Child sex offender name change ban not justified, reports Attorney-General
A law preventing child sex offenders from formally changing their name is inconsistent with the right to free expression, Attorney-General Hon Christopher Finlayson says.
As required by section 7 of the New Zealand Bill of Rights Act 1990 (NZBORA) Mr Finlayson has reported to Parliament on the Births, Deaths, Marriages, and Relationships Registration (Preventing Name Change by Child Sex Offenders) Amendment Bill (the Bill), which was introduced by National MP Jian Yang last month and passed its first reading yesterday 75 votes to 46.
Mr Finlayson says the proposed permanent ban on child sex offenders registering a name change limits New Zealanders' right to freedom of expression under section 14 of the NZBORA and that limitation cannot be demonstrably justified in a free and democratic society.
The Bill's purpose is to "protect vulnerable members of society from child sex offenders by preventing those individuals from changing their names", to ensure "appropriate agencies can properly manage child sex offenders to assist in their rehabilitation and to maintain public safety".
However, Mr Finlayson says there is not a rational connection between limiting the right to freedom of expression and the Bill's stated objective. "Child sex offender" is defined too widely, he says, capturing a broader group of persons than those intended, including persons convicted of certain violent offences, certain sexual offences where the victim was older than 16, and certain offences relating to the possession or dissemination of questionable material.
Further, legally preventing registration of a name change will not prevent an offender from lawfully using a new name without registering it, their new identity being established by usage and repute, he says.
Mr Finlayson concludes that the Bill impairs the right to freedom of expression more than is necessary to achieve the stated legislative objective, because: alternative means that involve less impairment of rights are available and because existing legislation achieves (and legislation currently before the House will achieve) the Bill's policy objectives – namely, protecting vulnerable members of society from child sex offenders – more effectively.
He says the "least intrusive" mechanism to achieve the Bill's specific purpose would be to require a child sex offender to notify a competent authority before or immediately after registering a name change, and says sentences such as Extended Supervision Orders already provide significant oversight of child sex offenders, who are actively monitored and supervised as long as they pose a "real and ongoing risk".
Better information sharing between relevant agencies, the proposed establishment of a Child Sex Offender Register, and a requirement that all persons working with children be vetted for suitability, are additional mechanisms that more effectively achieve the objective of protecting vulnerable members of society, he says.
Mr Finlayson says there may genuine reasons why a child sex offender decides to change their name, including that it "may assist in their rehabilitation and reintegration back into the community and thereby reduce their risk to children".
Last updated on the 16th September 2019