Victims’ Orders Against Violent Offenders Bill

This Victims’ Orders Against Violent Offenders Bill is one of a number of moves that have been long needed to improve the rights of victims and to support them when 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 process of victims and their ability to enjoy normal life. As introduced, the bill was something of a mess, I think, and it needed substantial amendments. Most of those defects have now been fixed, but the bill is still not as good as it could have been. Although New Zealand First will still vote for the bill, because improvement in victims’ rights is an important part of New Zealand First’s policy agenda, this should be regarded as a work in progress and as legislation that will need further work by the next Government.

Clause 5 defines a violent offender as a person who “(a) has been convicted of a violent offence that affected the victim; and (b) has been sentenced to a term of imprisonment of more than 2 years ... ”. As introduced, the bill required sentencing to a period of 5 years or more, but the definition has been amended to sentencing for 2 years or more. That is now acceptable to New Zealand First. Otherwise, the scope of the bill would have been far too narrow and too many offenders would have escaped the net.

But I still have some serious concerns about clause 9(1). That clause says: “The court may make a non-contact order if it is satisfied that—(a) there are ongoing effects of the offending for the victim;”. Why does the court have to be satisfied that there will be ongoing effects of the offending? What has that really got to do with it? What would the victim actually have to prove to satisfy that test? I do not believe that that is an appropriate test at all, and that clause should have been deleted.

Similarly, clause 9(1)(b) should have been deleted too. It says that the court must also be satisfied that “the possibility of contact between the victim and the violent offender will be detrimental to the victim’s ability to manage those effects;”. It should not be necessary for the victim to have to prove that either. Paragraphs (c) and (d) of subclause 9(1) are by themselves sufficient. They provide that the order must be “ ... reasonably necessary to avoid contact ... taking into account all of the circumstances [of the case].”

We should simply leave it to the court to judge whether an order is reasonably necessary, taking all those circumstances into account. It is the possibility of unwanted contact that is the real issue, and that is the issue that the victim will be particularly concerned about. There should be no inquiry as to ongoing effects or to the victim’s ability to manage them. That is completely unnecessary and is a hurdle that a victim should not have to jump. In fact, it could be a disincentive to victims to have to produce that sort of evidence. It may be one of the things that stop them from using this legislation. So it is a shame that those additional tests are there. That is the only notable defect, however, in this bill, and it is something that I hope the new Government will do something about. So New Zealand First will not oppose the bill for that reason; we are just rather disappointed in it, and we look forward to an amendment in the future.

Clause 11 sets out the effect of a non-contact order, and that has now been amended to a temporary non-contact order, with the effects of the final order being provided for in clause 11A. An order prohibits an offender against whom an order is made from having any form of contact with the victim. In addition, the court may prohibit the offender from entering, living in, or working within a specified area.

I have previously expressed a concern that it is necessary for us to make sure that that will not inhibit an offender from obtaining or maintaining their employment. But new clause 11A has solved the problem, and the effects on a final order now have much more comprehensive and refined powers for the court to specify in relation to excluded areas for entry, residence, and employment. So now the effects of the order will be no more than needed to properly protect the victim. That is an inquiry that the court will have to make and it will need to make an appropriate order to balance the needs of the offender and the protection of the victim in that way. So because that is something that has now been achieved in the latest amendments, New Zealand First can welcome clause 11A and also the new clause 11B. ther persons whom the offender may encourage to engage in a contact behaviour that the offender might engage in.

Overall, although the bill does not include all that New Zealand First wanted and there are some serious defects in it still, it does most of what New Zealand First would have sought, so it is a positive step forward for victims, although it is a work in progress and the new Government this year will provide an opportunity to move ahead still further in the protection of victims’ rights by having another look at this legislation.

I note that the Sensible Sentencing Trust is promoting the appointment of a Victims’ Commissioner, as has been done, I believe, in the United Kingdom. That may or may not be needed. It would depend rather on whether the departments and agencies involved actually now develop a better culture towards victims’ rights, because, of course, the legislation cannot achieve the objective by itself, so we are going to rely on the people who work in the area in those departments and agencies to adopt a more supportive culture in terms of victims’ rights. We can wait and see whether they achieve that. If they do not, we can look further at the need to appoint a commissioner, as proposed by the Sensible Sentencing Trust, but it may not be needed and I hope that it is not needed because I believe that there is a good possibility that the culture that I spoke of will change as a result of this legislation. So, for all of those reasons, New Zealand First will be voting for the bill.

