Victims’ Orders Against Violent Offenders Bill

Labour supports the Victims’ Orders Against Violent Offenders Bill. We think that Part 2 does provide, with the provision of non-contact orders, the opportunity to fill a gap that is currently there. There are measures currently in place to protect victims of serious crime. The Domestic Violence Act, of course, provides for protection orders, but that means that, basically, victims have to have been in a situation where they were in a domestic relationship, and the Harassment Act provides for restraining orders but only in circumstances of harassment. Basically, the notion here is that we are talking about a non-contact order, and these can be applied for as set out in in clause 7 of Part 2. A victim may not apply for such a non-contact order if another form of order is currently in place. That is important. It is not in addition to those other situations I have talked about—protection orders and restraining orders. It is a distinct situation and it will cover the sorts of situations where somebody might, for example, as we have seen evidenced in this country, choose to live next door to somebody whom they have seriously assaulted, raped, or whatever.

Of course we support a bill like this, where we are trying to do something to recognise the ongoing effect of serious violent offending on victims and recognising that, in fact, we do have a real problem with serious violent offending in this country. There are no two ways about it. Of course, it is interesting that we are speaking on these victims’ orders this week when we have, in fact, had the Glenn Inquiry report, or part of it—the part that dealt with 500 interviews with people who have had violence done against them or with people who are working with women and children, primarily, who have been victims of domestic violence. It is quite timely that we are continuing to work our way through the Victims’ Orders Against Violent Offenders Bill.

One of the other things I would point out at this stage is that although we support this bill, we do have significant concerns about the piecemeal approach that is being taken around dealing with violent crime. We and, I am sure, colleagues of mine will be traversing this ground tonight about what we might do in a broader sense. The Glenn Inquiry does, of course, give us the opportunity to reflect on what we need to do. They have, in that report that has been released this week, raised substantive concerns about not only the magnitude of the problem we face but also the way the justice system is actually not working for victims of violent crimes. So although this bill fills a particular gap and we support it—we think it is a useful additional thing—what we would really need to be looking at, if we were serious about this as a Parliament, would be this whole area. We need to look at substantial reform in the justice system particularly, we need to look at reform in our policing, and, of course, we need to look at the wider issues around, basically, trying to prevent violent crime.

I note for the record that in response to the Glenn Inquiry we had questions in the House this week, where we were talking about what the Government’s response was to that Glenn Inquiry—that approach rather than a very narrow approach, as is outlined in this bill.

Labour suggested to the Government that we actually have some sort of cross-party consensus on issues like domestic violence; that we actually work together as a Parliament to try to look at real change across the whole range, from prevention to looking after those who have been victims of violent crimes. In the Glenn Inquiry we were looking particularly at domestic violence but we also as a Parliament are very actively raising issues around sexual violence, and the Social Services Committee is, of course, considering that issue at the moment. We really need as members of Parliament to say that we have some responsibility in this space to make change, to try to prevent violent crime, and also then to look after those who are victims of such violent crimes. We need to make sure that the criminal justice system does not revictimise them and does not make it too hard for them to get justice and to see those who have offended held to account for that offending.

There were very good changes made in the bill as a result of the work of the select committee. I was not on that select committee but I want to acknowledge some of those changes. The select committee, for example, amended clause 7 of the bill to allow an application at any time after sentencing, so that there is not potentially a gap at the point where the person is released from prison, and there is a wider scope to the orders than parole conditions could provide. I think that was a very positive situation.

There is also another concern that we have got, and that is in relation to an application for an order being a civil proceeding and that victims would have to meet costs unless they qualify for legal aid. The select committee has mitigated that somewhat by allowing two types of order—temporary and final. In relation to the situation where the victim has to take their case to a judge in the presence of an offender, that has been mitigated to a certain extent by allowing two types of orders, temporary and final, and the offender would be present only for the application to make a temporary order a final one. This would also assist in lowering cost and contact with the offender, but not eliminate it. So we do continue to have a concern on that particular issue.

I think the interesting point on this, as I said earlier, is that this is quite a specific thing. The regulatory impact statement said that potentially the number of orders that are likely to be issued on average could be as few as 10 per year. That is not a reason not to do something, but I do go back to my earlier point that there is a broader range of issues that I think as a country we really do have a strong desire to see addressed. I would like to urge the Government to look more broadly at these issues; not to keep working in a piecemeal approach, which is what is happening at the moment. I would suggest that we do use the opportunity created by the Glenn Inquiry to actually acknowledge that the community certainly sees the desire for a much more comprehensive, collaborative, and committed response to ensuring that the victims of violent crimes are not further penalised.

