Victims’ Orders Against Violent Offenders Bill

This Victims’ Orders Against Violent Offenders Bill, as other members have said in the earlier parts of the debate, is a very important piece of legislation addressing yet another small but significant gap in the growing raft of protections that we have in place for victims of crime—in this case, victims of very serious crimes. Indeed, the cases where we know that this bill, had it been in place earlier, would have had some effect are harrowing and distressing cases. These are cases where an offender, usually sociopathological in nature, not content with the violence they have inflicted upon their victim, some time afterwards wants to carry on victimising the victim, sheeting home the terror that they inflict upon them, and continue to remain in contact or in close proximity to them. So this bill provides a very important device that will protect those victims, in the way that we already have protection orders in domestic violence cases—for those who are victims of that type of offending.

We should note that we still have issues with enforceability—the extent to which the protection orders are enforced, the means we have to enforce them, or, at least, the resources we have to enforce them. So we do not want to create another important device to protect victims that is found wanting not because of the device itself but because we simply do not have the means in our enforcement agencies to provide proper and adequate enforcement. So I make the plea to the Associate Minister of Justice that, as he rises through the ranks of Cabinet and develops a louder voice beyond justice principles and into the allocation of resources, he makes sure that the administrative and enforcement requirements of matters such as this are properly met through proper resource allocation and budgeting.

Part 2 deals with the mechanics, if you like, of applying for an order that a victim can make against a violent offender under this bill and, indeed, the conditions or the contents of that order. There is a two-step phase, if you like. A victim can apply for an order without notice, and that can result in a temporary non-contact order, and there are conditions associated with that, which a judge can put into it. That, of course, needs to be eventually served upon the offender. Once an offender is aware of an application having been made, that then becomes an on-notice application. When an order issues as a result of the on-notice application, it becomes a final non-contact order. Again, there can be conditions attached to it, as, indeed, there should be. So that is all good. As my colleagues have said in the earlier part of this debate in this Committee stage of this bill, we welcome that particular change. That is important.

There is also scope, added in by the Law and Order Committee, for an order to be extended to other people—those who have aided and abetted the offender and those who have been party to the offence in some other sort of way. A victim who secures an order can have the order extended to those other people so that they can be afforded protection against all those who may have malicious intent against them. That provides a very well-rounded set of provisions for those orders. Amidst all the muttering on the Government benches at this highly animated time at the moment—there is clearly something going on that the thousands of people watching tonight will be interested to know and perhaps we will hear a bit about that. As we deal with this very important piece of legislation, and as members on the opposite side of the Chamber are distracted by some activity going on in their quarter, let us not understate, as we develop our rubric—indeed, our matrix—of victims’ rights and victims’ provisions, just how important this will be.

One of the important changes that I know was achieved in the select committee process was the threshold for the making of the order, so that the conditions under which an order can be made are now set at a slightly lower threshold. The offender has to have been subject to a term of imprisonment of 2 years or more, as opposed to 5 years, as appeared in the original bill. So that starts to make it a little more meaningful. But I cannot go past the point that if the provisions are to be truly meaningful—just as we want with protection orders and other parts of not only our criminal jurisdiction but the civil jurisdiction of the family court legislation—they have to be enforced. Those who are protected by the laws need to know that there are the means that they can summon up at short notice to provide them with enforcement and therefore the protection that the order promises.

On that basis these are welcome developments. The rest of Part 2 provides, as you would expect, for effective and sensible administrative procedures that allow for an amendment of the order or, indeed, a discharge of the order. We would hope that the nature of these orders and of proper enforcement is that victims get to a point where they are no longer fearful for their person and themselves, that they themselves can take control, that they can shed these orders under their control, get on and pick up their lives, put them back together, and be happy.

So this bill is welcome, as I have said, and I know that this Committee will be doing the right thing for those people who are affected, always against their choice in this sort of way, and who are subject to violent offending, and who, were it not for these orders, could be re-victimised time and again. This is a good thing and I look forward to supporting it.

I call the honourable member Denis O’Rourke.

