Victims’ Orders Against Violent Offenders Bill

It is a night for it. This is Part 1, and the most important clause in Part 1 is the purpose, clause 3, which acknowledges the ongoing serious effects of serious violent offending for victims, and, of course, everybody in the House would acknowledge that as a matter that we need to address. Secondly, it empowers the court, on an application by the victim, to make a non-contact order prohibiting the offender from having any form of contact with the victim. Both of those goals are worthy of support, and the Labour Opposition has supported the first reading of the Victim’s Orders Against Violent Offenders Bill. But in the first reading of the bill we made it very clear that there were some fundamental flaws in the bill that needed to be addressed by the Law and Order Committee.

The first flaw was a huge flaw. It said that you could make an application for a non-contact order as long as the person who had, for example, raped you had been sentenced to 5 years’ imprisonment or more. If, however, that person had been sentenced to only 4½ years’ imprisonment, you got no protection under this bill. Mr Chairman, you are the member of Parliament for Invercargill, so you will be familiar with the case that led to this legislation being introduced. It is worth mentioning to the Committee that the gap in the system was highlighted by the case of an unfortunate young woman who had been raped, and the offender had been sentenced. The offender had been sentenced to 4 years’ imprisonment. That offender, having served the period of the prison sentence he was required to, then moved in next door to his victim. Can you imagine how that young woman felt about that—to wake up every morning, knowing that you are likely to confront in the street outside your own home the person who had been jailed for raping you? That was not a fair go, and there was nothing that that woman could do about the situation that she was placed in. There was a clear gap in the system.

I asked in the first reading and raised in the select committee—and I think Kate Wilkinson raised the same question, actually, in the first reading—the question of why there should ever be a threshold set at 5 years. Where did the figure come from? I suspected that it was an arbitrary figure, and I think the evidence is that it was totally arbitrary. Then the select committee, listening to the submission that Labour made on this, said: “OK, let’s lower it to 3 years”. I said “Three years, fine. Where does that figure come from?”, and there was no answer. That, too, was an arbitrary figure.

Thinking back to the Sentencing Act and the Parole Act, which I had been Minister of Justice for in 2002, I thought that, well, in the Parole Act there is a threshold level of 2 years that differentiates a less serious from a more serious offence. How does it differentiate it? For example, if the sentence is more than 2 years, the person will then come before the Parole Board before they can be released. There was a threshold that was already established in law. If you are sentenced to more than 2 years, you are likely to be on the victim notification register. So it seemed to the Labour Party that we needed a threshold of 2 years, not 5 years. The Minister of Justice, who introduced this bill, was saying that 5 years was going to solve it. The rhetoric was flourishing in the House about how important this was, but when the Minister was confronted with the fact that the legislation did not help the very person whose case had sparked the need for the legislation, basically, she had nowhere to go.

So I am happy to report back to the Committee that what we did in the select committee, on the instigation of the Labour Party, in reducing that threshold to 2 years makes a big change. The size of the change can be seen from the information that we elicited on it. At a threshold of 5 years, this non-contact order was estimated to affect 10 people a year—10 people a year. I do not have the figures for the number of people who have been the victim of sexual violation each year, but it would run into the hundreds, or maybe even more—maybe into the thousands. The legislation as the National Government introduced it was plainly inadequate, but that aspect of the legislation has now been repaired in the bill as reported back. To that extent, this is a better piece of legislation. It was a victory for the Labour Party, but, most important, it was a victory for common sense.

The second thing that we were concerned about with the bill as introduced by the Minister was that you could not apply for a non-contact order until after the inmate had finished his or her sentence and had been released. Before the select committee we heard evidence from people who had been victims of efforts by the offender to contact them from within the prison walls. Minister Borrows, the Department of Corrections should have dealt with that—it should have dealt with that—but this bill would have provided another protection if a non-contact order had been available for the victim. But, even more important, there was clearly the difficulty that when the person was released and before the victim could get a non-contact order, there was going to be a space of time when the victim might be confronted with that offender either close to where he or she lived or where he or she worked.

