New Zealand Parole Board v Attorney-General
[2023] NZHC 1611
•27 June 2023
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2022-485-0280
[2023] NZHC 1611
UNDER the Declaratory Judgments Act 1908 and Part 18 of the High Court Rules IN THE MATTER
of an application for a declaratory judgment in respect of the meaning of s 107K(3)(bb) of the Parole Act 2002
BETWEEN
THE NEW ZEALAND PAROLE BOARD
Applicant
AND
THE ATTORNEY-GENERAL
Respondent
Hearing: 20 October 2022 and 3 February 2023 Counsel:
M S Smith and V J Owen for Applicant M J McKillop for Respondent
A S Butler KC and D T Haradasa for The Human Rights Commission | Te Kāhui Tika Tangata (Intervener)
Judgment:
27 June 2023
JUDGMENT OF ISAC J
[Application for declaratory judgment]
THE NZ PAROLE BOARD v THE ATTORNEY-GENERAL [2023] NZHC 1611 [27 June 2023]
TABLE OF CONTENTS
Para No
Introduction and the issues [1]
Why this proceeding? [11]
Legal framework [20]
Issue 1: does s 107K(3)(bb)(ii) prevent an accommodation provider
from also providing rehabilitative programmes to offenders? [34]
Submissions for the Human Rights Commission [36]
Submissions for the Parole Board and Attorney-General [45]
Consideration
Text, 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 review
hearings? [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 return to the community and enjoy the same freedoms as everyone else. However, Parliament has decided that the community needs special protection from a small proportion of offenders: those who pose a high risk of serious sexual or violent reoffending upon release. It has created two types of court-imposed order to manage the risks these people present.
[2] The first and most restrictive is a public protection order (PPO) made under the Public Safety (Public Protection Orders) Act 2014. A person subject to a PPO is required to stay in a residence designated by the Chief Executive of the Department of Corrections, which in practice are secure facilities within prison precincts.1 PPO recipients are under highly restrictive conditions which bear many similarities to a prison environment.2 In some cases, a PPO offender’s risk may be so serious that it justifies their detention in prison instead of within a residence.3
[3] The second order is an extended supervision order (ESO) made under Part 1A of the Parole Act 2002, and is the focus of this judgment. In general terms, ESOs enable the Parole Board to impose restrictions and conditions on offenders to monitor and assist their rehabilitation and reintegration into the community.
[4] Under the Parole Act a sentencing court may make an ESO where it is satisfied an offender has exhibited a pervasive pattern of serious sexual or violent offending and poses a real and ongoing risk of committing such offences in the future. Under s 107K(1) of the Parole Act, the Parole Board is then given a discretion to impose special conditions on ESO offenders. These can include residential restrictions and intensive monitoring which require an offender to reside at a particular place, or be
1Public Safety (Public Protection Orders) Act 2014, s 20. In Chisnall v Chief Executive of Department of Corrections [2019] NZCA 510 at [45], the Court of Appeal said that the central feature of a PPO is the detention of the resident in a secure “behind the wire” residence”.
2See Chisnall v Attorney-General [2021] NZCA 616, [2021] 2 NZLR 484 at [5]–[6]. Residents must 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 residents may 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 can also impose programme conditions, which require offenders to participate in rehabilitative and reintegrative activities such as counselling, drug and alcohol therapy, education or employment.
[5] However, the Parole Board’s power to impose special conditions is in turn subject to a series of limitations which are set out in s 107K(3) of the Parole Act. In this proceeding, the Parole Board seeks declarations clarifying the scope of one such limit, which it says has been a source of uncertainty. Section 107K(3)(bb)(ii) provides that 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 offender residing with, any person, persons, or agency in whose care the offender is placed; …
[6] The central issue in this case is whether s 107K(3)(bb)(ii) imposes a bright line prohibition preventing a single agency from ever providing an offender’s accommodation as well their rehabilitative programme.
[7] The Human Rights Commission intervened in this proceeding to provide the Court with an alternative perspective to that of the parties.4 The Commission submits that s 107K(3)(bb)(ii) means one organisation can never provide both accommodation and deliver rehabilitation because the clear purpose of the provision is to prevent ESO offenders from being subject to de facto 24 hour supervision or monitoring by a single organisation. It says that Parliament’s intention was to limit the extent of intrusion into s 26(2) of the Bill of Rights Act 1990—the protection against double punishment—by ensuring that offenders who have served their prison sentence are not subjected to a second form of detention.
4The first hearing was held on 20 October 2022. Given the parties’ adopted closely similar positions in the application, I considered that it would be helpful to hear from a contradictor. After hearing further submissions from the parties on that matter, in a Minute of 9 November 2022, I directed the Registrar to enquire as to whether the Human Rights Commission would be prepared to intervene and provide its perspective. The Commission confirmed that it was willing to act as contradictor. Accordingly, a second hearing was held on 3 February 2023.
