Public Safety (Public Protection Orders) Bill, Parole (Extended Supervision Orders) Amendment Bill

I move, That the Public Safety (Public Protection Orders) Bill and the Parole (Extended Supervision Orders) Amendment Bill be now read a second time. When the National-led Government entered office in 2008, violent crime was rising, the criminal justice system lacked accountability, and there was a lack of focus on victims. The Government has worked hard to regain control over law and order by focusing on crime prevention, by backing the police, and by improving the responsiveness of our justice system. We have increased the penalty for breaching protection orders and have improved non-violence programmes for offenders. This work has paid off. Crime is now at a 35-year low. Although this is a significant achievement, there are still areas where we can better improve public safety.

One such area is our ability to protect New Zealanders from the small group of individuals who pose the greatest risk to public safety. Another area is the management of high-risk sexual and violent offenders in the community, following a sentence of imprisonment. These two bills—the Public Safety (Public Protection Orders) Bill and the Parole (Extended Supervision Orders) Amendment Bill—respond to these risks. They provide legislative options for managing offenders due for release from prison who pose an undue risk to society. They are to be considered as cognate bills, given the operational links between the two regimes.

I would like to acknowledge the work of my colleague the Hon Peseta Sam Lotu-Iiga in progressing the Parole (Extended Supervision Orders) Amendment Bill. I would also like to acknowledge the members of the select committees from the previous Parliament for their careful consideration of the bills. I would also like to thank all of those who took the time to submit on both bills.

I will first discuss the Public Safety (Public Protection Orders) Bill, which introduces civil detention orders for offenders who pose a very high risk of imminent serious sexual or violent reoffending. With regard to the test for imposing a public protection order, the bill requires that the person pose a very high risk of imminent serious sexual or violent offending if they are released or left unsupervised. This is a stringent test that officials estimate will apply to only five to 12 people over 10 years. The risk, however, of near-certain serious harm is an extremely compelling reason to detain these individuals in a secure civil facility until they no longer pose a serious threat to public safety.

On human rights issues, the bill includes a number of safeguards to protect the rights of individuals subject to an order—for example, offenders will be re-evaluated regularly and can seek a court review of their detention at any time. If an offender no longer meets the test for a public protection order, they will be released and placed on a protective supervision order. There will be independent oversight of public protection orders. The bill provides for the appointment of inspectors, who will inspect the facilities, conduct investigations, and deal with complaints. The bill also gives certain office holders the right to visit and examine the residence and residents. These include members of Parliament, an Ombudsman, the Privacy Commissioner, or a judge.

The Justice and Electoral Committee recommended a number of useful changes to the Public Safety (Public Protection Orders) Bill. One of these is to make victim notification consistent with the Victims’ Rights Act 2002. This means victims who register with the Department of Corrections will be given updates on the offenders involved in the public protection order regime. Victim notification is also expanded. This is so that those victims who have registered are more informed about upcoming court proceedings under the bill and the outcome of those proceedings. To ensure the safety and security of the public protection order residence, the bill now includes specific clauses about searches and visitation. The new clauses set out the different types of searches that the resident staff have the power to conduct, as well as the limits on those powers. This will prevent prohibited items from entering the residence. The ability of the residence manager to set conditions on visitors is also clarified. The Justice and Electoral Committee diligently considered the Public Safety (Public Protection Orders) Bill, and the proposed changes will secure better protections for the New Zealand public, while balancing the importance of human rights issues.

Moving on to the second bill, the Parole (Extended Supervision Orders) Amendment Bill, this bill contains amendments proposed to ensure that the public are protected from high-risk offenders who finish a finite prison sentence but who do not meet the criteria for detention under a public protection order. The Parole (Extended Supervision Orders) Amendment Bill enhances the current regime in two main ways: firstly, the amendments enable extended supervision orders to be renewed for as long as they are needed; and, secondly, the scope of extended supervision orders, which currently can be used only for child sex offenders, is expanded to include adult sex offenders and very high-risk violent offenders.

The Law and Order Committee carefully considered a report from the Attorney-General on the consistency of the Parole (Extended Supervision Orders) Amendment Bill with the New Zealand Bill of Rights Act. The committee considered the implications of bringing extended supervision orders under a civil regime similar to the public protection order regime. The committee found that it would have little practical effect, and the best option is to leave extended supervision orders under the current criminal regime.

The Law and Order Committee also recommended a number of useful changes to the Parole (Extended Supervision Orders) Amendment Bill. One such change is that the extended supervision orders regime apply to overseas offenders who continue to pose a serious risk to public safety on their return to New Zealand. The committee recommended a change to the amendments to the Privacy Act to authorise the Department of Corrections and New Zealand Police to share information about an offender subject to a protection order, restraining order, or non-contact order while also subject to an extended supervision order. This is so that each agency will know who is on the orders that the other agency administers.

I would like to conclude by signalling that the Government intends to make some additional enhancements to the Parole (Extended Supervision Orders) Amendment Bill via a Supplementary Order Paper at the Committee stage. These will ensure three things: firstly, that any contact between the offenders on extended supervision orders and children is strictly controlled; secondly, that consistent decisions are made about the most appropriate order for high-risk offenders when applications are made to the court; and, thirdly, that interim extended supervision orders can be granted where special circumstances delay a full extended supervision order application.

The Public Safety (Public Protection Orders) Bill, the Parole (Extended Supervision Orders) Amendment Bill, and the further enhancements that I have signalled are a graduated and proportionate response to the risk to the public posed by a very small number of offenders who, at the end of their sentence, pose an extreme risk to the safety of the New Zealand public. Together, the bills will make New Zealand a safer place. I commend the Public Safety (Public Protection Orders) Bill and the Parole (Extended Supervision Orders) Amendment Bill to the House.

