Public Safety (Public Protection Orders) Bill

It is my pleasure to take a call on what is quite a substantive bill, and which, to date, we have been debating alongside the Parole (Extended Supervision Orders) Amendment Bill. I thought it would be useful when debating Part 1, which sets out substantively how the public protection orders will work, to put just a little bit of context around the fact that we are debating an order that will—as the regulatory impact statement states—apply to a very small number of offenders.

As set out in Part 1, the definition of the individuals to whom this bill will apply probably amounts to what has been estimated—I imagine by the Ministry of Justice—to be roughly five to 12 individuals in a 10-year period. That is set out in some of the clauses at the beginning of the bill that talk about serious sexual or violent offence—meaning “an act committed before, on, or after the commencement of this section”. This type of sexual crime, punishable by 7 or more years’ imprisonment, and a range of other offences are set out in Part 7 of the Crimes Act 1961. Obviously, applying what is, essentially, a civil order to sentences that may reach a threshold of only 7 years’ imprisonment may seem like a low bar to be setting, but I think the Justice and Electoral Committee was right in allowing flexibility at the end of an offender’s sentence to establish a range of other threshold tests, which are quite high.

So although the initial sentencing bar may be considered to be low in that regard, there are a number of tests set out by this bill that are quite robust and require a number of significant assessments that will be tailored to the time and place at which the civil order may be applied, and will assess whether or not any rehabilitation, for instance, has been successful or progressed with that particular offender. I will come to that in a little bit more detail in time. But the Ministry of Justice, on that basis, has established that the bill will affect roughly five to 12 offenders in a 10-year period—so not a large number, despite the criteria being a bit broader. So that really, I think, points to the fact that the additional threshold test is quite high.

I do think, though, that given that we are debating a civil regime being added—and that is a significant departure from what we have currently—and given that the Government has not been interested in introducing a sentencing council to assess whether or not we are sentencing appropriately and consistently in New Zealand, it would be useful to perhaps assess, maybe via a select committee regime, or maybe the Auditor-General could do this, those offenders who are subjected to both extended supervision orders and public safety orders. The reason I think that could be a useful exercise is that, of course, we have the option of preventive detention in New Zealand. You could almost say that that is the front-end version of a public safety order. It would be useful to assess whether or not there are common or consistent themes among offenders to which these backstop measures are applied that, perhaps, were not utilised at the point of sentencing. A preventive detention sentence is a much easier way to deal with these offenders than having to wait until they come to within 6 months of release, with the trauma, obviously, that a victim goes through at the point of an offender’s sentencing, having a sentence that is coming to an end, and then, 6 months before the end, going through the process of a decision being made that they are not safe for release and that this additional order needs to be applied.

So it would be good if we had some kind of regime to look at and assess the kinds of offenders who are having these orders applied to them, and whether or not there are actually things that we are missing at the point of sentencing that our judiciary could learn from. I would be interested in the Minister’s view on that, on whether or not we could build a process around that. Again, because it is a significant departure from our existing justice system, I think those kinds of checks and balances would be useful.

I think the other important context to apply to our debate around Part 1 is the fact that we know, and our statistics tell us, that, actually, only 8 or 9 percent of sexual assaults even get to the point where they are considered for these kinds of measures. That speaks volumes about this area of our justice system more broadly. The fact that our Crown prosecutors and our police even second-guess whether they would advise a friend or family member to go through our justice system says that, yes, although these backstop measures are important, we need to spend time on, and the Government needs to focus a lot more of its energy around, the process that a victim goes through to even bring an offender to this point in our justice system.

Speaking specifically to Part 1, though, which does set out the assessment that is applied for a public protection order—basically, the way that the orders function generally—I think it would be a useful exercise in that context to look at the regulatory impact statement that was carried out, which talks about some of the alternative regimes that were considered before we got to the regime contained within Part 1.

As I understand it, there were five options that could have been considered. The first was a strengthened version of the existing extended supervision orders—which I understand the Committee will be debating shortly—under which offenders would continue to be closely managed in the community. So, really, we have actually got that already. The extended supervision orders legislation covers sexual offenders and violent offenders, who are currently not covered. So the Government has essentially done both. That one has been dealt with.