[8] The Parole Board and Attorney-General argue that the purpose of s 107K(3)(bb)(ii) is to prohibit intensive monitoring, or an at all time residential restriction, by stealth. They submit that an organisation is only prohibited from providing both accommodation and rehabilitative programmes where the totality of the conditions would require the offender to be at a residential address 24 hours a day. A blanket approach requiring separate agencies to provide accommodation and rehabilitative programmes would create significant operational and resourcing difficulties in managing some offenders subject to ESOs. Not only would this disrupt the rehabilitation and reintegration of offenders, in some cases it may render an ESO unavailable, and require the Board to consider utilising the more restrictive PPO to manage 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 a special condition that enables an offender to reside with his or her programme provider at the programme provider’s residence.
[10] The Board identifies two issues for the Court to determine. In turn, the Attorney-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 from ever 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 an offender’s accommodation provider to also provide rehabilitative programmes?
(c)Finally, does the Parole Board have the power to revisit its decisions imposing special conditions in the event its previous decisions are found 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 Parole Board.5 In 2016, C was made subject to an ESO for a period of seven years, with intensive monitoring for six months and an at all time residential restriction for 12 months. He was placed in a residential complex situated on prison land adjacent to the Spring Hill Corrections Facility. On his arrival, the complex was run by Corrections officers, while intensive monitoring and reintegrative and rehabilitative services were provided by Te Roopu Taurima o Manukau. However, in May 2017, the Anglican Action Mission Trust took over the intensive monitoring and rehabilitative services and also assumed responsibility for the management and operation of the Spring Hill complex. Further, in June 2017, the Parole Board imposed a condition under s 16(c) of the Act placing C in the care of Anglican Action.
[12] C brought judicial review proceedings claiming that Corrections had breached s 107K(3)(bb)(ii) by arranging for his reintegrative programmes to be provided by the same agency that was responsible for managing his accommodation. In upholding C’s claim, 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 offender residing with any agency in whose care that person has been placed. The section is obviously designed to prevent offenders from being subject to the supervision and direction of a single agency for 24 hours every day as would be the case in a custodial environment.
[13] Sir Ronald Young, the chair of the Parole Board, has provided an affidavit explaining that the decision in C has created significant uncertainty for the Board in relation to the interpretation of s 107K(3)(bb)(ii). He explains that prior to C, the Board had approached the section on the basis that an offender could live with a programme provider if both residence conditions7 and programme conditions8 were the subject of separate consideration and complied with s 15(2).9 He noted that it is a relatively common practice for Corrections to encourage the Board to impose such
5 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).
9Section 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 of victim, or comply with intensive monitoring orders.
conditions. Sir Ronald Young explained that many of the programme providers also have suitable accommodation for those subject to ESOs, and that finding accommodation for these people can otherwise be difficult, “especially for those offenders who, because of their risk, require close supervision”.
[14] Following the decision in C, the Parole Board undertook a review of current ESOs and identified 21 cases where offenders were living with their programme providers. The Board called hearings with Corrections, the offenders and their counsel to review the existing ESO conditions. It then made “[v]arious orders … affecting the special conditions relating to accommodation and programme attendance”.
[15] A further affidavit was provided by Ms Brittany McNamara, National Manager of High Risk at the Department of Corrections. She is responsible for the team tasked with managing high-risk offenders in prison and the community. Her evidence is that there are 270 people subject to ESOs in New Zealand, 220 of whom are in the community. Almost all of them are subject to programme conditions of some kind.
[16] Ms McNamara deposed that there are 20 offenders who have programme conditions 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 these houses because “it is often difficult to find acceptable housing for the riskiest ESO offenders in the community”. Of the remaining offenders in question, five reside with another community accommodation provider and one remains in prison. Ms McNamara noted that, in contrast to parolees, it is the residential condition, not the programme condition, that dictates where an ESO offender must live.
[17] Ms McNamara’s view is that the combinations of residence and programme conditions on the 20 offenders identified are necessary to respond to the risk of reoffending 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) that
10 There are three such facilities in New Zealand: Kaainga Taupua (on the grounds of Spring Hill Corrections Facility, operated by the Anglican Action Mission Trust); Te Korowai (on the grounds of Rimutaka Prison), and Tōruatanga (on the grounds of Christchurch Men’s Prison).
Corrections would need to consider making applications for the more restrictive PPOs in respect of some or all of those offenders.
[18] In short, this proceeding has implications for the way that the Parole Board and Corrections make, implement and source rehabilitation for some of the country’s highest risk offenders, and directly affects offenders who are or might be subject to a one 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 legal and statutory context in which it arises.
Legal framework
[20] In 2004, Parliament amended the Parole Act by introducing the ESO regime in a new Part 1A.11 It now provides that a sentencing court may make an ESO in respect of offenders who have demonstrated a pervasive pattern of serious sexual or violent offending 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 on offenders subject to ESOs:
107K Board may impose special conditions
(1) At any time before an extended supervision order expires or is cancelled, and whether or not it has come into force, the Board may, on an application by the chief executive or a probation officer, impose on the offender any special condition that the Board is entitled to impose under section 15.
[22] Section 15 then sets out a non-exhaustive list of the special conditions that may be imposed, as well as the purposes that they must address:
15Special conditions
(1)The Board may (subject to subsections (2) and (4)) impose any 1 or more special conditions on an offender.
11 The Parole Act provisions most relevant to this interpretive exercise are set out in full as an appendix 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 in 2014.
