Victims’ Orders Against Violent Offenders Bill

When I last spoke on this bill, I was acknowledging the chair of the Law and Order Committee, Jacqui Dean, who is a very, very good chair of the committee. We worked well as a committee. I notice that when Mr Goff took his call, he made it sound like it was an individual sport. It is not. It has been a real team effort, so I would like to acknowledge all the members of the Law and Order Committee.

The Victims’ Orders Against Violent Offenders Bill is a very important bill. I just want to refer to the last time the select committee sat. We were hearing submissions, but it was actually about parole hearings. The committee heard from a young lady who had been subjected to a very serious and violent domestic assault. The offender in this case was still in prison, but she felt distressed even thinking about having to appear at a parole hearing. That folds into these non-contact orders in terms of the amount of stress placed on victims when they know there is even a possibility that they could come into contact with, or run into, the offender or the person responsible for the attack on them. We were very, very pleased as a committee to work on this bill.

I will not mention all the main provisions, but I would like to go through just a couple that really are the guts of the bill. The bill establishes a mechanism for a victim of a violent offence, including offences of a sexual nature, to obtain a non-contact order against the offender in any case where the offender has been convicted of the offence and sentenced to imprisonment for 2 years or more. We had a fair bit of debate in the committee about this. Originally it was not 2 years, and we actually brought it back and brought it in line with other related legislation at 2 years, which I think was a very, very good change. I am very, very happy to commend this bill to the House. Thank you.

New Zealand First will support the Victims’ Orders Against Violent Offenders Bill. It is one of a number of moves needed to improve the rights of victims and to support them where they have been subjected to violence. Fear and anxiety about unwanted subsequent contact with the offender can be as bad as the offence itself and can impair the victim’s recovery and ability to enjoy a normal life.

Concerning clause 5(1), which was mentioned by the last speaker, Mark Mitchell, this defines a “violent offender” as a person who “(a) has been convicted of a violent offence that affected the victim; and (b) has been sentenced to a term of imprisonment of more than 2 years”. As introduced, in the bill this was “5 years or more”, and this was clearly too narrow. Instead of requiring sentencing to a period of 5 years or more, I suggested at the first reading that it would be more appropriate instead to require only sentencing of an offence punishable by 5 years’ imprisonment or more. That would have broadened the scope of the legislation to capture offenders whose sentences were less than 5 years but who had committed an offence serious enough to enable the court to sentence them to 5 years or more. After all, if the offence was so serious as to attract imprisonment at all, then the victim should be able to use a new law such as this. The Law and Order Committee has now instead amended the definition to “more than 2 years”. I think my suggestion was better, but this new provision substantially widens the offences to which the clause will be applicable, and that is acceptable to New Zealand First.

Concerning clause 7(1), as introduced this provided that a victim may apply to a District Court “for a non-contact order in respect of a violent offender” who had been convicted and that an application may be made “at any time after the offender has been released from prison”. The requirement that the application must be made after the release of an offender from prison was, of course, far too late. I said at the first reading that the victim should be able to apply for the order at any time after the conviction so that the court can make an order to have effect immediately from the date of release. My concern was that there was likely to be a significant delay between the victim learning of the offender’s release and the making of an order and its service on the offender. That would potentially be a period of high risk for the victim. This issue has been addressed by the select committee, and the amended clause is therefore now acceptable to New Zealand First.

Concerning clause 9, I still have some concerns about subclause (1), as I stated in my first reading speech. This subclause says: “The court may make a non-contact order if it is satisfied that—(a) there are ongoing effects of the offending for the victim;”. But I would have to ask why the court has to be satisfied that there are ongoing effects for the victim. What will the victim have to prove to satisfy that test? I do not think that the effects of the offending are really the issue anyway. It would be better for clause 9(1)(a) to be deleted, and clause 9(1)(b) should be deleted too. It refers to the contact between the offender and the victim to possibly be detrimental to the victim’s ability to deal with the ongoing effects referred to in clause 9(1)(a).

It should not be necessary for a victim to have to prove these things. Clauses 9(1)(c) and (d) by themselves are sufficient. That the order is reasonably necessary to avoid contact is what the issue really is for the victim, so that is what this clause should use as the only test. Why should the court have to be satisfied that there are ongoing effects of the offending? It is not acceptable to New Zealand First that a victim should have to prove any more than that a sentenced violent offender’s contact is unwanted and that the order is reasonably necessary. That should be enough, and that, in my view, is the only serious defect in the bill, and I regret that the changes that New Zealand First suggested have not been adopted.