The second option was the expansion of the scope of the Intellectual Disability (Compulsory Care and Rehabilitation) Act to enable offenders who are borderline intellectually disabled to be managed in a secure health facility until their risk is reduced. The obvious issue with this is that not every offender who will be considered an ongoing risk to the community would have an intellectual disability. In fact, the bill, in clause 12 of Part 1, actually contains some specific provisions that treat those offenders differently from offenders who are regarded not to have an intellectual disability. That clause sets out that where a court is satisfied that it could make a public protection order against a respondent, and that that respondent may be mentally disordered or intellectually disabled, it is instead obliged—instead of making a public protection order—to direct the chief executive to consider the appropriateness of an application in respect of the respondent under section 45 of the Mental Health (Compulsory Assessment and Treatment) Act.

I would be interested to hear from the Minister, though, whether the Ministry of Justice has done any assessment of how many individuals may be captured by this; or of the five to 12 whom we are talking about as maybe being covered, has the ministry excluded those who may fall within this reassessment regime and may be covered by the Mental Health (Compulsory Assessment and Treatment) Act? If so, does that not point to an issue with, perhaps, initial sentencing, in that they would be considered to have either an intellectual disability or mental incapacity that deems them fit to be dealt with under this alternative Act rather than a public protection order? Does that mean that, perhaps, the assessment regime and the initial sentencing would have been inadequate if that was not identified at that point? So that is just an interesting question there. I would not mind hearing from the Minister in the chair. So that obviously rules out that option. It would not cover every target offender and cover all risk.

The third option was a new civil detention order, under which people, including offenders, would be detained in a secure facility in the community. Interestingly, there was a view that although that might, I believe, cover the New Zealand Bill of Rights Act, it was potentially too costly. Obviously, it means establishing new facilities outside. It is interesting that the Ministry of Justice, within its regulatory impact statement, chucked that out as perhaps the reason why it would not do it in that way.

Fourth is a continuing detention order, under which offenders would be detained in prison. There is a considerable New Zealand Bill of Rights Act issue there because, of course, we must be clear that this is not an extension of punishment; rather, it is a civil regime that is focused on public safety, which is why I think we have arrived at the new form of civil detention using public protection orders, but within prison grounds. Obviously, that was seen as a neat way of covering off all of those issues. I think that contextually it was important to look at Part 1 within the other options that were considered, but I would be interested in the Minister’s reflection on my questions.

I would like to speak to clause 4 in Part 1 of the Public Safety (Public Protection Orders) Bill. Clause 4 talks about the objective of the Act: “The objective of this Act is to protect members of the public from the almost certain harm that would be inflicted by the commission of serious sexual or violent offences.” by people who are currently coming to the end of their term.

I am just going to the definition of “serious sexual or violent offending”, which means: “the commission of 1 or more serious sexual or violent offences.” We are talking about a small subsection of people who are currently in prison who within 6 months upon their release are expected—despite their punishment in prison, despite their attempts at rehabilitation—to more than likely be recidivists and cause harm to members of the public.

I think that any New Zealander would say yes, we need to have something that is going to protect New Zealanders from the threat of harm from these people. But as Jacinda Ardern has just said, the public protection orders are not to be considered an extended form of punishment. We cannot punish people twice for the same crime—that is called double jeopardy—but I have to say that there are concerns around the New Zealand Bill of Rights, as Jacinda has touched on.

The Attorney-General expressed the opinion that this bill is not inconsistent with the New Zealand Bill of Rights Act 1990. The Attorney-General stated that “The critical issue is whether the provision for detention and other measures under the Bill in substance amounts to further punishment of sentenced offenders, contrary to the longstanding rights against arbitrary detention and double jeopardy affirmed in ss 22 and 26 of the Bill of Rights Act, or to civil committal, as provided for in other New Zealand legislation and widely held to be compatible with these rights. The risk of breach of ss 22 and 26 was raised at the time that the Bill was proposed.”