Right at the start of the debate, when this Victims’ Orders Against Violent Offenders Bill was introduced, Labour said that it would support the bill. The reason for that was pretty clear-cut. We need to have a system that pays more attention to the victim. Sadly, in relation to serious violent and sexual offending there are far too many victims. It is time, actually, to produce some fundamental change in the way our system works; to try to build more fences at the top of the cliff rather than try to do small repair jobs at the bottom.

Frankly, the bill as introduced was pretty weak. My colleague Carol Beaumont has referred to the regulatory impact statement. I say to the Minister of Justice that I was kind of astounded to read in the regulatory impact statement that the best estimate of your officials was that this bill might deal with 10 cases a year—10 cases a year. We are talking about thousands of cases of sexual and violent offending each year and the victims who arise from that. Each year hundreds, maybe thousands, of people are let out of prison, and there was not protection for the victims in particular circumstances. Minister, you will recall that the origin of this bill was a case in Invercargill where a woman was raped, her offender was convicted, he was sentenced to prison, he served prison, he was let out of prison—as happens at the end of your sentence or when you are released—and he moved in next door to the victim. The victim was absolutely powerless. Every day she faced the risk of confronting the man who had sexually violated her, and there was nothing she could do about it. That apparently was what caused this bill to be introduced.

The difficulty with the bill is that when it was introduced we found that it would have had no application at all to the woman whose case sparked the need for the legislation. Why was that? Because in order to have the protection of the non-contact order, the offender had to be jailed for at least 5 years’ imprisonment. He had been jailed for 4 years. There was no protection in this bill for the very person whom it purported to protect. So that was a huge weakness. We indicated at the first reading of the bill that that was utterly inadequate, and that we would fight to get that changed. In the Law and Order Committee they moved it to 3 years, and, after a discussion with the Minister personally, she agreed to move it to 2 years. I think 2 years is appropriate. It brings it in line with the definition under the Parole Act, which demarcates a serious from a less serious offence.

But there are other important changes that we made in this legislation to strengthen it, and they are set out in Part 2. The first is that the way the bill was introduced, once again, meant that you could not get a non-contact order until the offender had been released from prison. That was pretty dumb. That meant that there was always going to be a gap between the release from prison and the victim being able to get a non-contact order. In fact, the victim would not always know that the offender had been released, and there was real risk in it. So we made, I think, a very sensible change in the committee that you can get a non-contact order at any time after the offender has been sentenced. That was a sensible move.

The other area of weakness that we addressed really came out of the submissions that the select committee heard. It was that some offenders were reasonably cunning in the way they sought to revictimise their victims. They did not do it themselves but they got an associate to do it. So what we have put into this bill is a provision that will allow the non-contact order to apply to people other than the offender. We have put reasonably strong safeguards in there. In order to have a non-contact order made out against a person who was not the offender, they need, one, to have been encouraged by the offender to engage in the behaviour that is being prohibited; two, to have engaged in those kinds of behaviour; and, three, the person’s behaviour has been, and continues to be, detrimental to the victim’s ability to manage the effects of the offending. So there were three key weaknesses in this legislation that we have addressed, and I think the legislation is better for it.

But I want to come back to the point that I made at the beginning. We will not be dealing with just 10 cases a year now. Maybe we will be dealing with scores of cases, but the number is still pretty small. What we actually need is a substantial piece of legislation, if we are truly to protect the interests of the victims. I found out from a victims organisation in west Auckland—indeed, the chief executive has just been acknowledged in the Honours List this year—that maybe in one in 100 cases of sexual violation is the offender actually charged, convicted, and sentenced to prison. One in 100.

One in 100 cases means that 99 percent of the victims are not seeing justice done. We have helped by helping another 0.05 percent of the victims. It is worth doing in specific cases because there is a gap in the legislation where people are not covered by the Domestic Violence Act, they cannot get a protection order, they are not covered by the Harassment Act, and they cannot get a restraining order. We do address the gap but we do not address the problem.