With regard to clause 11, this clause sets out the effect of a “non-contact order”, now amended to “temporary non-contact order”. Such an order prohibits the offender against whom it is made from any form of contact with the victim. In addition, the court may prohibit the offender from entering, living in, or working in a specified area. The concern that I had about this at the first reading was that this clause, clause 9(1)(c), “to and necessary for the offender’s employment”, was problematic. I said that I would like the select committee to look at whether it was desirable to require as part of the clause that the court specify an area only as large as necessary to enable the offender and the victim to avoid contact with each other. I said that although we need to make the order effective, we should also see that it does not unnecessarily cause problems for the offender in obtaining or maintaining his or her employment and carrying out his or her duties of employment.

Clause 11(1)(c) has now been deleted, and we now have a new clause 11A relating to the effect of the final order. New clause 11A has much more comprehensive and refined powers for the court to specify so that the effects of the order will be no more than needed to properly protect the victim. This new clause 11A is therefore very welcome as far as New Zealand First is concerned, and, similarly, new clause 11B is welcome. That deals with the need for a final order to be directed by the court to apply to specified persons other than the person who was the offender and whom the offender may have encouraged, or would encourage, to engage in the contact behaviour that the offender might engage in.

Concerning clause 15, I suggested at the first reading that the select committee look at whether the court should be required in this section, in considering whether a discharge of the order should be granted, to consider some specified matters such as the record of the offender in complying with the order; the behaviour of the victim, because that is also relevant; and, obviously, the place where the victim and the offender then live permanently. I note that this clause has now been deleted and replaced with much more comprehensive provisions in new clause 15 and additional new clause 15A, which address the sorts of issues that I suggested be looked at.

So New Zealand First is happy to support the bill, for the reason that those amendments that we sought have been made and have been so well made. New Zealand First also supports the addition of new clauses 15B, 15C, 15D, and 15E, which cover the rights to a hearing and the procedures around that. Lastly, New Zealand First agrees with the deletion of clause 16 relating to vexatious proceedings, which was unnecessary, and with the other more minor amendments made.

Overall, although the bill does not include all that New Zealand First wanted, it does adopt most of what we had sought and also adds some other worthwhile changes. In the end, this is a good bill, which New Zealand First will support as a means of improving the protection of victims against unwanted and potentially dangerous contact by violent offenders. As I have said, New Zealand First wants this legislation and will vote for it to go further, so that we can get the most effective law possible to protect victims from the ongoing risks resulting in unwanted contact from offenders.

The Victims’ Orders Against Violent Offenders Bill is another very good example of the work that is going on right across the whole justice pipeline—in particular, when we look at the implications of crime to the victims. Victims, through no fault of their own, find themselves embroiled in events that will probably stay with them for the rest of their lives and that is perpetuated only in situations where those charged with offences against those victims are able to in some way, shape, or form continue to intimidate, harass, or otherwise affect that victim. This bill is very much about ensuring that the balance is achieved between protecting the rights of the offender to defend themselves against the charges and putting the victim absolutely at the centre of the justice system in terms of the protections that need to be afforded to them to ensure that their passage through the justice system is smoothly travelled and that they do not continue to, essentially, be violated.

I just want to commend the Minister of Justice and the Law and Order Committee for the work that they are doing in this space. It is another good example of a raft of work actually going on that is reorganising how we deal with crime in this country. There is a 33-year low in reported crime, and the best way that we can do right by our victims is to have less crime in the first place, but this bill is another good step.

It is right, I think, that before I begin I acknowledge the contribution that Law and Order Committee members as a whole have made to this process. As Mr O’Rourke pointed out, there were a number of issues raised in the first reading of the Victims’ Orders Against Violent Offenders Bill, which were, by and large, subsequently addressed by the committee collectively. Mr Mitchell raised some questions over Mr Goff’s speech, but I think it is only right that Mr Goff does take some credit for some of the changes that were made because he did pursue them feverishly at the select committee, and the select committee agreed with him on a range of issues he raised.

Probably one of the reasons, I guess, that Mr Goff was so vehement about increasing the range of people who would have access to this bill is that he as the Minister of Justice under a Labour Government championed victims’ rights through things like ensuring better support for Victim Support and its ability to do its job. It has now become a core component of our justice system. It is now not just a voluntary organisation but a part of the ingrained referral process from our local police. It is also trying to create a charter of victims’ rights, as it were—what a victim can expect and should expect from our justice system. So that was really ground-breaking. These kinds of amendments to our law just take that a step further and acknowledge that there continue to be gaps in our system from the perspective of the victim.

To put this particular bill, the Victims’ Orders Against Violent Offenders Bill, into context, there are 1,150 offenders who have committed serious or violent offences at any given time. If we take a snapshot of the 2 year period between 2008 and 2010, there were roughly 280 protection orders issued and 78 restraining orders. The reason I raise that is that the victims’ orders are intended to be another tool to be used by victims where they feel the same threat that might apply to someone who uses a protection order or a restraining order, but in different circumstances. What I think those numbers demonstrate is that they are not used perhaps as frequently as they otherwise might be. That sends us a range of messages that I think we need to pick up on, one of which is that there is a gap for some victims that was not covered by protection orders or restraining orders.

