The Justice Committee has examined the Parole (Mandatory Completion of Rehabilitative Programmes) Amendment Bill. We were unable to reach agreement on whether to recommend that the bill be passed. Labour and Green Party members of the committee did not think that the bill should be passed. However, if the bill were to proceed, we have proposed some amendments. We recommend all amendments unanimously.

This is a Member’s bill in the name of Todd Stephenson MP. Its objective is to provide a requirement for individuals in a corrections facility to complete skills and rehabilitation programmes before being considered for parole.

The bill would amend the Parole Act 2002 to impose the following conditions on an offender who, by the time of their parole hearing, had not completed a rehabilitative programme identified in their management plan:¹

• The offender could not be considered for parole by the New Zealand Parole Board.

• To provide time for the offender to complete the relevant programme, the Parole Board would need to set a new date by which they must be considered for parole. This date could not be more than 12 months after the date that the offender was due to be considered for parole.

• The hearing could be brought forward if the manager of the prison considered that the offender had completed the relevant programme.

As part of our consideration of the bill, we have examined its consistency with principles of legislative quality. We have no issues regarding the legislation’s design to bring to the attention of the House.

On 18 April 2024, the Attorney-General presented a report on the bill to the House of Representatives under section 7 of the New Zealand Bill of Rights Act 1990 (NZBORA) and Standing Order 269. Section 7 requires the Attorney-General to bring to the attention of the House any provision that appears to be inconsistent with any of the rights and freedoms contained in NZBORA. Under Standing Order 269(1), the Attorney-General must indicate the provision to the House and how it appears to be inconsistent with NZBORA.

Section 22 of NZBORA provides that everyone has the right not to be arbitrarily arrested or detained. The Attorney-General noted that the effect of the bill on section 22 would depend on whether a prisoner’s sentence of imprisonment was finite or indeterminate. She explained that the United Nations Human Rights Commission and the European Court of Human Rights have developed a broad approach to arbitrary detention when considering indeterminate sentences of imprisonment. The initial minimum period of imprisonment is treated as reflecting the appropriate punishment. Any longer period beyond that is justified only for public safety reasons and becomes arbitrary if not periodically reviewed by an independent body.

In New Zealand, the Attorney-General noted, the courts have not adopted all aspects of the international approach when interpreting section 22 of NZBORA. However, the Court of Appeal has observed that periodic reviews by the Parole Board are necessary to avoid preventive detention becoming arbitrary.

The Attorney-General concluded that the bill appears to be inconsistent with the right in section 22 of NZBORA not to be arbitrarily arrested or detained. However, it would be consistent with NZBORA if its scope were amended to exclude those prisoners subject to preventive detention. We would support this proposed amendment if the bill were to proceed, and discuss it in more detail later in this commentary.

Many submitters expressed concern that the bill, as introduced, could result in unintended consequences. These could be adverse for the effectiveness of rehabilitation and reintegration, and ultimately for public safety. Some of the potential unintended consequences are as follows:

• The bill could exacerbate the existing challenges faced by the Department of Corrections in providing rehabilitative programmes. The challenges include staffing shortages, programme availability, and an increasing prison population that is placing additional pressure on limited resources.

• Offenders who are unable to access rehabilitative programmes through no fault of their own may have to remain in custody for longer than necessary.

• Offenders may withhold information from case managers as a way of avoiding having programmes included in their management plans.

• The bill could diminish the discretion and independence of the Parole Board.

We share submitters’ concerns about the potential for unintended consequences. We also understand that the Parole Board already essentially fulfils the policy intent of the bill. At parole hearings, Board panels rigorously review prisoner rehabilitation programmes with prisoners. The panels also provide expert advice to offenders and Corrections staff about what a prisoner needs to accomplish to receive parole.

We spent some time discussing different approaches that could be taken to incentivise prisoners to participate in rehabilitative programmes rather than making participation mandatory. One way of doing so would be to insert a new guiding principle in section 7 of the Parole Act. This would require the Parole Board to be informed about the offender’s engagement and progress in any rehabilitative programmes. However, we note that such a proposal would be outside the scope of the bill. This is because the proposal to incentivise prisoners rather than to require completion of rehabilitative programmes would undermine the bill’s objective.

We also considered whether the Department of Corrections could be legally required to provide literacy and numeracy programmes to prisoners. We received advice that literacy and numeracy programmes are an important component of Corrections’ education programmes. However, legally requiring them could create a risk that these programmes were prioritised over interventions that would better address prisoners’ other needs. It could also result in Corrections being unable to tailor programmes to individual need. For example, a person might need their substance abuse or mental health issues addressed before engaging in literacy or numeracy programmes.

To address the concerns raised, the Member in charge of the bill proposed an amendment to the bill’s policy intent. Rather than an offender needing to have completed their rehabilitative programmes before being considered for parole, they would instead need to have made a reasonable effort to undertake or complete all their uncompleted rehabilitative programmes. If it were not possible for them to enrol in or complete their rehabilitative programme, the manager of the prison could allow the offender to appear before the Parole Board.

As previously noted, we were unable to reach agreement on whether to recommend that the bill be passed. However, in case it were to proceed, the rest of this commentary discusses the main amendments that members recommend to give effect to these changes. We do not discuss minor or technical amendments.

We recommend removing the word “mandatory” from the title of the bill. We acknowledge that the proposed amendments retain a mandatory aspect. Offenders would still be required to take steps towards completing certain rehabilitative programmes before they could appear before the Parole Board. However, the extent to which they would need to undertake those programmes would differ from the bill as introduced.

We recommend inserting section 24A(1)(b) to require an offender to have made reasonable efforts to undertake or complete the rehabilitative programmes identified in their management plan before being considered for parole.

We were advised that, in the Parole Board’s view, the contents of a management plan do not always align with its assessment of what is most important to address the offender’s rehabilitative needs. Further, the Parole Board is well placed to offer an alternative assessment of risk and rehabilitative needs for these offenders. This is because it considers a lot of background information about the offender and their management plan before it sees them. Therefore, we recommend inserting section 24A(1)(a) to require the programmes to be relevant to the risk that an offender poses to the safety of the community.

Clause 2 of the bill as introduced provides that the bill would come into force on the day after the date on which it received Royal assent. We understand that the Parole Board and Corrections would need time to implement administrative processes and make procedural and staffing changes. Therefore, we recommend amending clause 2 to delay commencement by 18 months.