The Attorney-General concluded that “ … unless the Bill incorporated the key safeguards necessary for a civil committal regime, it would not be Bill of Rights compliant. The Bill as introduced includes such safeguards at each of the stages of the making, administration and review or cancellation of orders. The Bill also contains broad interpretative principles to ensure its operation as a committal, and not punitive, regime.” In other words, there are safeguards there, apparently, so that people are not going to come under that double jeopardy case. Also, in clause 4(2): “It is not an objective of this Act to punish persons against whom orders are made under this Act.”. Even if they are subject to a public protection order, they will still be kept in prison but not in the secure wing.

In fact, if we go to the “Principles” clause in clause 5(d), it says: “persons who are detained in a residence under a public protection order should have as much autonomy and quality of life as possible, while ensuring the orderly functioning and safety within the residence.” So they have to be kept within a residence within prison confines, and they are to be given as much autonomy as possible to go about their lives, but without being out there imposing a threat of serious sexual or violent offending against New Zealanders.

Other principles in the bill include clause 5(a), which says: “orders under this Act are not imposed to punish persons and the previous commission of an offence is only 1 of several factors that are relevant to assessing whether there is a very high risk of imminent serious sexual or violent offending by a person:”. In clause 5(b) it says: “a public protection order should only be imposed if the magnitude of the risk posed by the respondent justifies the imposition of the order:”. So there has to be some consideration of the magnitude of the risk that the offender may pose to the community.

One of the principles is also that “a public protection order should not be imposed on a person who is eligible to be detained under the Mental Health (Compulsory Assessment and Treatment) Act …”. In other words, if they have a mental disability, they will not be subject to a public protection order. As I have said, clause 5(d) is about giving these people as much autonomy as possible, even though they will still be restricted within prison confines.

There are thresholds for imposition of these public protection orders. The person must be aged 18 years or older. So, obviously, anybody who is under 18 years of age would not have a public protection order put upon them. Also, the person must be detained and imprisoned under a determinate sentence for a serious sexual or violent offence. So, for the benefit of people listening, a determinate sentence basically means that they are in there for a set length of time.

Another threshold is that the person must be released from detention not later than 6 months after the date on which the chief executive applies for a public protection order against the person. Clause 3 says: “chief executive means the chief executive of the department that is, with the authority of the Prime Minister, for the time being responsible for the administration of this Act”, and that is generally the head of the Department of Corrections. We look forward to debating this bill thoroughly and going through each of the parts. Kia ora.

I am pleased to take a call to speak to some of the detail of this bill and to highlight the reasons the Greens are not supporting this legislation through the House. It goes right back to the regulatory impact statement. We are basing this legislation on very little evidence, and that point was made in the regulatory impact statement by the officials, who note that it is not possible to accurately report recidivism data for such a small, unique subset of offenders. There is not a lot of evidence surrounding this legislation to support what is quite a Draconian measure—and it has to be described in those terms. It is quite a Draconian measure to go to this extent. The lack of compliance with the New Zealand Bill of Rights Act and, indeed, international conventions and standards has been noted.

It is interesting, again, to note the earlier evidence we had from officials. We heard from officials that three pieces of legislation similar to this in four Australian states—legislation that enables the ongoing detention of inmates after the expiry of their sentences—have been found by the United Nations Human Rights Council to breach the International Covenant on Civil and Political Rights. Given the similarity of that legislation to what is being proposed here, it is most likely that New Zealand will find itself on the wrong side of the United Nations Human Rights Council, and I think that is very regrettable—not least of all given that, this afternoon, in fact, we are progressing legislation that the Greens do support and believe will achieve much of what is intended to be achieved with this legislation.

Much has been made of the principles of this bill, and we constantly hear this reference to the fact that it is not punitive. Clause 5, “Principles”, states: (a) “orders under this Act are not imposed to punish persons”. I defy anyone to suggest that this is not a form of punishment. Semantically, yes, you can dance around that to some extent. But looking at the conditions that can be imposed on people subject to these orders, essentially it is detention, perhaps with one or two more creature comforts, and with a modicum more of “the autonomy and quality of life” that this legislation talks about, but it is an inherently punitive regime.