The following scenario I put before the House is of a woman who has been the victim of a violent assault. She is not in a relationship with the offender. However, the offender has a number of associates who are also threatening. The offender is in prison—he has been put in prison for a period of more than 2 years—but in the meantime he is using his associates to harass the woman by any means that he can.

This bill, the Victims’ Orders Against Violent Offenders Bill, will provide protection for that victim while the offender is in prison and will also protect that victim from any associates who seek to threaten the victim in any way. I disagree with the previous member, Denis O’Rourke. The Law and Order Committee has very carefully considered the rights not just of the victim but, of course, also of the offender, given that once they have done their time in prison an order can prevail with them.

Finally, just a quick note about temporary non-contact orders. The reason those are in the bill is that they can be imposed without notice, so that provides immediate protection for victims. It is a good bill and I commend it to the House.

It is a pleasure to rise and speak in support of the third reading of the Victims’ Orders Against Violent Offenders Bill, which we have in front of us. I want to make a contribution to this debate because the Government’s record on violence against women and children has not been that great, to be honest, but this bill is one small measure that it has made that could well make a difference, because I think that what we do know is that probably the people who will most make use of these orders will, in fact, be women. The statistics are very clear that most of the violent offences—not all, but most of them—are perpetrated by men, and in most cases the victims are women. That is one thing I would like to be really clear about in this debate, because certainly the Labour Party has no difficulty in acknowledging the gender impact of a bill such as this, and, fortunately, in this case, gender impact is a positive one. But I would urge the Government to take its gender glasses off and actually make sure that all the bills that it passes through this House do have a gender impact analysis and that the impact is positive for women and for children.

This bill creates a new order, a non-contact order, that victims of a violent offence may apply for to the District Court. It applies to violent offences, which is defined as a “serious violent offence” in clause 4. I was pleased that the Labour members on the Law and Order Committee—and I am not one of those members on the select committee—were able to make an important change, I think, to this bill, because originally when it was drafted it was going to apply only to offences where there had been a sentence of 5 years or more. Certainly, the Labour Party felt that was far too lenient, it was far too light, because a lot of the offences can actually carry jail terms of around about 2 years and yet they have been very violent acts—often involving sexual violence—that have been perpetrated. So we argued for, and were successful in, getting the bill to be amended so that the violent offence could be one where the offender had been sentenced to a term of 2 years or more. That is important, because that will cover a lot more of these violent offences. If a person has been a victim of a violent offence and the person was sentenced for 2 years or more, they will be able to apply for a non-contact order.

The idea of non-contact orders is something that has existed for some time now in the area of domestic violence. I think that although it has proven to be somewhat successful, I do need to place on record my very deep concern that on-the-spot protection orders in the domestic violence area are, I think, being used to replace areas where people should actually face convictions instead. I am deeply concerned about that, because many people in this sector tell me that although the use of on-the-spot protection orders is increasing, the rate of people being charged with domestic violence is going down at a time when the number of incidents being reported is going up. It worries me that these lesser protection orders, the on-the-spot protection orders, are being used instead of people being properly placed before the court and facing much, much stiffer penalties for the act of domestic violence.

I am convinced that this bill will not suffer the same fate, and I am convinced of that because these non-contact orders can happen only where there has already been a conviction. So I am satisfied that we will not see the same trend that we have seen in the domestic violence field, because in order for these non-contact orders to be used at all, a person already must have been convicted for a violent offence, and so it is going to be used for when those people finish their sentence and to ensure that they cannot continue to intimidate or harass the victim just by their mere presence—just their mere presence because of the violence that has taken place beforehand—and that I think that is really useful.

But I would urge the Government to take a long and serious look at what is happening in the field of domestic violence. I ask the Government to be transparent about it and I ask the Government to make sure that there is proper reporting on about what is happening in the domestic violence area. We know that the number of incidents is going down. We know that the rate of people being placed before the courts is going down, and we also know that the number of convictions is going down. That is a story of growing problems with safety for women and children in this country. Where that exists, that means that women and children in New Zealand are more at risk and they are less safe than what they were previously. So I think that is an area that the Government needs to look at very closely.

Before granting one of these orders, a judge must be satisfied that the victim is suffering ongoing effects of the offending. It will be interesting and important to review how this particular part of the bill is happening once it is in operation, because we know that, sadly, when it comes to the victims of violent crime, particularly where women and children are involved, sometimes the onus of proof becomes very high for them. It becomes very high for them to prove their case, and I am concerned, I am worried, that if a judge has to be satisfied that the victim is suffering ongoing effects of the offending, how high is that bar is going to be? They have to be satisfied. Further, the judge has to be satisfied that the possibility of contact between the victim and the offender would be detrimental to the victim and that the order is necessary to prevent contact between the victim and the offender. There must also be no existing order against the offender, such as protection orders and non-harassment orders. So there does seem to be quite a high level of proof that is required from the victim before a judge is satisfied that one of these orders can be placed, and I think that that is an area we need to make sure we monitor very closely once this bill becomes an Act and these orders are in place.

