THE NZ PAROLE BOARD v THE ATTORNEY-GENERAL [2023] NZHC 1611

THE NZ PAROLE BOARD v THE ATTORNEY-GENERAL [2023] NZHC 1611 [27 June 2023]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2022-485-0280[2023] NZHC 1611UNDER the Declaratory Judgments Act 1908 andPart 18 of the High Court RulesIN THE MATTER of an application for a declaratory judgmentin respect of the meaning of s 107K(3)(bb)of the Parole Act 2002BETWEEN THE NEW ZEALAND PAROLE BOARDApplicantAND THE ATTORNEY-GENERALRespondentHearing: 20 October 2022 and 3 February 2023Counsel: M S Smith and V J Owen for ApplicantM J McKillop for RespondentA S Butler KC and D T Haradasa for The Human RightsCommission | Te Kāhui Tika Tangata (Intervener)Judgment: 27 June 2023JUDGMENT OF ISAC J[Application for declaratory judgment]TABLE OF CONTENTSPara NoIntroduction and the issues [1]Why this proceeding? [11]Legal framework [20]Issue 1: does s 107K(3)(bb)(ii) prevent an accommodation providerfrom also providing rehabilitative programmes to offenders? [34]Submissions for the Human Rights Commission [36]Submissions for the Parole Board and Attorney-General [45]ConsiderationText, purpose and context [58]Legislative history of amendments to the ESO regime [62]The text of s 107K [69]The text of s 16 [79]Conclusions [83]Issue 2: what is the scope of the prohibition in s 107K(3)(bb)(ii)? [90]Issue 3: does the Parole Board have the power to self-initiate reviewhearings? [92]Submissions for the parties [93]Consideration [99]Conclusion and result [104]Introduction and the issues[1] Individuals who have completed a prison sentence are ordinarily free to returnto the community and enjoy the same freedoms as everyone else. However, Parliamenthas decided that the community needs special protection from a small proportion ofoffenders: those who pose a high risk of serious sexual or violent reoffending uponrelease. It has created two types of court-imposed order to manage the risks thesepeople present.[2] The first and most restrictive is a public protection order (PPO) made underthe Public Safety (Public Protection Orders) Act 2014. A person subject to a PPO isrequired to stay in a residence designated by the Chief Executive of the Departmentof Corrections, which in practice are secure facilities within prison precincts.1 PPOrecipients are under highly restrictive conditions which bear many similarities to aprison environment.2 In some cases, a PPO offender's risk may be so serious that itjustifies their detention in prison instead of within a residence.3[3] The second order is an extended supervision order (ESO) made under Part 1Aof the Parole Act 2002, and is the focus of this judgment. In general terms, ESOsenable the Parole Board to impose restrictions and conditions on offenders to monitorand assist their rehabilitation and reintegration into the community.[4] Under the Parole Act a sentencing court may make an ESO where it is satisfiedan offender has exhibited a pervasive pattern of serious sexual or violent offendingand poses a real and ongoing risk of committing such offences in the future. Unders 107K(1) of the Parole Act, the Parole Board is then given a discretion to imposespecial conditions on ESO offenders. These can include residential restrictions andintensive monitoring which require an offender to reside at a particular place, or be1 Public Safety (Public Protection Orders) Act 2014, s 20. In Chisnall v Chief Executive ofDepartment of Corrections [2019] NZCA 510 at [45], the Court of Appeal said that the centralfeature of a PPO is the detention of the resident in a secure "behind the wire" residence".2 See Chisnall v Attorney-General [2021] NZCA 616, [2021] 2 NZLR 484 at [5]–[6]. Residentsmust comply with lawful directions given by the residence manager, residence staff members,corrections officers and police employees. Written communications may be checked and withheld,items intended for the person may be inspected, telephone calls may be monitored, and residentsmay be searched. Residents may be placed in seclusion and restrained.3 Public Safety (Public Protection Orders) Act, s 85(1).subjected to person-to-person supervision, for certain times of the day. The Board canalso impose programme conditions, which require offenders to participate inrehabilitative and reintegrative activities such as counselling, drug and alcoholtherapy, education or employment.[5] However, the Parole Board's power to impose special conditions is in turnsubject to a series of limitations which are set out in s 107K(3) of the Parole Act. Inthis proceeding, the Parole Board seeks declarations clarifying the scope of one suchlimit, which it says has been a source of uncertainty. Section 107K(3)(bb)(ii) providesthat when the Board imposes special conditions on ESO offenders:(bb) any condition requiring the offender to participate in a programme(as referred to in section 15(3)(b)) must not—(ii) require the offender to reside with, or result in the offenderresiding with, any person, persons, or agency in whose carethe offender is placed; [6] The central issue in this case is whether s 107K(3)(bb)(ii) imposes a bright lineprohibition preventing a single agency from ever providing an offender'saccommodation as well their rehabilitative programme.[7] The Human Rights Commission intervened in this proceeding to provide theCourt with an alternative perspective to that of the parties.4 The Commission submitsthat s 107K(3)(bb)(ii) means one organisation can never provide both accommodationand deliver rehabilitation because the clear purpose of the provision is to prevent ESOoffenders from being subject to de facto 24 hour supervision or monitoring by a singleorganisation. It says that Parliament's intention was to limit the extent of intrusion intos 26(2) of the Bill of Rights Act 1990—the protection against double punishment—byensuring that offenders who have served their prison sentence are not subjected to asecond form of detention.4 The first hearing was held on 20 October 2022. Given the parties' adopted closely similar positionsin the application, I considered that it would be helpful to hear from a contradictor. After hearingfurther submissions from the parties on that matter, in a Minute of 9 November 2022, I directedthe Registrar to enquire as to whether the Human Rights Commission would be prepared tointervene and provide its perspective. The Commission confirmed that it was willing to act ascontradictor. Accordingly, a second hearing was held on 3 February 2023.[8] The Parole Board and Attorney-General argue that the purpose ofs 107K(3)(bb)(ii) is to prohibit intensive monitoring, or an at all time residentialrestriction, by stealth. They submit that an organisation is only prohibited fromproviding both accommodation and rehabilitative programmes where the totality ofthe conditions would require the offender to be at a residential address 24 hours a day.A blanket approach requiring separate agencies to provide accommodation andrehabilitative programmes would create significant operational and resourcingdifficulties in managing some offenders subject to ESOs. Not only would this disruptthe rehabilitation and reintegration of offenders, in some cases it may render an ESOunavailable, and require the Board to consider utilising the more restrictive PPO tomanage the offender's risk.[9] The Parole Board seeks a declaration in the following terms:Section 107K(3)(bb) of the Act does not prevent the Board from imposing aspecial condition that enables an offender to reside with his or her programmeprovider at the programme provider's residence.[10] The Board identifies two issues for the Court to determine. In turn, theAttorney-General raises a further issue relating to the powers of the Parole Board.Accordingly, three questions arise for consideration:(a) First, does s 107K(3)(bb)(ii) prevent an accommodation provider fromever providing rehabilitative programmes?(b) Second, if it does not, what limits, if any, does s 107K(3)(bb)(ii)establish on the Board's ability to impose conditions that enable anoffender's accommodation provider to also provide rehabilitativeprogrammes?(c) Finally, does the Parole Board have the power to revisit its decisionsimposing special conditions in the event its previous decisions arefound to be inconsistent with the law?Why this proceeding?[11] The genesis of this case is the High Court's decision in C v New Zealand ParoleBoard.5 In 2016, C was made subject to an ESO for a period of seven years, withintensive monitoring for six months and an at all time residential restriction for12 months. He was placed in a residential complex situated on prison land adjacent tothe Spring Hill Corrections Facility. On his arrival, the complex was run byCorrections officers, while intensive monitoring and reintegrative and rehabilitativeservices were provided by Te Roopu Taurima o Manukau. However, in May 2017, theAnglican Action Mission Trust took over the intensive monitoring and rehabilitativeservices and also assumed responsibility for the management and operation of theSpring Hill complex. Further, in June 2017, the Parole Board imposed a conditionunder s 16(c) of the Act placing C in the care of Anglican Action.[12] C brought judicial review proceedings claiming that Corrections had breacheds 107K(3)(bb)(ii) by arranging for his reintegrative programmes to be provided by thesame agency that was responsible for managing his accommodation. In upholding C'sclaim, Lang J considered it evident from the wording of s 107K(3)(bb)(ii) that:6 the section prohibits any condition in an ESO that results in an offenderresiding with any agency in whose care that person has been placed. Thesection is obviously designed to prevent offenders from being subject to thesupervision and direction of a single agency for 24 hours every day as wouldbe the case in a custodial environment.[13] Sir Ronald Young, the chair of the Parole Board, has provided an affidavitexplaining that the decision in C has created significant uncertainty for the Board inrelation to the interpretation of s 107K(3)(bb)(ii). He explains that prior to C, theBoard had approached the section on the basis that an offender could live with aprogramme provider if both residence conditions7 and programme conditions8 werethe subject of separate consideration and complied with s 15(2).9 He noted that it is arelatively common practice for Corrections to encourage the Board to impose such5 C v New Zealand Parole Board [2021] NZHC 2567.6 At [19].7 Pursuant to s 15(3)(a) of the Parole Act 2002.8 Pursuant to s 15(3)(b).9 Section 15(2) requires that special conditions must be designed to reduce the risk of reoffending,facilitate or promote rehabilitation and reintegration, provide for the reasonable concerns ofvictim, or comply with intensive monitoring orders.conditions. Sir Ronald Young explained that many of the programme providers alsohave suitable accommodation for those subject to ESOs, and that findingaccommodation for these people can otherwise be difficult, "especially for thoseoffenders who, because of their risk, require close supervision".[14] Following the decision in C, the Parole Board undertook a review of currentESOs and identified 21 cases where offenders were living with their programmeproviders. The Board called hearings with Corrections, the offenders and their counselto review the existing ESO conditions. It then made "[v]arious orders affecting thespecial conditions relating to accommodation and programme attendance".