It made sense to us in the Labour Party that the non-contact order should be available not from the time of the release of the inmate into the community but from the time of sentencing the inmate to the prison sentence, in the first instance. Again, it was a victory for Labour and a victory for common sense that we were able to get that change. So in two really important ways, this legislation as reported back to the House has been strengthened, and it better meets the purpose set out in clause 3 of this bill.

On the third issue, I have got to give some credit for it to the New Zealand First Party, as well as the Labour Party. That is the question of where the offender used a surrogate to apply pressure to his victim—where the offender approached a third party and said “I want you to contact this woman and say such and such.” We needed to have a way in which a non-contact order could be made to apply in those circumstances to a third party. You have to be careful in the way that you do that, and we have set certain standards that have to be reached before a non-contact order can be applied. One is that the offender must have asked the third party to take this action involving the victim; secondly, the third party must have acted on that instruction or request; and, thirdly, that must have affected, in a negative way, the victim, and you could well see why it would affect the victim negatively. So the third change we were able to get was that a non-contact order can apply to a third party, and that is also sensible.

The last point that I really want to make is on the question that still worries me a little. It is that to get a non-contact order the victim has to file an application in the civil court. What worried me—and I know that when Andrew Little spoke on this at the introduction, he expressed concern about it as well—is what cost does that impose on the victim that might be unfair? Will there, for example, be a filing fee for a non-contact order? That is a question that perhaps you could just clarify, Minister Borrows. I do not think we have had an answer on that. If you could get an answer from the officials, that would be very helpful.

The second question is whether the victim will have to secure the services of a lawyer in order to get the non-contact order. We were told that, basically, the victim could file that order themselves, but there may be cases in which legal assistance would be necessary. If that is the case, Minister, my second question is this. Will there be legal aid available to the victim in every case, in order to secure necessary protection through a non-contact order? Or will there be cases where the victim—usually, herself—has to go to some expense in order to get protection against the offender? I think it is really important that we try to eliminate costs that might be imposed on the victim. The victim did not ask to be a victim. This is a way of providing protection for the victim, but I would hate to think that there were victims who were discouraged from seeking a non-contact order because there were financial barriers in the way of their getting that assistance. I hope you have got both of those questions, Minister. I know that in the last bill you made a real effort to answer those questions, and I would appreciate you addressing those two questions.

I want to finish with this. This bill is a better bill because the proposals made by the Labour Party were adopted by the select committee. I thank the select committee for agreeing to that. I even thank the Minister for agreeing to that.

This Victims’ Orders Against Violent Offenders Bill 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 contact with the offender can be as bad as the offence itself and can impair the recovery and ability to enjoy a normal life. In this Part 1 debate I wish to comment only briefly on clause 5. Clause 5 defines a violent offender as a person who “has been convicted of a violent offence that affected the victim; and has been sentenced to a term of imprisonment of more than 2 years …”. In the bill as introduced, this was 5 years or more, and we regarded that as narrowing the field down far too much. I think that is what other parties have concluded as well. Instead of requiring sentencing to a period of 5 years or more, I suggested at that stage that it would be more appropriate instead to require sentencing only of offences punishable by 5 years’ imprisonment or more. That would have broadened the scope of legislation to capture offenders whose sentences were less than 5 years but who had committed an offence serious enough to enable a court to sentence them for 5 years or more.

The Law and Order Committee has now instead amended the definition to “more than 2 years”. That, of course, is the other way that would substantially widen the offences to which the section would be applicable. I agree with what the Hon Phil Goff said about that. The offences to which it would have applied were far too few; the scope was far too narrow. What is being done now, although my own suggestion was not adopted, is sensible and acceptable to New Zealand First. After all, if the offence was so serious as to attract a significant imprisonment term at all, then the victim should be able to use this new law. It is another step forward for victims and it deserves our full support. We support what is being done. Even though it was not New Zealand First’s own particular suggestion that was adopted, it has the same effect and, therefore, we feel able to support that particular provision in Part 1, which we had been previously concerned about.

The Victims’ Orders Against Violent Offenders Bill aims to stop violent and sexual offenders from living and working near their victims. The change has been prompted by a specific case where an offender who was jailed for rape in 2004 lived, upon his release in 2011, next door to his victim. Police at that time had no power to force him to move away. So there is obviously a gap in the protection available to victims of serious violent and sexual crime.

