Victims’ Orders Against Violent Offenders Bill

This bill is entitled the Victims’ Orders Against Violent Offenders Bill, and the reason we have it before the Committee tonight is that there is currently in place no long-term mechanism that the police or the courts can use to prevent an offender coming into contact with a victim, in the absence of a domestic relationship or evidence of deliberate harassment. This bill was designed to address a gap in the system. The Domestic Violence Act provides protection orders for people, usually women, who have been the subject of domestic violence. The Harassment Act provides protection for the victim against those who continue to harass them. But there is nothing in the current legislation that deals with the situation where a person who has been the offender against the victim can harass them silently, if you like, by their presence.

What this bill tries to do is prevent things such as the following or the watching of the victim and the loitering near, and the prevention or hindering of access to or from, the victim’s place of residence, business, employment, educational institution, or other place that the offender knows the victim might visit. It is about stopping a person from following or accosting the victim. It is about stopping people making contact with the victim that is unwanted contact.

Some people might say that when an offender has served his or her prison sentence, then their rights need to be upheld alongside the rights of anybody else in the community. My view is somewhat different from that. Yes, of course offenders do have rights, but those rights cannot be superior to the right of the victim not to relive the suffering that they have had inflicted on them by the offender, by seeing the presence of that offender in their community, near their place of residence, or at their place of work or education.

There was a gap in the law. This bill closes that gap, but let us not exaggerate the impact of what this legislation actually does. The Law and Order Committee found that there are 1,000 people each year released from prison who would meet the sentencing criteria for being covered by this bill, but, equally, officials have said that this bill will apply to a very small number of people. We do not know what it was. As the Minister of Justice had originally drafted the bill, it would have applied to just 10 people. I have got to say that when I read the regulatory impact statement, I was really worried about everything that I read in that statement that suggested that what the Government was doing and the officials were doing was premised on what the costs might be of extending the rights of the victims. Indeed, when you look through the options that were put up, the Government said: “This would be quite costly. We cannot do it.” Well, let us start to think about the costs that are inflicted on the victim and the need to protect the victim, which is what this bill is supposedly about.

But I want to say that although this bill, as the title suggests, is about orders against violent offenders, it is a drop in the bucket in terms of the actual problem of serious violent offending and serious sexual offending in our community. I had the terrible task earlier this week of visiting the family of the dairy owner Arun Kumar, who was murdered in his shop in Henderson. Talk to the family and try to find words that are adequate to match the suffering of that family—an elderly dad who has lost his son; a wife, Anita, whose husband has died before her eyes and in her arms; and two children, who know that their dad will never be there to be the grandfather for their children—and you realise that when we talk about victims, we are not simply talking about statistics. We are talking about people, real people, and the enormous suffering that so many people have inflicted on them in our community—the suffering of violence and the suffering of sexual assault.

It is time that we in this House made more than just the token effort of saying that we will patch the system here or we will patch the system there. It is time to look fundamentally at what is going wrong in our society, and to build the fence at the top of the cliff, rather than trying to make sure the ambulance at the bottom might arrive on time. When the offenders, as in that case in Henderson, are of the age of 12 and 13, you know fundamentally that something is happening that is wrong in our society, and if we think that we can fix that by passing small pieces of legislation like this, we are, sadly, wrong.

We have to do more to address the causes of offending. That requires much more than legislation. We have to do things that ensure that the system works. In that case in Henderson, you have got to ask the question of why a 12-year-old and a 13-year-old were not at school, and what was happening to make sure that they should be at school. You have to ask the question of why a 13-year-old whose father is in prison and whose mother is constantly before the courts is left to his own devices, and why there is nothing in the system to put him on the right track, which might have prevented him from stabbing the dairy owner in the neck, as alleged. That is why we need something more than simply this piece of legislation.

We need a change in the system. In terms of sexual offending, we need a system that will respond to individuals in a way that does not frighten them away from the system, but that allows them to come into the system in order to see justice done. When only one in 100 of those who are victims of sexual violation get justice through the system that we have at the moment, we know that the system is simply not good enough.

So the Labour Party has come into the House at each reading of this bill and has supported the bill for the small but useful things that it will do for a small minority of victims. We will always support the victims, but this bill, as the title suggests, is no panacea, no widespread solution, and no answer to the fundamental problems that, after 6 years, have not been addressed by this Government. It is not the time to make this into a political football, but it is the time when this House should come together and say: “Let’s do something more than pass tiny pieces of legislation that apply sticking plasters.”

Let us do something to make sure our system works. Let us do something to create a society that addresses the causes of offending. Let us do something to have a policing system where the police do not have their budget cut, as they have had in every Budget for each of the last 5 years, so that we now have fewer police staff out there working in the police force and fewer police stations. That is the track record. In Henderson, the thing that people told us on the ground, as we went from shop to shop, was: “What we really needed was a community police station in this town. What we needed was to see our police out in the street. What we needed was some intervention when we could see the problem out there.” They needed to know that the system would respond to that problem and prevent the problem, because after the damage has been done it is too late.

So I say to the Minister of Justice that it is fine to have this small, narrow piece of legislation. We will support it—we would support it if it helped just one person—but it is time to have a system that actually works for the greater good of a greater number of people. We need to address the causes of offending, have a policing system that is visible on the ground and that works properly, and have a justice system that encourages people to come into the system and see justice done, because for far too many people today, justice is not being done.