[15] A further affidavit was provided by Ms Brittany McNamara, National Managerof High Risk at the Department of Corrections. She is responsible for the team taskedwith managing high-risk offenders in prison and the community. Her evidence is thatthere are 270 people subject to ESOs in New Zealand, 220 of whom are in thecommunity. Almost all of them are subject to programme conditions of some kind.[16] Ms McNamara deposed that there are 20 offenders who have programmeconditions delivered by the organisation that also provides their accommodation.Fourteen live in houses situated on Corrections land, inside the prison grounds but"outside the wire".10 Ms McNamara explained that the Department provided thesehouses because "it is often difficult to find acceptable housing for the riskiest ESOoffenders in the community". Of the remaining offenders in question, five reside withanother community accommodation provider and one remains in prison.Ms McNamara noted that, in contrast to parolees, it is the residential condition, notthe programme condition, that dictates where an ESO offender must live.[17] Ms McNamara's view is that the combinations of residence and programmeconditions on the 20 offenders identified are necessary to respond to the risk ofreoffending that they pose. She considers that if the Court were to find that single-agency provider arrangements are impermissible under s 107K(3)(bb)(ii) that10 There are three such facilities in New Zealand: Kaainga Taupua (on the grounds of Spring HillCorrections Facility, operated by the Anglican Action Mission Trust); Te Korowai (on the groundsof Rimutaka Prison), and Tōruatanga (on the grounds of Christchurch Men's Prison).Corrections would need to consider making applications for the more restrictive PPOsin respect of some or all of those offenders.[18] In short, this proceeding has implications for the way that the Parole Board andCorrections make, implement and source rehabilitation for some of the country'shighest risk offenders, and directly affects offenders who are or might be subject to aone agency model. It is against this backdrop that the question of interpretation arises.[19] Before turning to consider the central issue, it I first turn to outline the legaland statutory context in which it arises.Legal framework[20] In 2004, Parliament amended the Parole Act by introducing the ESO regime ina new Part 1A.11 It now provides that a sentencing court may make an ESO in respectof offenders who have demonstrated a pervasive pattern of serious sexual or violentoffending and there is a high or very high risk they will do so again.12[21] Section 107K(1) empowers the Parole Board to impose special conditions onoffenders subject to ESOs:107K Board may impose special conditions(1) At any time before an extended supervision order expires or iscancelled, and whether or not it has come into force, the Board may,on an application by the chief executive or a probation officer, imposeon the offender any special condition that the Board is entitled toimpose under section 15.[22] Section 15 then sets out a non-exhaustive list of the special conditions that maybe imposed, as well as the purposes that they must address:15 Special conditions(1) The Board may (subject to subsections (2) and (4)) impose any 1 ormore special conditions on an offender.11 The Parole Act provisions most relevant to this interpretive exercise are set out in full as anappendix to this judgment.12 Parole Act, s 107I(2); and Chisnall v Attorney-General, above n 2, at [1]. The introduction of the"pervasive pattern" requirement was one of several significant amendments to the ESO regime in2014.(2) A special condition must not be imposed unless it is designed to—(a) reduce the risk of reoffending by the offender; or(b) facilitate or promote the rehabilitation and reintegration of theoffender; or(c) provide for the reasonable concerns of victims of the offender;or(d) comply, in the case of an offender subject to an extendedsupervision order, with an order of the court, made undersection 107IAC, to impose an intensive monitoring condition.(3) The kinds of conditions that may be imposed as special conditionsinclude, without limitation,—(a) conditions relating to the offender's place of residence (whichmay include a condition that the offender reside at a particularplace), or his or her finances or earnings:(ab) residential restrictions:(b) conditions requiring the offender to participate in aprogramme (as defined in section 16) to reduce the risk offurther offending by the offender through the rehabilitationand reintegration of the offender:(ba) conditions prohibiting the offender from doing 1 or more ofthe following:(i) using (as defined in section 4(1)) a controlled drug:(ii) using a psychoactive substance:(iii) consuming alcohol:(c) conditions that the offender not associate with any person,persons, or class of persons:(d) conditions requiring the offender to take prescriptionmedication:(e) conditions prohibiting the offender from entering orremaining in specified places or areas, at specified times, orat all times:(f) conditions requiring the offender to submit to the electronicmonitoring of compliance with any release conditions orconditions of an extended supervision order, imposed underparagraph (ab) or (e), that relate to the whereabouts of theoffender:(g) an intensive monitoring condition, which must, and may only,be imposed if a court orders (under section 107IAC) theimposition of an intensive monitoring condition. (emphasis added)[23] An intensive monitoring condition—as provided for in s 15(3)(g)—requires anoffender to be accompanied and monitored for up to 24 hours a day by a personauthorised to undertake person-to-person monitoring. Importantly, the maximumduration of an intensive monitoring condition is 12 months.13 Further, an offender maynot be subjected to an intensive monitoring condition more than once, even if they aresubjected to repeated ESOs.14[24] Similarly, residential restrictions are imposed under s 33 of the Parole Act. Thisincludes the power to impose an "at all times" residential restrictions, requiring anoffender to be resident—quite literally—at all times at the specified address. As withintensive monitoring, an at all times residential restriction may only be imposed for amaximum of 12 months, and even if an ESO is renewed.15[25] Section 15(3)(b) permits the Parole Board to impose a condition requiring anoffender to participate in a "programme" as defined in s 16. In turn, s 16 provides:16 ProgrammesFor the purposes of section 15, a programme means any of thefollowing:(a) any psychiatric or other counselling or assessment:(b) attendance at any medical, psychological, social, therapeutic,cultural, educational, employment-related, rehabilitative, orreintegrative programme:(c) placement in the care of any appropriate person, persons, oragency, approved by the chief executive, such as (withoutlimitation)—(i) an iwi, hapu, or whanau:(ii) a marae:(iii) an ethnic or cultural group:(iv) a religious group, such as a church or religious order:(v) members or particular members of any of the above.13 Section 107IAC(3).14 Section 107IAC(5).15 Section 33(2)(c)(ii) and (3).[26] Section 16 is central to the arguments of the parties and the Commission in thiscase. It is useful to note at this juncture that particular emphasis is placed on what arereferred to as an "in the care of" programme placement condition under s 16(c), whichinvolves placing an offender in the care of an agency. That may be contrasted withprogramme conditions imposed under s 16(a) and (b), which contemplate conditionsrequiring an offender to attend a particular rehabilitative programme or psychiatricassessment.[27] As noted earlier, s 107K(3) imposes restrictions on the Board's power toimpose programme conditions under s 107K(1). In issue in this case is subs (3)(bb),introduced to the Act in 2014 by the Parole (Extended Supervision Orders)Amendment Act, which provides:(3) When the Board imposes special conditions under this section, —(bb) any condition requiring the offender to participate in aprogramme (as referred to in section 15(3)(b)) must not—(i) require that the offender be, or result in the offenderbeing, supervised, monitored, or subject to otherrestrictions, for longer each day than is necessary toensure the offender's attendance at classes orparticipation in other activities associated with theprogramme; or(ii) require the offender to reside with, or result in theoffender residing with, any person, persons, or agencyin whose care the offender is placed; [28] Section 107ZB, a transitional provision, seeks to ensure that ESOs imposedbefore the commencement of the 2014 Amendment Act, do not have conditions thatbreach the new restrictions on programme conditions in s 107K(3)(bb). Thetransitional provision, at s 107ZB(1)(c)(i) and (ii), expressly acknowledges the newlimitation on the Board's power in s 107K(3)(bb)(i) and (ii):107ZB Modification of conditions on extended supervision orders inforce before this section comes into force(1) This section applies to an offender who is subject to an extendedsupervision order—(a) that was imposed before this section comes into force; and(b) that includes a condition, imposed under section 15(3)(b),requiring the offender to participate in a programme; and(c) where the terms of that condition—(i) require that the offender be, or result in the offenderbeing, supervised, monitored, or subject to otherrestrictions, for longer each day than is necessary toensure the offender's attendance at classes orparticipation in other activities associated with theprogramme; or(ii) require the offender to reside with, or result in theoffender residing with, any person, persons, oragency in whose care the offender is placed.(2) Where this section applies, the Board must, within 2 years after thedate on which this section comes into force, review the conditionimposed under section 15(3)(b) on the offender and either cancel thecondition, or adjust it so that it complies with section 107K(3)(bb).(3) If the Board has not conducted and completed the review requiredunder this section by the close of the day that is 2 years after the dateon which this section comes into force, the condition requiring theoffender to participate in a programme is cancelled.[29] In its recent decision in Chisnall v Attorney-General, the Court of Appeal heldthat the entire ESO regime is inconsistent with s 26(2) of the Bill of Rights Act 1990.16That section provides:26 Retroactive penalties and double jeopardy(2) No one who has been finally acquitted or convicted of, or pardonedfor, an offence shall be tried or punished for it again.[30] The Court held that an ESO is a criminal penalty imposed in addition to theprevious sentence and therefore constitutes a second punishment. It described this as"a marked departure from the legal order reflected in s 26(2)".17[31] While the Court accepted that the prevention of serious sexual and violentoffending is a very important objective, and that the ESO regime is rationally16 Chisnall v Attorney-General, above n 12.17 At [218].connected with that purpose, it concluded that the Crown had failed to providesufficient evidence to justify the departure from s 26(2):18 the importance of the s 26(2) right requires greater justification before itcan be accepted that either regime is demonstrably justified in a free anddemocratic society, having regard to the need to establish both proportionalityand minimum impairment of the right for achieving the purpose.