A very good choice, Mr Chairman. Regarding Part 2 of the Victims’ Orders Against Violent Offenders Bill, I firstly want to comment on clause 7. As introduced, this clause provided that a victim may apply to the 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. The requirement that an application must be made after the release of an offender from prison was, of course, too late. I said at the first reading that the victim should be able to apply for an order at any time after the conviction, so that the court could make an order to have effect immediately as from the date of release. My concern then 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 upon the offender, and that that would potentially be a period of high risk for the victim. That issue, I am glad to see, has been addressed by the Law and Order Committee, and the amended clause is now acceptable to New Zealand First.

Regarding clause 9, though, I am disappointed that this has not been amended in the manner that I suggested at the first reading. In clause 9, subclause (1)(a) says that the court may make a non-contact order if it is satisfied that there are ongoing effects of the offending for the victim. But I question why the court would have to be satisfied that there are ongoing effects of the offending. What would the victim have to prove to satisfy that test? It would have been better, I think, for that paragraph to have been deleted altogether. Similarly, subclause (1)(b) should also be deleted. It refers to the possibility of the contact between the offender and the victim being detrimental to any of the ongoing effects referred to in subclause (1)(a), which I have just mentioned. It should not be necessary for a victim to have to prove those things. Subclause (1)(c) and subclause (1)(d) are, I believe, sufficient by themselves. These provide that the order is reasonably necessary to avoid contact. I think that that is really what the issue is, and that would be sufficient for the victim to have to establish.

In my view, this is the only notable defect in the bill. It is therefore, as I have said, a little bit disappointing that the amendments that I suggested were not made. Nobody whom I know of has come up with a good explanation about why ongoing effects will have to be proved or why they have to be shown to be detrimental. It is sufficient that the order is reasonably necessary. That is nice and wide and general, and it is good enough for a victim to have to prove only that, in whatever the circumstances may be. So I am a bit disappointed that those amendments have not been made, but it does not detract from the value of the bill as a whole.

Clause 11 sets out the effect of a non-contact order—now amended to temporary non-contact order—and it prohibits the offender against whom it is made from having any form of contact with the victim, as we know. In addition, the court may prohibit the offender from entering, living in, or working in a specified area. The concern I had was that subclause (1)(c) should be qualified by the addition of an exception as to the entry into an area that is incidental to, or necessary for, the purposes of the offender’s employment. Although we need to make an order effective, we should also see that it does not unnecessarily cause problems for the offender in obtaining or maintaining their employment.

Subclause (1)(c), I am glad to see, has now been deleted, and instead we now have new clause 11A, entitled “Effect of final non-contact order”, which is much more comprehensive and has more 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. I am very glad to see that that has happened. Similarly, new clause 11B is welcome. It deals with the need for a final order to be directed by the court to apply to specified other persons whom the offender may encourage to engage in the same kinds of behaviour as the offender’s. Again, I am glad to see that included.

Lastly, concerning clause 15, I suggested at an earlier stage that the court should be required in this clause, 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 also—which may, of course, also justify a discharge—and, obviously, the places where the victim and the offender live permanently, amongst other things. I note that this clause has now been deleted and replaced with much more comprehensive provisions in the new clause 15, and that an additional clause, clause 15A, has been included to address the sorts of issues I had suggested be looked at.

So, again, the amendments sought by New Zealand First have largely been included, to our considerable satisfaction. For those reasons, with the reservation I expressed earlier, New Zealand First will be happy to continue to support the bill as amended.

Can I say that it is refreshingly honest of Minister Chester Borrows to acknowledge that, although useful, the Victims’ Orders Against Violent Offenders Bill is relatively small in its effects and it does not tackle the wider and more serious underlying problems.

I concur broadly with the figures that the Associate Minister of Justice used that showed that, at best, 10 percent of those who are victims of rape report the crime and that, at best, 3 percent of those who are victims of rape get accountability through a conviction in the courts. Actually, the rape survivor groups say that the figure, Minister, is probably closer to 1 percent, but let us say 1 percent to 3 percent. When only 1 percent to 3 percent of those who suffer as victims of a horrendous crime get accountability and get justice, then it is time to change the underlying fundamentals of a justice system that is failing those who are such victims.