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 the offender; 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 supervision order, with an order of the court, made under section 107IAC, to impose 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 may include a condition that the offender reside at a particular place), or his or her finances or earnings:
(ab) residential restrictions:
(b)conditions requiring the offender to participate in a programme (as defined in section 16) to reduce the risk of further offending by the offender through the rehabilitation and reintegration of the offender:
(ba)conditions prohibiting the offender from doing 1 or more of the following:
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 in specified places or areas, at specified times, or at all times:
(f)conditions requiring the offender to submit to the electronic monitoring of compliance with any release conditions or conditions of 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, be imposed if a court orders (under section 107IAC) the imposition of an intensive monitoring condition. …
(emphasis added)
[23] An intensive monitoring condition—as provided for in s 15(3)(g)—requires an offender to be accompanied and monitored for up to 24 hours a day by a person authorised to undertake person-to-person monitoring. Importantly, the maximum duration of an intensive monitoring condition is 12 months.13 Further, an offender may not be subjected to an intensive monitoring condition more than once, even if they are subjected to repeated ESOs.14
[24] Similarly, residential restrictions are imposed under s 33 of the Parole Act. This includes the power to impose an “at all times” residential restrictions, requiring an offender to be resident—quite literally—at all times at the specified address. As with intensive monitoring, an at all times residential restriction may only be imposed for a maximum 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 an offender to participate in a “programme” as defined in s 16. In turn, s 16 provides:
16Programmes
For 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, or reintegrative 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.
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 this case. It is useful to note at this juncture that particular emphasis is placed on what are referred to as an “in the care of” programme placement condition under s 16(c), which involves placing an offender in the care of an agency. That may be contrasted with programme conditions imposed under s 16(a) and (b), which contemplate conditions requiring an offender to attend a particular rehabilitative programme or psychiatric assessment.
[27] As noted earlier, s 107K(3) imposes restrictions on the Board’s power to impose 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:
When the Board imposes special conditions under this section, —
…
(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, for longer each day than is necessary to ensure the offender’s attendance at classes or participation in other activities associated with the programme; or
(ii)require the offender to reside with, or result in the offender residing with, any person, persons, or agency in whose care the offender is placed; …
[28] Section 107ZB, a transitional provision, seeks to ensure that ESOs imposed before the commencement of the 2014 Amendment Act, do not have conditions that breach the new restrictions on programme conditions in s 107K(3)(bb). The transitional provision, at s 107ZB(1)(c)(i) and (ii), expressly acknowledges the new limitation on the Board’s power in s 107K(3)(bb)(i) and (ii):
107ZB Modification of conditions on extended supervision orders in force before this section comes into force
(1)This section applies to an offender who is subject to an extended supervision 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 offender being, supervised, monitored, or subject to other restrictions, for longer each day than is necessary to ensure the offender’s attendance at classes or participation in other activities associated with the programme; or
(ii)require the offender to reside with, or result in the offender residing with, any person, persons, or agency in whose care the offender is placed.
(2)Where this section applies, the Board must, within 2 years after the date on which this section comes into force, review the condition imposed under section 15(3)(b) on the offender and either cancel the condition, or adjust it so that it complies with section 107K(3)(bb).
(3)If the Board has not conducted and completed the review required under this section by the close of the day that is 2 years after the date on which this section comes into force, the condition requiring the offender to participate in a programme is cancelled.
[29] In its recent decision in Chisnall v Attorney-General, the Court of Appeal held that the entire ESO regime is inconsistent with s 26(2) of the Bill of Rights Act 1990.16 That section provides:
26 Retroactive penalties and double jeopardy
…
(2)No one who has been finally acquitted or convicted of, or pardoned for, 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 the previous 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 violent offending is a very important objective, and that the ESO regime is rationally
16 Chisnall v Attorney-General, above n 12.
17 At [218].
connected with that purpose, it concluded that the Crown had failed to provide sufficient evidence to justify the departure from s 26(2):18
… the importance of the s 26(2) right requires greater justification before it can be accepted that either regime is demonstrably justified in a free and democratic society, having regard to the need to establish both proportionality and minimum impairment of the right for achieving the purpose.
[32] The Court of Appeal’s decision in Chisnall has been appealed to the Supreme Court, 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 inconsistency provide an important backdrop for the current proceeding, they of course do not affect the validity or enforceability of the ESO regime.19 I therefore turn to consider the first issue.
Issue 1: does s 107K(3)(bb)(ii) prevent an accommodation provider from also providing rehabilitative programmes to offenders?
[34] Before turning to the submissions, it is useful to provide an overview of the respective positions adopted by the parties and the Commission. They all agreed that there are three possible interpretations of s 107K(3)(bb)(ii):
(a)A narrow interpretation. This holds that the provision only prohibits programme conditions that require or result in an offender being subject to a s 16(c) programme (that is, an in the care of programme) operated by their residence provider. It follows that a condition imposed under s 16(a) or (b) could require an offender to reside with their programme provider.
