Aotearoa New Zealand has laws aimed at protecting the public from reoffending risks posed by some offenders convicted of serious crimes. These laws enable the detention or supervision of those offenders beyond a fixed-term prison sentence (determinate sentence). For the court to order detention or supervision, the offender must have been convicted of a qualifying sexual or violent offence and present risks of further sexual or violent offending.
In this review, Te Aka Matua o te Ture | Law Commission will examine the laws protecting the public from offenders who pose significant risks by providing for preventive detention, extended supervision orders and public protection orders.
Te Aka Matua o te Ture | Law Commission is undertaking a review of the laws in Aotearoa New Zealand providing for preventive detention and post-sentence supervision or detention. These laws apply to individuals who are convicted of sexual or violent crimes. A court can order detention or supervision of an individual if satisfied the individual would continue to present risks to public safety after completing a determinate prison sentence.
The review is considering:
- preventive detention under the Sentencing Act 2002
- extended supervision orders (ESOs) under the Parole Act 2002, and
- public protection orders (PPOs) under the Public Safety (Public Protection Orders) Act
Preventive detention is a criminal sentence under which a person remains in prison until they are considered safe enough to be released on parole. It is a prison sentence a court can impose under the Sentencing Act 2002 at the time a person is sentenced. A person sentenced to preventive detention cannot be considered for parole until the end of a minimum period of imprisonment stipulated by the sentencing court, which must be no less than five years. After that, they will only be released from prison if the New Zealand Parole Board is satisfied the person will not pose an undue risk to the safety of the community.
Extended supervision orders, or ESOs, require people to be managed in the community under heavy restrictions. ESOs are post-sentence orders a court can impose under the Parole Act 2002 on a person completing a determinate sentence. An ESO requires the ongoing monitoring and supervision of the person in the community after the end of their sentence. The New Zealand Parole Board can also impose special conditions such as restricting where the person can go, requiring participation in a rehabilitative programme, and monitoring the person 24 hours a day.
Public protection orders, or PPOs, are a type of detention in which people subject to orders are managed in a secure facility in the precincts of Christchurch Men’s prison. PPOs are post-sentence orders a court can impose under the Public Safety (Public Protection Orders) Act 2014 on a person completing a determinate sentence. Under a PPO, a person must be detained after the end of their sentence in a secure facility within prison precincts.
At 30 June 2022, there were 310 people subject to preventive detention and 205 people subject to extended supervision orders. There are currently two people subject to a PPO.
The terms of reference for the review require Commission to consider:
- whether the laws reflect current understandings of reoffending risks and provide an appropriate level of public protection
- te Tiriti o Waitangi | the Treaty of Waitangi, ao Māori perspectives and any matters of particular concern to Māori
- consistency with domestic and international human rights law, and
- the relationship between sentences of preventive detention, ESOs and PPOs.
Te Aka Matua o te Ture | Law Commission is an independent crown entity. Our function is to keep New Zealand’s law under review and to make recommendations to the Government to reform and develop the law.
Our independence makes us different from many public sector agencies. The Government does not direct how we carry out our work or the recommendations we make.
In 2022, the Government referred preventive detention and post-sentence orders to the Law Commission to review.
The review was prompted by findings by the United Nations Human Rights Committee in 2017 that the laws governing preventive detention were in breach of the International Convention on Civil and Political Rights. In addition, the Court of Appeal has recently held that ESOs and PPOs breach the prohibition under human rights law against punishing a person twice for the same crime.
The Law Commission has spent the initial phase of this review researching the law and issues. This has included an analysis of relevant cases and commentary, international human rights authorities and some analysis of comparable jurisdictions. The Commission has begun preliminary engagement with experts and stakeholders, including relevant government departments such as the Department of Corrections | Ara Poutama, lawyers, academics, and non-governmental and community organisations.
The Commission has also taken steps to explore the tikanga Māori related to community safety and managing reoffending risks, including reviewing relevant literature and holding wānanga with pūkenga tikanga. The Commission has met with several Māori groups and individuals who have experience and expertise in criminal justice.
In its Issues Paper, the Law Commission has identified what it considers to be the main issues with the current law. The Commission seeks feedback on these issues as it determines whether and what reform might be needed.
The issues described in the Issues Paper include:
- The current law may fail to enable Māori to live in accordance with tikanga and give effect to the obligations arising from te Tiriti o Waitangi | Treaty of Waitangi.
- The United Nations Human Rights Committee has found preventive detention to be in breach of the human rights protections against arbitrary detention. The Court of Appeal has declared ESOs and PPOs to be inconsistent with the human rights prohibition against punishing someone twice for the same crime.
- The law can be difficult to apply in practice and can cause procedural inefficiencies because it separates preventive detention and post-sentence orders into different statutory regimes.
- Young adults are eligible for indeterminate imprisonment even though their cognitive and emotional development is likely to change considerably as they mature.
- The law bases eligibility for preventive detention, ESOs and PPOs on convictions for past offending that may be insufficiently serious.
- The tests in the statutes for when a court may impose preventive detention, ESOs and PPOs may not focus on the risks a person will reoffend at the right level of likelihood and severity. The tests may also focus inappropriately on whether a person has certain traits and behavioural characteristics.
- The law applying to the conditions on which people are managed in the community on ESOs and parole from preventive detention is not clear in several places and may sometimes unnecessarily require someone to be detained rather than be in the community. The conditions could be made better by giving greater priority to enabling Māori-designed and Māori-led initiatives and tikanga.