It is my pleasure to rise to speak on these two bills that have been brought together. I have to start by saying that it is a shame that the Minister of Justice began her speech, on an issue on which I think there has been some very good collaboration between both sides of the House, with such inconsistency and false statements. To claim that the previous Labour Government had no focus on victims, for instance, was actually disproven in her own speech, given that she made reference to bringing alignment between the bills that have been put before the House today and the Victims’ Rights Act, which was brought into place by one Phil Goff as Minister of Justice in 2002. A very good piece of legislation it was, as was the Sentencing Act 2002, which ensured that we did not have automatic parole, which was brought in by that Government, as was the Parole Act 2002, which ensured that the safety of the community was the paramount consideration for the Parole Board. It is a very good piece of legislation, which this Government has continued to build around because it is such a good foundation piece of legislation. So it is a shame that the Minister would make such a false statement.

But in respect of the bills that we have before us today, the Minister is right. They do plug some gaps that exist currently in our justice system. What if we have a situation—and we unfortunately do—where serious violent offenders with sentences that are about to come to an end prove to be absolutely not ready to be reintegrated into society, but their sentence is coming to an end and we have no ability to hold them? What do we do? Phil Goff was faced with this very situation. Of course, we now have the ability, with preventive detention, to ensure that, actually, at sentencing—if a judge determines that an individual in question might not obviously have committed a murder that would allow a life sentence to be imposed but may have committed a crime that was so heinous that he or she thought it prudent to place preventive detention over the individual—the Parole Board is given an ongoing ability to hold that offender in prison.

But what if the individual were not given preventive detention? We have been faced with this situation. Phil Goff was faced with it when he was Minister of Justice. He was presented with an individual who had committed heinous crimes against children—sexual offending against children. It was clear that that offender was not ready to be integrated and posed a risk to the community, and so extended supervision orders were created. They gave the ability to monitor a prisoner in the community beyond the sentence that had been handed down. Yes, it was a significant step in our justice system to be able to apply something in that manner, but it was done and it was the right thing to do. It was right that it was debated extensively because it was a step away from those very important principles within our justice system.

But now—I think because they really tested the boundaries—extended supervision orders have come to an end. They were set down for 10 years. They were not used too broadly, and that was right. They were intended only for very particular offenders. But now that that 10 years is up, some extended supervision orders are coming up for expiry in 2015, and this Government has had to face whether or not there are individuals who should have those supervision orders extended beyond that. We agree that for some offenders that will absolutely be required.

But it has provided an opportunity to plug some other gaps with extended supervision orders. The bill that we have debated as a Parliament has suggested that, instead of having a 10-year time limit, we have no time limit, but that we ensure we continue to review extended supervision orders so that we make sure they are not being used inappropriately or for longer than is required, again keeping in mind that these are offenders who have served their sentence as handed down to them by the justice system.

The bills also propose that we extend who is covered. As I said, originally we were talking about sexual offenders specifically relating to children. The Parole (Extended Supervision Orders) Amendment Bill extends who is covered. Clause 6 of the bill inserts new section 107B(2), which sets out under the Crimes Act 1961 the relevant sexual offences but also the relevant violent offences for which an extended supervision order can be placed. As I said, it introduces 5-year mandatory reviews and it allows for intensive monitoring of up to 24 hours a day for the first 12 months.

We debated this bill internally, of course. Whenever we challenge the bounds of our justice system in this manner we need to make sure we have robust checks and balances in place. We have done that and have come to the conclusion that they are sensible amendments.

The other group that is now covered by extended supervision orders are the offenders who are returning to New Zealand who have served a sentence abroad and whom we determine to be an ongoing threat. In the Committee stage I would be interested to discuss the practicalities around how we ensure correct information-sharing is occurring between overseas jurisdictions and New Zealand, to make sure that those orders are being appropriately applied to those who are returning to New Zealand. We have seen some cases where we do not even share information properly within New Zealand—domestically—let alone with overseas jurisdictions, so I think that is worthy of exploring.

So we have decided that, yes, extended supervision orders in the form they are being put forward by the Government are something that we could support. But prior to this bill coming to the fore we were actually already debating another set of tools, and that is public safety public protection orders. These are orders that go beyond extended supervision orders—which, of course, are placed on individuals who are in the community—and say that actually there is a group of offenders who should not even reach that stage, who, again, do not have preventive detention or a life sentence that enables them to be kept within prison to serve a longer sentence if that is deemed necessary.

One question I would raise is that it does interest me that we would have offenders who would reach that threshold but who have not been given preventive detention—whether there are cases where the judge had the ability to do that but did not, and subsequently we are having to look at orders like this that at the endpoint allow for an extended order then to be placed through a civil regime. That begs the question of whether or not we should have something like a sentencing council, which actually reviews cases where we would see that we would have to be retrospectively applying, through civil orders, measures to protect the community because perhaps the right sentence was not used in the first place. Labour has always supported a sentencing council based on the UK model, which allows us to review cases and learn where we have failed, where perhaps the legislation has gaps, and make sure that we are not having to use these backstop measures. So I thought the question was worth raising.

But the public safety public protection orders are, at the best estimate of the Ministry of Justice, going to cover only five to 12 individuals every 10 years. It is a reasonably small group of people, and it is absolutely reasonable to expect that the threshold for those on whom these orders are placed should be very, very high, keeping in mind that these are individuals who have served the sentence they have been handed down. As our justice system dictates, once you are convicted of a crime, you are given your sentence, and once you have served your sentence the usual expectation is that you are reintegrated into the community, so to go beyond that we do need to ensure that we have a very high threshold.

That threshold was set out in the first reading by Judith Collins, who was the Minister in charge at the time. She stated the four characteristics that must be met for one of these orders to be placed, because of course the order does still allow detainment—that is the difference with the extended supervision orders. The first characteristic is that there must be an intensive drive or urge to offend by the offender. Evidence for that might be, for instance, the fact that they have offended immediately upon release. That would beg the question that you would hope that someone would be subject to an extended supervision order in that case, and if you have an extended supervision order that is one form of criterion for it to be upgraded to a public protection order.

The second characteristic is an inability to control behaviour and emotions, and that must be demonstrated by evidence of impulsiveness and an inability to cope with or manage stress. Third is an absence of understanding and concern for the impact of offending on the victim. The fourth is that the person experiences poor interpersonal relationships or social isolation. Obviously, all of that must be demonstrated through proper analysis by professionals. These are not assessments that can be made just within the correction system without a proper assessment being undertaken by two health assessors, independent legal advice, and a psychological evaluation. It is absolutely right that the threshold test be that high.