(b)A middle-ground interpretation. According to this view, s 107K(3)(bb)(ii) prohibits programme conditions that require or result in an offender being subject to a s 16(c) in the care of programme operated by their residence provider. It follows that the Board could impose conditions resulting in an offender living with a programme
18 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 offender being subject to a s 16(a) or (b) programme operated by their residence provider, where the programme conditions impose sufficient restrictions such that the offender is effectively subject to an at all times residential restriction (this is the Parole Board’s formulation); or
(ii)programme conditions that require or result in the offender being subject to a s 16(a) or (b) programme operated by their residence provider, where the programme conditions in substance amount to in the care of conditions under s 16(c) (the Attorney-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 offender residing with their programme provider whether the condition is imposed under s 16(a), (b) or (c).
[35] The Parole Board and Attorney-General support a middle-ground interpretation whereby s 107K(3)(bb)(ii) proscribes a single-agency model where the conditions would in substance amount to intensive monitoring, at all times residential restriction, or an in the care of condition. The Commission on the other hand supports a broad interpretation where an offender can never be required to reside with their programme 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 interpreted to reduce its punitive or penal character, s 6 of the Bill of Rights Act requires that
interpretation to be adopted.20 That is so, if only to achieve a more Bill of Rights consistent reading of the statute.21
[37] Mr Butler submits that the text of the Act supports a broad interpretation. His submissions focused on the chapeau text of s 107K(3)(bb), which states that “any condition requiring the offender to participate in a programme (as referred to in section 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 if Parliament had intended for the prohibition in s 107K(3)(bb)(ii) to be confined to programmes under s 16(c), it would have made that explicit. In the absence of any such qualification, it is obvious from a plain reading of the provision that s 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. It specifies what programme conditions must not do. Thus, the effect of a breach is to invalidate the programme condition but leave the residence condition intact. This conclusion is reinforced by s 107ZB(3), which provides that the programme condition is cancelled if, after two years, the Parole Board has not ensured conditions imposed prior to the 2014 amendments are compliant with s 107K(3)(bb)(ii).
[40] The Commission submits that the purpose of the provision also supports a broad interpretation. Mr Butler referred to a decision of the German Federal Constitutional Court, considered by the Court of Appeal in Chisnall, where it was noted that art 7(1) of the European Convention on Human Rights requires a scheme depriving persons of their liberty for “preventive” reasons to be defined precisely, and
20 Mr Butler submits that the Court of Appeal’s decision in Chisnall v Attorney-General (that the entire ESO regime is inconsistent with s 26(2) of the Bill of Rights Act) leaves room for this Court to consider whether specific provisions in the ESO regime should be interpreted in a Bill of Rights- consistent manner.
21Citing 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 the rights and freedoms in the Bill of Rights”); and R v Pora [2001] 2 NZLR 37 (CA) at [89] per Gault, Keith and McGrath JJ and [174] per Thomas J.
22 The Commission submits that this interpretive approach is reinforced by the language of s 107ZB which 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 all if the legislature, in designing it, takes due account of the special character of the encroachment that it constitutes and ensures that further burdens beyond the indispensable deprivation of “external” liberty are avoided. This must be taken account of by a liberty-orientated execution aimed at therapy which makes the purely preventive character of the measure plain both to the detainee under preventive detention and to the general public. The deprivation of liberty must be designed in such a way – at a marked distance from the execution of a custodial sentence … that the prospect of regaining freedom visibly determines the practice of confinement. What is required for this is a freedom-orientated overall concept of preventive detention with a clear therapeutic orientation towards the objective of minimising the danger emanating from the detainee and of thus reducing the duration of deprivation of 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 purpose consistent with what Lang J found to be the obvious design of the provision.26 He submits that Parliament adopted a bright line prohibition on “monolithic providers” to avoid 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. The first is the intensity and impact of the conditions. A single agency responsible for an offender starts to look in substance a lot like detention. The second is the impression on the part of the offender that the agency controls every aspect of their day-to-day lives, much like a prison. By way of example, Mr Butler observed that where an offender shared information with an independent programme provider, there would be limits on what could be relayed to the residential provider. However, no such division would 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 [Federal Constitutional 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 is presently before the Supreme Court in Chisnall, Mr Butler suggests that the concept can be used as an “illuminating analogy” for the proposition that the ESO regime must strive as far as possible to 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 from being subject to the supervision and direction of a single agency for 24 hours every day as would be 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 examples provided in Sir Ronald Young’s affidavit, the Commission considers there is scope for some of the combinations to fail to be sufficiently distant from a custodial environment because, in reality, the offender is subject to the direction of a single agency for 24 hours every day.
[43] Given the severe nature of restrictions under PPOs,27 which result in indefinite detention “in circumstances not far short of imprisonment”,28 the Commission submits that 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 the parties’ submission that its approach is overbroad, it observes that Parliament considered it appropriate to make the restriction in s 107K(3)(bb)(ii) apply only to the ESO regime in Part 1A. In addition, it submits that the Court should take a cautious approach to interpretation for three reasons:
(a)ESO conditions restrict liberty and engage the rights under the Bill of Rights Act to freedom of movement (s 18) and to freedom from arbitrary detention and arrest (s 22).
(b)The broad interpretation creates a clear standard by which a person can know whether their conditions are lawful. This in turn will help to prevent arbitrary detention and unjustified limits on movement. The parties’ interpretation by contrast is lacking in clarity.