I would like to take this opportunity to thank the submitters, and I would like to draw the attention of the Committee to the concerns raised by the National Council of Women of New Zealand. In its submission it expressed concerns that the reference to physical injury was too narrow. It was suggested that the definition should include references to suffering, mental torment, torture, mental and psychological harm, emotional injury, and traumatic stress. It is also suggested that the definition should include close family members of the victim if they have suffered physiological or psychological trauma because of the violence suffered by the direct victim.

A number of the submitters raised very valid points and also questioned the bill being limited to violent offences that incurred a term of imprisonment of 5 years or more. As stated by the Hon Phil Goff in his earlier contributions, that has been reduced to 2 years by the Law and Order Committee. I commend the select committee for listening to the victims and listening to the submitters. Some respondents from Rural Women New Zealand were concerned that in rural, semi-rural, or smaller urban areas it is not always practical for the order to be made available to the police station nearest to where the victim resides.

The Law Society also recommended a number of minor changes to the proposals in this bill. The first was that the term “violent offence”, as defined in clause 4 and as used throughout the bill, should be replaced with the term “serious violent offence”, as that term is used in section 86A of the Sentencing Act 2002 and is identically defined. Secondly, clause 17 requires information on non-contact orders, including the making, varying, and discharging of a non-contact order, to be made available to the police. Clause 17(3)(c) allows for the order to be sent by ordinary post. Given the important consequences that can flow from the breach of an order, a more reliable method of informing police should be used. The Law Society believed that the mechanisms in paragraphs (a) and (b) seemed appropriate, but that if the postal service was to be used, then the documents should be sent by a traceable method. Thank you.

I take a short call on the first part of the Victims’ Orders Against Violent Offenders Bill. Every now and then we pass pieces of legislation here that have the potential to have a really dramatic and worthwhile impact on people’s lives. I just want to go back to the original purpose of the bill, as was stated in, I think, the Bills Digest, actually. The essential purpose was that the bill “provides that a victim may apply to a District Court for a non-contact order in respect of a violent offender, and that an application may be made at any time after the offender is released from prison. However, a victim may not apply for a non-contact order if there is in force a protection order against the offender under the Domestic Violence Act … or a restraining order against the offender under the Harassment Act …”. This really touches on the lives of many women, and I just want to draw the Committee’s attention to them for a moment.

In Nelson we have seen an increase in the instances of violent crime. In the latest statistics that were released recently there was much cause for celebration, as crime statistics were going down, but not sexual or violent offending statistics. Whether that is a function of more women being prepared to report violent crimes against them and sexual offences against them, whether it is, in fact, a greater level of assiduousness on the part of the police, who are very committed to bringing perpetrators of sexual and violent offences to book, or whether it is that there are indeed more offences occurring and there is more crime in this area, nobody is entirely sure. So out of those three possible reasons, nobody has sufficient evidence to say which is the dominant contributing factor. Are more crimes happening, are we reporting them more, or are the police better at dealing with and resolving these crimes?

I think the prospect of having somebody who has violently and sexually assaulted a person be released from prison and wash up in close proximity either to where the victim works or lives is a revictimising of the victim. Hopefully, and I believe that it will, this bill will address that issue and will give—and it is women I think of, in particular. Before anybody gets up and says that males are victims too, I know that, but predominantly it is women. And to the women whom I talk to who work with women’s centres, sexual abuse counselling services, Rape Crisis, and all of those chronically underfunded bodies that are out there in the community trying to assist women to cobble together again the fractured parts of their lives, I want to say that this bill will help; it will provide some protection from the revictimising that can happen in these instances. The case in Invercargill has been the one that has had attention drawn to it, in particular, but it is not the only one. Sometimes it does take a ghastly case of that nature before Parliament moves to take action and repair the wrong and fill the gap that exists in the legislation and the legislation’s authority.