[32] The Court of Appeal's decision in Chisnall has been appealed to the SupremeCourt, but at the time of writing this judgment its decision has not been released.[33] While the Court of Appeal's declarations of Bill of Rights inconsistencyprovide an important backdrop for the current proceeding, they of course do not affectthe validity or enforceability of the ESO regime.19 I therefore turn to consider the firstissue.Issue 1: does s 107K(3)(bb)(ii) prevent an accommodation provider from alsoproviding rehabilitative programmes to offenders?[34] Before turning to the submissions, it is useful to provide an overview of therespective positions adopted by the parties and the Commission. They all agreed thatthere are three possible interpretations of s 107K(3)(bb)(ii):(a) A narrow interpretation. This holds that the provision only prohibitsprogramme conditions that require or result in an offender being subjectto a s 16(c) programme (that is, an in the care of programme) operatedby their residence provider. It follows that a condition imposed unders 16(a) or (b) could require an offender to reside with their programmeprovider.(b) A middle-ground interpretation. According to this view,s 107K(3)(bb)(ii) prohibits programme conditions that require or resultin an offender being subject to a s 16(c) in the care of programmeoperated by their residence provider. It follows that the Board couldimpose conditions resulting in an offender living with a programme18 At [217].19 At [225].provider, as long as the programme condition was made under s 16(a)or (b). However, on this interpretation, the provision also prohibits:(i) programme conditions that require or result in the offenderbeing subject to a s 16(a) or (b) programme operated by theirresidence provider, where the programme conditions imposesufficient restrictions such that the offender is effectivelysubject to an at all times residential restriction (this is the ParoleBoard's formulation); or(ii) programme conditions that require or result in the offenderbeing subject to a s 16(a) or (b) programme operated by theirresidence provider, where the programme conditions insubstance amount to in the care of conditions under s 16(c) (theAttorney-General's formulation).(c) A broad interpretation. This approach holds that s 107K(3)(bb)(ii)prohibits programme conditions that require or result in an offenderresiding with their programme provider whether the condition isimposed under s 16(a), (b) or (c).[35] The Parole Board and Attorney-General support a middle-groundinterpretation whereby s 107K(3)(bb)(ii) proscribes a single-agency model where theconditions would in substance amount to intensive monitoring, at all times residentialrestriction, or an in the care of condition. The Commission on the other hand supportsa broad interpretation where an offender can never be required to reside with theirprogramme provider regardless of the kind of programme condition imposed.Submissions for the Human Rights Commission[36] The Human Rights Commission argues that if s 107K(3)(bb) can be interpretedto reduce its punitive or penal character, s 6 of the Bill of Rights Act requires thatinterpretation to be adopted.20 That is so, if only to achieve a more Bill of Rightsconsistent reading of the statute.21[37] Mr Butler submits that the text of the Act supports a broad interpretation. Hissubmissions focused on the chapeau text of s 107K(3)(bb), which states that "anycondition requiring the offender to participate in a programme (as referred to insection 15(3)(b)) must not" (emphasis added).[38] First, the provision refers to programme conditions referred to in s 15(3)(b),which includes all programmes in s 16(a), (b) or (c). The Commission submits that ifParliament had intended for the prohibition in s 107K(3)(bb)(ii) to be confined toprogrammes under s 16(c), it would have made that explicit. In the absence of anysuch qualification, it is obvious from a plain reading of the provision thats 107K(3)(bb)(ii) is intended to apply to all s 16 programmes.22[39] Second, s 107K(3)(bb)(ii) is a prohibition on certain programme conditions. Itspecifies what programme conditions must not do. Thus, the effect of a breach is toinvalidate the programme condition but leave the residence condition intact. Thisconclusion is reinforced by s 107ZB(3), which provides that the programme conditionis cancelled if, after two years, the Parole Board has not ensured conditions imposedprior to the 2014 amendments are compliant with s 107K(3)(bb)(ii).[40] The Commission submits that the purpose of the provision also supports abroad interpretation. Mr Butler referred to a decision of the German FederalConstitutional Court, considered by the Court of Appeal in Chisnall, where it wasnoted that art 7(1) of the European Convention on Human Rights requires a schemedepriving persons of their liberty for "preventive" reasons to be defined precisely, and20 Mr Butler submits that the Court of Appeal's decision in Chisnall v Attorney-General (that theentire ESO regime is inconsistent with s 26(2) of the Bill of Rights Act) leaves room for this Courtto consider whether specific provisions in the ESO regime should be interpreted in a Bill of Rights-consistent manner.21 Citing Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: a commentary (2nd ed,LexisNexis, Wellington, 2015) at [7.17]; R v Poumako [2000] 2 NZLR 695 (CA) at [37]–[38] and[41]–[42] ("The meaning to be preferred is that which is consistent (or more consistent) with therights and freedoms in the Bill of Rights"); and R v Pora [2001] 2 NZLR 37 (CA) at [89] perGault, Keith and McGrath JJ and [174] per Thomas J.22 The Commission submits that this interpretive approach is reinforced by the language of s 107ZBwhich also makes no explicit reference to s 16(c) programmes.to be distinct from the execution of a custodial sentence.23 This was called the"distance requirement". The Federal Constitutional Court observed that:24 [a regime for preventive post-sentence conditions] is only justifiable at allif the legislature, in designing it, takes due account of the special character ofthe encroachment that it constitutes and ensures that further burdens beyondthe indispensable deprivation of "external" liberty are avoided. This must betaken account of by a liberty-orientated execution aimed at therapy whichmakes the purely preventive character of the measure plain both to thedetainee under preventive detention and to the general public. The deprivationof liberty must be designed in such a way – at a marked distance from theexecution of a custodial sentence that the prospect of regaining freedomvisibly determines the practice of confinement. What is required for this is afreedom-orientated overall concept of preventive detention with a cleartherapeutic orientation towards the objective of minimising the dangeremanating from the detainee and of thus reducing the duration of deprivationof liberty to what is absolutely necessary.[41] Mr Butler argues that the purpose of s 107K(3)(bb)(ii) is to create "distance"between the ESO regime and the execution of the custodial sentence,25 a purposeconsistent with what Lang J found to be the obvious design of the provision.26 Hesubmits that Parliament adopted a bright line prohibition on "monolithic providers" toavoid the perception that ESOs effectively operate as a second term of imprisonment.He suggests that a single provider might create such a perception in two ways. Thefirst is the intensity and impact of the conditions. A single agency responsible for anoffender starts to look in substance a lot like detention. The second is the impressionon the part of the offender that the agency controls every aspect of their day-to-daylives, much like a prison. By way of example, Mr Butler observed that where anoffender shared information with an independent programme provider, there would belimits on what could be relayed to the residential provider. However, no such divisionwould exist where the providers are the one and the same.23 Chisnall v Attorney-General, above n 12, at [166], citing B v R Bundesverfassungsgericht [FederalConstitutional Court, Second Senate] 2365/09, 4 May 2011.24 B v R, above n 23, at [101].25 Given the issue of whether the distance requirement applies to Bill of Rights jurisprudence ispresently before the Supreme Court in Chisnall, Mr Butler suggests that the concept can be usedas an "illuminating analogy" for the proposition that the ESO regime must strive as far as possibleto be designed in such a way that it is at a "marked distance" from a custodial sentence.26 C v Parole Board, above n 5, at [19]: "The section is obviously designed to prevent offenders frombeing subject to the supervision and direction of a single agency for 24 hours every day as wouldbe the case in a custodial environment."[42] Overall, the Commission submits that the text and purpose of s 107K(3)(bb)(ii)must be interpreted as prohibiting any s 16 programme (whether (a), (b) or (c))operated by their residence provider in all circumstances. With regard to the examplesprovided in Sir Ronald Young's affidavit, the Commission considers there is scope forsome of the combinations to fail to be sufficiently distant from a custodial environmentbecause, in reality, the offender is subject to the direction of a single agency for24 hours every day.[43] Given the severe nature of restrictions under PPOs,27 which result in indefinitedetention "in circumstances not far short of imprisonment",28 the Commission submitsthat the Court should be careful not to allow conditions under an ESO to, in effect,come close to detention in a residence under a PPO.[44] While the Commission acknowledges that there may be some force in theparties' submission that its approach is overbroad, it observes that Parliamentconsidered it appropriate to make the restriction in s 107K(3)(bb)(ii) apply only to theESO regime in Part 1A. In addition, it submits that the Court should take a cautiousapproach to interpretation for three reasons:(a) ESO conditions restrict liberty and engage the rights under the Bill ofRights Act to freedom of movement (s 18) and to freedom fromarbitrary detention and arrest (s 22).(b) The broad interpretation creates a clear standard by which a person canknow whether their conditions are lawful. This in turn will help toprevent arbitrary detention and unjustified limits on movement. Theparties' interpretation by contrast is lacking in clarity.