(c)The wider practical consequences of adopting a broad interpretation raised by the parties do not warrant taking a middle-ground approach Practical and resourcing difficulties created by a broad interpretation,
27 While PPO residents are not prisoners, they are detained in residences located on prison grounds under the legal custody of the Chief Executive of Corrections (Public Safety (Public Protection Orders) 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 of the provision. Nor does it follow that a broad interpretation would push more offenders into the more restrictive PPO regime. A very high threshold is required before a PPO is imposed: there must be a “very high risk of imminent serious sexual or violent offending” which cannot be met through less restrictive conditions.29
Submissions for the Parole Board and Attorney-General
[45] The Attorney-General, as I understood his submissions, essentially adopted the position taken by the Parole Board. As such, the following summary is intended to capture the arguments of both parties.
[46] The Parole Board submits that the interpretation advanced by the Commission is overbroad. It contends that s 107K(3)(bb)(ii) permits single provider arrangements except 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, or substantially amount to, intensive monitoring or at all times residential restrictions, outside of the limited circumstances and timeframes in which they are permitted by the Act.
[47] The first argument is textual. Mr Smith concedes that the language of the chapeau 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). The former provides that a programme condition must not require or result in an offender residing with an agency “in whose care the offender is placed”. The latter defines programme as including “placement in the care of” an appropriate agency. The common language between these provisions suggests s 107K(3)(bb)(ii) was intended to capture in the care of conditions under s 16(c), but not the other types of programme
29Public Safety (Public Protection Orders) Act, s 13; and Chisnall v Chief Executive of the Department 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 subset of a wider class of programme providers. It follows that an available reading is that the provision is not a blanket ban on residing with all programme providers, only those in whose care an offender has been placed.
[48] Mr Smith submits that simply attending an educational or rehabilitative programme will not necessarily entail being placed in the care of the provider. That will be so even for relatively “involved” programmes that are run at the provider’s premises.
[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 conditions imposed before the commencement of the 2014 Amendment Act. In effect, it modifies the standard process by which an offender may obtain approval to have contact with persons under 16.30 Subsection (3A)(b) applies where Board has imposed:
(b) a condition of long-term full-time placement in the care of an appropriate agency, person, or persons for the purposes of a programme under sections 15(3)(b) and 16(c) and subsection (1) (imposed before the commencement of the Parole (Extended Supervision Orders) Amendment Act 2014):
(emphasis added)
[50] In Mr Smith’s submission, the express connection of a “placement in the care of” condition with s 16(c) in this context strengthens the view that the similar words in s 107K(3)bb(ii)—“in whose care the offender is placed”—are likewise directed solely 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 conditions that are too similar to intensive monitoring or at all times residential restrictions. In other words, to adopt the term used at the hearing, the purpose of the provision is to prevent the imposition “by stealth” of these highly restrictive conditions. The Board
30Ordinarily, an offender must obtain the prior written approval of a probation officer. The effect of subss (3A)–(3C) is to modify that requirement to be “the prior written approval of an employee of the chief executive authorised by the chief executive to grant such approval”.
considers that a blanket rule prohibiting offenders from ever residing with their programme providers is not necessary to achieve that purpose.
[52] Mr Smith submits that the purpose of the provision can be gleaned by looking at the 2014 amendments to the Parole Act, and the context in which they occurred. He identifies four aspects of the relevant statutory scheme as significant:
(a)The Parole Act has always limited the duration of 24-hour residential restrictions on ESO offenders. At all times residential restrictions may only apply within the first 12 months.31
(b)The 2014 Amendment Act repealed the Parole Board’s power to impose 24-hour person-to-person monitoring as part of at all times residential restrictions for ESOs.32
(c)That power was replaced with an effectively identical special condition called “intensive monitoring”. Intensive monitoring requires an offender 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 that intensive monitoring can only be imposed if ordered by a court.35
(d)At the same time, Parliament enacted the Public Safety (Public Protection Orders) Act, establishing the PPO regime. The Act enabled the imposition of highly restrictive residence conditions and offender monitoring (similar to intensive monitoring and full-time residential restrictions 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 court oversight of intensive monitoring reflects Parliament’s recognition of its restrictiveness, and the need to strike a balance between public protection and offender autonomy: (3 July 2014) 700 NZPD 19216 (Anne Tolley, Parole (Extended Supervision Orders) Amendment Bill — First Reading); and Parole (Extended Supervision Orders) Amendment Bill 2014 (195-1) (explanatory note).
While PPOs must be subject to review on a five yearly basis,36 they could in theory operate indefinitely.