I want to take a short call, and clearly the Chairperson has some enthusiasm for advancing the Victims’ Orders Against Violent Offenders Bill. This legislation undoubtedly fills a gap. The Greens are supporting it, with some reservations, which we have expressed at the Law and Order Committee and elsewhere, but it does fill an obvious gap. A person who has suffered an assault or attack of some sort at the hands of someone with whom they had a relationship—a domestic relationship or some other form of intimate relationship—can make an appeal for a protection order. It seems perverse that there is no similar provision for someone who has been assaulted by someone who does not meet the criteria for a protection order. Undoubtedly, this new mechanism does fill that gap.

I would reiterate what Mr Goff has just said, and indeed, what Carol Beaumont referred to earlier, and that is that community safety and the safety of individuals will never be achieved simply through legislative instruments, statutory provisions, or, indeed, through longer sentences, more jails, or more and better policing—not to say that the latter, particularly, does not have a significant role to play. Ultimately, we will achieve peaceful and safe societies when people have access to education, health care, housing, and useful and productive employment. The social situations and conditions that breed crime need to be dealt with, rather than simply the punitive and reactive mechanisms that we can deal with through legislation like this.

Having said that, we certainly will support this legislation, albeit recognising that it is not a panacea; it is far short of that. We continue to have some concerns, and unlike some of our Labour colleagues, we have some concerns about the threshold having been reduced from 5 years to 2 years. That seems a significant drop. The original advice from officials was that the 5-year threshold was set because the policy intention was that the orders should be available only in the most serious and violent sexual offending. In part—and I do not entirely accept the notion that it was driven by cost—the Attorney-General’s report on compliance pointed to some potential compromising of the New Zealand Bill of Rights Act but conceded or acknowledged it was justified, given that this order would be available only in response to the most extreme and serious offending, as determined by that 5-year sentence. Regarding the fact that we are reducing this significantly to 2 years—although I understand the logic of aligning it with the Sentencing Act and with other legislation—information was given to us that a change in the threshold could undermine the Attorney-General’s conclusion that limitations imposed by the order could be justified under the New Zealand Bill of Rights Act. That is not a trivial matter.

My other reflection is that of course now that there are many, many more people who will be eligible to apply for these orders, the numbers will undoubtedly increase. The number of these orders could actually become quite significant not only because of the reducing of the threshold to 2 years but equally because of the other significant change, which now enables people to apply for an order immediately post-sentencing, at any time after sentencing. In the heat of the moment, in the trial process, yes, the victim is often obliged, to some extent, to relive the very traumatic and unfortunate experience. At that point, the victim is most likely to think “Yes, we will apply for one of these orders.”, whereas 2 or 3 years later on they might be perhaps more thoughtful in their approach. Time has passed, and there is perhaps an acknowledgment that offenders can actually be rehabilitated in our prison system, on a good day or on a best occasion. So I think the likelihood of large numbers of these orders being issued is something we can reasonably expect.

Given that there will be more of these orders, it does concern me that we might eventually come to a similar situation as the one we have come to with protection orders, where the efficacy of protection orders is being questioned, in part because there are a lot of them and in part because they are not necessarily respected or given weight, either by the enforcement agencies, or, indeed, by the people whom they are intended to protect. We have instances where a person protected by an order will willingly allow a breach of it, and these consented breaches, if you like, lead to more serious breaches later on. The waters get seriously muddied, the police are put into unfortunate situations, and the integrity of the protection orders is compromised, very often, and makes them less of a protection than they might be.

There is also the danger that people will become overly reliant and expect too much of these orders, be it a protection order or the new victims’ orders, and will assume that they will actually give them a very real protection. Unfortunately, the orders cannot be entirely relied on. Ultimately, no document, statutory device, or mechanism can provide protection. Sometimes it just requires common sense, community and family support, and all of those other things.

Those two substantive changes made through the select committee process—the lowering of the threshold and the ability now for an order to be applied for and issued at any point after sentencing—we think could actually backfire, and ultimately could put us in a less desirable situation, in ways that were not necessarily meant to be. I can understand that there were problems with not having the orders available until after an offender had been released, because there could then be a gap of time when the victim could feel threatened—or, indeed, could be threatened—before an order could be worked through the system, but we think that immediately after sentencing is probably too early in the piece to allow for this very serious document, this order, to be applied.

With those comments, I do say again that we will support this bill, but I would echo the comments made by other people that it is part of a piecemeal approach. We do look forward to having a clean slate—a new beginning, in a sense—and an assessment of, actually, how you get justice and how you get community safety. That does require, I think, some more creative and zero-sum thinking than simply tacking on more and more provisions to existing provisions.

I had a conversation today, in fact, with a person who had long experience as a lawyer in a provincial town. He had experience in everything, from criminal law and family law through to tribunals—the whole gamut of legal action and advice. He, among others, is seeing practitioners who are understanding very well that our justice sector is in many ways under stress. We are not providing for a lot of the needs of people as they arrive, and the priorities can be wrong. The system is stressed in many ways, not least of all financially, as has been mentioned. The capacity of our system to deal with people fairly and in a timely fashion is degrading—there is no question about that. With the cuts in legal aid, many lawyers now simply cannot afford to function at legal aid rates, if, indeed, people are deemed eligible for it. So we have some very serious problems in the provision of justice that need to be addressed and, certainly, piecemeal approaches like this bill simply will not do it. Thank you.

Clause 1 agreed to.

Clause 2 agreed to.

Progress to be reported presently.

House resumed.

The Chairperson reported the Companies and Limited Partnerships Amendment Bill with amendment, and that the Committee had divided it into two bills, and the Victims’ Orders Against Violent Offenders Bill with amendment.

Report adopted.