(c) The wider practical consequences of adopting a broad interpretationraised by the parties do not warrant taking a middle-ground approachPractical and resourcing difficulties created by a broad interpretation,27 While PPO residents are not prisoners, they are detained in residences located on prison groundsunder the legal custody of the Chief Executive of Corrections (Public Safety (Public ProtectionOrders) Act, ss 20, 21 and 114).28 Chisnall v Attorney-General, above n 12, at [224].while unfortunate, do not by themselves warrant a narrow reading ofthe provision. Nor does it follow that a broad interpretation would pushmore offenders into the more restrictive PPO regime. A very highthreshold is required before a PPO is imposed: there must be a "veryhigh risk of imminent serious sexual or violent offending" which cannotbe met through less restrictive conditions.29Submissions for the Parole Board and Attorney-General[45] The Attorney-General, as I understood his submissions, essentially adopted theposition taken by the Parole Board. As such, the following summary is intended tocapture the arguments of both parties.[46] The Parole Board submits that the interpretation advanced by the Commissionis overbroad. It contends that s 107K(3)(bb)(ii) permits single provider arrangementsexcept in two circumstances:(a) first, it prohibits offenders residing with s 16(c) programme providers;and(b) second, it prohibits special conditions that are too similar to, orsubstantially amount to, intensive monitoring or at all times residentialrestrictions, outside of the limited circumstances and timeframes inwhich they are permitted by the Act.[47] The first argument is textual. Mr Smith concedes that the language of thechapeau text of the provision is wide enough to encompass all s 16 programmes.However, he highlights the similar language used in s 107K(3)(bb)(ii) and s 16(c). Theformer provides that a programme condition must not require or result in an offenderresiding with an agency "in whose care the offender is placed". The latter definesprogramme as including "placement in the care of" an appropriate agency. Thecommon language between these provisions suggests s 107K(3)(bb)(ii) was intendedto capture in the care of conditions under s 16(c), but not the other types of programme29 Public Safety (Public Protection Orders) Act, s 13; and Chisnall v Chief Executive of theDepartment of Corrections [2017] NZSC 114, [2018] 1 NZLR 83 at [39] per Elias CJ.providers captured by subss (a) and (b). In that sense, care providers comprise a subsetof a wider class of programme providers. It follows that an available reading is thatthe provision is not a blanket ban on residing with all programme providers, only thosein whose care an offender has been placed.[48] Mr Smith submits that simply attending an educational or rehabilitativeprogramme will not necessarily entail being placed in the care of the provider. Thatwill be so even for relatively "involved" programmes that are run at the provider'spremises.[49] In support of this text-based submission, Mr Smith notes that s 107K(3A)(b)explicitly links in the care of programme conditions with s 16(c). Section 107K(3A)is essentially a transitional provision which applies to certain special conditionsimposed before the commencement of the 2014 Amendment Act. In effect, it modifiesthe standard process by which an offender may obtain approval to have contact withpersons under 16.30 Subsection (3A)(b) applies where Board has imposed:(b) a condition of long-term full-time placement in the care of anappropriate agency, person, or persons for the purposes of aprogramme under sections 15(3)(b) and 16(c) and subsection (1)(imposed before the commencement of the Parole (ExtendedSupervision Orders) Amendment Act 2014):(emphasis added)[50] In Mr Smith's submission, the express connection of a "placement in the careof" condition with s 16(c) in this context strengthens the view that the similar wordsin s 107K(3)bb(ii)—"in whose care the offender is placed"—are likewise directedsolely to s 16(c).[51] The Parole Board's second interpretive argument is purposive and contextual.The Board argues that the purpose of s 107K(3)(bb)(ii) is to prevent special conditionsthat are too similar to intensive monitoring or at all times residential restrictions. Inother words, to adopt the term used at the hearing, the purpose of the provision is toprevent the imposition "by stealth" of these highly restrictive conditions. The Board30 Ordinarily, an offender must obtain the prior written approval of a probation officer. The effect ofsubss (3A)–(3C) is to modify that requirement to be "the prior written approval of an employee ofthe chief executive authorised by the chief executive to grant such approval".considers that a blanket rule prohibiting offenders from ever residing with theirprogramme providers is not necessary to achieve that purpose.[52] Mr Smith submits that the purpose of the provision can be gleaned by lookingat the 2014 amendments to the Parole Act, and the context in which they occurred. Heidentifies four aspects of the relevant statutory scheme as significant:(a) The Parole Act has always limited the duration of 24-hour residentialrestrictions on ESO offenders. At all times residential restrictions mayonly apply within the first 12 months.31(b) The 2014 Amendment Act repealed the Parole Board's power to impose24-hour person-to-person monitoring as part of at all times residentialrestrictions for ESOs.32(c) That power was replaced with an effectively identical special conditioncalled "intensive monitoring". Intensive monitoring requires anoffender to be accompanied and monitored on a "person-to-person"basis for up to 24 hours a day.33 Like at all times residential restrictions,it is limited to the first 12 months of ESOs.34 The difference is thatintensive monitoring can only be imposed if ordered by a court.35(d) At the same time, Parliament enacted the Public Safety (PublicProtection Orders) Act, establishing the PPO regime. The Act enabledthe imposition of highly restrictive residence conditions and offendermonitoring (similar to intensive monitoring and full-time residentialrestrictions under an ESO) on PPO offenders for more than 12 months.31 Parole Act, s 107K(3)(b).32 Parole (Extended Supervision Orders) Amendment Act 2014, s 18(1).33 Parole Act, s 107IAC.34 Section 107K(3)(ba).35 Section 15(3)(g). Mr Smith referred to materials which suggest that the requirement for courtoversight of intensive monitoring reflects Parliament's recognition of its restrictiveness, and theneed to strike a balance between public protection and offender autonomy: (3 July 2014) 700NZPD 19216 (Anne Tolley, Parole (Extended Supervision Orders) Amendment Bill — FirstReading); and Parole (Extended Supervision Orders) Amendment Bill 2014 (195-1) (explanatorynote).While PPOs must be subject to review on a five yearly basis,36 theycould in theory operate indefinitely.[53] Further, Mr Smith observes that the Commission's broad interpretation focuseson the separate legal identity, or the form of the agency, that provides both residenceand the rehabilitation programme. Under that approach, all else being equal, the exactsame conditions might be lawful when provided by two different agencies, butunlawful when provided by the same agency. However, he submits, there is no materialrights benefit—no practical improvement to an offenders' liberty interests ordifference in the penal effect of an ESO—simply by having accommodation andrehabilitation provided by separate entities.37 Accordingly, s 6 of the Bill of Rights hasno part to play at the interpretive stage as neither the middle-ground nor the broadinterpretation is more or less rights-consistent than the other.[54] He suggests that the better approach is to focus not on the form of the serviceprovider, but on the substance of the restrictions on liberty and movement that are builtinto the terms and conditions of a particular ESO (like the hours of attendance at aprogramme, curfew times, and the nature and extent of the monitoring regime). Putanother way, the appropriate mechanism for delivering rights-consistent outcomes isnot to read the statute up or down to achieve consistency at the interpretation stage,but to review the exercise of the Board's discretion.[55] Finally, Mr Smith submits that the benefits of the certainty that would beachieved by adopting a bright line interpretation must be weighed against the practicalconsequences it will have, including the practical and resourcing difficulties raised inthe affidavits of Sir Ronald Young and Ms McNamara.38 The broad interpretationmight disrupt offender rehabilitation, an outcome Parliament was unlikely to haveintended.36 Public Safety (Public Protection Orders) Act, s 16(1).37 Mr Smith also questions the premise in the Commission's approach that the concerning punitivenature of imprisonment is its provision by a single agency, and the assumption that imprisonmentis in fact delivered by one agency.38 The Parole Board submits that these practical consequences are relevant consideration to theinterpretive exercise, citing Rangitonga v Parker [2016] NZCA 166, [2016] NZAR 768 at [44],[47]–[48], where Randerson J rejected an interpretation in part because it was likely to lead to"undesirable" and "unattractive" consequences.[56] The Attorney-General suggests an additional gloss to the meaning ofs 107K(3)(bb). He points to Ms McNamara's evidence that, prior to the 2014amendments, the Board commonly imposed Individual Residential ReintegrationProgrammes (IRRPs) under s 16(b) and in the care of conditions under s 16(c). Whilethese programme conditions were used as a means for furthering rehabilitation, theyalso allowed for the 24 hour monitoring and supervision of offenders. Ms McNamarasaid:These "in the care of" or IRRP programme conditions did not necessarilyexpressly state that full-time monitoring and supervision was a part of theprogramme, but that was the basis on which the Department either operatedthe programmes or contracted external agencies to operate the programmes.[57] Mr McKillop submits that, when viewed in this light, the purpose ofs 107K(3)(bb) was also to end the practice of using rehabilitation programmes toeffectively achieve 24 hour supervision and circumvent the (rightly) strict controls onsuch restrictive and intrusive conditions. The mischief targeted was the "warehousing"of prisoners; the use (or perceived use) of programmes merely as devices for thecontinued detention of offenders who have already served their prison sentence. Hesubmits that s 107K(3)(bb) achieves this in the following way:(a) Paragraph (i) prohibits excessive monitoring unrelated to the goals of aprogramme. It makes clear that monitoring of compliance must beassociated with the hours and goals of a programme and leavesintensive monitoring to be imposed only in accordance with the specificprovisions of the Parole Act providing for that special condition.(b) Paragraph (ii) prohibits programme conditions which place someone inthe care of an agency by requiring or resulting in them residing withthat agency. It leaves questions of residence to be dealt with byresidence conditions and residential restrictions, not in the care ofconditions.ConsiderationText, purpose and context[58] The meaning of legislation—and in particular the effect of s 107K(3)(bb)(ii)of the Parole Act—must be ascertained from its text and in light of its purpose andcontext.39[59] Section 107I(1) of the Act says that the purpose of an ESO is "to protectmembers of the community from those who, following receipt of a determinatesentence, pose a real and ongoing risk of committing serious sexual or violentoffences". The statutory purpose does little, however, to clarify the intended scope ofs 107K(3)(bb)(ii), which operates as a limitation on the Parole Board's power toimpose special conditions.