[53] Further, Mr Smith observes that the Commission’s broad interpretation focuses on the separate legal identity, or the form of the agency, that provides both residence and the rehabilitation programme. Under that approach, all else being equal, the exact same conditions might be lawful when provided by two different agencies, but unlawful when provided by the same agency. However, he submits, there is no material rights benefit—no practical improvement to an offenders’ liberty interests or difference in the penal effect of an ESO—simply by having accommodation and rehabilitation provided by separate entities.37 Accordingly, s 6 of the Bill of Rights has no part to play at the interpretive stage as neither the middle-ground nor the broad interpretation 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 service provider, but on the substance of the restrictions on liberty and movement that are built into the terms and conditions of a particular ESO (like the hours of attendance at a programme, curfew times, and the nature and extent of the monitoring regime). Put another way, the appropriate mechanism for delivering rights-consistent outcomes is not 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 be achieved by adopting a bright line interpretation must be weighed against the practical consequences it will have, including the practical and resourcing difficulties raised in the affidavits of Sir Ronald Young and Ms McNamara.38 The broad interpretation might disrupt offender rehabilitation, an outcome Parliament was unlikely to have intended.
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 punitive nature of imprisonment is its provision by a single agency, and the assumption that imprisonment is in fact delivered by one agency.
38 The Parole Board submits that these practical consequences are relevant consideration to the interpretive 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 of s 107K(3)(bb). He points to Ms McNamara’s evidence that, prior to the 2014 amendments, the Board commonly imposed Individual Residential Reintegration Programmes (IRRPs) under s 16(b) and in the care of conditions under s 16(c). While these programme conditions were used as a means for furthering rehabilitation, they also allowed for the 24 hour monitoring and supervision of offenders. Ms McNamara said:
These “in the care of” or IRRP programme conditions did not necessarily expressly state that full-time monitoring and supervision was a part of the programme, but that was the basis on which the Department either operated the programmes or contracted external agencies to operate the programmes.
[57] Mr McKillop submits that, when viewed in this light, the purpose of s 107K(3)(bb) was also to end the practice of using rehabilitation programmes to effectively achieve 24 hour supervision and circumvent the (rightly) strict controls on such restrictive and intrusive conditions. The mischief targeted was the “warehousing” of prisoners; the use (or perceived use) of programmes merely as devices for the continued detention of offenders who have already served their prison sentence. He submits that s 107K(3)(bb) achieves this in the following way:
(a)Paragraph (i) prohibits excessive monitoring unrelated to the goals of a programme. It makes clear that monitoring of compliance must be associated with the hours and goals of a programme and leaves intensive monitoring to be imposed only in accordance with the specific provisions of the Parole Act providing for that special condition.
(b)Paragraph (ii) prohibits programme conditions which place someone in the care of an agency by requiring or resulting in them residing with that agency. It leaves questions of residence to be dealt with by residence conditions and residential restrictions, not in the care of conditions.
Consideration
Text, 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 and context.39
[59] Section 107I(1) of the Act says that the purpose of an ESO is “to protect members of the community from those who, following receipt of a determinate sentence, pose a real and ongoing risk of committing serious sexual or violent offences”. The statutory purpose does little, however, to clarify the intended scope of s 107K(3)(bb)(ii), which operates as a limitation on the Parole Board’s power to impose special conditions.
[60] Nor do the parliamentary materials surrounding the 2014 amendments provide an explanation for the introduction of the provision. However, it is clear from the parliamentary debates that the House was very much aware of the human rights context and was concerned to ensure that the legislation struck a balance between protection of the community and the need for proportionality given the degree of intrusion into fundamental rights.
[61] The then Attorney-General, the Hon Christopher Finlayson KC, concluded in his s 7 report that the Bill was inconsistent with s 26(2) of the Bill of Rights, observing that the same conclusion had previously been reached in two previous s 7 reports, and by the Court of Appeal.40 However, he also highlighted that the Bill introduced two new safeguards against the unnecessary imposition of ESOs: first, a requirement that a court must be satisfied of an increased threshold—“a pervasive pattern of serious sexual or violent offending”—before making an order; second, a requirement that
39 Legislation Act 2019, s 10(1).
40 Christopher Finlayson Report of the Attorney-General under the New Zealand Bill of Rights Act 1990 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 Rights Act 1990 on the Parole (Extended Supervision) and Sentencing Amendment Bill (5 September 2002) at [19]; Christopher Finlayson Report of the Attorney-General under the New Zealand Bill of 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) 22 CRNZ 787 (CA) at [57].
“high impact conditions” be reviewed every two years.41 The Law and Order Select Committee likewise noted that the Bill “includes safeguards that would prevent the abuse of [ESO] powers, given to authorities, under this legislation”.42 The speeches in the House also confirm that Parliament was mindful of the highly restrictive and rights-limiting nature of ESOs, and the need to carefully limit their application to the minimum extent necessary to achieve the objective of community protection.43
Legislative history of amendments to the ESO regime
[62] The legislative history of amendments to the ESO regime also reflect Parliament’s appreciation of the need for limits on the imposition of the more onerous special conditions.
[63] Part 1A and s 107K of the Parole Act were introduced in July 2004 and significantly 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 to impose a special condition requiring a person to reside at a specified address “as if the person were on home detention”.45 In other words, the Board had a power to impose a condition that looked very much like an at all times residential restriction, although that form of condition had not yet been expressly created.46 In addition, under s 107K(2)(a), an offender subject to this residential requirement could also be required to 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 for more 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.
