Public Safety (Public Protection Orders) Bill

I have said that I agree that provided the Public Safety (Public Protection Orders) Bill incorporates the key standards and safeguards necessary for a civil committal regime, it will be compliant with civil rights. Whether the bill as introduced includes adequate safeguards is what the Justice and Electoral Committee must closely examine.

In doing so, it will be necessary to ensure that the detailed provisions of the bill will observe the principles as stated in it. Firstly is that of not punishing persons. The previous commission of an offence is to be only one of several factors that are relevant to assessing whether there is a very high risk of imminent sexual or violent offending. Secondly, a protection order should be imposed only if the magnitude of the risk posed by the respondent justifies it. Thirdly, a protection order should not be imposed on a person who is eligible to be detained under mental health legislation. Fourthly, persons who are detained in a residence should have as much autonomy and quality of life as possible. Those are the principles that the select committee needs to keep in mind when reviewing this bill.

The threshold for an order requires that the person is a prisoner under a determinate sentence for a serious sexual or violent offence, is to be released from detention not later than 6 months after the date of the application, and is a prisoner under the Parole Act or subject to a protective supervision order. This threshold appears to us to be appropriate, and an order should be needed only rarely.

The bill requires a robust assessment of whether a subject poses a high risk of serious sexual or violent offending. It requires the application to be supported by at least two reports, one of which must be by a registered psychologist and the other by either a psychiatrist or another psychologist. The court may call for a report by a health assessor, and the respondent to the application can also request such a report. So those are good safeguards.

This, of course, is the crux of the main issue—that there must be proof of whether an order is necessary. That is most important. In addition, the court must not find that there is a very high risk of further offending unless it is satisfied that the respondent exhibits a severe disturbance in behavioural functioning, established by evidence of specified characteristics to a high level. I think that is also a very important safeguard. The review provisions will also need to be examined by the select committee. Whether those review provisions are adequate is something that we really need to have a close look at.

A person may be detained in a prison or in a residence if the person is subject to a protection order but not to a prison detention order. A residence is a building located in prison precincts. A resident has the rights of a person of full capacity who is not subject to a protection order. Specific rights of residents include retention of earnings from permitted employment and the right to vote, to get newspapers, to have internet access, to use written communications, and to receive permitted visitors. So these are not persons without rights. They will have their freedom severely limited, but it is not like being in prison. There is a good balance there, I believe.

The bill provides for inspections of residences at least twice a year, and an inspector can, in fact, arrive unannounced and make an inspection at any time. The bill confers jurisdiction on the court to order that a person be detained in a prison instead of a residence if the court is satisfied that if detained in a residence the person would pose an unacceptably high risk to themselves or to others.

New Zealand First welcomes the bill, which it thinks is needed to fill a gap in the law, a gap that the public sees and believes should be filled. The gap allows dangerous prisoners who are not mentally ill to be released, with great risk to the public. We have seen some evidence of that in the past. Against this, of course, we must not allow unnecessary or arbitrary detention, and therefore New Zealand First will take great interest in the detail of the bill at the select committee consideration to ensure that the balance of which I have spoken—personal rights versus public protection—is adequately achieved.

It is a pleasure to stand and make a small contribution in support of the first reading of the Public Safety (Public Protection Orders) Bill. We have heard that this bill empowers the High Court to issue those public protection orders that allow for the detention of a person in a secure facility.

This bill is for the worst of the worst offenders—those who actually should not be allowed out, who should not be endangering our community. It is part of our programme to build a safer New Zealand, to protect our communities, to prevent crime, and to put victims first. It is aimed at that high end of high-risk offenders—those offenders who pose a very high risk of imminent and serious sexual or violent reoffending. That threshold is high, and so it should be. Only a small number of people are likely to be subject to a public protection order, but they are the very worst of the worst, and they should not be inflicted on our community.

This bill does strike the right balance between the rights of New Zealanders to be safe in their own communities with the rights of offenders who have served their sentences. I look forward to hearing the submissions on this bill during the select committee process for this bill. I commend this bill to the House.

Taloha ni, Mr Assistant Speaker. I rise to take a call on the Public Safety (Public Protection Orders) Bill. Following the member Kate Wilkinson, who has just resumed her seat, and in contrast to our stance on a bill that we spoke on last night, I do rise and agree with most of what she has said in her speech, because we do have to make sure that the public are protected, as she said, from the worst of the worst of these offenders who are very soon about to be released from prison but who will still, in the eyes of the High Court, pose a very high risk of sexual or violent reoffending.

