual offencesagainst children – in respect of those that would be reported, perhaps as few as four oras many as 34, over 10 years.393 The corollary of this is that it was recognised that theregistration order regime would make no relevant difference to the future offending(or non-offending) of the vast majority of those to whom it would apply. This is afunction of the low baseline level of recidivism for child sex offenders and the likelylimited efficacy of the registration regime when looked at offender by offender. Theefficacy assumption on which the regime is predicated rests on a widely cast net. Itfollows that the approach of the Chief Justice and Glazebrook and O'Regan JJ – thata registration order should only be imposed under s 9 if assessed by the sentencingjudge as proportionate to the risk the particular offender poses – will operate tofrustrate the legislative purpose. This is because, viewed individual offender byindividual offender, the likelihood of a registration order making a difference willalways be extremely low.[295] Although the restrictions associated with a registration order are penal incharacter, they are of limited moment. The legislature has provided for them on a "onesize fits all" basis. It seems to me to be unlikely that the legislature envisaged that themaking of a registration order would turn on an assessment of the proportionality ofeach of the restrictions (or their totality) to the risk posed by the particular offender.Rather, the legislative assumption is that registration orders are appropriate for thosewho are convicted of qualifying offences and pose a risk to the lives or sexual safetyof children.[296] On my approach to the legislative scheme, the risk assessment is essentiallybinary. If there is no risk, an order cannot be made. If there is a risk, an order will, atleast in ordinary circumstances, be appropriate. The Chief Justice and Glazebrook and393 See above at [272].O'Regan JJ accept that the jurisdiction to make an order does not turn on there beinga "heightened risk". Yet, in concluding that a registration order was not appropriate,Winkelmann CJ and O'Regan J say:394Our assessment is that the level of risk that the appellant poses to the sexualsafety of children is not of sufficient gravity to justify the making of aregistration order with the consequent impacts on the appellant's rights.The corollary of this is that where the making of an order is discretionary, more thana "risk" to the lives and sexual safety of children will always be required, a conclusionwhich I see as inconsistent with the legislative scheme and purpose.[297] Also relevant to me is the requirement for registration in the case of an offenderwho is sentenced to imprisonment. Whether what would otherwise be a sentence ofimprisonment is, in effect, commuted to one of home detention depends on a varietyof factors, some of which could not be seen as material to the appropriateness of aregistration order. The culpability of an offender sentenced to 12 months' homedetention is likely to be more than one who is sentenced to six months' imprisonment.[298] I do not go as far as saying that a registration order should be imposed in everycase in which an offender who has committed a qualifying offence poses a risk to thelives or sexual safety of children. But that said, I am of the view that the combinationof a conviction for a qualifying offence and a risk to the lives or sexual safety ofchildren is a sufficient basis for the making of such an order.[299] As will be apparent, in respect of this aspect of the case, I agree withEllen France J.Allowance for retrospectivity?[300] I agree with the view expressed in the reasons of the majority that at this pointin the process no allowance need be made for retrospectivity.395394 See the reasons given by O'Regan J above at [135]. Glazebrook J agrees with this approach tos 9: above at [260].395 See the reasons given by O'Regan J above at [95], with whom Glazebrook J agrees above at [259].Did the lower courts erroneously take into account offending not covered by theRegistration Act?[301] Section 9(3) of the Act is set out in the reasons given by O'Regan J.396 Itprovides a list of matters which the court must consider in assessing risk. One of these,in s 9(3)(a), is "the seriousness of the qualifying offence".[302] In assessing the seriousness of the offending, the High Court and Court ofAppeal had regard to the overall starting point (of 30 months' imprisonment) adoptedby the sentencing Judge. That starting point included allowance for offending underthe Films, Videos, and Publications Classification Act 1993 of a sexual character butwhere the other party was over 16 and was thus not a qualifying offence for thepurposes of the Registration Act.[303] The approach adopted in the reasons given by O'Regan J is that in assessingrisk by reference to a starting point sentence which encompassed non-qualifyingoffences, the High Court and Court of Appeal, and perhaps the District Court, were inerror.[304] I see this as an inconsequential issue. Yes, the non-qualifying offending didnot fall to be considered under s 9(3)(a). But given the relevance of this offending tothe likelihood of the appellant re-offending against children, both generally and inways that involve contact, it was plainly able to be taken into account under s 9(3),which also provides for consideration of:(i) any other submission or evidence relating to the risk posed by theperson:(j) any other matter that the court considers relevant.A reducing level of risk?[305] As recorded in the reasons given by O'Regan J, additional risk reports havebeen provided at each stage of the appellate process. These reports suggest that, withthe effluxion of time since sentence, the risk posed by the appellant has reduced. Theapproach adopted in the reasons given by O'Regan J has been to determine whether a396 See the reasons given by O'Regan J above at [20].registration order ought to have been made by reference not to the risk posed by theappellant at the time he was sentenced, but rather the risk he now poses, over threeyears later. I confess to some reservations about this.