I do want to raise one final point. Although we are supporting these orders, obviously we are always concerned that we make sure that we are not pushing the justice boundaries beyond where principles of good justice, fairness, and equity should be instilled within our system. We have always got to manage that, and so those are the constant tests that we would like to see debated in this House, given that we are going beyond what is the usual expectation of our justice system.

Around March or April of this year a number of the members of the then Law and Order Committee of the previous Parliament attended Parole Board hearings around New Zealand as part of our consideration of a bill before us. One of the prisoners who came before the board in Mt Eden prison, where I attended a hearing, was a prisoner who ended up being recalled because he was detected hanging around a mall observing young children and taking photos with a cellphone—clearly in contravention of his conditions of release. It was quite a chilling experience for a layperson, and a number of us on the committee observed hearings up and down the country. He was a prisoner who clearly, against the conditions of his release, could not resist going to a mall, even though he had been forbidden to do so. He could not resist getting a cellphone and taking photos, even though he had been forbidden to do so, and he was, of course, returned to prison.

So when I look at some of the statistics and note that high-risk child sex offenders, who are targeted by the extended supervision orders that we are discussing today, are four times more likely to sexually reoffend against children than the lower-risk—if there is such a thing—child sex offender, then I consider the two bills we are discussing today to be timely.

First, I will turn to the Public Safety (Public Protection Orders) Bill. This is being considered by the Law and Order Committee. It empowers the High Court to issue a public protection order that would allow for the detention of a prisoner in a secure facility. It is aimed at people who reach the end of a finite prison sentence. The question for us is what we do with prisoners who are about to reach the end of their sentence. Clearly, no Government is of a mind to simply open the prison gate and say: “Good luck—don’t want to see you back again.” That has not happened for many, many years. Nor do we wish to release prisoners who will then go on to reoffend very quickly. When we think about that statistic—where at the higher level, or the more serious level, of offending, those who offend sexually against children are four times more likely to reoffend—that gives us all, across this House, pause for concern.

The Public Safety (Public Protection Orders) Bill provides for those at the end of their sentence who are within 6 months of being released and for those who are subject already to the most intensive form of extended supervision order. The test must be high, though, and the previous speaker, Jacinda Ardern, rightly raised the issue that we need to get the balance right between keeping society safe from these offenders and the rights of those offenders who are coming to the end of their sentences. The test is very high, requiring that a person must pose a very high risk of imminent and serious sexual or violent offending. How do you test that? Well, under the provisions of this bill, offenders will undergo a comprehensive risk assessment. A person must have all of the following four characteristics, and they must be at a very high level.

So, first of all, they must have an intense drive or urge to enact the particular form of offending. They must have very poor self-regulatory capacity, evidenced by general impulsiveness, high emotional reactivity, and inability to cope. They must have an absence of understanding and concern for the impacts of their offending on their victims or potential victims. And they must have poor interpersonal relationships or experience social isolation. When these prisoners are within secure facilities such as Mt Eden prison, they are closely monitored; they go through a number of programmes. Although it might be argued that these thresholds can be subjective, I think we need to be very careful that we set the threshold high enough—high enough—to protect the most vulnerable members of our society.

I will just briefly say a few words on the other bill under discussion today, and that is the Parole (Extended Supervision Orders) Amendment Bill. This bill enables the Department of Corrections to manage extended supervision orders for as long as is necessary for serious sexual and violent offenders who are at a high risk of reoffending and who do not meet the threshold required by the Public Safety (Public Protection Orders) Bill. So these bills work together.

I want to come back, in closing, to the reason why these bills have been brought before the House: that is that although the corrections service has a focus on reintegration and rehabilitation, so that prisoners have a chance of going back into society, going back to their families, and having a different life, a productive life—and we all want that for them—at a certain point in time there are offenders within our corrections system who do pose a very, very high risk to our children, to women, and to men, and we must protect those people. I commend the bills to the House.

As most people are aware across the House, I have made a commitment to the elimination of sexual and physical violence across New Zealand. So it is with pleasure that I rise in support of the Public Safety (Public Protection Orders) Bill. I think it is a very important bill. But it is going to address only a small part of the problem. The problem of sexual and physical violence and domestic violence across New Zealand is huge. Let us not think that it is going to take one silver bullet to address the whole issue. This bill, though, plays a very small part in addressing the issue, and it is targeting only a very few people.

Not everybody who goes to prison is a violent or sexual offender. Of those people who are sexual or violent offenders—we are talking about a subset of all those who go to prison—only a very small proportion of them do not look like they have been rehabilitated, and look like they will reoffend. Over the course of their detention in prison, they would have been observed and monitored, their behaviour analysed, and their health looked at by various health professionals such as psychiatrists and psychologists. Basically, these health professionals will have come together to make the decision that when this person is released, they will have a very high chance of reoffending. This is the small group of people we are talking about in terms of the public protection orders.

There is a threshold that the chief executive of the Department of Corrections must consider before he or she applies for a public protection order to be made. The offender must be over 18 years of age in the first instance—so we are not talking about young people. The person must be in prison for a serious sexual offence—so we are not talking about jaywalkers and shoplifters; we are talking about people who have committed serious sexual or violent offences and will be released within 6 months.

I want to move to a section of people that I do not think have really been considered as likely to reoffend: these are the partners of women, who are in prison for domestic violence. Many of those offenders—those men who have beaten their wives and may have gone to prison for that—will probably not display some of the behaviours that we are talking about, or a high likelihood of being observed as having mental issues, and things like that. My concern is that they will be released and many of them will have a high risk of reoffending against their partners and their children, despite their not having really met the test that other members across the House have described.

I will just go through that test again. High-risk people display an intense urge or drive to offend. Many men who have committed domestic violence will not necessarily display this while they are in prison. High-risk people have an inability to self-regulate their behaviour. Most normal adults can regulate their behaviour depending on the context—that is, the situation they are in. The behaviour we display at work is often different from the behaviour we display when we are with our mates or playing sports, but most of us have the ability to regulate our behaviour. The people who will be affected by this bill do not have that ability. Many men who are convicted—the husbands and the partners of women who have been beaten up—might not necessarily display these behaviours. They will show their ability to self-regulate, and they might not be picked up because of this.