As has already been mentioned, the actual gist of the bill is that it allows the courts to issue a non-contact order, which in essence is in the nature of a protection order under the Domestic Violence Act, so it has a similar effect for a victim of a violent crime. That order can last for 2 years unless the court specifies a different duration. So it is 2 years if the duration is not specified. If it is left open-ended it will essentially lapse after that 2-year period, but, as I have said, the court can specify a longer period if it so wishes.

When the bill came to the select committee, the criterion for a violent offence—because that is essentially what this hangs on—was that it had a sentence of 5 years or more. That is not to say that that was an offence whose sentence had a range of 5 years or more attached to it; the criterion was whether or not the prisoner received that sentence. Our concern was that that could lead to an anomaly—that you could have, for instance, two victims who experienced the exact same serious violent crime but whose offenders had two different sentences attached to them, one which could put the offender within the threshold of having a victims’ order put on them, the other which would not. We thought that seemed manifestly unjust.

The easiest way to deal with that was to simply lower the threshold. Our view was that there was very little harm in capturing a wider range of victims, because by definition alone they had had a violent offence committed against them, and, actually, the sentence attached to that should not really be the prohibitive factor in whether or not they are able to access a victims’ order. So we had a good discussion about that, and I think we came out on the right side by agreeing to reduce that threshold—because it was an arbitrary decision, ultimately, that had to be made—to a 2 year process.

Mr O’Rourke has already raised what was probably the most significant second change that was made by the select committee, and that was the point in the process at which a victim is able to access an order. When the bill came to us, a victim essentially had to wait until an offender was released before they were able to seek through the courts for an order to be made. That did not seem to make any sense to us. It allows a gap, as it were. If the whole purpose, the intention, of this bill is to give a victim a longer stretch of time in which they can feel, whilst that offender is reintegrating back into the community, that they have that extra set of protections around them, why would you allow a gap upon immediate release where that protection did not exist? It did not seem to us that that was the intention of the Minister of Justice—perhaps it was just a structural issue. So that is why we made the sensible and necessary change that, essentially, these orders can now be handed down any time after sentencing so there is no gap between release and there is a wider scope to the orders than parole conditions could provide.

That for us was also an access to justice issue. It makes it easer if a victim is able to deal, up front, all at once, with all of the trauma that comes around court processes. Trying to consolidate that into one process was one of our aims. That does not mean that it is still not a prohibitive process. We were concerned that there is a cost attached for an application for this order because it is a civil proceeding. Yes, you could use legal aid, but, unfortunately, legal aid thresholds under this Government are such that very few people are eligible now. So we maintain that concern, and it is one that we wish as a party to put on the record.

One additional element that I think is important to raise—because it was not really the primary focus of the original bill—is the wider scope we wish these orders to have. When the bill came to us as a select committee, it was heavily focused on putting restrictions around an offender, and an offender alone. Submissions, though, demonstrated to us that, actually, even when offenders are in prison they are able to breach an order. They can do that, in the examples we had raised with us, by communicating with gang affiliates or family or friends and requesting that they engage in harassment of a victim or undertake certain tasks that could be deemed to be harassment because they were at the hand of the offender.

We heard first-hand examples of where that had happened, and it was our view that it would be sensible to allow for a protection order to extend not just to the offender but to their associates if it was under the offender’s instruction that they were acting. It was particularly alarming for us to hear that that was happening whilst offenders were in prison. So we felt justified in making that extension to associates of the offender in certain circumstances so that those penalties could apply to those associates who were acting knowingly against that order.

All in all, we support this bill. We think it enhances victims’ rights. We are glad we had the ability to, I think, improve the bill as a select committee, and I look forward to further debate at the Committee stage.

Kia ora, Mr Deputy Speaker. I am pleased to take a short call on the Victims’ Orders Against Violent Offenders Bill. We New Zealanders deserve to feel safe in our homes and in our communities. This Government is building a safer New Zealand and we have embarked on a comprehensive programme of reform to protect communities, prevent crime, and put victims first. We are staying tough on criminals, we are keeping record numbers of police on the beat, and we are ensuring that the justice system focuses on the rights of victims. I commend this bill to the House.

Tēnā koe, Mr Deputy Speaker. Tēnā tātou katoa ngā mema o te Whare nei. It gives me a great privilege to stand with my Labour colleagues to support the second reading of the Victims’ Orders Against Violent Offenders Bill, and to join with them and, it sounds like, all members of this House in supporting what I consider is one of those bills that is of a type that makes sense, where we are putting victims’ rights at the centre of legislation. On that basis I do support the bill in its passage through Parliament.