[306] Section 250 of the Criminal Procedure Act 2011 (which applied to the appealfrom the District Court to the High Court) provides:250 First appeal court to determine appeal(1) A first appeal court must determine a first appeal under this subpart inaccordance with this section.(2) The first appeal court must allow the appeal if satisfied that—(a) for any reason, there is an error in the sentence imposed onconviction; and(b) a different sentence should be imposed.(3) The first appeal court must dismiss the appeal in any other case.[307] The language of s 250 requires that the focus of the exercise is whether therewas an error in the sentence.397 This suggests that the focus should be on the positionas it was at the time of sentence. This does not exclude new evidence, at least if it isaddressed to the situation as it was at the time of sentence. On this basis I would haveno difficulty with an appeal being decided on the basis of new evidence which showsthat the level of risk posed by the offender at the time of sentencing was overstated.But I see no basis for a conclusion to that effect.[308] The logic of the approach of the Chief Justice and O'Regan J is that aregistration order which might be well justified on the basis of the level of risk posedby the offender at the time of sentence can be challenged later (in this case, in thisCourt, over three years later) on the basis that the level of risk has subsequentlyreduced. This does not sit easily with s 250 as a diminishing level of risk over timedoes not imply that there was an error in the sentence when it was imposed.397 The same focus is apparent from the language used in s 256 of the Criminal Procedure Act 2011(which applied to the appeal from the High Court to the Court of Appeal) and s 259 of the CriminalProcedure Act (which applies to this appeal from the Court of Appeal).[309] I do not propose a doctrinaire approach to the admission of new evidence onsentence appeals; this because I accept that appellate courts have, on rare occasions,allowed appeals based on changes in circumstance after sentencing. But, as is notedby O'Regan J, the Registration Act does not provide for reviews of registration orders.In this context, allowing an appeal, over three years after sentencing, on the basis of adiminishing level of risk does not sit easily with the legislative scheme.So should the registration order be set aside?[310] As will be apparent, I would dismiss the appeal. At the time of sentencing, theappellant posed a real risk to the lives or sexual safety of children. In the context ofthe statutory scheme, the making of the registration order was appropriate.Anonymity[311] Given what I regard as the limited practical (as opposed to theoretical) impactof the registration order on the appellant and the significant potential impacts on himof reporting in the news media, he was unwise to proceed with appeals to theHigh Court and Court of Appeal without having secured orders for anonymisation orsuppression in advance of those appeals being heard. If refused anonymisation orsuppression, he could then have made an informed decision whether to proceed.[312] As events have occurred, the adverse consequences for him of the publicity hehas attracted as a result of the Court of Appeal judgment will outweigh what I thinkare the limited practical benefits of securing the discharge of the registration order. Inlarge measure this is because of the way in which the Court of Appeal judgment wasstructured. I have in mind the appellant's name being used no less than 64 times inthe judgment. This is apparently the reason why, prior to our leave judgment, theCourt of Appeal judgment was the first item to appear on a Google search of hisname.398 As well, the extensive discussion of his background, medical history andpsychological reports in the Court of Appeal judgment has put into the public domainfar more adverse information about him than would have been revealed had hissentencing in the District Court received news media coverage at the time.398 The first item is now our leave judgment.[313] As it has turned out, he has been successful in his appeal. If we do notanonymise references to him, the associated round of publicity (at a time when theevidence is that the risk he poses to children is more limited than it has been in thepast) will result in this success being Pyrrhic. As well, anonymising the judgmentdoes not detract from the ability of the public to understand the issues the case raisedand how they have been dealt with.[314] For these reasons, which are very particular to this case, I do not opposeanonymisation (including the recall and reissue of the leave judgment). I am, however,distinctly uneasy about the breadth of the reasons given by O'Regan J. In particular,I do not accept that there should be anything approaching a presumption thatanonymisation or suppression is appropriate in cases in which registration orders arechallenged.[315] While it is true that the contents of the Child Sex Offender Register areconfidential, the making of registration orders is not. The appellant was made subjectto a registration order in open court when he was sentenced. It would have beenentirely open to the news media to report that at the time. For sentencing remarksdelivered in open court, anonymisation is not a practical option and I do not acceptthat the confidentiality of the register justifies suppressing publication of theimposition of registration orders. There being no basis for routine suppression of theimposition of registration orders, I can see no logical basis why later proceedings byway of challenge to such orders should be subject to routine anonymisation orsuppression.Solicitors:Tucker & Co, Auckland for AppellantCrown Law Office, Wellington for Respondent