[60] Nor do the parliamentary materials surrounding the 2014 amendments providean explanation for the introduction of the provision. However, it is clear from theparliamentary debates that the House was very much aware of the human rightscontext and was concerned to ensure that the legislation struck a balance betweenprotection of the community and the need for proportionality given the degree ofintrusion into fundamental rights.[61] The then Attorney-General, the Hon Christopher Finlayson KC, concluded inhis s 7 report that the Bill was inconsistent with s 26(2) of the Bill of Rights, observingthat the same conclusion had previously been reached in two previous s 7 reports, andby the Court of Appeal.40 However, he also highlighted that the Bill introduced twonew safeguards against the unnecessary imposition of ESOs: first, a requirement thata court must be satisfied of an increased threshold—"a pervasive pattern of serioussexual or violent offending"—before making an order; second, a requirement that39 Legislation Act 2019, s 10(1).40 Christopher Finlayson Report of the Attorney-General under the New Zealand Bill of Rights Act1990 on the Parole (Extended Supervision Orders) Amendment Bill (27 March 2014) at [16],referring to Margaret Wilson Report of the Attorney-General under the New Zealand Bill of RightsAct 1990 on the Parole (Extended Supervision) and Sentencing Amendment Bill (5 September2002) at [19]; Christopher Finlayson Report of the Attorney-General under the New Zealand Billof Rights Act 1990 on the Parole (Extended Supervision Orders) Amendment Bill (2 April 2009);and Belcher v Chief Executive of the Department of Corrections [2007] 1 NZLR 507, (2006) 22CRNZ 787 (CA) at [57]."high impact conditions" be reviewed every two years.41 The Law and Order SelectCommittee likewise noted that the Bill "includes safeguards that would prevent theabuse of [ESO] powers, given to authorities, under this legislation".42 The speeches inthe House also confirm that Parliament was mindful of the highly restrictive andrights-limiting nature of ESOs, and the need to carefully limit their application to theminimum extent necessary to achieve the objective of community protection.43Legislative history of amendments to the ESO regime[62] The legislative history of amendments to the ESO regime also reflectParliament's appreciation of the need for limits on the imposition of the more onerousspecial conditions.[63] Part 1A and s 107K of the Parole Act were introduced in July 2004 andsignificantly amended in October 2007, April 2009 and again in December 2014.44[64] When Part 1A was first introduced, the Parole Act enabled the Parole Board toimpose a special condition requiring a person to reside at a specified address "as if theperson were on home detention".45 In other words, the Board had a power to imposea condition that looked very much like an at all times residential restriction, althoughthat form of condition had not yet been expressly created.46 In addition, unders 107K(2)(a), an offender subject to this residential requirement could also be requiredto submit to person-to-person accompaniment and monitoring for up to 24 hours a day.41 At [5]. High-impact conditions are those which require an offender to stay at their residence formore than 70 hours a week, or be electronically monitored when away from their residence(Parole Act, s 107RB).42 Law and Order Select Committee Parole (Extended Supervision Orders) Amendment Bill.43 While there was widespread agreement that the safety of the community justified significant limitson the rights of the relatively small number of people posing a high risk of serious violent andsexual reoffending, the speakers also emphasised the importance of proportionality. The speechesregularly endorsed the safeguards in the Bill, including requirements for judicial oversight overthe imposition and review of ESOs, independent expert advice as to the offender's risk, amaximum 12 month duration for intensive monitoring conditions, mandatory two-yearly reviewsby the Board of high-impact conditions, and that a person may only be subject to an ESO for aslong as their risk warrants it: (3 July 2014) 700 NZPD 19215 (Parole (Extended SupervisionOrders) Amendment Bill — First Reading); (26 November 2014) 702 NZPD 860 (SecondReading); and (4 December 2014) 702 NZPD 1164 (Third Reading).44 Attached as an appendix to this judgment is a table which traces these changes in s 107K, showingthe amendments introduced in each phase.45 Parole Act, s 107K(1)(b) (as at 30 September 2007).46 As provided for now in ss 33(2)(c)(ii) and 107K(3)(b).In short, the initial ESO regime linked or merged residential restrictions with intensivemonitoring. But even in this early form of the regime, both the residential andmonitoring requirements were limited to the first 12 months of the term of an ESO.[65] The October 2007 amendment expressly continued the link between the earlyform of intensive monitoring and residential restrictions.47 The amendment alsointroduced a new s 33, which contained a "residential restrictions" framework (thefirst time the expression appeared in the Act). This provision enabled the Board toimpose special conditions relating to residential requirements,48 including arequirement for an offender to be at a residence at all times.49 Importantly, anyresidential restriction (not just an at all times requirement), was expressly limited tothe first 12 months of the order.50 This position was reversed in the April 2009amendment, so that only an at all times restriction was time-limited.51 Additionally,the 2007 Act continued the 12 month limitation on person-to-person monitoring.[66] The 2009 amendment continued and strengthened the express link between anat all times residential restriction and a requirement for person-to-person monitoring,as well as the 12 month limitation on both conditions.52 Even so, the broad power toimpose special conditions relating to intensive monitoring and at all times residencewas subject to only two limitations set out in s 107K(3), both requiring such conditionsto be subject to express temporal limits.53[67] In 2014 Parliament significantly changed s 107K. In particular, the 2014amendments introduced for the first time the expression "intensive monitoring" (todescribe an order requiring person-to-person accompaniment and monitoring for up to24 hours) and decoupled it from an at all times residential restriction. In addition,47 Section 107K(2) (as amended on 1 October 2007) provided that "any residential restrictionsimposed on the offender may include a requirement that the offender submit to being accompaniedand monitored, for up to 24 hours a day".48 Section 33(2)(d) permitted electronic monitoring as part of a residential restriction.49 Section 33(2)(c)(ii).50 Section 107K(3)(b) (as at 3 April 2009).51 Section 107K(2) (as amended on 4 April 2009 by s 4(3) of the Parole (Extended SupervisionOrders) Amendment Act 2009).52 Parole Act, ss 107K(2) and (3)(b) (as amended on 4 April 2009).53 Section 107(K)(3)(a) required the Board to specify the duration of any special condition to be forthe full term of the order "or any lesser period"; and subs (3)(b) provided that any at all timesresidential restriction, and therefore any person-to-person monitoring, could only apply for thefirst 12 months of the order.Parliament brought together and expanded the restrictions on the Parole Board's powerto impose special conditions as set out in subs (3). This included the introduction ofsubs (3)(bb). It also introduced a new set of requirements in subs (3A) to (3C), whichI return to shortly.[68] The eventual separation in 2014 of intensive monitoring from at all timesresidential restrictions is reflected in the separate focus of s 107K(3)(bb)(i) and (ii).Subsection (bb)(i) restricts a programme requiring an offender to be "supervised,monitored, or subject to other restrictions" for longer than necessary to ensure"attendance" at the programme. Equally, subs (bb)(ii) restricts conditions requiring anoffender to "reside with" the agency in whose care they have been placed.The text of s 107K itself[69] At this juncture it is useful to set out again the relevant text of s 107K(1)–(3):107K Board may impose special conditions(1) At any time before an extended supervision order expires or iscancelled, and whether or not it has come into force, the Board may,on an application by the chief executive or a probation officer, imposeon the offender any special condition that the Board is entitled toimpose under section 15.(2) [Repealed](3) When the Board imposes special conditions under this section,—(a) the Board must specify the duration of those conditions whichmay (subject to paragraphs (b) and (ba)) be for the full termof the order, or any lesser period; and(b) any residential restrictions that include the requirement insection 33(2)(c)(ii) may apply only within the first 12 monthsof the term of the order; and(ba) any intensive monitoring condition may apply only within thefirst 12 months of the term of the order; and(bb) any condition requiring the offender to participate in aprogramme (as referred to in section 15(3)(b)) must not—(i) require that the offender be, or result in the offenderbeing, supervised, monitored, or subject to otherrestrictions, for longer each day than is necessary toensure the offender's attendance at classes orparticipation in other activities associated with theprogramme; or(ii) require the offender to reside with, or result in theoffender residing with, any person, persons, oragency in whose care the offender is placed; and(c) if the Board considers that any special conditions imposed onthe offender are incompatible with all or any of the standardextended supervision conditions, the Board may(despite section 107J(1)(a)) suspend those incompatiblestandard extended supervision conditions during the period inwhich those special conditions are in force, and time runs onthe suspended conditions during that period.(3A) Subsection (3B) applies if the Board has imposed or imposes on anoffender any of the following special conditions:(a) a condition requiring the offender to submit to beingaccompanied and monitored for up to 24 hours a dayunder section 33(2)(c) and subsection (2) (imposed before thecommencement of the Parole (Extended Supervision Orders)Amendment Act 2014):(b) a condition of long-term full-time placement in the care of anappropriate agency, person, or persons for the purposes of aprogramme under sections 15(3)(b) and 16(c) and subsection(1) (imposed before the commencement of the Parole(Extended Supervision Orders) Amendment Act 2014):(c) an intensive monitoring condition imposed under subsection(1) in accordance with an order made by the courtunder section 107IAC(1).(3B) When this subsection applies, the standard condition in section107JA(1)(i)—(a) is suspended during the period in which the special conditionis in force; and(b) is for that period replaced by the condition specified insubsection (3C).