One of the fundamental functions of this Parliament is to keep public safety and good order within our society and within our communities. A vast number of pieces of legislation deals with that in a very broad sense, such as when we deal with police or any kind of corrections bills. But, as the previous speaker said, this piece of legislation applies to only a very small number of people. It does pose on them a heavy degree of restriction, even though they are entitled to be released after having served a sentence in prison for offending seriously. But because of the nature of their offending and because of the nature of their personalities, and any, I guess, condition that they might have, they do pose a very serious risk of reoffending, and we need to protect the safety of the public in terms of that.

I guess one of the things that Andrew Little mentioned in his speech—as he has just joined us—was the notion of getting the balance right between protecting public safety when you do have very serious criminals being released who do pose serious risk to the public, and the kinds of restrictions that we put on them, even though they are entitled to be released. Some of the restrictions that have already been mentioned are the monitoring of their communications, via both their letters and also their phone calls. I guess that is one of the reasons why we want to make sure that we get that balance right. We are supporting this piece of legislation’s referral to the Justice and Electoral Committee so that we can ask some of those questions about getting that balance right, because we do want to make sure that public safety is preserved while also preserving some pretty fundamental principles around criminal justice. That is why we will be supporting the referral of this piece of legislation as it stands now to the Justice and Electoral Committee for closer examination.

Just for those who may not be familiar with the Public Safety (Public Protection Orders) Bill and what it does—and this has already been mentioned—the bill allows the chief executive of the Department of Corrections to ask the High Court for an order in relation to prisoners who meet a number of very tight circumstances. The first is that the prisoner will have been convicted of a serious sexual or serious violent offence, the chief executive at the time considers that that prisoner poses a risk of imminent sexual or violent offending if they are released out into communities, and the prisoner has been subject to a sentence and that sentence is close to being, or has been, completed.

If a public protection order is granted, the court will be able to grant that order if it is satisfied that there is indeed a risk of imminent offending, and that risk is to be assessed on the basis of reports from at least two psychologists, or reports from a psychiatrist and a psychologist. I think that is a very important safeguard that has been put into this piece of legislation. The detention of the person who is the subject of the protection order will be on prison grounds, which is necessary for the safety of both the prisoner and the community, and the prisoner is not to be suffering any other mental health condition that would qualify him or her for detention in a mental health facility.

I guess that was a good point that Andrew Little made in his speech last night: what happened to these people in the past, before this type of measure could be taken? He was very concerned that some of these people might have been in some of our mental institutions, or they might be falling through the cracks at the moment, and we have not really had an ideal way of looking after them. So we think that this could certainly be one way of making sure that we protect the safety of the public and that we also protect the rights of the people who are subject to these public protection orders.

Of course there is a bit of politics involved in this, because it is 18 September 2013, and 12 months ago Charles Chauvel, a former colleague of ours, who was our justice spokesperson at the time, was concerned about a lack of scrutiny, or about a lack of—I guess the word we could use here is “communication”—communication from that side of the House over to here and—

💬 Andrew Little: Consultation.

—consultation on this bill. It was exactly 1 year ago that he was concerned about that.

💬 Andrew Little: I thought this date reminded me of something.

That is right—exactly 1 year ago. The consultation has not continued, and 1 year later—it has taken a whole year to get to the first reading of this bill. It has taken exactly 1 year for us to get to the first reading of this bill. But as we have said, we are going to support this bill’s referral to the select committee because we do think that it is worthy of closer examination and to make sure that we get the balance right.

I just want to look at some of the details of the bill, including some of the safeguards that are built into the bill that the select committee will look at. Clause 14 is one that I want to look at—as I put this Post-it note over there—and it says that there will be a review panel, which will review public protection orders annually. I think, given the nature of some of these protection orders and the seriousness of the restrictions on the subjects and also the nature of the offenders—or I guess they are not offenders at that stage; they are formally convicted. Is that right? But, because of that, we want to make sure that those protection orders are reviewed, and clause 14, by way of an annual review, certainly gives the ability for us to make sure that those public protection orders—

💬 Andrew Little: Detainees.

—are looked at and that they are still appropriate for the person.

There are also some question marks that we have on this side, and questions that we will certainly be asking, around the communications of the detainees. This piece of legislation gives the right for the Department of Corrections to monitor telephone calls. It also gives the ability for the department to monitor the internet use of the detainees. I think, given some of our concerns around that, we will certainly be asking some questions about that in the select committee process.

The balance is what we are looking for in this piece of legislation. There could have been greater balance if there had been more consultation from the Minister of Justice with the Labour side of the House maybe a year ago, or even a year before that, when this piece of legislation was introduced. So we do have a number of concerns about that, but we do believe that the select committee process will address some of those. We do believe that there are some concerns around the basics of criminal justice principles, but we believe that with questioning from the Labour side of the House we can certainly address some of those issues. Thank you.