I want to contrast Chester Borrows’ attitude with that of the Minister of Justice, who wrote to me on 14 March. I have got the letter in my hand. I had raised—advocating on behalf of the rape survivor groups—that we actually need to take a more fundamental look at what is happening in the area of sexual offending. What I got was a reply that was full of excuses such as “We’re doing this minor thing, we’re doing that minor thing, and those bigger things that the Law Commission talked about, they’re just too big, and we can’t do it.” They are not too big. They are not too big when we are failing 99 percent of those who are victims of sexual offending. I just cannot wait for the day when maybe Mr Borrows is in the chair as Minister of Justice—perhaps as early as next week or the week after—

💬 Hon Maryan Street: Tomorrow.

—maybe tomorrow, judging from the activity on the other side of the Chamber—because I think he would at least take an honest view of it. It is refreshing to have that level of honesty where somebody can tell the truth, the whole truth, and nothing but the truth, which, unfortunately, is not a characteristic of the present Minister of Justice, and, hopefully, she is the outgoing Minister.

I want to look specifically at Part 2 of this bill. In Part 1 we addressed the fact that the major change that was necessary in this legislation was to have a threshold where a non-contact order could apply to those who had been sentenced to 2 years or more for their sexual offending, as against the 5 years that Judith Collins introduced this bill with. That is the most significant and the most important change in the bill. Otherwise, this bill would have dealt with 10 people a year when we are talking about literally thousands of victims. It was a nothing bill, and the Labour Opposition, supported by the other Opposition parties in the Law and Order Committee, got that essential change to lower the threshold to 2 years.

The other changes we got come within Part 2 of the bill, which we are looking at at the moment. Under clause 7, the application for a non-contact order can be made not at any time after the offender has been released from prison but at any time after the offender has been sentenced in respect of the offence. That is the second most important change in this bill. It means that the victims can get that order from the time of sentencing, before the offender has actually really got into the sentence in prison, not after the offender is released, with that gap after release and the threat the victim may feel from a person who ends up living near, or working with, them, despite the fact that that person is the victim and the other person is the offender.

The important thing in relation to these non-contact orders is that it does fill a gap. You cannot get a non-contact order if you are eligible for protection under the Domestic Violence Act 1995, as you can get a protection order under that Act. But, again, let us not pretend that a protection order means protection. We saw that in the tragic case down south where a maybe disturbed or angry person shot the two children of a woman who had a protection order against him. So a piece of paper does not actually necessarily provide real protection, but it is a way of warning a person off. If we really want to solve this problem, we have got to go much deeper than something as simple as that.

The other order that is available is, of course, under the Harassment Act, and that is a non-harassment order. That is available if the person is actively harassing the victim. There was this gap, and the bill is, at least, successful in closing that gap. That does not mean to say that the non-contact order will be made automatically. Clause 9 of the bill sets out clearly that the court makes a non-contact order when certain conditions are met, and I think they are reasonable conditions. There needs to be ongoing effects of the offending for the victim. That will not be a high threshold. For anybody who is a victim of sexual offence, there will be ongoing effects. That is part of being a victim. So that threshold will be easily met.

Clause 9 refers to the possibility of contact between the victim and the violent offender. Well, of course that is necessary for the non-contact order to be given, but there are cases—New Zealand is a small country—where the offender will end up living near to the victim or working close to where the victim is. In those cases the victim must be given a remedy that says to the offender: “You might be released from the prison. You might have done your time, but the rights of the victim are still more important than the rights of the offender.” That is why these non-contact orders should be given.

The making of the order must be reasonably necessary to avoid contact and must take into account all of the circumstances. All of that is common sense. The application can also be without notice if that is required, and it is important that that sort of protection can be provided immediately if it is required and if the person had not taken the step of a non-contact order while the individual was still in prison. The other thing is that the duration of the order will go for whatever time the court orders, unless the order is discharged or unless the court has set no time limit and 2 years have expired.

So I think that the bill that we have got now is a useful piece of legislation. It does provide assistance to victims in a narrow set of circumstances, but if you are the individual who is affected in that way—even if the figures are only in scores rather than hundreds—this bill is something that we should support, because those people do deserve protection.