People are prohibited from possessing quite a long list of items without specific permission from a residence manager acting on behalf of the chief executive—basic things like tobacco and alcohol. Yes, of course nobody supports the use of tobacco—I certainly do not—but they are free people, and adults are entitled to make their own decisions. In prisons, of course, alcohol and tobacco are banned, and they would also be banned in the so-called residences. Electronic communication devices are not allowed—people cannot own phones, in other words. There are very significant restrictions on access to mail. They may watch television and receive newspapers, but any incoming or outgoing mail will be censored by the manager of the residence. These are punitive conditions. These do reflect quality of life or autonomy. People may not keep live animals, for example. People are denied pets, which are a commonplace sort of a thing that people have in their real lives.

A decision for a public protection order to be imposed on a person rests heavily on this issue around health assessment, so that a person coming up to the end of their determinate sentence will be assessed. Essentially, there must be at least one registered psychologist, and one other person who must be at least a psychiatrist registered to practise in New Zealand. That is all well and good. The court will be presented with two reports, then the court itself or the person to whom this assessment applies can also choose to have health assessments done by other assessors—other psychiatrists or psychologists.

There is no guidance in this legislation as to what the courts should do when, as will inevitably happen, there is conflicting advice or evidence. These are very subjective issues. Psychiatry—and I feel I can say this with no reflection on the profession—is an inexact science. There is a level of subjectivity. There are clinical tests, surely, but equally there is a high level of subjectivity. What is a judge or the courts to do in the situation where there are two for and two against, for example? I think that that is quite unsatisfactory given the consequences of the assessments that can be made, and the fact that this could effectively see people kept in detention, basically, for ever.

The point has been made that there is quite a high bar required in order for these public protection orders to be triggered. To an extent, yes, and equally there are the health assessments—the psychological assessments, and so on—but the decision is made by the court on the balance of probabilities, which is a bar that is set for civil proceedings. A balance of probabilities is not sufficient for a criminal investigation, for a ruling in a criminal court, and yet effectively, as I have said, people who have these orders made against them will be kept in conditions not dissimilar to prison. It is very similar, in fact, to the situation that a person might be in if they were close to release, for example—the self-care unit type of thing—although arguably a person in a residence would actually have fewer rights and more restrictions than somebody still completing a sentence in a self-care unit in one of our prisons. I hasten to say that I support the notion of units like that within prisons, as self care is a step is towards release and reintegration further down.

We note that people subject to these orders will be allowed to work if they can generate an income for themselves within their residence, or by some means acceptable to the residence manager. That is allowed; they can earn money and have it managed on their behalf by the residence manager. I think the kicker there is, though, that when a person begins to earn money, they can also have the ticket clipped despite the fact that they are in detention and they have completed the sentence to which they were subject for whatever crime they have committed. Nevertheless, if they start earning money, then a certain amount of that can be taken off them—to meet the cost of their board and lodgings, presumably—which seems a pretty unhelpful thing.

There is some peculiar language in terms of rehabilitation. We are told in clause 33 that residents are “entitled to receive rehabilitative treatment if the treatment has a reasonable prospect of reducing the risk to public safety posed by the resident.” This is not an expectation or something we would seek to insist upon; it is an entitlement, something they may do. The question of whether or not a person subject to an order actually is able to get rehabilitation or some sort of programme is actually down to the assessment made by the residence manager.

These must be quite extraordinary people, these residence managers. When a person moves into a so-called residence, the residence manager is responsible for a needs assessment to identify special medical requirements, the cultural or religious needs of the individual, any skills or capacities of the individual, and any educational needs, and, finally, they can assess any steps to be taken to facilitate rehabilitation and reintegration. That is an extraordinary load to put on one individual, I would argue. We do not know what sort of level of requirement, what expectations there will be, or what qualifications people might require for these jobs. We do know that while they are acting as a residence manager they may not perform any function under the Corrections Act, which would exclude a number of people. But it does seem that we are putting a great deal of reliance, in a sense, on these residence managers, who may conceivably be managing a residence of as few as one, or certainly only a handful of people.