The problem lies in a number of areas. In part, it is a case of protection. We have just considered the estimates on the police, to find out that for 5 years in a row the police budget has been cut in real terms—cut by $114 million dollars. If we want to protect victims, cutting the police budget, cutting police staff, and closing police stations does not appear to be a very good way of doing that. We are doing a mildly good thing here, but not offsetting a very bad thing that the Government is doing by reducing protection of victims by cutting the police budget.

Secondly, you need attitude change, and that is not short term; that is the change that we can make through our education system. There needs to be a concerted effort, and I do not think anybody in the Committee would be opposed to that sort of education programme being run or opposed to more effective programmes for those in prison who are guilty of violent offending.

The third area is this. I really want the Minister in the chair, Judith Collins, to address this, because if this bill is about protecting victims, then we have got to face up to the fact that we have a system that is not designed to protect victims. We have a system that is adversarial. We have a system where still, even after various changes in legislation, the victim feels that they are being revictimised in court. The victim does not want to go to court. The victim feels that they are going to be revictimised because of this adversarial system. I guess the question that I have for the Minister is why she is so opposed to changing the system in its fundamentals, to having a more inquisitorial system that is better designed to protect the interests of victims and to get to the truth, in order to help the victims themselves.

I would have to ask the question about why we are not doing more in the area of restorative justice, because a number of rape survivors whom I have talked to said they are actually not interested in a 20-year sentence for the offender; they simply want an expression of remorse and of contrition, to confront the offender, and to actually hear the offender admit that he was wrong in what he did. That does not seem enough to me in terms of a person who has been a victim in that way, but it is a hell of a lot more than what they are getting out of the present system. In the present system—I come back to the statistics—99 out of 100 victims of sexual violation are not going to see justice done. Although this piece of legislation is a very small help, it pales into insignificance compared with the nature of the problem that we should be addressing in this legislature. This is not enough. We need to do a lot more.

In terms of the actual provisions of the bill, I have outlined the key provisions where I think we have made changes that were necessary, so that this legislation would at least have some real practical effect. I think we have closed the gap that we are talking about, but we have not resolved the problem. That is why I ask the Minister to not simply bring a series of minor pieces of legislation to the House—we will always support any piece of legislation that will enhance and promote the interests of victims—but to do something that will really make a difference to the overwhelming majority and the too many people who fall victim to serious sexual and violent offending.

I am pleased to take a call in this part of the proceedings on the Victims’ Orders Against Violent Offenders Bill. I begin by saying that in a week in which the nation has had its attention drawn to the horrific reality of domestic violence and sexual violence, for this Committee, finding solutions—real solutions, long-term solutions—should be front and centre of what we do right now. As my colleague Phil Goff has said—and, indeed, Carol Beaumont as well—although this bill goes some of the way and provides a solution of sorts to the dreadful, embarrassing, shameful problem that this nation has, it is still a half-hearted effort. More could be done. I am going to come to two particular provisions to illustrate what I think the remaining problems are with this bill.

Carol Beaumont talked about the fact that this bill still requires the victim to take the initiative. It is a civil proceeding that the victim must initiate. For impecunious victims, getting access to legal aid so they can make an application of this nature has got a lot harder under this Government. It is just harder to get legal aid. In the Budget that has just been handed down, this Government, under this Minister of Justice, has put up this outrageous proposition where legal aid is cut by another $12 million—$5 million out of civil legal aid alone—and now with this legislation, when this legislation is passed, the people who are looking to it for protection are somehow going to have to find the means to make the applications to court. The reality is that most of them will have to do it off their own bat. They will have to represent themselves, because getting legal aid will be too hard, and many simply will not be able to afford a lawyer. So that gap remains, and I expect that that gap will get only ever larger.

But this bill also, in the two types of orders that it creates—the temporary non-contact order, which happens or is granted on a without-notice application, and then the final non-contact order, which is granted, or at least processed, on notice and is granted after a hearing—will require adequate and sufficient resources to be available in the registries of our courts up and down the country. The reality is, after the shameful act of cutting our legal aid, the next most shameful thing that this Government has done under this Minister of Justice and her Minister for Courts is to gut the court registries of this country and put huge pressure on the remaining staff who are there to process applications. That pressure is only ever going to grow under pieces of legislation like this.