It is my pleasure to take a call on the Public Safety (Public Protection Orders) Bill in its first reading today. I believe the debate on this bill has been very considered and measured—by most members in the House—over the last 2 days while it has been debated. I think it is interesting, the debate that we have had, and I think everybody has talked about the similar themes of how important it is that we get the balance right between justice and giving people the tools to keep New Zealand safe and the civil rights of prisoners as well, once they have served their time and they are up for release, and how to get that balance so you can get it absolutely right.

I think that at the end of the day it comes down to keeping New Zealanders safe in their homes. That is what we are here to do, and as legislators it is very important that we get that right. This is one more tool. It adds to the tools that are already in place in the justice sector, like preventive detention, like extended supervision orders. What this tool does is basically say that if you have done your time but you are in imminent risk of violent or sexual reoffending, then this tool can be put in place—this public protection order—that means you have to stay on the grounds of the prison. That is what the condition is all about. Only a High Court can give that order. It does actually impinge on prisoners’ rights once they have served their time, that that can be applied, but at the end of the day it is about getting that balance right for New Zealand and keeping us safe.

I think it is also really important that we have got pathways for these detainees—pathways so they can work towards being released at some stage, if that is an option for them. Each individual will have a management plan that identifies goals that could contribute to their eventual release. An annual review will be performed on each of these public protection orders. The High Court will look at each case every 5 years as well, so that will be in place.

I am looking forward, when we get into the Justice and Electoral Committee, to the debate, which we have had in this House today and yesterday as well, and to debate on the issues that some of the Labour members have raised about how they would put more balance in this bill. I will be interested in the select committee process to see what that balance will look like, actually. I commend this bill to the House.

I understand this is a split call.

💬 Sue Moroney: No, I do not believe it is.

The ASSISTANT SPEAKER (H V Ross Robertson): It is not. In that case, I call the honourable member Sue Moroney.

Tomorrow is Women’s Suffrage Day. The reason I put that on the record at the beginning of my contribution to the debate on this particular bill, the Public Safety (Public Protection Orders) Bill, is that all too often the public whom we will be protecting with this bill will be the women of New Zealand, sadly, in far too many instances. That is because the public protection orders are designed to be used for the worst sexual and violent offences and the offenders who commit those, and—not always, but mainly—we do find that those offenders are men and that their victims are women.

So it is important that on the eve of Women’s Suffrage Day we reflect on how much more we still need to do in this area. In my view, and in the view of my Labour colleagues, we cannot say that we have made fantastic progress on women’s issues until women can feel safe in their communities, can feel safe in their homes—can feel safe in their communities. Until that very basic fundamental human right is afforded to every New Zealand citizen, including women, then we really cannot pretend that we have made the sort of progress that we need to make.

I would much rather be standing here speaking on a bill that actually stops these offences from taking place in the first place. Sadly, by the time we are talking about these public protection orders, far too many women, children, and others who are vulnerable in our society will have already been hurt by the offenders to whom we are applying the public protection orders. It does actually worry me that we spend a lot of time under the term of this Government debating ambulance at the bottom of the cliff approaches to addressing violence and sexual violence in our community.

I cannot remember the last time I was on my feet debating a bill put forward by this Government that was actually designed for, and had the purpose of, getting in front of all of that and actually putting in some legislative and policy measures that would actually stop the hurt from happening in the first place. So that is my wish, on the eve of Women’s Suffrage Day—that this Parliament and this Government would focus more on stopping the hurt from happening in the first place than on spending the many, many hours that we do spend debating the ambulance at the bottom of the cliff that we are going to put in place to actually keep punishing people who have already hurt far too many people in our society.

So I guess that that is really the context in which I debate this bill. Labour is, however, supporting this bill going to the Justice and Electoral Committee. This is the first reading and Labour members want to have the opportunity to engage—as we have not been able to so far—in the design of a bill like this, which is aiming, I think, at between five and 12 of the most serious offenders in this regard.

It is of concern to me that the Government went out and campaigned on this bill during the election, as it is wont to do. It wants to sound like it is tough on crime; that makes it feel better somehow. I would rather that we actually stopped the crime from happening in the first place, but this Government is focused on dealing with the aftermath and the effects of crimes after they have happened. That is really where it comes from on this.