The third risk factor is an inability to comprehend the impact of their offending on a person or to display empathy. The people whom we intend to detain through the public protection orders probably cannot display that. Yet many husbands who are violent towards their spouses probably can display that in prison. Also, the fourth risk factor is the poor interpersonal relationships, or social isolation, of the offenders. They will have trouble making friends in prison and they will be socially isolated in prison. However, many of the men—the husbands and partners who are in prison—will probably not display poor interpersonal relationships or social isolation. So what I am saying is that I have a concern that many violent and abusive husbands and partners will go out and reoffend, and yet they will not display these risk factors. To me, that is a real issue, especially considering that yesterday was White Ribbon Day.

The legislation in its entirety—the Public Safety (Public Protection Orders) Bill and the Parole (Extended Supervision Orders) Amendment Bill—is legislation that the Phillip Smith case was designed for. This is the exact reason why legislation like this is necessary. Phillip Smith murdered the father of a boy whom he was sexually molesting in 1996. He was coming towards the end of his sentence and was given liberties—in fact, probably more liberties than a drunken sailor. He was allowed to go out for a number of hours. He went out unsupervised. The length of time that he was allowed out was extended from 12 hours to 24 hours to 48 hours to 72 hours. He was able to apply for a passport under another name, and he was able to use that passport to get himself over to Chile and then up to Brazil—and it is a wonder that anybody caught him at all.

If the Department of Corrections had been on the case, they would have noticed that his behaviour was inappropriate. Really, he should have had a public protection order, or at least an extended supervision order, placed on him so that he would not have been able to, basically, roam free around the community. My concern is: if he had not been caught in Brazil, who would his victims have been over there? We know that in Brazil their laws, their society, and their community are a bit looser than ours. We know that there are many street kids over in Brazil, and those people would have been at risk from Phillip Smith.

Each prisoner is going to have an assessment, and it has to be done by two or more health professionals, including one registered psychologist. In other words, we are not going to lock up just anybody; we are locking up people who are deemed to be at most risk of reoffending. There are a number of checks and balances to make sure that this bill will apply to only those people who need it most. Kia ora.

It is with great pleasure that I rise to support a bill, again one coming from a Government that is continuing to show its commitment to crime reduction in our country and, in particular, an ongoing commitment to supporting victims of crime. This is just another part that we want to play in continuing to see victims continuing not to be revictimised, and to do what we can to reduce recidivist offending. Both of these bills, the Public Safety (Public Protection Orders) Bill and the Parole (Extended Supervision Orders) Amendment Bill, are, I think, incredibly important, and even though they will affect only a very small number of people—as has been discussed already—what we do know is that this very small number of people have an ability to inflict a great deal of harm on innocent people within our society. It is the nature of the offending and it is the impact of this offending that warrants taking these extra steps to protect New Zealanders from these people.

It has been great to hear the level of support that we have had from the other side of the House on this, but I am sure that, if not in this House then in our community, we will get the odd person who will talk about the impact on human rights in us imposing some of these extra supervision orders and public protection orders. But I think it is important for us to recognise that we are not looking to impose something on innocent people or even people who have not yet been proven to be guilty. These are people who have already been found guilty of heinous crimes who have already proven to us that they need some level of supervision to ensure the safety of innocent people. So it is important that we do not forsake these innocent people’s rights to that protection by getting soft and getting too concerned about the human rights of those other people. Yes, they do deserve the right to be able to rehabilitate, but where they have clearly shown that they are likely to reoffend, it is important that we take these steps.

I think it is a great step forward. It is something that as we move through in dealing with crime—we have seen offending come down dramatically to very low levels, but it is in this area of violent offending and sexual offending that we still need to, as a nation, make some impacts. I know that this Government is absolutely committed to doing that, and in passing these two bills we can start making some small steps towards helping this, going forward. Thank you.

These two bills we are debating today are serious bills. They deal with serious issues of community safety, of reducing crime, of reducing the potential for victimisation and revictimisation of people, and I am pleased to see that they are being debated in this serious manner appropriate to their gravity.

The previous speaker, Jono Naylor, in his brief contribution did touch on one or two matters. We must seek to protect our communities and put in place appropriate controls: legislation that does ensure—or at least to the greatest extent ensure—public safety while also acknowledging that we are a country that commits itself to maintaining human rights and respects civil rights. It would be unfortunate if we revert to the very dated language of “soft on crime” versus “hard on crime”. Let us adopt the notion of being smarter about crime and doing our very best collectively to get the outcomes and the best solutions we can to assure a level of community safety.

We understand and support the notion of these two bills being addressed as cognate bills, to be debated together. They are so closely interwoven that it would be difficult to do otherwise. They, effectively, establish two new regimes: the Parole (Extended Supervision Orders) Amendment Bill obviously extends an existing regime; the Public Safety (Public Protection Orders) Bill creates a new regime. We are in a position, in the Greens, where we, perhaps not unusually, support one of these bills, the Parole (Extended Supervision Orders) Amendment Bill. We are happy to give our support to that bill, but we cannot support the Public Safety (Public Protection Orders) Bill. For us that latter bill simply goes a step too far. We believe that what it seeks to achieve can be achieved by other less punitive and less onerous means. That is in no way to not acknowledge or recognise the seriousness of the offending and the difficulty of the offenders who will be potentially captured by that legislation.

As I said, the Parole (Extended Supervision Orders) Amendment Bill does, effectively, allow for the possibility of extending the existing supervisory order regime. There are undoubtedly New Zealand Bill of Rights Act issues. The bill has been deemed by the Attorney-General to contravene the New Zealand Bill of Rights Act, and that is something that often, for the Greens, would be a deal-breaker. We take some comfort in this case, though, from the fact that, firstly, the courts will be intimately involved in making judgments about the imposition of these orders, that there will be mandatory review by the courts and, indeed, by the High Court, and that the Parole Board will also be obliged to review on a 2-yearly cycle, at least every 2 years, any of the so-called high-impact conditions imposed on a person subject to these orders—high impact being, for example, anybody who is obliged to remain at one address for up to 70 hours a week, which is, effectively, a curfew and, indeed, clearly does put considerable constraints on an individual’s freedom. It is appropriate that when we are imposing these high-impact conditions they are regularly reviewed and measured in the context of that person’s behaviour and the possibility of their being able to earn the trust of the community within which they will be living.