The practical application of this legislation leaves open many more questions than it answers regarding the ongoing conditions that these people will be subject to. Any time they leave and enter the residence they can be strip-searched, and it can be an obligation. They can be forcibly strip-searched. They can be put in “seclusion”, which is rather gentle language. Essentially, they can be put in solitary confinement and kept there until the residence manager deems it appropriate that they should be released. They can be restrained physically—forcibly restrained. All of these are conditions that inmates in prisons are subject to. I see very little to differentiate between a person allegedly under a civil order—a non-punitive order—in a residence, and the conditions that apply in a prison. For these and other reasons we will be opposing this legislation.

I want to take a short call on this bill at this stage to make some comments about what the Greens have said in relation to this bill, because New Zealand First does have a different approach from theirs, although I do respect the fact that the Greens are very much of a mind to preserve and improve human rights. Indeed, New Zealand First—and particularly me—is interested in doing so as well. However, it has to be admitted that, as in this case, there are often tensions between personal rights and the public interest. The plain truth is that there are some people who are imprisoned and who are then eligible for release, but who remain a danger to the community. We have actually seen in recent years some fairly spectacular examples of that, therefore this is not an issue that can be ignored. Consequently, New Zealand First embraces this bill and welcomes the initiative taken to deal with that situation, however uncomfortable it may be.

The real crux of the bill is simply this: is an order really necessary? If it is, then it is not a question of punishment; it is a question of protecting the public interest. So I am glad to see that the court must not find that it should issue an order unless it finds that there is a very high risk of further offending. The presumption is that there will not be grounds for an order. These grounds have to be proved, so the court must be satisfied that the respondent exhibits a severe disturbance in behavioural functioning, established by evidence of specified characteristics to a high level. That is a high bar, and so it should be.

It is true that there are people who fall into that category, and who are not necessarily mentally disordered. If they were, then we have a regime for the committal of those people to mental facilities. However, there is a gap between that and those who are entitled to freedom, and that gap is where there is a person who is not mentally disordered and would ordinarily be entitled to their freedom but who is considered to be so dangerous that they cannot be allowed to go free. It is a very, very small number of people, but history has demonstrated that they do exist, and this legislation is necessary to deal with them, in the view of New Zealand First.

I note, concerning the review provisions, that the Justice and Electoral Committee has added clause 17(2) and (2A) to require a court reviewing a public protection order to consider whether the subject still poses a very high risk of imminent serious sexual or violent offending, taking into account the reports provided to the court. There will be plenty of evidence for them because the reports of two psychologists or psychiatrists are needed, and the person themselves can obtain a similar report. So the matter will be properly investigated, and I feel sure that we will not see New Zealand courts, with the benefit of that sort of information, lightly making an order for the detaining of these people.

So I cannot agree with the approach taken by the Greens, which I feel is too extreme. It goes to the point of saying: “Maybe there is a problem, but human rights are so important that we just have to ignore this problem.” Well, New Zealand First does not feel like that. We acknowledge that there is a problem. We acknowledge that there are people in this category while at the same time acknowledging the importance of human rights. We say that this bill is sufficiently well drafted to protect people from arbitrary imprisonment, even those who have been in prison for serious sexual or violent offences and who, therefore, should be subject to one of these orders. We feel that the tension between personal rights and the need for public protection is still adequately covered with this legislation.

We do not feel that the way that this legislation is drafted would result in people losing their freedom without that high bar of evidence having been achieved, and I would expect that only a handful—literally a handful—of people would ever be subject to those orders. But, of course, we are going to have reports to Parliament and there is going to be good supervision, so if we find that there are a lot more people who are detained in this way, then Parliament will know and will have an opportunity to review the legislation.

So I think that the situation is so serious that this bill is warranted, and that it is well drafted and it is well balanced. The protection of the individual is still maintained, but this very serious problem is dealt with. The public has a right to expect that Parliament will act in this way to protect them because there have been problems—serious problems—in the recent past and we simply cannot afford to not do anything about them. So I am afraid that I think that the Greens have gone too far in terms of the protection of human rights without taking into account extreme circumstances, and these would be extraordinary and extreme circumstances where a person would be subject to this sort of order. So New Zealand First will continue to support the bill for those reasons.