An order can be for any duration decided by a judge, but if there is no time limit it will expire after 2 years unless discharged earlier by the court. So I think we can expect that many of these will be for around about that 2-year area. It will again be something that we need to monitor closely as to whether that provision for the default expiry being 2 years is appropriate or not. I think we will know this only after this bill becomes an Act and has been in place for some time, and we have some data to actually measure. But I would encourage the Government to think about ensuring that there are good review provisions for this bill once it does become an Act.

Breaching a non-contact order is punishable by a fine of up to $5,000 or imprisonment for up to 6 months, or up to 2 years if the offender has two or more previous convictions for breach of a non-contact order. So, clearly, there are consequences for people breaching these orders. That is important because, again, referring back to the domestic violence scenario—which is not what we are talking about here, but this is very loosely based on that—we often find that there is no punishment, that there is no consequence, for breaching a protection order. Indeed, some of the most tragic cases we have seen recently in New Zealand have been as a result of protection orders being breached and nothing being done about that.

In conclusion, Labour is supporting this bill. We are pleased to see that it has reached its third reading, and we look forward to its implementation and to reviewing the ongoing impact of this bill. Thank you.

I rise to speak at the third reading of the Victims’ Orders Against Violent Offenders Bill. I think that this is a bill we all support for the right reasons. It should not need to be here, but the statistics speak for themselves, and it is an essential piece of legislation. This is a new, stronger restraining order to protect the victims of serious violent or sexual crimes from unwanted contact with their attackers. Why would they ever want anything to do with these people? Why do we not give them the power to actually restrain these offenders from living in their neighbourhoods and approaching them in any way? I suppose I ask why this law has taken so long, but at least it is here now.

I think we are all familiar with the example in Invercargill where a woman was unable to defend herself and keep the individual who had previously attacked her at bay—an unacceptable situation. Under the current legislation protection and restraining orders are available only for what they term “active harassment” or if there is a domestic relationship between the offender and the victim. Release and parole conditions apply for only 6 months after the offender’s release. Unfortunately, this has resulted in a lot of victims having no access to legal protection. That is not good enough, and they are revictimised.

I think that the unacceptability of a situation where a victim of serious crime may have that unwanted contact with their attacker is something that would keep you awake at night. It is a horrifying situation, and I think that when it comes to a piece of legislation that will work well, this is it.

As other speakers have pointed out, when the bill went through the Law and Order Committee process, the committee members changed the qualifying sentence from 5 years to 2 years, so if a violent offender has been sentenced to 2 years, then that is enough to trigger the threshold and to allow the victim to go to the District Court and apply for this order by way of conditions. I think that is a very good move. I think that the legislation is important, and I am very pleased to be able to support it tonight in this House. Thank you.

This is a 5-minute split call.

It is a split call. Thank you very much. Coming in as one of the final speakers on the third reading of the Victims’ Orders Against Violent Offenders Bill means that I have actually come in quite late to this debate and quite late to the whole kaupapa, but I have to say that this is a bill that I truly and sincerely support. I have already said in the House since I have come back to Parliament that addressing sexual violence is one of my main priorities in my time in Parliament. This bill is one of the ways, I believe, we can really support the victims not just of sexual violence but domestic violence, and any sort of violence, for that matter. I have seen the example of the poor woman in Invercargill whose rapist was released from prison and came to live next door to her. There was nothing that she or the police could do to move that person on, and I just find that totally outrageous. I remember when it came up in the news, and I am glad to see that this legislation is actually making a change so that any victims of violence, be they men, women, or children, do not have to wake up in the morning, look over the fence or out their kitchen window, and see the very person who attacked them or abused them right there, living in their face and, in fact, revictimising them every day of their life. So I truly do support this bill.

I see that the victim has to go to the District Court to get these non-contact orders applied. One of the things that has come out of the Glenn report is the difficulty people have of being believed and being listened to. I feel really sorry for these people who have to go to a court to talk to a judge, fearful that they may not be believed that there really is an issue that the judge needs to take account of so as to issue that non-contact order for them. I would like to think that as a society we could find ways to support those victims to go through that process of approaching the judge at the District Court. Another one of the issues I have heard spoken about, when I have talked to victims of domestic and sexual violence, is that they do not know where to go or whom to ask to help them through the processes of the system. So that little part concerns me. In fact, it is not even a little part; it is actually quite a major for victims to have to stand up and defend or progress their own causes. They often need that somebody there to be a friend, to be a support, and to guide them along that way.