(3C) For the purposes of subsection (3B)(b), the condition is that theoffender must not associate with, or contact, a person under the age of16 years, except—(a) with the prior written approval of an employee of the chiefexecutive authorised by the chief executive to grant suchapproval; and(b) in the presence and under the supervision of an adult who—(i) has been informed about the relevant offending; and(ii) has been approved in writing by a probation officer assuitable to undertake the role of supervision.[70] The Parole Board's broad power conferred to impose conditions in subs (1) issubject to the limitations set out in subs (3). The limitations in subs (3)(a)–(bb) aremandatory and cumulative. As noted, s 107K(3)(b) and (ba) imposes a hard temporallimit on at all times residential restrictions and intensive monitoring conditions. Bothconditions "may apply only within the first 12 months of the term of the order".[71] Section 107K(3)(bb) is an additional safeguard that builds upon theselimitations. It provides a wider protection for offenders subject to an ESO beyond thehard-edged temporal limits imposed on the most onerous conditions affecting theirliberty.[72] Three additional points can be made about subs (3)(bb). The first is that thechapeau to the provision indicates that the restriction it imposes relates to "anycondition" to participate in a programme as referred to in s 15(3)(b). As Mr Butlersubmits, while subs (bb)(ii) mirrors the language of in the care of programmesimposed under s 16(c), such a restriction is not supported by the opening words of theprovision.[73] The second is that while subs (bb)(i) and (ii) broadly reflect subs (b) and (ba),and the newly introduced division between intensive monitoring conditions and at alltimes residential restrictions, they do not accomplish the same thing. Paragraph (i) isconcerned with programme conditions that "result in" the offender being "supervised,monitored or subject to other restrictions, for longer each day than is necessary toensure the offender's attendance at classes". The words in italics indicate that while(i) reflects (ba)'s focus on monitoring, it protects against any condition which extendsbeyond that strictly necessary for attendance at a rehabilitative programme. Similarly,(ii) reflects (b)'s focus on residential restriction, but, again, is broader in its effect thanan at all times requirement. In particular, it prevents any programme condition thatsimply results in an offender "residing with" a programme provider.[74] For this reason I am not inclined to accept the Parole Board's submission that(bb)(i) and (ii) are only designed to prevent intensive monitoring or at all timesresidential restrictions by stealth. Instead, they seem designed to prevent conditionswhich have a similar focus but do not entail anything like a 24 hour requirement. Theyprovide a protection against programme conditions that impose any restriction onliberty beyond the time actually needed for attendance at programme activities orclasses, or that require an offender to reside with a programme provider. In my view,the latter requirement is designed to prevent a residential restriction—whether at alltimes or otherwise—in the guise of a programme condition. Put another way, thepurpose of (bb)(i) and (ii) is to ensure residential restrictions and programmeconditions remain distinct from one another and, in doing so, prevent programmeconditions becoming de facto residential restrictions.[75] This conclusion suggests that the Parole Board's middle-groundinterpretation—that (bb)(ii) prohibits programme conditions that are effectively an atall times residential restriction—involves reading down the provision.[76] The third point is that while (b) and (ba) are explicitly directed to an actualcondition, (bb) is directed to the effect of a programme condition, and requires theParole Board to consider whether it would "result in" monitoring beyond that requiredfor attendance at classes of activities, or requires an offender to reside with the agencyin whose care they have been placed. The provision's focus is therefore on thesubstance and impact of the condition rather than the power from which it derives.[77] As noted above, the 2014 amendment also introduced a new set ofrequirements set out in subs (3A) to (3C), which are directed at a standard conditionset out in s 107JA(i) and the delegation needed to approve any contact between anoffender and a person under the age of 16. Of relevance is a reference in s 107(3A)(b)to a condition involving the "long-term full-time placement" of an offender in the careof a specified agency or person imposed under s 16(c) before the commencement ofthe 2014 amendments.[78] The expression "long-term full-time placement" does not appear elsewhere inthe Act. Its connection to an in the care of condition "imposed before thecommencement" of the 2014 amendments suggests it was a parliamentaryacknowledgment that something could be done by the Board prior to the 2014amendments that it could no longer do. This impression is reinforced by two othertextual markers. The first is the introduction of s 107(K)(3)(bb) itself, which was anew limitation on the Board's powers under subs 107K(1), and s 107ZB, dealing withmodification of conditions on ESOs "in force before this section comes into force".As I have noted already, s 107ZB(b) and (c)(i) and (ii) essentially reflects 107K(3)(bb)'s requirements. Together, these provisions provide strong textualsupport for the view that programme conditions were likely to have been imposedprior to 2014 that Parliament recognised would no longer be consistent with the limitson the Board's powers in s 107K after the 2014 amendment.The text of s 16[79] It will be remembered that the Board is empowered to impose any specialcondition under s 15 of the Parole Act on an ESO offender. This includes a conditionrequiring participation in a rehabilitative programme. The forms of programme aredefined in s 16 as:(a) any psychiatric or other counselling or assessment:(b) attendance at any medical, psychological, social, therapeutic,cultural, educational, employment-related, rehabilitative, orreintegrative programme:(c) placement in the care of any appropriate person, persons, oragency, approved by the chief executive, such as (withoutlimitation)—(i) an iwi, hapu, or whanau:(ii) a marae:(iii) an ethnic or cultural group:(iv) a religious group, such as a church or religious order:(v) members or particular members of any of the above.[80] The three classes of programme identified in s 16(a)–(c) overlap. For instance,a psychiatric or counselling assessment could also form part of a therapeutic orrehabilitative programme. Similarly, placement in the care of a person or agency mightalso entail clinical assessments and rehabilitative programmes delivered by that personor agency. The difference between the three forms of programmes appears to be thatthe first two are directed to the nature of the programme itself, while the third isdirected to the identity of the programme provider.[81] Given the three classes of programme overlap, and given the breadth of thechapeau to s 107K(3)(bb), it seems clear that the proscription in (bb) attaches to anyform of programme in s 16, not just an in the care of programme under s 16(c). Thisconclusion alone is sufficient to dispose of the narrow interpretation, which wouldconfine the provision to in the care of programme conditions. But it also suggests thatthe Parole Board's interpretative argument, which draws a distinction between as 16(c) in the care of programme condition and conditions under s 16(a) and (b), is notsustainable. It means that the application of s 107K(3)(bb)(ii) does not depend onwhether the programme condition is imposed under s 16(a), (b) or (c). Rather, thefocus is on the effect of the programme condition rather than its classification unders 16.[82] Further, "in the care of" does not mean "reside with". The Parole Act draws adistinction between residential conditions and requirements on the one hand and in thecare of programme conditions on the other. It would be possible, for instance, for anoffender to be subject to an in the care of programme but be required to reside at aproperty entirely unrelated to the programme provider.Conclusions[83] These conclusions indicate that both the narrow and middle-groundinterpretations are not consistent with the statutory language. Nor are they consistent,in my view, with the purpose of s 107K(3)(bb), which is designed to extend the libertyprotections in relation to special conditions beyond conditions that substantially looklike intensive monitoring or at all times residential restrictions. This conclusion isimplicit in the elegant clarity of Lang J's approach in C v Parole Board.54 Theprovision creates distance between ESOs and something necessarily custodial innature, in circumstances where ESOs already represent a second penalty.54 As set out above at [12].[84] It is also, as Mr Butler submits, an entirely rights consistent interpretation, andone required by s 6 of the Bill of Rights. Given the conclusion I have reached aboutthe meaning of the provision drawn from the text, purpose and context, it isunnecessary to consider the Attorney-General's rather challenging submission that theBill of Rights has little significance in the present case, its work being done only whenthe Parole Board exercises its discretion under s 107K(1) in a particular case to imposespecial conditions on an offender. Because I consider the language of the statutereflects the broad interpretation of the provision, it has not been necessary to favour arights-consistent interpretation ahead of the parties' preferred interpretation; thestatutory text and the Bill of Rights lead to the same conclusion.[85] In reaching this view I acknowledge, as did the Human Rights Commission,that the language of s 107K(3)(bb)(ii) closely reflects that of s 16(c), and in the careof programme conditions. But I do not consider this is sufficient to read-down thescope of the chapeau, and the broad terms of the prohibition. In my view, the text of(bb)(i) and (ii) link them to the prior limitations imposed in s 107K(3)(b) and (ba),with their focus on monitoring and residential restrictions. For that reason, it isunsurprising that (ii) is directed to the concept of residence. But an overbroadprogramme condition imposed under s 16(a) or (b) could also have the same effect asan in the care of condition under s 16(c).55[86] I also acknowledge that one can readily imagine a rehabilitative programmethat might involve a residential component for entirely proper therapeutic reasons. AsMr Butler acknowledged, there is some strength in the parties' submission that thebroad interpretation may be overbroad in its effect because in some situations thereare no additional concerns about an ESO offender being subject to a programmeoperated by their residence provider. In this respect, the concerns of Sir Ronald Youngand Corrections about the implications of a broad interpretation are well founded. Butpractical considerations must yield to the statutory language. If Parliament wishes toenable programme conditions that require an offender to reside with the programmeprovider, it will need to amend the language it chose to adopt. In doing so, it will nodoubt consider again the balance between protection of the community and Bill of55 On the parties' approach, it would be open to the Board to avoid the effect of (bb)(ii) by imposingconditions under s 16(a) or (b) that amount to an in the care of condition.Rights implications. This conclusion seems inevitable given, as Mr Butler submitted,Parliament drew a distinction between the Part 1 and Part 1A regimes. Under Part 1, aspecial condition may only be imposed on parole where the Board is satisfied that it isdesigned to meet one of the purposes under s 15(2).56 But those matters are ones whichapply to Part 1, and Parliament has seen fit to impose a further restriction—s 107K(3)(bb)—in the context of the Part 1A regime.