I think that what influenced our decision even more on this legislation was both personal interaction with people who are already subject to supervision orders and who, with an admirable level of self-awareness, recognise that if they had no further supervision on them they would constitute a danger to the community and, indeed, to themselves. I have spoken, as have others, to individuals who are coming to the end of a 10-year supervision order, and they understand very well that they are not yet sufficiently trustworthy. If they were left to their own devices—if there was no mechanism in place to extend their supervision—they understand very well that there is a high likelihood that they would reoffend, clearly would create victims, and that, ultimately, would see those people go back into prison. So the extension of the supervision orders we see as a middle road, in a sense. It does allow for very high-level supervision and monitoring of these people who have not yet earned the trust of their communities, and for very good reason, but it does not go that step into suggesting either way that they should be completely freed or put back into prison.

There was some debate at the Law and Order Committee about whether these ought to be civil orders. Frankly, we saw that as a debate about semantics. In contrast with the public protection orders, whether they are civil or criminal in nature, we really need to look at both the effect on the person subject to these orders and the likelihood of ensuring community safety. Points are made in the report back on the bill about the importance of including some criteria for what constitutes behavioural characteristics, particularly of the violent offenders, because, of course, this legislation expands the scope from just child sex offenders through to those who have offended sexually against adults and to very high-level violent offenders. We think it is important that there are some criteria in that, some determination of what actually constitutes that level of behavioural characteristic that would make somebody eligible or liable to this quite dramatic, if you like, legislation. So, in short, we are supporting the Parole (Extended Supervision Orders) Amendment Bill because we do see that there is an existing need, and, as I say, we have been persuaded to a large extend by actual interaction with the people who we know by their own admission could not be safely left in the community unmonitored.

The Public Safety (Protection Orders) Bill we see as going a step too far. We think that to a large extent the conditions that might have led us to think it was necessary no longer apply. The fact is that judges now do have access to preventive detention, for example, and at a time when some of the people who might be subject to public protections orders were given their determinate sentences, preventive detention was not available. It is also true, of course, that some offenders are so young that they are not able to be subject to preventive detention, but, nevertheless, we believe that there are sufficient mechanisms in place, including, of course, this new legislation—the extension supervision orders legislation—which makes it unnecessary to go down this path of imposing these public protection orders.

The Law Society, in its quite comprehensive submission on this legislation, outlined some of the issues, and it determined that in its view this legislation does create an overly punitive regime for people who have been sentenced. They have been to court, a judge has imposed a sentence, and, in most instances, these people will have served their full sentences or have been paroled, or some other mechanism will have been put in place. The Law Society called for the bill to be either withdrawn or significantly modified. We acknowledge there have been some changes made to the legislation, but they are really not sufficient enough for us to give it our support. This is undoubtedly a double jeopardy situation—punishment that is ongoing, almost without end, in a sense. There is the possibility for these public protection orders to be in place almost indefinitely, and we think that that is inappropriate given that we do have other options available to us, options that include a range of sentencing and parole options for serious sexual and violent offenders.

I will quickly in my last couple of moments just make a comment about the context in which these debates are held. It is unfortunate—and I say this with no righteousness; as a politician, I take responsibility as well—that very often these serious criminal bills become, effectively, political footballs, and, as I mentioned, we have this whole “hard on crime” and “soft on crime” nonsense. I think that we need to collectively endeavour to depoliticise some of these debates—to endeavour collectively to simply get the best outcome. I think we also need to address our friends in the media and endeavour to challenge the sensationalism that often surrounds the reporting of serious offending. The latest instance is this unfortunate woman dubbed the “Black Widow”, who committed a serious crime—she murdered a person—but the sensationalism around the reporting of that case, the endless, gratuitous media reporting, has now placed that woman in danger while she is serving her sentence. Finland is a good case study of where there was a political agreement not to politicise serious criminal legislation and for the media not to sensationalise the reporting of crime and offending, and I think we could take a lesson from that. If we could get a similar level of agreement in New Zealand, I think we would find that the passage of this legislation would be much more refined and much more successful. Thank you.

New Zealand First supports both of these two bills. The Parole (Extended Supervision Orders) Amendment Bill is relatively straightforward and makes two common-sense changes. It allows existing extended supervision orders to be renewed as often as is needed, and the current 10-year limitation will go. And it means that the Act will now cover high-risk sex offenders against adults and also very high-risk violent offenders. There are some more minor amendments that include court-controlled, rather than Parole Board - intensive, monitoring of offenders for the first 12 months, and it also clarifies the criteria to ensure that only the highest-risk offenders are eligible for these orders, which would then allow them to live in the community under strict supervision, but with the protection of mandatory court reviews.

The Law and Order Committee recommended including in clause 12 of the bill a list of behavioural characteristics of an eligible violent offender indicative of a “severe disturbance in behavioural functioning”—and New Zealand First supports that—so that the courts will have the guidance needed in making an order, noting the specific context for an extended supervision order, as distinct from a public protection order.

New Zealand First will also continue to support the Public Safety (Public Protection Orders) Bill—a bit of a mouthful—which includes a rather more complex set of important amendments. I want to commend the Justice and Electoral Committee for its detailed work in making the alterations that it has recommended and for the collaborative effort that was made in that committee.

The bill achieves a very difficult balance between protecting citizens from serious sexual or violent harm and the right of those affected to be subject to the least restrictive form of detention that is practicable. It also will ensure adequate oversight of detention through regular reviews by a review panel and the High Court, independent inspector and Ombudsman visits, and an annual report to Parliament. These orders will incorporate the key safeguards necessary for a civil committal regime, and will successfully observe the principles stated clearly in the Act.