One of the things that I particularly approve of in this bill—I was not a member of the Law and Order Committee, which this bill came to, and nor did I hear the submissions—but one of the things that I think is a positive outcome is that “victim” is defined in a way that I trust is consistent with legislation we have been debating just in the last hour and a half. The victim is a person against whom a violent offence is committed by another person, is a parent or legal guardian of a child or a young person who has had an offence committed against them, or is a member of the immediate family of a person who has had that violence perpetrated upon them. There is a caveat in that definition, of course, that says that, obviously, if the parent, legal guardian, or family member is, in fact, the one charged with such offences, then, clearly, they are not the victim in this instance. But it is good to see that there is a recognition that the shock waves of these sorts of crimes go through families and remain in place for a long time. And it takes a long time to recover, to regain and repair a fractured life, and to begin to approach the world again as a whole person. Having family and the impact on them recognised as well—with the proviso, of course, that they are not the perpetrators—is a useful supportive device.

I will take another call later on other parts of the bill, but as far as Part 1, up to the end of clause 6, is concerned, I think those are the most significant points. Thank you.

I would like to congratulate the way the Law and Order Committee and speakers have engaged in this debate, and have moved the Victims’ Orders Against Violent Offenders Bill through the process of the select committee. Comments made earlier by the Hon Phil Goff that indicated that both sides of the House—he singled out the Hon Kate Wilkinson as somebody who had been part of it. It is great to see that sort of across-House debate.

I guess that as much as I endorse fully the comments of the previous speaker, the Hon Maryan Street, I think it is important to acknowledge that there is a whole swathe of victims who will not be covered by this legislation here. What we know is that only about one in 10—and I would sort of tag on to the back of that “if that”—female rape victims report a rape, and what we know is that only about 33 percent of all rapes taken to court actually result in a conviction. So if we accept those rules of thumb—and I think we are probably being generous in the amount being reported—only about 0.3 percent of those people who are victims of rape, those female victims of rape, will actually be covered by this piece of legislation. So the challenge before this House is to have a reporting system, an investigation system, a prosecution system, and a sentencing system that actually encourage people to report crime, because it is specifically these matters that very rarely get reported.

It would be interesting to know—and I do not know of any work that has been done on it—how many rape victims who, having reported the rape against them to the police, and having gone through this process, actually would ever go on to report a second rape. I know a lot of rape victims, and I cannot think of any who, having been through the process, said that they would go through the process a second time.

I want to just also explain to the Committee, or acknowledge, the hell of a long way we have come in respect of the investigation and the reporting and so forth of rape crime. When I first became a detective, I was operating under the old detectives manual. The Committee would be absolutely astonished at the advice it gave to young detectives in those days about being very suspicious about females who complain of rape, and that they largely put themselves in a position where it is brought upon them by the clothing they wear or where they are late at night, and all those sorts of things. That was not rewritten till 1985. Prior to 1985 it was not an offence to rape your wife, for instance. Prior to 1985 what we would call rape with an implement was only an indecent assault and did not even amount to a sexual violation. That offence came into force only in 1985.

I remember investigating a rape in Nelson in about 1980, I guess—and this goes back to the comment made by the Hon Phil Goff, and, thankfully, I do not think this would ever happen today. Two young men had given a girl a ride home from a party. She was the worse for alcohol, and probably so were they. They drove her up the Maitai Valley. They both raped her twice. I remember the case well because I got in trouble for unlawful detection and made a bit of case law—if you ever want go and have a look at it. In any event, we arrested the two men. One of them got 3 years’ imprisonment for rape, and one of them got 9 months’ periodic detention for rape. Thankfully, we see now that there is pretty much a minimum tariff for rape of about 8 years and a 20-year maximum, so I do not think you would ever find somebody convicted of rape getting a 2-year sentence these days, let alone a 5-year sentence. I would like to think so, in any event.

So I just acknowledge that it was important to move that threshold down to 2 years. Also, the change that was made so that the application can be made on sentence, or any time after sentence, rather than release is important. But again I just acknowledge that there are a whole lot of victims here who will not be captured by this because there was not a conviction, there was not even a report, and in male rape I suggest that the figures are even less than 1 in 10.

It is important that the protection was extended to surrogates because people who are involved in family violence, crimes against family members, and particularly sexual crimes are in a class of people who are very good at manipulation. They are also very good at getting people to do things for them, and that would include using surrogates to contact victims.