[87] Finally, it is appropriate to address Mr Smith's argument that over-emphasison the identity of the programme and residential provider is not the appropriate Bill ofRights "hook", because whether they are the same or different providers does notmaterially affect the rights of those subject to ESOs. Mr McKillop made the samepoint, arguing that the middle and broad interpretations have the same penal impacton an offender, so separation of providers is merely illusory in its effect. The answerto this, in my view, is once again the statutory language Parliament adopted, and thebright-line or distancing effect of s 107K(3)(bb). In substance, the Parole Board andAttorney-General suggest a constrained meaning can be ascribed to the provisionbased on complex interpretative arguments that in my view run contrary to the plainmeaning of the text.[88] Given the evidence, I am also unsure that it is safe to conclude the penal impact,or the experience of an offender, is not substantially different as a result of having thesame programme and accommodation provider. There is little material before theCourt that goes to the question of the day-to-day experience of the 21 offenders whofall within the scope of this proceeding, and those who are not subject to the sameconditions.[89] It also follows that I agree with the reasoning and conclusion of Lang J in C vParole Board.56 The special conditions must be designed to reduce the risk of reoffending, facilitate or promotethe rehabilitation and reintegration of the offender, provide for the reasonable concerns of victims,or comply with a court order to impose intensive monitoring.Issue 2: what is the scope of the prohibition in s 107K(3)(bb)(ii)?[90] Given my conclusion on the first issue, it is unnecessary to answer the ParoleBoard's second question. It sought clarification, if it was successful on the first issue,of the limits of a power to require an offender to reside with a programme provider.[91] Even if I had found that the middle-ground interpretation was open on the textof the provision, the Parole Act provides no clear limits on the scope of such a power,or one in my view that can make coherent sense of s 107K(3)(bb)(i) or (ii). Theabsence of clear statutory limits itself further tells against the middle-groundinterpretation.Issue 3: does the Parole Board have the power to self-initiate review hearings?[92] The remaining issue is whether the Parole Board has the power to self-initiatea review hearing upon receiving a judgment of the court that calls into question thelawfulness of any special condition it has imposed under s 107K(1).57Submissions for the parties[93] The Parole Board argues that it must have such a power. Mr Smith submits thata power of review is important in circumstances where fundamental rights areengaged, particularly given the inherent vulnerability of prisoners, including theinability of many to obtain counsel, and given that Corrections and the Board may notalways agree on what constitutes an error in the law's application. A power to initiatea review could arise in two ways.[94] First, Mr Smith submits that it falls within the Board's express power in s 117Ato "regulate its own procedure as it thinks fit". Such a power would be consistent withboth the rule of law and s 6 of the Bill of Rights. Given the Board has many court-like"trappings",58 Mr Smith submits it would be legally coherent for the Board to have thepower to reopen erroneous decisions to correct injustices.5957 The Attorney-General raised this issue in his statement of defence and sought a consequentialdeclaration.58 Miller v New Zealand Parole Board [2010] NZCA 600 at [53].59 Citing the discussion on inherent powers and implied statutory jurisdiction in Joseph onConstitutional Law (online ed, Thomson Reuters) at [17.21.7.3–4]; and Legislation Act 2019, s 46.[95] Second, the Board submits that the power to initiate special condition reviewhearings is a necessary implied power to ensure compliance with the guiding principlein s 7(2)(a) that the Board must not set conditions "that are more onerous, or lastlonger, than is consistent with the safety of the community". That duty is reflectedgenerally in the statutory scheme.60[96] In reply, the Attorney-General argues the Parole Act already confers all powersnecessary to correct errors in special conditions, therefore excluding any impliedpower by necessary implication. Section 107K(1) provides the Board a discretion toimpose special conditions on an application by the Chief Executive or a probationofficer. Then s 107O(1) provides that at any time an offender subject to an ESO order,or a probation officer, may apply to the Board to vary or discharge any condition ofthe order. The only provision for a self-initiated review is s 107RB(2), which requiresthat the Board review high-impact conditions on a two yearly basis.[97] Thus, special conditions are sought, varied and discharged through a contestedadversarial process. The Board's function is fundamentally adjudicative. The power toregulate its own procedures does not transform that jurisdiction into a supervisory one.There is no need to read in an implied power to revisit special conditions, particularlygiven the Crown is a party to the review process. The doctrine of functus officio tellsagainst such a power.[98] Further, Mr McKillop submits that the bounds of the Board's asserted powerare unclear, noting that it could be triggered in circumstances where both the Crownand an offender consider the current conditions to be adequate. He also questioned theutility of such a review, observing that the hearings convened by the Board followingthe decision in C did not appear to resolve the legal error identified. Any access tojustice concerns can be met by the Board, which can inform offenders of their right toseek review of their special conditions,61 as well as their right to be represented bycounsel.62 Finally, Mr McKillop argues that the guiding principle in s 7(2)(a) does notapply to ESO offenders as they are not "detained".60 See for instance, ss 56, 107M and 107O.61 Parole Act, s 109(2)(d).62 Sections 49(3)(c), 107G(4), and 118E(1).Consideration[99] Both parties accept that the Parole Board has a power to advise offenders thattheir ESO conditions may be unlawful and that they may apply for a review of thoseconditions. The only question is whether the Board also has the power to initiate areview hearing on its own motion. I have little hesitation finding that it does.[100] Section 46 of the Legislation Act contemplates a statutory decision makerrevisiting a decision to correct an error of law. It provides:46 Power to do things may be exercised to correct errors(1) The power to do anything may be exercised to correct an error oromission in a previous exercise of the power.(2) Subsection (1) applies even though the power is not generally capableof being exercised more than once.[101] Former iterations of s 46 have commonly been given a narrow interpretation.63One reason for this is to prevent decision makers who have a change of heart reversingan existing decision affecting rights. So in Goulding v Chief Executive, Ministry ofFisheries, the Court of Appeal considered that a precursor to s 46 (s 25(j) of theInterpretation Act 1924),64 would not enable a policy manager within the Ministry ofFisheries to reverse a decision granting a marine farming permit after receiving freshinformation relevant to the grant. However, I do not read the Court's decision asimposing an invariable requirement that s 46 must be construed narrowly. Here thehuman rights context is important, and in particular s 6 of the Bill of Rights.[102] The Attorney-General accepts that the Board has the power to initiate areview—and, indeed, is required to do so—where the High Court has judiciallyreviewed a decision of the Board and directed that it should be reconsidered. There isno material difference where a court makes a declaration of illegality but has not63 Goulding v Chief Executive, Ministry of Fisheries [2004] 3 NZLR 173 at [44]–[51].64 Section 25(j) provided: "Power to do any act or thing, or to make any appointment, is capable ofbeing exercised as often as is necessary to correct any error or omission in any previous exerciseof the power, notwithstanding that the power is not in general capable of being exercised fromtime to time." A similar power was then conferred in s 13 of the Interpretation Act 1999: "Thepower to make an appointment or do any other act or thing may be exercised to correct an erroror omission in a previous exercise of the power even though the power is not generally capable ofbeing exercised more than once."quashed a decision. To find otherwise would be a triumph of form over substance.Overall, Parliament intended s 46 to be remedial in its effect. I consider it is directedto the kind of problem raised here.[103] Finally, it would be deeply unattractive if the Parole Board lacked a power toinitiate a review hearing of an offender's conditions where a court has determined thatthe conditions are unlawful. It would place the onus on a person subject to unlawfulState treatment to take steps to free themselves from the illegality. It would also haveprofoundly negative results for fundamental rights and freedoms and the rule of law.Conclusion and result[104] For the foregoing reasons, I decline to make the declaration sought by theparties. In my view, s 107K(3)(bb)(ii) of the Parole Act 2002 prevents the Board fromimposing a special condition that requires or results in an offender residing with his orher programme provider.[105] I thank counsel for the care with which they presented their arguments andtheir helpful submissions on a question of some complexity.[106] I did not understand costs to be in issue. Should any party wish to apply, theymay file memoranda and I will determine the issue on the papers.Isac JSolicitors:Crown Law Office, Wellington for RespondentThe Human Rights Commission | Te Kāhui Tika Tangata as IntervenerAppendicesAppendix A: relevant provisions from the current Parole Act 200215 Special conditions(1) The Board may (subject to subsections (2) and (4)) impose any 1 or morespecial conditions on an offender.(2) A special condition must not be imposed unless it is designed to—(a) reduce the risk of reoffending by the offender; or(b) facilitate or promote the rehabilitation and reintegration of theoffender; or(c) provide for the reasonable concerns of victims of the offender; or(d) comply, in the case of an offender subject to an extended supervisionorder, with an order of the court, made under section 107IAC, toimpose an intensive monitoring condition.