Firstly, public protection orders are not about further punishing offenders—and I disagree with my friend Mr Clendon about that—and the offence is to be only one of several factors that are relevant to assessing whether there is a very high risk of imminent sexual or violent offending. Secondly, a protection order should be imposed only if the magnitude of the risk posed by the respondent justifies it. Thirdly, an order should not be imposed on a person who is eligible to be detained under mental health legislation. Fourthly, and lastly, persons who are detained in a residence should have as much autonomy and quality of life as possible. There must be an assessment as to whether a subject poses a high risk of serious sexual violent offending, requiring the application to be supported by at least two psychologists’ and/or psychiatrists’ reports. The court may also call for a report by a health assessor, and a respondent can also request such a report. I think that these are very good safeguards and very appropriate.

The crux is that there must be proof of whether an order is necessary, and the court must not find that there is a very high risk of further offending unless it is satisfied that the respondent exhibits a severe disturbance in behavioural functioning, established by evidence of specified characteristics to a high level. The select committee has added an amendment clarifying that the standard of proof is to be the balance of probabilities. As this is a civil process, that standard is appropriate. The select committee also inserted new clause 96A to provide for the suspension of proceedings while the person detained is detained in a mental facility or prison. It is correct that a public protection order and application should be suspended rather than discontinued if a respondent is subsequently detained in a prison or under mental health or intellectual disability legislation.

Concerning the review provisions, the select committee also added new clauses to require a court reviewing a public protection order to consider whether the subject still poses a very high risk of imminent sexual or violent offending, taking into account the reports provided to the court. New clause 17(2B) provides that if the court finds that the person no longer poses a very high risk it must make a finding to that effect. To clarify the process that would then apply, clause 80(1) requires the court to cancel the public protection order and impose a protective supervision order on the person. New clause 80(1B) would require the person to be released from detention as soon as practicable after a protective supervision order was imposed.

Amongst the other changes introduced by the select committee I am gratified to see new clause 124B, which inserts a section into the Legal Services Act to make any proceedings under the Public Safety (Public Protection Orders) Act a specified application, thus making it easier to access legal aid than is the case for standard civil proceedings. That was something that I was particularly keen on in the select committee and I am glad to see it has been incorporated.

Another welcome addition to the bill amends clause 31 to allow a resident to receive visits from permitted persons subject to any conditions or restrictions imposed by the resident’s manager. One clause will permit a visit to be unsupervised if the resident’s manager considers it would meet the resident’s rehabilitative needs. Another subclause exempts visits by inspectors, office holders, or, of course, a resident’s lawyer. New clause 56(1A) requires a resident’s manager not to allow a person under the age of 18 to visit a resident unless the visit is likely to meet the resident’s rehabilitative needs. So there is a good balance there between rehabilitative needs and an appropriate detention regime.

There are numerous other additions and amendments made by the select committee, such as those relating to searches. One of the most important, I think, is the new section relating to escape from lawful custody. New clause 124A adds a new provision to the Crimes Act 1961, making it an offence for a person subject to a public protection order to escape from a residence. This would allow, of course, police to apprehend and arrest anyone who escaped from such a residence. That was quite a big omission from the original bill, and it is very important that it be included.

It is to be emphasised that the person subject to a public protection order is not being punished, and that a public protection order is for public protection purposes. As such, a resident in a detention facility has the rights of a person of full capacity. Specific rights of residents include retention of earnings from permitted employment, the right to vote, to get newspapers, to have internet access, to use written communications, and to receive permitted visitors. So these are not people without rights. They will have their freedoms severely limited, but it is not like being in prison. There is a good balance there, I think. The bill provides for inspections of residents at least twice a year. An inspector can arrive unannounced at any time to make an inspection.

Finally, the bill confers jurisdiction on the court to order that a person be detained in a prison instead of a residence if the court is satisfied that the person detained would pose an unacceptably high risk to themselves or others. There would be very few cases where that would be necessary, but that is a very important part of the bill.

Overall, New Zealand First welcomes both of these bills, which we think are needed to fill a gap in the law, a gap that the public sees as an important issue and believes should be filled. I think these two pieces of legislation are well drafted. Again, I commend the select committees that have amended and improved them, and what we have now is some good legislation, which meets public expectations and is well balanced in terms of personal rights as opposed to the need for public protection. New Zealand First will welcome both pieces of legislation and will certainly continue to support them through the whole process.

This week it was White Ribbon Day, when ambassadors right throughout the country of New Zealand are wearing white ribbons as a symbol, and take a pledge that they will neither commit nor condone violence towards women and children. Inside of that, that commitment and that pledge is to ensure that they are champions of change in their home and their community but also, secondly, that they have the opportunity in their areas of influence to be able to ensure that they keep that pledge. So I am here today as a White Ribbon ambassador with my colleague Steffan Browning over there as well. I suppose that in this area of politics it is an opportunity to exercise our influence to ensure that there is public safety for women and children, and for those who are vulnerable in our communities as well.

The Public Safety (Public Protection Orders) Bill and the Parole (Extended Supervision Orders) Amendment Bill ensure, in the management of high-risk sexual and violent offenders at the end of their sentences, in their process of reintegration, that safety mechanisms are in place as well. I want to commend the work of the Justice and Electoral Committee. As my other colleague over there Denis O’Rourke said, there were 12 written submissions and eight oral submissions. I want to just complete my speech by reading from the regulatory impact statement—

💬 Carmel Sepuloni: You’ve got more to say than that, Alfred.

I have had a lot to say in the first reading. I have had a lot to do with the select committee. We heard the submissions, so we have actually done a lot of the work. There is common agreement across the House that this is important legislation, so we are not fighting in the debates; in fact, we are confirming the role of that legislation. I want to conclude my remarks by quoting from paragraph 16 in the regulatory impact statement, where it states: “On balance, public protection orders … appear to best meet the policy objective. Public protection orders protect the community from future harm from a very small number of high risk offenders who are clinically assessed as being at imminent risk of serious sexual or violent re-offending,”. We believe that the work that has been done through the select committee and the bills that have been returned back to the House ensure that there is both a balance of safety and protection as well as the civil liberties that are also there in our communities. In their second readings I do commend these bills to the House.