It is said that less than 10 percent of sexual violence and domestic violence actually gets reported. Because of that, there are so many more people who really need support to cope with what has happened to them, as well as these people who are having the offenders turn up next door to them. We really need to make sure that the system supports people and helps people to report the abuse or the violence that has happened to them so that they do not go through life unsupported and not listened to. We really need to change the system so that people feel they can go and report the various crimes that have been committed against them.

I am glad that what was originally in the bill—that a sentence had to be for 5 years before this order applied to the offender—has been reduced to 2 years. The crimes were too serious at the 5-year end of the scale and, in fact, for anybody who has had any sort of violence against them, sexual or physical, it does not really matter how violent it is. Even lower levels of offending against them are traumatic, and so it is good that we are now looking at the 2-year sentence, so that people who have been sentenced for 2 years have these non-contact orders against them.

I am pleased to rise and take a call on this, the third reading of the Victims’ Orders Against Violent Offenders Bill, which the Green Party is very pleased to support. As has already been mentioned, this bill was developed in response to the plight of a woman in Invercargill. Her rapist moved in next door to her after he was released from prison and had his friends regularly harass her and make her life unbearable. When the police went to visit this man and suggested that he move and give her some freedom and peace, this man—who had been convicted of rape—declined, and there was nothing that the police or that woman could do. That was clearly unjust and cruel, so it is wonderful to see this legislation in front of the House tonight to make sure that that situation does not happen again. We have heard from Kim McGregor that there are many cases of this happening around the country, but mostly we never hear of them. So this, I hope, will bring relief to women, primarily, around the country in the future, and I thank the Government for that.

I do want to raise a few areas that I think we need to be mindful of in the future in terms of the implementation of this legislation and watching how it goes. If there is a breach when an order has been put in place, it will require the police to act on that breach and the courts, in turn, to rule on that breach and convict somebody for it. It is a very real concern at the moment that in a domestic violence situation when there are non-contact orders, we have seen the police taking cases to court for what the courts have then deemed to be minor breaches. And the courts have been telling the police off in instances, I have been told, for bringing such minor things to court and have been throwing the cases back out. This means that the police are becoming, in some places, less likely to actually charge somebody with what is considered a minor breach.

The problem with that is that the abusers breach orders for many reasons. Often, one of the reasons is to test whether they can get away with it—whether they can break those barriers and have access to those women. We have seen that in the tragic situation in Dunedin, where there had been breaches that were not convicted and children were then killed as a result.

We do not have the safety nets and the systems in place at the moment to ensure that everyone within our police and court system understands domestic violence enough, in order to ensure that we have standardised responses and protections in our system. The Glenn Inquiry has reinforced what we are hearing in the communities, which is that the system is failing. I really hope that this will not be another example of that.

This measure, primarily, will be used for domestic or sexual violence. I do also want to raise another concern, which is that this can be used once there is a conviction, but we know that only one in 100 cases of sexual violence is currently resulting in a conviction in our courts in this country. That is not justice. Not one of those 99 people will be able to access this order unless they can get a conviction in our courts. The recent data I have had back from the Government around domestic violence also shows that there is only an 18 percent reporting rate to the police and around a 40 percent rate of charging, on average. So less than 50 percent of call-outs to the police result in a charge by the police, and then the conviction rate in our courts, depending on the area in the country, is as low as 38 percent for offences relating to domestic violence. Our system is absolutely failing to protect our most vulnerable people, and we cannot tick off the safety with this bill, sadly.

I am sure that all members of this House feel total compassion for those who are unlucky enough to be the victims of serious violent and sexual offences in this country. It is hard for us to imagine the horror that those people endure, but I am sure we can all understand that they must feel deep trauma at the prospect that at some future date they will again encountering those who have inflicted such cruel and abusive treatment upon them. That is why this Victims’ Orders Against Violent Offenders Bill is so important, as it introduces very significant measures. It is a bill that reflects this Government’s unwavering commitment to put the needs and concerns of victims at the heart of our criminal justice system. I want to thank all parties for their support of this measure. I thank those who have contributed to this debate. I warmly commend the Minister of Justice for her initiative in bringing it forward. I strongly support this bill.

Bill read a third time.