43While there was widespread agreement that the safety of the community justified significant limits on the rights of the relatively small number of people posing a high risk of serious violent and sexual reoffending, the speakers also emphasised the importance of proportionality. The speeches regularly endorsed the safeguards in the Bill, including requirements for judicial oversight over the imposition and review of ESOs, independent expert advice as to the offender’s risk, a maximum 12 month duration for intensive monitoring conditions, mandatory two-yearly reviews by the Board of high-impact conditions, and that a person may only be subject to an ESO for as long as their risk warrants it: (3 July 2014) 700 NZPD 19215 (Parole (Extended Supervision Orders) Amendment Bill — First Reading); (26 November 2014) 702 NZPD 860 (Second Reading); 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, showing the 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 intensive monitoring. But even in this early form of the regime, both the residential and monitoring 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 early form of intensive monitoring and residential restrictions.47 The amendment also introduced a new s 33, which contained a “residential restrictions” framework (the first time the expression appeared in the Act). This provision enabled the Board to impose special conditions relating to residential requirements,48 including a requirement for an offender to be at a residence at all times.49 Importantly, any residential restriction (not just an at all times requirement), was expressly limited to the first 12 months of the order.50 This position was reversed in the April 2009 amendment, 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 an at 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 to impose special conditions relating to intensive monitoring and at all times residence was subject to only two limitations set out in s 107K(3), both requiring such conditions to be subject to express temporal limits.53
[67] In 2014 Parliament significantly changed s 107K. In particular, the 2014 amendments introduced for the first time the expression “intensive monitoring” (to describe an order requiring person-to-person accompaniment and monitoring for up to 24 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 restrictions imposed on the offender may include a requirement that the offender submit to being accompanied and 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 Supervision Orders) 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 for the full term of the order “or any lesser period”; and subs (3)(b) provided that any at all times residential restriction, and therefore any person-to-person monitoring, could only apply for the first 12 months of the order.
Parliament brought together and expanded the restrictions on the Parole Board’s power to impose special conditions as set out in subs (3). This included the introduction of subs (3)(bb). It also introduced a new set of requirements in subs (3A) to (3C), which I return to shortly.
[68] The eventual separation in 2014 of intensive monitoring from at all times residential 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 an offender 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 is cancelled, and whether or not it has come into force, the Board may, on an application by the chief executive or a probation officer, impose on the offender any special condition that the Board is entitled to impose 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 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
section 33(2)(c)(ii) may apply only within the first 12 months of the term of the order; and
(ba)any intensive monitoring condition may apply only within the first 12 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, for longer each day than is necessary to
ensure the offender’s attendance at classes or participation in other activities associated with the programme; or
(ii)require the offender to reside with, or result in the offender residing with, any person, persons, or agency in whose care the offender is placed; and
(c)if the Board considers that any special conditions imposed on the offender are incompatible with all or any of the standard extended supervision conditions, the Board may (despite section 107J(1)(a)) suspend those incompatible standard extended supervision conditions during the period in which those special conditions are in force, and time runs on the suspended conditions during that period.
(3A)Subsection (3B) applies if the Board has imposed or imposes on an offender any of the following special conditions:
(a)a condition requiring the offender to submit to being accompanied and monitored for up to 24 hours a day under section 33(2)(c) and subsection (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 an appropriate agency, person, or persons for the purposes of a programme 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 court under section 107IAC(1).
(3B) When this subsection applies, the standard condition in section
107JA(1)(i)—
(a)is suspended during the period in which the special condition is in force; 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 must not 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 executive authorised by the chief executive to grant such approval; and
(b)in the presence and under the supervision of an adult who—
has been informed about the relevant offending; and
(ii)has been approved in writing by a probation officer as suitable to undertake the role of supervision.
[70] The Parole Board’s broad power conferred to impose conditions in subs (1) is subject to the limitations set out in subs (3). The limitations in subs (3)(a)–(bb) are mandatory and cumulative. As noted, s 107K(3)(b) and (ba) imposes a hard temporal limit on at all times residential restrictions and intensive monitoring conditions. Both conditions “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 these limitations. It provides a wider protection for offenders subject to an ESO beyond the hard-edged temporal limits imposed on the most onerous conditions affecting their liberty.
[72] Three additional points can be made about subs (3)(bb). The first is that the chapeau to the provision indicates that the restriction it imposes relates to “any condition” to participate in a programme as referred to in s 15(3)(b). As Mr Butler submits, while subs (bb)(ii) mirrors the language of in the care of programmes imposed under s 16(c), such a restriction is not supported by the opening words of the provision.