I am not a member of the Law and Order Committee, but in my own little research on this bill, I note that its purpose is to recognise the ongoing effects of serious violent offending on victims by giving them the power to apply for a non-contact order against the offender, which prohibits the offender from having any form of contact with the victim. The orders can be temporary or final and aim to limit the chances of a victim coming into contact with a person who offended against them. There are other types of orders currently existing to protect victims, but those orders have limitations.

Having looked through the recommendations of the select committee, I now acknowledge the work that the members on the select committee have done in providing their comments back to the House. I understand that there are a range of measures already in place—like the Domestic Violence Act 1995 and the Harassment Act 1997—but on researching them, I found that there are some time-limit restrictions in terms of those particular Acts. So I understand that this bill is looking at ensuring that victims’ rights, in terms of not having contact with the offender, are protected and upheld.

There are two parts of the bill that I want to highlight in my short call. The first one is clause 7, “Application for a non-contact order”. My colleague Jacinda Ardern mentioned it, as I am sure other speakers on this bill did. That clause is about the tool that puts a non-contact order on associates. As we all know, when offences have occurred and the offenders have been apprehended, often in a lot of criminal cases they have friends, mates, or partners in crime who are not subject to charges. So our victims also need to know that they are protected from the associates. The amendments suggested by the select committee to clause 7 are actually doing that, and I want to commend that work too, in terms of amendments.

The other two parts of this bill that particularly drew my attention were the two types of order: one is the temporary order and the other is the final order. Again, this provision looks at imposing a temporary order to ensure that the victim’s rights are addressed, and gives the offender the opportunity to be heard on those orders before moving into something final. In reading the recommendations from the select committee it is really clear that the intention of this bill is to be a protective bill versus a punitive bill. So like other members on this side of the House—and, indeed, the House—I acknowledge the work of the members of the select committee and support it in what I think is a very important and simple bill, and one that makes sense. But for me, it puts our victims at the centre. So without further ado, I would like to commend and support this bill through the House. Thank you.

Tēnā koe, Mr Deputy Speaker. The Greens will be supporting this bill, the Victims’ Orders Against Violent Offenders Bill, albeit with some reservations, as have already been outlined by my colleague David Clendon.

Along with my colleague David Clendon and others on this side of the House, I would just like to restate our belief in the need for a comprehensive review of all legislation and all of our practices around restoring and protecting victims’ rights, especially—and I am adding this personally—in relation to domestic and sexual violence. They are the main drivers of violent crime in this country and we have not brought the numbers down. We know that the experiences of victims have not been significantly improving in recent times. This is an area of work that the Greens are really looking forward to working on next year when we have a new Government. We are very serious about ensuring that there is a demonstration of political will to reduce violence against women and children. Although, as Rachel Hunter once said, “it won’t happen overnight.”, we know it can happen if we put our minds to it. Somebody in the community was suggesting to me just last week that if we really brought political will to bear, we could see a really drastic reduction in crime against women and children within a decade, if only we would commit to the measures needed.

This bill was developed in response to the situation of a woman in Invercargill who was being harassed by her abuser post his release from prison. He had moved in next door to her, and the police had been in for a chat with him and suggested that he move, and he declined. They said that they could not do anything more unless he breached the indefinite protection order that was in place, and breached the grounds for that order. There was also nothing that they could do to protect her from the harassment that she was experiencing from his friends. So that was the impetus for this bill and that is a good thing to respond to.

While I have been out in the community, I have also met a woman in provincial New Zealand who had had to send her young daughter of around the age of 12 away to the city to board because the man who had raped her daughter lived in their town, and would still leer and make sexually suggestive comments to her when he saw her. There was nothing that they could do to stop that happening. My hope is that this bill will address that and enable those children to be able to stay with their families in their community and not to have to run away from abusers. We know that these two situations clearly represent many more. Kim McGregor from Rape Prevention Education has noted that there have been numerous cases of abusers moving in close to their victims. Clearly this does not represent justice or safety for those victims or for our communities.

I would like to acknowledge that this bill is an attempt to ensure that victims can feel safe in their communities, but I need to warn this House that we cannot tick off safety for these victims. This bill does not represent a whole solution. While we do nothing to improve the conviction rate from the pitiful one in 100 of sexual offences, we leave 99 victims who are unable to get convictions without protection. We know that protection orders are only one piece of the puzzle. We need resourcing and training to ensure a consistent police and court response to breaches, otherwise we are just creating a false sense of security, as we have seen all too tragically in this country recently. Further, those offenders who have been sentenced—and ideally, those who have not—need treatment. Kim McGregor has noted that attending a treatment programme for 1 or 2 years reduces the risk of reoffending down to 5 percent. Yet there is a waiting list to get into the programmes within prisons, and perpetrators have to self-fund programmes themselves after release if they have not been sent by a court. We need a whole-of-Government response to this to ensure safety for all.

I commend the Victims’ Orders Against Violent Offenders Bill to the House.

Bill read a second time.