The Law Commission has reviewed the laws that protect the community from people who pose risks of serious sexual and violent reoffending. Those laws provide for preventive detention, extended supervision orders (ESOs) and public protection orders (PPOs).

Preventive detention

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.

As of mid-2024, 286 people were subject to preventive detention.

Extended supervision orders

ESOs require people to be managed in the community under heavy restrictions. The ESO regime is set out in the Parole Act 2002. A court can impose an ESO on a person toward the end of their determinate prison 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. As of mid-2024, 183 people were subject to an ESO.

Public protection orders

PPOs require people to be detained in a secure facility in the precincts of Christchurch Men’s prison. The PPO regime is set out in the Public Safety (Public Protection Orders) Act 2014. A court can impose a PPO on a person toward the end of their determinate prison sentence or while they are on an ESO. As of mid-2024, three people were subject to a PPO.

The review was prompted by findings that the current law was not consistent with international and domestic human rights law. The United Nations Human Rights Committee had found in 2017 that the laws governing preventive detention were in breach of the International Covenant on Civil and Political Rights. Domestic courts had held that aspects of ESOs and PPOs are inconsistent with the right not to be punished twice for the same crime under the New Zealand Bill of Rights Act 1990.

In May 2023, the Commission published an Issues Paper identifying issues with the current law. It contained high-level proposals for reform. The Commission consulted for eight weeks on the Issues Paper and received 39 submissions. 

In July 2024, the Commission published a Preferred Approach Paper. The Paper set out the Commission’s preferred options for reform of the current law for further consultation. The Commission received 19 submissions. 

In addition, the Commission engaged with a broad range of interested stakeholders. They included relevant government agencies like the Parole Board, the Department of Corrections, lawyers, academics, reintegration service providers, community groups working in criminal justice, iwi and kaupapa Māori groups. We also sought and received some feedback from the judiciary.

Our Final Report, completed in March 2025, concludes our review of preventive detention and post-sentence orders. The Final Report makes 149 recommendations for reform to the Government.

The current law is fragmented

The law is separated across different regimes governed by different statutes. This fragmentation can cause procedural inefficiencies. It can hinder the court from imposing the most appropriate order to keep the community safe and comply with human rights law.  

The current law is inconsistent with human rights

The domestic courts and international human rights bodies have criticised the current law. In particular, the United Nations Human Rights Committee has found that preventive detention breaches the protection against arbitrary detention under the International Covenant on Civil and Political Rights. Te Kōti Mana Nui | Supreme Court has held that aspects of the ESO and PPO regimes breach the protection against punishing a person twice for the same crime under the New Zealand Bill of Rights Act 1990. 

Risk assessment at sentencing may be less accurate than at the end of a sentence

To impose preventive detention, the court must assess the likelihood that a person will reoffend were they to complete a determinate sentence of imprisonment and then released into the community. It requires predictions of a person’s risk years into the future. The assessment is likely to be more accurate if undertaken when the person’s release into the community is imminent. 

Inconsistency with tikanga and the Treaty of Waitangi

As with the wider criminal justice system, there are concerns that the law is inconsistent with tikanga Māori and does not give effect to obligations under te Tiriti o Waitangi | Treaty of Waitangi. 

Some types of qualifying offending are not included

To be eligible for preventive detention, an ESO or a PPO, a person must have been convicted of a qualifying offence. The legislation omits some serious offences that might indicate a risk of serious reoffending. 

The legislative tests for imposing orders may not always focus on reoffending risk

The legislation governing the imposition of preventive detention, ESOs and PPOs may not focus on the appropriate level of risk. Some provisions require the courts to be satisfied the person displays certain traits and behavioural characteristics that may not indicate reoffending risk.  

Extended supervision orders authorise detention through inappropriate procedures

People subject to ESOs can be detained if the Parole Board imposes special conditions requiring their fulltime placement with a programme provider. The law is not sufficiently clear that this constitutes detention. It is preferable that detention of this nature is imposed a court rather than the Parole Board. 

The introduction of a new, single statutory regime

Measures to prevent serious sexual and violent reoffending should be brought into a new, single statute. The new Act should provide for three new measures with varying degrees of restrictiveness — from supervision in the community through to secure detention.

The law governing preventive detention, ESOs and PPOs should be repealed.

A move to post-sentence measures

Measures under the new Act should be imposed at the end of a person’s determinate sentence for their qualifying offending. The sentence of preventive detention should be abolished.

Adjustments to the list of qualifying offences

New qualifying offences should be added to ensure the inclusion of serious offences that might indicate a risk of serious reoffending. Some unnecessary or ineffective offences should be removed from the list of qualifying offences. 

Revisions to the legislative tests for the imposition of preventive measures

The legislative tests according to which the court determines whether to impose a preventive measure should be revised. The new tests should better address community safety risks while ensuring restrictions on rights and freedoms are limited only to the extent necessary and justified. 

Three new preventive measures

The new Act should provide for three preventive measures of varying degrees of restrictiveness. Each measure should be established as a separate measure and the restrictions it imposes clearly communicated in the legislation. The three measures are: 

• supervised life in the community (‘community preventive supervision’);
• detention in a community-based residential facility (‘residential preventive supervision’); and
• detention in a secure facility designed to stop people from leaving (‘secure preventive detention’).

Strengthened Māori involvement and the operation of tikanga

The new Act should promote and strengthen the placement of a person within the care of an iwi, hapū, marae or whānau. 

Greater entitlements to rehabilitative treatment and reintegration support

All preventive measures under the new Act should have a central focus on restoring people at high risk of serious reoffending to safe and unrestricted life in the community. The legislation should provide greater entitlements to rehabilitative treatment and reintegration support.

Detention conditions distinct from prison

The recommended preventive measures that authorise detention should be subject to legislative protections that require the conditions of detention to be distinct from the conditions of punitive prison sentences.

Community preventive supervision

The least restrictive preventive measure we recommend would enable a person to live in the community subject to several conditions requiring their supervision and monitoring. We call this measure ‘community preventive supervision’. We suggest it should operate in a similar way to ESOs. Community preventive supervision should have a core set of standard conditions with the option of the court imposing special conditions.

Residential preventive supervision

We recommend a preventive measure that requires a person to reside in a community-based residential facility which they cannot leave without permission. We call this preventive measure ‘residential preventive supervision’.

A residential facility should not have security features designed to stop people from leaving, and facility staff should have minimal coercive powers. The aim is to provide a structured and supported living arrangement in a residential setting that is as close to life in the community as possible

Secure preventive detention

The law should continue to enable the detention of a person in a facility with security features designed to stop them from leaving as the most severe preventive measure. We call this preventive measure ‘secure preventive detention’.

Secure preventive detention is intended as a measure of last resort. It should only available when a court is satisfied that detention of this nature is justified by the nature and extent of the reoffending risks the person poses.

The Government will consider our recommendations and decide whether to implement them.

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.