There were a couple of points that were raised by the Hon Phil Goff. One of them related to whether there was going to be a filing fee in respect of this. I can assure the Committee that the District Courts Fees Regulations 2009 will be amended to ensure that there is no filing fee. What does filing entail? Filing entails filling in a form similar to what we do now in an application for a protection order. Most people would be able to do it without legal advice. If there was a need for legal advice, an application for legal aid could be made in any particular way, but I would suggest that people—friends and supporters of a victim, agencies such as Women’s Refuge or Victim Support, or the police themselves—would be in a position to be able to assist anybody filling in the forms, which would amount to making an application under this legislation. Legal aid could be available if that was required in the normal circumstances. In any event, making or filing an application amounts to completing a form. I know that some forms can be relatively complicated, but I also am sure that those people who need to fill in that form would be able to do so with the assistance of the agency if they chose to do that, their friends or supporters, or the people who are behind the court counter ready to receive the application.

The point was made by the member Raymond Huo about whether these services were available around the country and whether, for instance, the police would be able to access an order once it was made. The way in which the police are currently resourced, particularly electronically, would mean that a simple check on the name of either the offender or the victim would be able to easily identify whether there was such an order in place.

I just want to reassure the Committee, given the comments and the questions that were raised, that I believe that the bill goes a long way towards settling a number of issues. An aside was made by the member about the resources of Women’s Refuge. I understand the challenges of resourcing these social agencies, but in the end we are talking about filling in a form. I do not think that that would suck up a whole lot of resource from an agency charged with and taking on the vocation of helping and supporting the needs of vulnerable people. I will leave it there, but I hope that I have covered the questions outlined by those.

Tēnā koe, Mr Chair. I cannot help but rise in response to the Associate Minister of Justice’s speech. Thank you, Minister, for acknowledging the very low conviction rate we have for sexual violence in New Zealand. I would like to acknowledge that it is the most conversational I have seen the Committee, and I think it is the character of the Minister in the chair and I appreciate it.

💬 Hon Phil Goff: He’d make a good Minister of Justice, wouldn’t he?

Yes, he would.

💬 Hon Phil Goff: And he could recognise a conflict of interest and be honest about it.

Well, I am not going to go there, Mr Goff. I am going to stick to the positive issues at the moment. I do want to acknowledge the Minister for acknowledging that low conviction rate and the low reporting rate. I want to pick up on that point and recognise that this bill is part of a much wider piece of work and thinking, which we need to be doing as a country in terms of what we need to do to improve reporting rates and disclosure rates.

I would note the Law Commission’s work, which hundreds of New Zealanders submitted on, on this very point around how we could change our pre-trial systems and trial systems to improve the conviction rate—and my utter, utter disappointment in that being taken off the work agenda for the Law Commission before it was able to be completed and after hundreds of New Zealanders had submitted ideas. There were very high levels of agreement around some of the points and recommendations within that report—for example, having the victims’ support workers being available to victims when they first disclose at the police station rather than just on the day of the trial, and to have advice and to have an agency brought in so that a victim is aware of their options at that first stage. There is a whole range of things in that commission report that would provide us with a pathway to improving those reporting rates. When we are looking only at answers like the Victims’ Orders Against Violent Offenders Bill, which are important but are after the fact, I think we are not doing our best.

I think we can certainly do a lot better and we have been hearing through the Inquiry into the Funding of Specialist Sexual Violence Social Services, which, again, I thank all parties in this House for supporting. A number of those services have been bringing up concerns regarding the justice process. How harrowing that is, the need for support systems, and for them to be funded to walk through that process with survivors—they do not have that capacity at the moment—and to be able to be there with people afterwards. So we do have a lot of work to do in this country, and this bill is a very small part of the puzzle. That is not to dismiss anything that is positive. We have got to support all of the positive initiatives, but, really, it would be great to have a far more comprehensive view, where we could all come together based on the best evidence and the community’s experiences and really, really get a handle on changing our culture and making sure that all the victims and survivors are properly supported.

Part 1 agreed to.

Part 2 Non-contact orders