This part, Part 1, of the Public Safety (Public Protection Orders) Bill deals with—and, in fact, it is entitled—“Detention and supervision of persons posing very high risk of imminent serious sexual or violent offending”. Each of the words in that title is really important to the issue that we have under discussion. It is about people at very high risk, it is about people who, if released, will imminently undertake an offence, and it is about people who already have a track record of serious sexual or violent offending.

I want to refer to the definition of the word “imminent” because I think it is particularly important to what some people see as the rather extreme nature of the power that is being exercised here. “ ‘Imminent’, in relation to the commission of serious sexual or violent offences by a person, means that the person is expected to commit such an offence as soon as he or she has a suitable opportunity to do so”—that is what the word “imminent” means. As Minister of Justice, I dealt with cases like this. I had reports from psychologists and I had reports from people who worked within the system that if person A was to be released, on the way out of the prison, if an opportunity arose, that person was so driven that they would commit an offence, so we are not talking about the use of extreme powers in the cases of people where there might be a whole lot of alternatives in terms of how to deal with them.

It is about human rights, and I respect the viewpoint stated by the Greens about the right of a person who is given a determinate sentence and who is normally to be released at the conclusion of that sentence. That is the norm—that is what we would expect. But if a person is regarded as being of imminent risk of seriously offending against another innocent individual, then surely in this House we have to consider the human rights of those who are almost certainly going to be the victims of the individual released. We are not talking about using this powerful legislation against scores or hundreds of people. What the Justice and Electoral Committee was advised was that over a 10-year period, maybe there would be five people—five to 12 people—who would be encompassed by it. That is maybe one a year, or maybe one every 2 years. We are talking about extreme cases where the balance moves from the right of the person who has already committed a serious violent or sexual offence to be released at the end of their sentence. If they are certain to offend again, and that is the clinical judgment and the independent judicial judgment made about that individual, then in my mind the balance switches to protecting the likely victim of that individual. Freedom is a really important right, but it is not an absolute right. It is not an absolute right, as we know, because if you commit a serious criminal offence, you are jailed.

For some people who meet the criteria set out in this bill, it would have been better that they were sentenced to preventive detention. Preventive detention is an indeterminate sentence that says: “You will be locked up and kept locked up for as long as the safety of the community justifies that.” Maybe it would be better if the judge had had the foresight—and the judge cannot always have the foresight—to see that this person is of imminent risk of offending. Sometimes after a person has been in prison for a long period of time, they have changed. They are suitable to be rehabilitated and to be released. But sometimes, at the end of the sentence, the psychologists say that this person has not changed at all and is going to do exactly what they were imprisoned for doing in the first place, as soon as they get the opportunity to do so.

I said before that freedom is not an absolute right. We detain people under the Intellectual Disability (Compulsory Care and Rehabilitation) Act. If people do not have the intellectual capacity to be responsible for their actions and they are likely to harm themselves or others, we detain them. Nobody screams about human rights as long as the law operates under close supervision and tight constraints. We detain people under the Mental Health (Compulsory Assessment and Treatment) Act. Nobody says that it is an appalling breach of human rights that a mentally disordered person is detained under that Act. They are detained for their safety and for the safety of others. The argument that I would make in relation to my colleagues from the Green Party is that these cases are not actually, in essence, very much different from what I have just talked about. We dealt with the problem of people who had personality disorders. They are not under the definition of the Mental Health (Compulsory Assessment and Treatment) Act, but they are that category of people whom Jenny Shipley’s legislation released in the 1990s, and psychiatric nurse Neil Pugmire said that that would be a disaster for New Zealand. He was hounded out of his job but he was absolutely right because these were people who suffered both compulsive behaviour, inability to identify with their victims, and who would go out and offend again.