I want to come back to where I began, and that was to concur with the Minister in the chair, the Associate Minister of Justice, and say that it is time—and I have made this comment before—that we look at alternatives that work a lot better. I have been approached by rape survivor groups that say, actually, in some cases, victims do not want a court process at all. They have no confidence in the court process. They do not necessarily want to see the offender locked up and the key thrown away. Often it is the case that they know the offender really well. They do not want a prison sentence. They do want a process where remorse can be shown or reparation or restitution offered—something that shows that the offender can be held accountable and that action can be taken against the offender that is meaningful to the victim.

What I am saying to the Minister—and seeking his concurrence, and the Committee’s—is that this bill is good in the very limited impact it will have, but let us give the Law Commission proposals a chance. Let us look at the possibility of an inquisitorial system rather than an adversarial system. An adversarial system simply does not work in the area of sexual offending. Let us get even more serious about restorative justice, and where the victim opts for that process, let us make that process available. There would at least be some accountability in a situation where 99 percent of rape victims get no accountability at all.

I would like to speak a little bit more around the non-contact orders. We do absolutely support the lowering of the level to the 2 years’ imprisonment as opposed to the 5 years, as in this bill, when it was introduced. I spoke in the earlier stage a little bit about some of the challenges that we have to make this more viable or useful for the majority of victims of sexual violence in New Zealand. I would like to just briefly go through some of the changes that were recommended in the Law Commission process so far that would help make that possible.

In the Law Commission’s report—in what we have had so far from it—there were three proposals that received almost universal support. They were child protection orders, a specialist sexual violence court at the point post-conviction, and alternative processes for sexual offence cases, which the Hon Phil Goff has just been talking on, around restorative justice processes. Although the Minister in the chair, the Associate Minister of Justice, mentioned earlier some of the differences from the time when he was working as a police officer, when the sentences were very low for sexual violence, I personally still remember the public discussion we had at the time we raised the sentencing for rape. It was a very controversial decision, and one that I actually think needs reviewing, because it is acting—and we hear this back from people—as a disincentive for people entering the justice system. It is such a high level that people are going to be put away for that it is a disincentive to using the processes. Also, we do need to acknowledge that the majority of offenders are known to their victims. They are family; they are family friends. The thought of sending somebody away to jail for a very long time is a disincentive to actually holding that person accountable and getting the response that most victims and survivors want, which is having an acknowledgment of the crime, and knowing that that person is not going to offend again and that others will be safe. Sadly, we do not have that system yet. This bill deals only with those very rare cases where that conviction has happened and does put that measure in place, but it is not enough.

I would like to also just talk a little bit about how this may apply in a domestic violence situation and also acknowledge the extending of this out to what people are otherwise referring to as surrogates, which is usually the harassment of a victim by family or friends of the perpetrator. That is a very real dynamic in domestic violence in this country and everywhere. When I was working in Women’s Refuge, that was quite a common experience. We would be with a woman and she would be hiding because her abuser had friends and family out looking for her. It was not possible for her to feel safe walking in a public space because she never knew where they might be and whom she actually even needed to be looking out for. So it is very important that there is a provision in this bill to protect victims from harassment from other people when there is a concerted effort to harass them.

But, again, we also need to be looking at how our court systems are working to support this kind of measure of protection. The reality is that a lot of our Family Court decisions at the moment are working against this level of protection. We do not have a system in place that understands and ensures, in particular, that the people involved in custody decisions through the Family Court actually understand domestic violence. I was at a seminar last week organised by the Family Violence Clearinghouse. They brought out a US expert Dr Bob Geffner, who is an expert in custody decisions where there are accusations of child abuse or domestic violence. He is well known over all of the literature. It was very disturbing to hear that in New Zealand we have been getting people who have been thoroughly discredited in the US and who are not allowed to give evidence in the courts there coming out to New Zealand and training people in our courts on matters relating to the supposed best interests of the children in custody decisions through our Family Court.

We have no system of oversight to ensure that the counsel for the child, the lawyers, or the mediators in our systems actually understand domestic violence. Decisions are being made that are putting our children at risk and are taking children from situations of domestic violence where their mother, usually, has left the relationship and giving joint custody arrangements, putting that woman and child at risk because they are having to negotiate shared custody in the context of a violent relationship. As a country, we can put things like this in place but if we do not address the absolute fundamentals that underpin it all, we are not going to get the result that I believe in and I am sure that everyone in this Chamber wants. We want women to be enabled to get out of violent relationships, offenders to get the support and treatment they need to be able to change their beliefs and their attitudes and their behaviours, and children to be given back to healthy parents and have hope for themselves of a healthy life, free of violence, and living up to their own potential. Sadly, we do not have those systems in place as a country at the moment. This bill becomes just so piecemeal in that context.