I, frankly, despair at the thought and the prospect of victims of violent offending, violent sexual offending, and domestic violence, when they are able to collect themselves, process what has happened to them, and start to take control of their lives, then having to go through this process, most likely at their own expense, and deal with court registry staff who are under so much pressure and are probably unlikely to give them a lot of help. That is the justice system that we are developing under this Government, and it is shameful. We have a Minister of Justice who is happy to swan around London, mince around with Angelina Jolie, photobomb Brad Pitt, and talk longingly about protecting the victims of sexual violence in war zones, but she cannot do enough for the good citizens of New Zealand and those who are in the unfortunate position of being victims of that sort of offending back here. Well, we deserve better. The people of New Zealand deserve better.

I want to talk about just a couple of provisions here, because my colleagues Phil Goff and Carol Beaumont have talked about the bill. First of all I want to point out clause 15, “Discharge of non-contact order on application”. That allows an application for discharge to be made by a person against whom an order was made, which could be the offender or an associate, according to the bill, “at any time”.

An application for discharge can be made at any time. So no sooner is an order issued from the court, with the victim having taken the initiative and gone to their own expense and negotiated and navigated their way through an under-resourced court registry, the offender against whom the order is made can then at any time apply for a discharge. There is no constraint on that at all—no limitation on the offender, no requirement that the order is in place for a limited period of time. You would have thought that at least for orders made on notice, where there has been a hearing and the court has heard from the offender, or at least from the subject of the order, there must surely be a minimum time for the order to apply before an application for discharge can be made. But that provision opens it up for the offender to harass the victim in other ways by applying for the discharge.

Then I want to turn to clause 15B, which allows the offender, of course, once an application has been made, to require a hearing to take place. In terms of principles of justice, I do not have a problem with that—I do not have a problem with that. But where I am concerned is where the registrar of the court then takes on a number of responsibilities. The registrar can take the application for a hearing, set it down, and in the subsequent clauses of the bill it is the registrar who can take the responsibility for explaining the impact and the consequences of one of these orders to a person against whom an order is made.

I go back to my earlier point that the resources of our court registries, particularly the District Court where these applications will be made, are stressed beyond belief, right now. The court registry staff are just absolutely under the hammer. You have only got to talk to some of them to find out that that pressure is unrelenting because this Government has said “We must squeeze more out of you. You must work harder.” We have got court registry staff not just working late on weekdays but now coming in on weekends just to catch up with the work they are doing, particularly in relation to civil applications, because they are often the most complex ones to process and to work out who has to be served with what, what has to go to which court official, and all the rest of it. The court registry staff in this country are under unreasonable and unremitting pressure because of this Government. When this bill gets passed they will be under even greater pressure and they will be required to deal with distressed people, and it is just unreasonable.

Mr King may think it is funny. Mr King may think that we should cut short this discussion and this debate on this very important issue. Maybe the National Party members really just do not care about the victims of this sort of abuse and the importance of these sorts of orders, because to look at them, to hear the Minister of Justice and look at her actions, which frankly speak louder than words, you would think they do not give a toss—they do not give a toss. That is why we have this bill in this form.

I want to echo my colleague Phil Goff’s comments that it is well time, well overdue, for this country to have a comprehensive piece of victims’ legislation setting out rights and allowing victims to look to the State to afford them the protection that the criminal justice system ought properly to offer them. It is not enough to rely on victims to take the initiative, in their distressed state, to protect themselves. That is what this bill does. It is time we had a new set of principles, so that victims can look to the State and the courts to provide them with proper protection at all stages of the criminal justice system. There is no reason, in principle, why the orders that are contemplated in this bill could not be part of either the sentencing process or the parole process, so that the victim does not have to take on the burden of that responsibility yet again.

As my colleagues have said, we will support this bill because, as is often the case, something is better than nothing. But the people of this country are fast demanding something a lot better, and it is the Labour Party in Government that will deliver it because this Government has shown in 6 years that it is not up to the task. It really does not care about victims, and it is not doing enough.

The question was put that the following amendments in the name of Hon Judith Collins to Part 2 be agreed to:

add to clause 13A the following subclause:

(2) On the hearing of an application made under subsection (1), the court may, if it thinks fit, vary any condition or direction imposed under section 11(2) in respect of a temporary non-contact order.;

insert in clause 14(2) the following paragraph:

(ab) vary or discharge a condition or direction imposed under section 11A(2):;

in clause 20(2)(b), replace “2009” with “2014”; and

in clause 20(3), replace “2009” with “2014”.

Amendments agreed to.

Part 2 as amended agreed to.

Clauses 1 and 2