First of all, I would just like to start by congratulating the Minister of Justice, Amy Adams, on her appointment. I notice that the signs are very good that she will be an excellent Minister. I would also like to acknowledge the work that this Government and, indeed, the previous Labour Government, have done on the field of crime. I also want to acknowledge the work of the Justice and Electoral Committee on both of these bills. I do think that they have been well considered. I am going to restrict my comments to the Public Safety (Public Protection Orders) Bill. As my colleague David Clendon has said in his remarks, the Greens are intending to vote to support the Parole (Extended Supervision Orders) Amendment Bill and against the Public Safety (Public Protection Orders) Bill, so I am going to restrict my comments to the second of those bills.

I just want to note that the bill was introduced around the time of the furore surrounding the Stewart Murray Wilson event. As David Clendon said, law introduced that responds to or in conjunction with high-profile media events is rarely good law.

The regulatory impact statement and a number of other submitters indicated that this legislation is likely to be inconsistent with the New Zealand Bill of Rights Act, in particular, sections 22 and 26 in respect of arbitrary detention and double jeopardy. These are also in contravention of the International Covenant on Civil and Political Rights. It is clear that these people will still be, effectively, treated as if they are prisoners, even though they have already served their time for their offences. It is a central principle of our justice system that when you do the crime, you do the time, and when you have done the time, you are released and you are a free person. This legislation proposes that when people have served their time they will actually then continue to keep serving their time, perhaps indefinitely.

The legislation is designed to affect between five and 12 people. Sure, some might ask why we are so worried about a piece of legislation that affects such a small number of people, but the point of human rights is that they are universal. And so the question is whether universal human rights extend to all humans or to all humans minus one, or five, or 12. The Law Society also questioned the need for the legislation, pointing out that there are existing sentencing options for criminal offenders available. These include, but are not exclusively confined to, the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003. If someone has served 10 to 15 years and, at the end of that time, is assessed as having a near 100 percent chance of recidivism, then they are surely, by definition, covered by the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 and similar legislation. We also believe that the Parole (Extended Supervision Orders) Amendment Bill—which, as we said, we are voting in favour of—effectively negates the need for the Public Safety (Public Protection Orders) Bill, particularly when in conjunction with legislation such as the Intellectual Disability (Compulsory Care and Rehabilitation) Act.

In conclusion, this legislation was introduced not in response to but in conjunction with sensational media events. It is illiberal and contravenes core principles of our justice system. It is an unnecessary bill, and it deals with a tiny population, and we will therefore be voting against it.

I will take just a short call on the extended supervision orders component of the debate today. The Hon Phil Goff is very familiar with the regime, and he was one of the architects of the legislation, and its need has been well traversed and well canvassed, I think, in the context of this debate.

In this bill, the changes essentially relate to extending the supervision orders regime for as long as is necessary, as distinct from the 10-year period, and it is clear that for a very, very small percentage of offenders, versus the number of people who ultimately go to prison and serve prison sentences, this is required.

The bill also expands the relevant offences for adult sexual offending, some of which is at the most serious end of that, and the most serious violent offenders. We are talking in numbers of single digits, or certainly low tens in that regard. The legislation increases judicial oversight and puts in place 12-month supervision, intensive supervision provisions, again with judicial oversight, which I think helps outweigh the implications of the breaches of section 26 of the New Zealand Bill of Rights Act and double jeopardy. This is certainly something that committee wrangled with, with regard to the fact that there is a risk of double jeopardy when Parliament legislates in this way. The Parole Board will be required to review this every 2 years.

The balance is that for these most serious-end offenders we have preventive detention, public protection orders, and extended supervision orders, in that order in terms of severity. There are some who will require all steps in that process, although all those steps in that process are required for the most high-level offending. I see the changes in the extended supervision order component of this debate today in respect of the bill as being an important mechanism in getting the balance between public safety but also recognising that there are some offenders who will require ongoing supervision for an indefinite period in some cases, and this bill does achieve that. Thank you.

This debate is an unusual debate in the sense that it is considering two bills together, cognate bills—a fairly new term, even for an old-timer, but it is because the two bills are dealing with very similar matters. Both bills are intended to protect the community against people who have completed a finite term in jail but are still considered as being at extreme risk of reoffending. I listened closely to my two colleagues in the Green Party, and I always respect where they are coming from. They take a principled stand, but it is not a stand that I agree with, and I will touch briefly on that.

Yes, human rights are a universal right—they apply to everybody—but we are dealing with people whom I had to deal with when I was Minister of Justice, people who I knew were totally incapable of controlling their urge to offend and to offend seriously. The choice that I had to make at the time—and therefore I understand the choice that the current Minister is making—was that if I let that person out because they had completed their finite sentence, they would offend, and their breach of other people’s human rights, and particularly children, would be serious and fundamental.

I am talking about an individual, the individual who is the reason why the Parole (Extended Supervision Orders) Amendment Bill has come before the house. I brought the bill in because of him and a group of people like him. His name is Lloyd McIntosh; it is in the public arena. He has an IQ probably of 80 or 90. He is incapable of controlling his urges. He is not evil; he just cannot control his urges. He was convicted of raping a 2-year-old child, with awful, awful consequences. The child nearly died. Lloyd McIntosh and his mother both want to maintain a supervision regime of this nature.

I am very conscious of the fact that when you serve your finite term, generally you have done the crime, you have done the time, and you can start again. But we are talking about a particular group of people who are extraordinary, and they are extraordinary because they are at imminent risk of reoffending seriously. So what the Parole (Extended Supervision Orders) Amendment Bill does is extend the legislation that I brought in in 2002, and it does that by saying that when you have reached the end of your 10-year term, you can be considered for and you can have imposed on you a further term of close supervision.

The interesting thing about the extended supervision orders is that the people are still in the community, so we are trying to minimise the limitation on their freedoms, while respecting the freedom of others to be protected. This is a bill that has applied to about 332 offenders and still applies to about 251. What will it do? According to the departmental statement, it will probably affect 25 to 30 high-risk sex offenders against children a year; 25 to 30—that is a significant number. If we did nothing about that, the number of victims would be multiples of that number.