Rising to speak on Part 2 of the Victims’ Orders Against Violent Offenders Bill, I join others in acknowledging that this is a small but significant step forward that does fill a gap. It will in part be recognising the ongoing effects of serious violent offending on victims by giving them the power to apply for a non-contact order. Part 2, of course, is the part of the bill that actually puts that in place and provides the mechanisms and the substance to those provisions of non-contact orders.

The non-contact order has been, I think, significantly improved by the work of the Law and Order Committee. Again, as others have, I want to acknowledge the fact that there is good cross-party support for this provision. It does, I think, reflect a concern that many have about the types of violence and intimidation that do exist and not solely but often are used against women. It has been good tonight to recognise across this Committee the understanding that there is about the problem of sexual violence—the fact that those who are victims and survivors of sexual violence often have extensive ongoing impacts of that violence that, in fact, as I described earlier this evening, having listened to the submissions to the Social Services Committee inquiry, have been described as a very traumatic ongoing series of impacts on health, on the ability to form relationships, and on a whole range of substantive issues. So this bill does provide assistance.

I guess one concern that I do have, and it is based on recent reflections on protection orders in domestic violence situations, is that of course there does seem to be a concern about the enforceability but also the way that breaches of protection orders have been allowed to happen almost with impunity in some cases, and we have seen some very significant consequences recently of that. So in establishing this new provision, I think we do need to make sure that looking at non-contact orders, what happens around breaching them, and how that is actually implemented is going to be important for us. As others have said, those non-contact orders can relate to the offender entering defined areas, residing in specified areas, and working in specified areas. Some of this is about the potential for psychological abuse, not just physical abuse, given the fact that somebody who has taken such a significant and abhorrent action against another person can then essentially put themselves in ongoing contact. So, as I say, that is good to see.

I think that the reflection of others on what we really need for victims and better outcomes for victims and survivors of sexual violence is important, particularly in terms of the criminal justice system. This bill is one small thing, and the fact of the matter is we need a comprehensive look at this area for the reasons that have been articulated about the low level of convictions and the actual experience that victims of sexual violence face going through the court system and seeking justice. So although these orders are useful, we should not kid ourselves that there is not a great deal more to do.

I have to say that the current Minister of Justice—and we do not know how long she will stay in that role—has brushed aside suggestions of better legal responses to sexual violence. In the letter to the Hon Phil Goff she refers, in fact, to a bill that we dealt with earlier this evening, the Victims of Crime Reform Bill. She talks about some of the provisions that are already in place, and essentially says that some of the wider reforms that you might expect in this bill that we are dealing with tonight around these non-contact orders and the Law Commission’s report on alternative trial processes were all brushed aside.

It is quite clear to those working in the area that there are a significant number of reforms that need to be made that will start to deal with some of the low conviction rates and also some of the brutalising experiences and difficulties that people face in trying to get justice in this area, and there are particularities around sexual violence that make it difficult. There are evidential issues where there often are no other witnesses, but there are things that can be done about that: prosecution guidelines about what needs to happen here, better support in court, and safety in court. Issues around court delays actually are a problem in this area as well, because when it is a very emotionally intense process, as it is in sexual violence trials, delays can just really make it worse for that survivor. Another issue is the adversarial process itself, which is really what the Law Commission deals with. The lack of boundaries and some of the behaviours of defence lawyers—

The CHAIRPERSON (H V Ross Robertson): I am sorry to interrupt the honourable member. The time has come for me to report progress.

Progress to be reported presently.

House resumed.

The Chairperson reported the Victims of Crime Reform Bill with amendment, and that the Committee had divided it into four bills, progress on the Victims’ Orders Against Violent Offenders Bill, and no progress on the Vulnerable Children Bill.

Report adopted.

Sitting suspended from 9.56 p.m. to 9 a.m.(Thursday)