That is exactly the case that Neil Pugmire warned about. The offender will be dealt with under the companion piece of legislation here, the Parole (Extended Supervision Orders) Amendment Bill, but he could be dealt with under this legislation. So I say that although this legislation goes an incredible distance in saying that when a person has finished their sentence they can still be detained in a secure facility, there is good reason for that, as long as the law is clearly defining the persons concerned, a judge is making an independent and informed judgment about it, and the judge is relying on the professional advice of people who have had years and years to consider the nature of the individuals concerned.

The four principles set out in the bill are, I think, incredibly important. The public protection order is not imposed as a punishment. If this was designed to be a punishment we would be in breach of international human rights. This, by the way, did not, according to the Attorney-General’s office, breach the New Zealand Bill of Rights Act, because it is a civil regime. It says that a public protection order should be imposed only if the magnitude of the risk justifies it. I have outlined some of the circumstances as to how you might define that. It says that it should not be imposed if the offender is eligible to be held under mental health or intellectual disability legislation—I have equally covered that—and it says that people thus detained should have as much autonomy as possible.

The interesting thing is that under Part 1 of this bill there is a whole section that sets out the rights of these individuals. They are allowed to do things that people imprisoned would not normally be able to do in equivalent circumstances. They can earn money from their work, they have got the right to vote, they have got the right to recreational and cultural activities, the right to receive and send written communications, access to the media, and so on. I think what those rights demonstrate is that this regime is not a regime designed to punish. This is not a regime that is unfair; this is a regime that is premised on the need to protect the rest of society and its most vulnerable members from the activities of these individuals if released. So I find that I cannot agree with my Green colleagues’ minority view that this is disproportionate and excessive in relation to the level of threat to public safety that actually exists. I have been in the situation as a Minister in dealing with these cases and I regret to say that there is a real risk of safety. I have seen the consequences of what people have done because they cannot in any way have empathy with their victims. They do not understand the quality of their actions. A public protection order is a form of detention but it is not an imprisonment designed as a punishment.

The interesting thing about this bill—and maybe I will make this my last point—is that despite the fact that it keeps people in secure detention, it is not in breach of the New Zealand Bill of Rights Act. The next bill that we will examine as a Committee—the Parole (Extended Supervision Orders) Amendment Bill—actually allows people to be out in the community and monitored, but is in breach of the New Zealand Bill of Rights Act. You know, I think there is a discrepancy there. The form of detention that is less dramatic is in breach, and the one that is more dramatic is not in breach, but Labour supports this bill and this part.

I move, That the question be now put.

Thank you for allowing me to take a call on the Public Safety (Public Protection Orders) Bill. A little later on I hope to also speak on the Parole (Extended Supervision Orders) Amendment Bill, which is a bit of a compendium, I guess, of pieces of legislation designed to cover off various aspects of looking at our most serious offenders.

The main purpose of the bill that has been introduced is to empower the High Court to issue public protection orders that allow for the detention in a secure facility of people who have been through the prison system and who have come to the point where they are being released into the general public. However, due to non-compliance, perhaps, with their rehabilitation, and through stringent assessments, they still pose a risk of serious harm to the public. That is where, I believe, that in this bill—and my colleagues have already spoken about it—there is a very delicate balancing act between what we would consider to be issues under the New Zealand Bill of Rights Act and the paramountcy of keeping the general public safe.

We are talking about a very limited number of people who would be a party to these public protection orders and quite stringent measures to ensure that we have got it absolutely right in terms of those people who will be detained under these orders. We are talking about violent offenders and some very serious sexual offenders. These are the people for whom our prison system has not had the desired effect of rehabilitation, or perhaps those who have refused to take responsibility for their offending and who do, in that regard, pose a threat to the public.

I know that the Green Party members raised the issue of human rights and whether this legislation does actually breach the New Zealand Bill of Rights Act, and whether it is appropriate to continue to, in their words, detain a person for longer than the sentence prescribed by a court of law. I suppose that the basic principle of a decent and fair society is that we determine what is right and what is wrong, and we set the punishment accordingly. We have an expectation that those punishments are completed by offenders.