(3) The kinds of conditions that may be imposed as special conditions include,without limitation,—(a) conditions relating to the offender's place of residence (which mayinclude a condition that the offender reside at a particular place), orhis or her finances or earnings:(ab) residential restrictions:(b) conditions requiring the offender to participate in a programme (asdefined in section 16) to reduce the risk of further offending by theoffender through the rehabilitation and reintegration of the offender:(ba) conditions prohibiting the offender from doing 1 or more of thefollowing:(i) using (as defined in section 4(1)) a controlled drug:(ii) using a psychoactive substance:(iii) consuming alcohol:(c) conditions that the offender not associate with any person, persons,or class of persons:(d) conditions requiring the offender to take prescription medication:(e) conditions prohibiting the offender from entering or remaining inspecified places or areas, at specified times, or at all times:(f) conditions requiring the offender to submit to the electronicmonitoring of compliance with any release conditions or conditionsof an extended supervision order, imposed under paragraph (ab) or(e), that relate to the whereabouts of the offender:(g) an intensive monitoring condition, which must, and may only, beimposed if a court orders (under section 107IAC) the imposition ofan intensive monitoring condition.(3A) If the Board imposes on an offender special conditions relating to residentialrestrictions (specified under subsection (3)(ab)),—(a) the offender's probation officer must define the area of the residencespecified under section 33(2)(a) within which the offender mustremain and show that area to the offender and advise every relevantoccupant (as defined in section 34(4)) of the residence of that area;and(b) the offender must remain within that area.(4) No offender may be made subject to a special condition that requires theoffender to take prescription medication unless the offender—(a) has been fully advised, by a person who is qualified to prescribe thatmedication, about the nature and likely or intended effect of themedication and any known risks; and(b) consents to taking the prescription medication.(5) An offender does not breach his or her conditions for the purposes of section71 if he or she withdraws consent to taking prescription medication, but thefailure to take the medication may give rise to a ground for recall set out insection 61.16 ProgrammesFor the purposes of section 15, a programme means any of the following:(a) any psychiatric or other counselling or assessment:(b) attendance at any medical, psychological, social, therapeutic,cultural, educational, employment-related, rehabilitative, orreintegrative programme:(c) placement in the care of any appropriate person, persons, or agency,approved by the chief executive, such as (without limitation)—(i) an iwi, hapu, or whanau:(ii) a marae:(iii) an ethnic or cultural group:(iv) a religious group, such as a church or religious order:(v) members or particular members of any of the above.33 Residential restrictions(1) The Board may impose on an offender the special conditions referred to insection 15(3)(ab) (residential restrictions) if the residence in which it isproposed that the offender reside is in an area in which a residentialrestriction scheme is operated by the chief executive.(2) An offender on whom residential restrictions are imposed is required—(a) to stay at a specified residence:(b) to be under the supervision of a probation officer and to co-operatewith, and comply with any lawful direction given by, that probationofficer:(c) to be at the residence—(i) at times specified by the Board; or(ii) at all times:(d) to submit, in accordance with the directions of a probation officer,to the electronic monitoring of compliance with his or her residentialrestrictions:(e) to keep in his or her possession the licence issued under section53(3) and, if requested to do so by a constable or a probation officer,must produce the licence for inspection.(3) Any conditions imposed under subsection (2)(c)(ii) may not be imposed forlonger than the shortest of the following periods:(a) the period for which the standard release conditions apply:(b) 12 months:(c) if those conditions have previously been imposed on the offender inrespect of the same release from detention, 12 months less the timefor which those conditions have previously been imposed.(4) An offender may, despite any conditions imposed under subsection (2)(c),leave the residence to which the residential restrictions relate—(a) to seek urgent medical or dental treatment; or(b) to avoid or minimise a serious risk of death or injury to the offenderor any other person; or(c) for humanitarian reasons approved by a probation officer.(5) In any case where the conditions are of the kind specified in subsection(2)(c)(ii), the offender may, with the approval of a probation officer, leavethe residence to which the residential restrictions relate—(a) to comply with any special conditions; or(b) to seek or engage in employment; or(c) to attend training or other rehabilitative or reintegrative activities orprogrammes; or(d) to attend a restorative justice conference or other process relating tothe offender's offending; or(e) to carry out any undertaking arising from any restorative justiceprocess; or(f) for any other purpose specifically approved by the probation officer.107K Board may impose special conditions(1) At any time before an extended supervision order expires or is cancelled, andwhether or not it has come into force, the Board may, on an application bythe chief executive or a probation officer, impose on the offender any specialcondition that the Board is entitled to impose under section 15.(1A) Despite section 35(c), the Board may impose residential restrictions withoutbeing satisfied that the offender agrees to comply with them.(2) [Repealed](3) When the Board imposes special conditions under this section,—(a) the Board must specify the duration of those conditions which may(subject to paragraphs (b) and (ba)) be for the full term of the order,or any lesser period; and(b) any residential restrictions that include the requirement in section33(2)(c)(ii) may apply only within the first 12 months of the term ofthe order; and(ba) any intensive monitoring condition may apply only within the first12 months of the term of the order; and(bb) any condition requiring the offender to participate in a programme(as referred to in section 15(3)(b)) must not—(i) require that the offender be, or result in the offender being,supervised, monitored, or subject to other restrictions, forlonger each day than is necessary to ensure the offender'sattendance at classes or participation in other activitiesassociated with the programme; or(ii) require the offender to reside with, or result in the offenderresiding with, any person, persons, or agency in whose carethe offender is placed; and(c) if the Board considers that any special conditions imposed on theoffender are incompatible with all or any of the standard extendedsupervision conditions, the Board may (despite section 107J(1)(a))suspend those incompatible standard extended supervisionconditions during the period in which those special conditions arein force, and time runs on the suspended conditions during thatperiod.(3A) Subsection (3B) applies if the Board has imposed or imposes on an offenderany of the following special conditions:(a) a condition requiring the offender to submit to being accompaniedand monitored for up to 24 hours a day under section 33(2)(c) andsubsection (2) (imposed before the commencement of the Parole(Extended Supervision Orders) Amendment Act 2014):(b) a condition of long-term full-time placement in the care of anappropriate agency, person, or persons for the purposes of aprogramme under sections 15(3)(b) and 16(c) and subsection (1)(imposed before the commencement of the Parole (ExtendedSupervision Orders) Amendment Act 2014):(c) an intensive monitoring condition imposed under subsection (1) inaccordance with an order made by the court under section107IAC(1).(3B) When this subsection applies, the standard condition in section107JA(1)(i)—(a) is suspended during the period in which the special condition is inforce; and(b) is for that period replaced by the condition specified in subsection(3C).(3C) For the purposes of subsection (3B)(b), the condition is that the offender mustnot associate with, or contact, a person under the age of 16 years, except—(a) with the prior written approval of an employee of the chief executiveauthorised by the chief executive to grant such approval; and(b) in the presence and under the supervision of an adult who—(i) has been informed about the relevant offending; and(ii) has been approved in writing by a probation officer assuitable to undertake the role of supervision.(4) Subsections (2) and (4) of section 15 apply in respect of special conditionsimposed under this section.(5) If an offender is subject to a special condition under this section that requiresthe offender to take prescription medication, the offender does not breach hisor her conditions, for the purposes of section 107T, if he or she withdrawsconsent to taking prescription medication.(6) The Board must notify the offender concerned, and every victim of theoffender, if it is considering imposing special conditions under this section.(7) The offender and any victim of the offender may make written submissionsto the Board and, with the leave of the Board, may appear and make oralsubmissions on whether special conditions should be imposed, what theconditions should be, and their duration.(8) Notice of any special conditions attached to an extended supervision ordermust be provided, in writing, to the following:(a) the offender:(b) the chief executive:(c) the Police:(d) every victim of the offender; but the Board may withhold notice ofa particular condition if disclosure of the condition would undulyinterfere with the privacy of any other person (other than theoffender).107ZB Modification of conditions on extended supervision orders in forcebefore this section comes into force(1) This section applies to an offender who is subject to an extended supervisionorder—(a) that was imposed before this section comes into force; and(b) that includes a condition, imposed under section 15(3)(b), requiringthe offender to participate in a programme; and(c) where the terms of that condition—(i) require that the offender be, or result in the offender being,supervised, monitored, or subject to other restrictions, forlonger each day than is necessary to ensure the offender'sattendance at classes or participation in other activitiesassociated with the programme; or(ii) require the offender to reside with, or result in the offenderresiding with, any person, persons, or agency in whose carethe offender is placed.(2) Where this section applies, the Board must, within 2 years after the date onwhich this section comes into force, review the condition imposed undersection 15(3)(b) on the offender and either cancel the condition, or adjust itso that it complies with section 107K(3)(bb).(3) If the Board has not conducted and completed the review required under thissection by the close of the day that is 2 years after the date on which thissection comes into force, the condition requiring the offender to participatein a programme is cancelled.