But since it campaigned in the 2011 election to take this very measure, one of those offenders whom this bill is actually aimed at has finished his jail term and this measure will not apply to him. I am referring to Stewart Murray Wilson. This measure was not available for that case because this Government has taken its sweet time to actually even start the first reading of this bill. I do think that is worrying. This bill does have the support of many parties in this House and it could have proceeded an awful lot faster, had the Government had the will to do so. But it does not seem that that will has been there until quite recently.

So here we are at the first reading. Labour will support the bill going to the select committee, but we do so with a warning to the Government. We know from past experience with bills like this that we can make an awful lot more progress if parties are consulted on the drafting of the bill before it actually hits the House. We could actually fast track and proceed in a better way with this type of legislation—

💬 Hon Judith Collins: I haven’t got Andy’s phone number.

—and I know that the Minister of Justice does not agree. She does not like the idea of cross-party support for any of these measures, but where it does exist, the Minister should actually take advantage of that. If she was a good Minister, she would have taken advantage of that and actually made sure that we had a bill come into the House that had the goodwill and support of the parties that do want to support it. I think we would then have much better select committee processes in place.

But it will be very interesting to see what submitters do have to say on this bill, because I think that the fact that it has not had wide consultation will mean that there will be issues that will need to be addressed. Of course, that is what the select committee process is for. However, a better Government, a more open Government, and a more accessible Government would actually do better consultation at the outset. That is certainly the history that the Labour Party brings to this particular issue.

So what does the bill do? Well, the bill empowers the High Court to issue a public protection order that would allow for detention of a person in a secure facility for a potentially indefinite time frame. So these are very serious issues that we are addressing in this bill. There are fundamental issues around human rights and around making sure that indefinite time frames are used appropriately, albeit in an ambulance at the bottom of the cliff approach to this issue.

The bill is a proportionate balance, and that is why it would have been a good idea for parties to have had some input into this before it hit the debating chamber. There is a proportionate balance between the State’s legitimate objective of protecting citizens—which is an important function of this House—from almost certain serious sexual or violent harm, and the right of those on a public protection order to be subject to the least restrictive form of detention to achieve that objective. So that is the balance that we must strike here. That is the balance that we must strike, and I feel we would have been better prepared for that had there been that consultation.

Although it is possible that detainees will never be released from a public protection order, there are, however, some pathways for their release. Those pathways will include a management plan—as others have already said—rehabilitation, treatment, regular and early review of status, and post-release supervision.

But would it not be good if we did not have to debate these issues at all in this Parliament? Would it not be great if, instead, we got at the front end of it? If we were doing that properly—at the front end—we would not have had the New Zealand Police actually stop reporting the incidence of domestic and family violence in its annual report last year. All of the literature on this issue, Minister, tells us that the more we know about domestic violence and its impacts, what causes it, and how we get to that point, the more able we will be to address it as a society and to stop it in its path.

Those are the sorts of measures that we ought to be taking in this Parliament. Instead, that Government is busy actually stopping information from being made known at the outset. If we do not know, if we sweep it under the carpet and try to look the other way—as the annual report of the New Zealand Police is attempting to do—instead of getting to grips with this very ugly, black problem that we do have in New Zealand, then we will continue to be debating these ambulance at the bottom of the cliff bills. Instead of getting in front of the issue, instead of stopping the harm, instead of stopping the hurt, we will continue to deal with the aftermath.

It is my pleasure to take a brief call in the first reading of the Public Safety (Public Protection Orders) Bill, introduced by our very hard-working and very fine Minister of Justice, the Hon Judith Collins. I would like to welcome the fact that Opposition parties are supporting this bill’s referral to the select committee. As a member of the Justice and Electoral Committee, I will look forward to hearing views from a range of people and a range of submitters, including whoever the Labour Opposition spokesperson on justice happens to be next week.

I will be listening very carefully in the select committee stage to submitters on this bill, because I think that this sort of legislation has to be very carefully devised. It has to be very carefully balanced between protecting the civil liberties of those who have been convicted of an offence and who have served the time and served the sentence that the court has given them, and the right of every New Zealander to feel safe in their home and the right of every New Zealander to be protected from the very worst offenders, because we are talking here about the most dangerous, violent, and sexual attackers, predators, and offenders that this country has. So I think that this will be an important piece of legislation.

It actually brings us into line with some overseas jurisdictions. For instance, criminal sentencing legislation in the United Kingdom was clarified and updated in 2000, permitting people to be held at Her Majesty’s pleasure when they represented a very grave risk to society.

This is welcome legislation. This is an important tool, as others on the Government side have said. This is another weapon in the armoury of the justice system, to make sure that ordinary Kiwis can feel safe in their homes and communities. So I welcome it and I commend it to the House.