But what is very significant about this particular bill is that we are intending to protect the public from some very serious offending, so it is a balancing act. The bill is very prescribed in how a court will deal with a public protection order and in the criteria that we need to use to actually approve those public protection orders. The assessment needs to be done by at least two health professionals and it is weighted on the balance of probabilities that the offender poses a very high risk of serious sexual assault or serious reoffending.

That is a much different level of evidence required than if we were looking at a criminal court and looking at a different level of evidence, which is currently that under the Solicitor-General’s prosecution guidelines. So we are moving the jurisdiction from the criminal jurisdiction into the civil jurisdiction, through the High Court, and using the weight of evidence that we have through professional assessment to determine whether this individual will be at risk of reoffending.

I do have some questions though for the Minister around the process of rehabilitation for our serious offenders and what is being done to rehabilitate them, particularly our serious sexual offenders. I also have a question for the Minister about whether the New Zealand public can have confidence that other offenders going through the prison system are actually rehabilitated to the point where they no longer pose a risk to the public. There are some issues that concern me about our process for supporting offenders through our prison system so that we can be assured that when they are released—

I want to come back to some of the review processes that are being established around the public protection orders, particularly under clause 14 of Part 1. I do think the review process is important, given that, as has already been stipulated, this is a civil regime, which is a departure from the well-established principles within our justice system. Those were the points that were raised by the Greens.

Although I agree with the principle of what is being done here, with some significant caveats, I would be interested in whether the Minister Hekia Parata wanted to explore the difference between the use of preventive detention versus the orders that we are looking at today. Preventive detention is used internationally for an offender who has a potential risk, at the time of sentencing, of repeating their offence if they are not given an indeterminate sentence. So a judgment is made at the time by the judge that the seriousness of the offending and the nature of the offender are such that an indeterminate sentence needs to be used. But the threshold for that in New Zealand, as I understand it, is an offence punishable by no less than 5 years’ imprisonment. The standard in these sets of orders is 7 years, so that is a higher threshold test. So, actually, those who might be up for consideration for preventive detention could end up as the exact same offenders who end up being detained under public protection orders.

But the punishment is somewhat less for the public protection order, given the additional freedoms that are granted and given that it is a civil regime. Yet there are, I understand, currently, as of 30 June 2010, 719 prisoners serving indeterminate sentences. Compare that with some states in Australia: Victoria has 54 prisoners, Queensland has 350. Comparatively, we use preventive detention at what would seem like a relatively high rate. I would be interested if there were any other international comparisons. There are 719 uses of preventive detention, which has a slightly lower threshold, probably targeting the same group.

Preventive detention probably has a lower set of tests as well, because we are requiring a range of tests by psychologists, health assessments, and an ongoing monitoring regime by the courts on a yearly basis to ensure that that public protection order should still apply. Under preventive detention, a parole board can say it does not want to see you for 5 years, which is quite different from this regime.

It is interesting that we draw the line here to say that a public protection order would be a breach of human rights, but a preventive detention order, which is granted at a time when there has not been, say, a sentencing period to assess whether or not a prisoner is indeed an ongoing risk, is somehow a greater breach. I am sure that there are all sorts of reasons around our justice system that would determine why that is at the point of sentencing and so on, but when you actually just break it down, it is an interesting question to ask which one you could consider to be a greater breach of someone’s human rights: the decision at the beginning, for a sentence that would usually attract perhaps only 5 years, that says, actually, we are not going to tell you whether or not you are ever going to be released because we consider you that much of a risk, versus an individual who, after serving 7 years, is determined under a very high threshold to still be a risk and we determine that we will do a yearly ongoing monitoring at a lesser enforcement level—so not within the prison system but within a civil regime. I understand why they are obviously two different bars, but if you break it down like that, one might consider the issue somewhat differently.

Going back to the review process, which is set out in clause 14, it is an annual review. My question is whether at that annual review—and the Minister might like to clarify this; my apologies if it is contained in the bill—a full assessment will happen each and every time within that review process, which is set out in clause 14, because it did not seem quite clear to me whether it would. The initial assessment as to whether or not someone should have a public protection order apply to them is that they will have a report by a health assessor—at least two, separately prepared—

I move, That the question be now put.