| 8 July 2004 to 30 September 2007 | 1 October 2007 to 3 April 2009 | 4 Apr il 2009 to 11 December 2014 | 12 December 2014 to present |
| suspend those incompatible standard extended supervision conditions during the period in which those special conditions are in force and time runs on the suspended conditions during that period. | suspend those incompatible standard extended supervision conditions during the period in which those speci d conditions are in force, and time runs on the suspended conditions during that period. | suspend those incompatible standard extended supervision conditions during the period in which those special conditions are in force, and time runs on the suspended conditions during that period. | |
| (3A) Su bsection (3B) ap plies if the Board has imposed or imposes on an offender ans of the following special conditions (a) a condition re0uiring the offender to su bmit to being accompanied and monitored for u p to 24 hours a dan un der section 33(2)(c) and su bsect ion (2) (imposed before the commencement of the Parole Œxtended Supervision Orders) Amendment Ach 2014) ñ) a condition of long -term full- time placement in the care of an annronriate aeencv nerson or persons for the purposes of a programme un der sections 1 (3) ñ) and 1 6(c) and su bsection (1) (imposed before the commencement of the Parole Œxtended Supervision Orders) Amendment Ach 2014) (c) an intensive monitoring condition imposed un der su bsection (1 ) in accordance with an order made by the court under section 1 071AC(1) (3B) When this su bsect ion app lies the fiandard condition in section 1 07JA(1 )(i)— (a) is suspended during the period in which the special condition is in force and ñ) is for that period replaced by the condition specified in su bsection (3C) (3C) For the num oses of su bsection (3B) ñ) the condition is that the offender mu fi not associate with or contact a nerson under the ace of 1 6 sears except— (a) with the prior written approval of an emnlovee of the chief executive authorised by the |
| 8 July 2004 to 30 September 2007 | 1 October 2007 to 3 April 2009 | 4 Apr il 2009 to 11 December 2014 | 12 December 2014 to present |
| chiet executive to grant such approval and ñ) in the presence and under the su pervision of an adult who— (i) has been informed abou I the relevant offending and (ii) has been approved in writing by a probation officer as suitable Io undertake the ro le of | |||
| (4) Su bsections (2) and (4) of section 15 apply in respect of special conditions imposed under This section . | (4) Su bsections (2) and (4) of section 15 apply in respect of special conditions imposed under This section . | (4) Su bsection s (2) and (4) of section 15 apply in respect of special conditions imposed under This section. | (4) Su bsection s (2) and (4) of section 15 apply in respect of special conditions imposed under This section. |
| (5) If an offender is su bject to a special condition under this section that requires the offender to take prescription medication, the offender does not breach his or her conditions, for the purposes of section 107T, if he or she withdraws consent to taking prescription medication. | (5) If an offender is su bject to a special condition under this section that requires the offender to take prescription medication, the offender does not breach his or her conditions, for the purposes of section 107T, if he or she withdraws consent to taking prescription medication. | (5) If an offender is su bject to a special condition under this section that requires the offender to take prescription medication, the offender does not breach his or her conditions, for the purposes of section 107T, if he or she withdraws consent to taking prescription medication. | (5) If an offender is su bject to a special condition under this section that requires the offender to take prescription medication, the offender does not breach his or her conditions, for the purposes of section 107T, if he or she withdraws consent to taking prescription medication. |
| (6) The Board must notify the offender concerned, and every victim of the offender, if it is considering imposing special conditions under this section. | (6) The Board must notify the offender concerned, and every victim of the offender, if it is considering imposing special conditions under this section. | (6) The Board mu st notify the offender concerned, and every victim of the offender, if it is considering imposing special conditions under this section . | (6) The Board mu st notify the offender concerned, and every victim of the offender, if it is considering imposing special conditions under this section . |
| () The offender and any victim of the offender may make written submission s to the Board and, with the leave of the Board, may appear and make oral submission s on wh ether special conditions should be imposed, what the conditions shoul d be, and their duration. | () The offender and any victim of the offender may make written submission s to the Board and, with the leave of the Board, may appear and make oral submissions on wh ether special conditions should be imposed, what the conditions shou ld be, and their duration. | () The offender and any victim of the offender may make written su bmissi ons to the Board and, with the leave of the Board, may appear and make oral submissions on whether special conditions should be imposed, what the conditions should be, and their duration. | () The offender and any victim of the offender may make written su bmissi ons to the Board and, with the leave of the Board, may appear and make oral submissions on whether special conditions shou ld be imposed, what the conditions should be, and their duration. |
| (8) Notice of any speci d conditions attached to an extended supervision order must be provided, in writing, to the following: (a) the offender: ñ) the chief executive: (c) the police: (d) every victim of the offender; but the Board may wi fhhold notice of a particular condition if disclosure of the | (8) Notice of any speci d conditions attached to an extended supervision order must be provided, in writing, to the following: (a) the offender: ñ) the chief executive: (c) the police: (d) every victim of the offender; but the Board may wi fhhold notice of a particular condition if disclosure of the | (8) Notice of any speci d conditions attached to an extended supervision order must be provided, in writing, to the following: (a) the offender: (b) the chief executive: (c) ilie police: (d) every victim of the offender; but the Board may withhold notice of a particular condition if disclosure of the | (8) Notice of any special conditions attached to an extended supervision order must be provided, in writing, to the following: (a) the offender: (b) the chief executive: (c) ilie pet+eePo lice: (d) every victim of the offender; but the Board may wifhhol d notice of a particular condition if disclosure of the |
| 8 July 2004 to 30 September 2007 | 1 October 2007 to 3 April 2009 | 4 Apr il 2009 to 11 December 2014 | 12 December 2014 to present |
| condition wou ld unduly interfere with the privacy of the offender). | condition wou ld unduly interfere with the privacy of the offender). | conditi on would unduly interfere with the privacy of the offender). | condition would unduly interfere with the privacy of the offender). |
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