As well as extending the term beyond 10 years, the bill extends it to two other categories of offenders, both with high risks of offending. One is sexual offenders against adults: that will affect a much smaller number of people a year, four to nine. And, also, a third category: violent offenders with extremely high levels of risk of reoffending—that will affect only one or two over a 5-year period. So there are significant numbers, particularly in respect of crimes against children, and smaller numbers in the other categories.

Interestingly, this is a bill—and regrettably, this is a bill—that does breach the New Zealand Bill of Rights Act. It breached it in 2002, and it continues to breach it, and we have the Attorney-General’s comment on it. I would very much like to have avoided doing that. I do not ever lightly support a breach of the New Zealand Bill of Rights Act. I raised it at the select committee, and we considered whether we could do what the Public Safety (Public Protection Orders) Bill does—which does not breach the New Zealand Bill of Rights Act—and that is make it a civil regime. The extended supervision orders regime is a criminal regime because people come before the Parole Board.

What we found out is that you could do that but you would be duplicating the regime that was already in place, and there will be certain risks in doing that. The impact on the offenders would be exactly the same, but we would actually remove it from breaching in principle the New Zealand Bill of Rights Act. I thought: “Well, I’d love not to do that but should we go to this expense and also to incur risks if the impact on the individuals is exactly the same?”. In the end I came to the conclusion that probably that was not warranted, particularly because the Ministry of Justice was unable to work through the alternative regime in the time frame before this legislation would come into effect, which is designed to deal with the situation of Lloyd McIntosh and others in the same position.

I was not on the select committee that considered the Public Safety (Public Protection Orders) Bill, but I did speak on the first reading and I have read the bill carefully. It allows, again, for people who have completed their finite sentence to be detained, this time in a secure detention facility. So it is not out in the community, like extended supervision orders. It is in a place where there are walls and fences and they are unable or unlikely to escape. This applies to a much smaller number of offenders—about five to 12, over a 10-year period. It is a tiny number, but the consequences would be huge if those people were let out into the community and we were unable to prevent them from reoffending.

I looked closely at what the characteristics were in order to have a person put in this position. First of all, the judgment is not a political judgment; it is made by a High Court judge. There are four characteristics that a person has to have: they must have an intense drive or urge to commit a particular type of offending, and much of that would be sexual offending against children; they must have limited self-regulatory capacity; they must have an absence of understanding or concern for the impact of their offending on their victims; and, they must have poor interpersonal relationships or social isolation. So the Act will be quite specific. The judge will make the decision, and the judge will make the decision on the basis of people who have the professional medical or psychological skills and have had the opportunity to make that judgment about the person who has been in prison.

Of course, there are other ways that you could do this. One is, of course, a life sentence—there are some offences where there is a life sentence. For murder you always get a life sentence, and that can be with a minimum parole period, or not. Generally, it is at least 10 years. That makes it easy to deal with those people, because when you let them out on parole they are on parole for life and they can be recalled at any time.

We also considered at the time a much wider use of preventive detention. Preventive detention means that you can lock a person up indefinitely. It is an indeterminate sentence. In some ways that would avoid entirely the New Zealand Bill of Rights Act issue, because if you give them that at the time of the sentencing by the judge, you would not be in breach of that Act. A sentence is imposed and the person can be locked up for life, literally, and if they are let out they can be recalled at any time, and that happens. But in some ways it would be a more severe regime to have a much wider use of preventive detention than what we are doing with these two pieces of legislation.

I support, and Labour supports, these two pieces of legislation. We have considered them carefully. We are not doing this for any knee-jerk populist purpose. We are doing it for the fundamental responsibility that we have in this House to protect people where we can, particularly vulnerable people like children, against offending that is classified as almost inevitable, and against an extreme risk on the part of that offender to go on offending and to cause and inflict appalling harm on other people. I think we have got the balance right. The Labour Party is supporting the second reading of these bills.

It is a pleasure to speak on the second readings of these cognate bills. I will just touch on the extended supervision orders, in the Parole (Extended Supervision Orders) Amendment Bill, the bill I am responsible for. The arguments for this second reading, which I support, have already been espoused quite eloquently by previous speakers. But I want to say that the enhanced regime that the previous speaker, Phil Goff, just spoke about is about ensuring that the public are protected, particularly from high-risk offenders when they finish a finite prison sentence and they do not meet the criteria for further detention under a public protection order.

So the Parole (Extended Supervision Orders) Amendment Bill—or the “ESO Bill”, as it has come to be known—enhances the current regime in two different ways. First, the amendments enable extended supervision orders to be renewed as long as they are needed—not for a 10-year finite period, as has been espoused, but when they are needed. Second, the scope of extended supervision orders, which are currently only for child sex offenders, has been expanded to include adult sex offenders and very high-risk violent offenders, and that is important and an issue that clearly is widely supported across this House.

The Law and Order Committee received four written submissions on the bill and heard from one of the submitters. I want to thank the committee—particularly the chair, Mike Sabin—for hearing these submissions and dealing with this bill in an expedient way, given the urgency with which we need to pass the bill in order to meet the demand, I suppose, to close down this loophole, which that will appear early next year.

Most of the submitters supported the objective of the bill, which is to protect the public from serious sexual and violent offending from a small but very dangerous group of offenders. Obviously, we have heard the counterargument around the New Zealand Bill of Rights Act implications, but the committee carefully considered that issue and the bill includes appropriate safeguards to mitigate those New Zealand Bill of Rights Act implications. The safeguards include orders being subject to mandatory reviews by the courts and also that the Parole Board is required to review some of the most stringent conditions every 2 years. This means that those orders are in place only for as long as is warranted by an offender’s risk of causing serious harm to the public.

In the public interest, clearly if offenders still pose a risk to our communities at the end of their sentence, then the Department of Corrections needs that ability to be able to manage them appropriately and safely in our communities. That is what this bill does, and that is why members around this Parliament are supporting this bill. It has widespread support across this Parliament, and that is why I am supporting this bill.

Amendments recommended by the Justice and Electoral Committee by majority agreed to.