- There are some minor problems relating to the variation or termination of preventive detention, ESOs and PPOs.
The Commission will use the feedback it receives on the Issues Paper as it develops options for reform in the next phase of the review. It will present those options in a Preferred Approach Paper which it will publish in mid-2024 for further consultation.
After consultation on the Preferred Approach Paper, the Commission will develop final recommendations for reform.
The Commission expects to produce a final report with recommendations to the Government in the first quarter of 2025.
No. At the conclusion of the project, the Commission will publish a final report making recommendations for law reform. It will be up to the Government whether to accept the Commission’s recommendations.
Terms of reference
Ka arotake Te Aka Matua o te Ture i ngā ture o Aotearoa e rato nei i te mauhere ārai hē me te whakahaere, mauhere rānei nō muri whakawhiu. Ka whakamahia ēnei ture ki ngā kiritahi mau tangetangengia nāna ngā hara ā-ai, whakarekereke rānei. Ka āhei te kōti te tuku ōta mauhere, whakahaere tikanga rānei i te kiritahi ki te matapaetia ka whakamōrea tonu ia i te noho haumaru o te marea i te mutunga o te noho mauhere māhoi.
Ka whakaaroaro te arotake i:
- te mauhere ārai hē i raro i te Sentencing Act 2002;
- ngā ōta whakahaere tikanga roa (arā, extended supervision orders, ngā ESO) i raro i te Parole Act 2002; me
- ngā ōta tiaki marea (arā, public protection orders, ngā PPO) i raro i te Public Safety (Public Protection Orders) Act 2014.
Tae ana te arotake (heoi e kore te tepe) ki te whai whakaaro ki:
- ka whakaata, kāore rānei, ngā ture i ngā māramatanga o tēnei wā ki ngā tūraru hara anō, ā, ka rato i te haumaru tūmatanui e tika ana;
- te Tiriti o Waitangi, te tirohanga ao Māori, me ngā take motuhake o ngāi Māori;
- te hāngai riterite ki te ture ā-kāinga, ki te ture tika tangata o te ao hoki; me
- te hononga i waenga i ngā whakawhiu mauhere ārai hē, ngā ESO, ngā PPO hoki.
Ko te whakawhitiwhiti tūmatanui tētahi wāhanga o te arotake.
E pīrangi ana Te Aka Matua o te Ture ki te tuku pūrongo ki te Minita māna te haepapa mō te Te Aka Matua o te Ture i mua i te mutunga o 2024.
Te Aka Matua o te Ture | Law Commission will undertake a review of the laws in Aotearoa New Zealand providing for preventive detention and post-sentence supervision or detention. These laws apply to individuals who are convicted of sexual or violent crimes. A court can order detention or supervision of an individual if satisfied the individual would continue to present risks to public safety after completing a determinate prison sentence.
The review will consider:
- preventive detention under the Sentencing Act 2002;
- extended supervision orders (ESOs) under the Parole Act 2002; and
- public protection orders (PPOs) under the Public Safety (Public Protection Orders) Act 2014.
The review will include (but not be limited to) consideration of:
- whether the laws reflect current understandings of reoffending risks and provide an appropriate level of public protection;
- te Tiriti o Waitangi | the Treaty of Waitangi, ao Māori perspectives and any matters of particular concern to Māori;
- consistency with domestic and international human rights law; and
- the relationship between sentences of preventive detention, ESOs and PPOs.
Public consultation will be part of the review.
Te Aka Matua o te Ture | Law Commission intends to report to the Minister responsible for the Law Commission by the end of 2024.
Hapori whānui me te tangata mōrea nui: he arotake o te mauhere ārai hē me ngā ōta nō muri whakawhiu | Public safety and serious offenders: a review of preventive detention and post-sentence orders (NZLC IP51, 2023)
Te Aka Matua o te Ture | Law Commission published an Issues Paper identifying issues with the law governing preventive detention, extended supervision orders (ESOs) and public protection orders (PPOs). The Issues Paper concludes with proposals for reform to address the issues identified.
The Commission invited submissions on the consultation questions posed in the Issues Paper.
Some of the issues on which the Commission sought feedback include:
- whether and how the law could better enable Māori to live in accordance with tikanga and give effect to obligations under te Tiriti o Waitangi | Treaty of Waitangi;
- findings that preventive detention breaches the human right against arbitrary detention and that ESOs and PPOs breach the prohibition against being punished twice for the same crime;
- issues with the criteria that make a person eligible for preventive detention, ESOs and PPOs;
- whether the legislative tests for imposing preventive detention, ESOs and PPOs target possible future offending at the right levels of likelihood and severity;
- the limitations of assessments of the risk a person will offend in the future;
- issues with the conditions on which a person subject to an ESO or on parole from preventive detention can be managed in the community;
- issues with the law applying to the variation or termination of preventive detention, ESOs and PPOs.
A summary of the Issues Paper, containing the consultation questions raised in the Issues Paper, is available as a standalone document.
A separate Easy Engagement Consultation Paper is also available. This paper presents selected issues from the Issues Paper and asks consultation questions. It has been translated into Easy Read to make the information accessible for people who have difficulty reading.
Submissions closed 28 July 2023.
The Commission intends to hold a further period of consultation in 2024 to consider proposed changes to the law before submitting its final recommendations to the Government.