Rights for Victims of Insane Offenders Bill

Members, we now come to Part 4, which is the debate on clauses 14 to 15A and Schedule 4, amendments to the Victims’ Rights Act 2002. The question is that Part 4 stand part.

Thank you very much, Madam Chair. I just want to seek clarity—under Part 4, there’s also Part 2A. Is that taken as a separate part, or is it able to raise a question to the member in charge of the bill in relation to Part 2A?

CHAIRPERSON (Hon Jacqui Dean): Oh, I see. My understanding is that it is only Part 4 that is being amended.

Thank you very much, Madam Chair. The point I wish to reach is under the next section, so under Part 2A.

CHAIRPERSON (Hon Jacqui Dean): All right. So Part 2A is part of the bill which is being inserted by the passing of Part 4.

Right. I understand. Great. Thank you very much, Madam Chair. I’d like to make a brief contribution, and interested in the member in the chair’s views, because I think one of the most important changes to the bill is contained within that section, which relates to victim impact statements. So the Justice Committee has recommended amending the Victims’ Rights Act to allow victims of insane offenders the opportunity to make victim impact statements. In some ways, I guess, it’s unbelievable that this has not been made available in the past, that that right has not been taking place when there have been people who are accused who are unfit to stand trial or insane without having the requisite mens rea for the crime that’s been alleged.

So these statements will be parallel to those that already exist for victims of sane offenders, and will accordingly take place at the disposition hearing, which will take place after the offender has been found guilty or, in this case, proven to have committed the offence. I think it’s really important to note in this space that the victim impact statement will not be used to inform any clinical or judicial decision about the fitness of a person to stand trial. So just as it operates for those victims of offenders who are sane, this gives that right to the victim to be able to have their voice heard in the courtroom, to tell their part of the story, and for that voice to be conveyed clearly. That’s incredibly important in restoring the rights of victims in this space.

This change specifically reflects the submissions of 13 submitters who came before the committee and provided their views, including individual victims, and also a submission that was an excellent one from the New Zealand Council of Victim Support Groups. So I’m just interested to know from the member where this idea generated from. I think it’s been something that’s very, very loudly spoken through the submissions process, and it’s good to be able to see that right from the outset that this bill has attempted to provide a parallel process or a parallel ability for those victims of insane offenders to have the same rights and voice as anybody else going through the criminal justice system.

💬 Dr Emily Henderson: Madam Chair.

CHAIRPERSON (Adrian Rurawhe): Mr Chair.

💬 Dr Emily Henderson: Mr Chair—Mr Chair.

CHAIRPERSON (Adrian Rurawhe): Emily Henderson.

I thank you for your forbearance in the matter of gender pronouns. I know these things are very important these days. I often think with my teenagers that, you know, we were brought up to believe it didn’t matter who you were and whether you were a man or woman or gay, straight, or whatever. But for the generation today, it really matters, so you get told off when you get the wrong pronouns now, and I am having to learn it is important. We have evolved.

Right, I do want to just pick up on what Ginny Andersen’s just been saying, because I do think that this is something where it’s really important for those who will want to dig into this bill and want to investigate it because it is actually very significant philosophically to dig into that victim impact statement further. So I just want to go back: the Victims’ Rights Act, which introduced victim impact statements back in, I think, 2003, possibly 2002. I’ll just double check that—it’s 2002. That was a step change for the criminal system.

It brings with it—for those who don’t know, a victim impact statement, the traditional process or the normal process is that once the person is found guilty, when I was a prosecutor many years ago in Whangārei, the victim’s advisor would then work with the victim, who had now gone from being a complainant to a victim, and they would come up with a statement, and the statement had to be quite carefully worded. You weren’t allowed invective. You weren’t allowed to be needlessly abusive. You had to keep your submission within bounds. And if the person did not do that, then the judge was directed to pay no attention to those parts of that statement. There were then a series of processes for the delivery of that statement where the person could appear in court. But some victims are not capable of standing and addressing a courtroom. We did allow some victims to speak via CCTV, and all of those sorts of provisions were quite crucial. But we also allowed other people to read them, and when you read the newspaper. you’ll often see the victim’s advisor delivered so-and-so’s statement.

So that’s what we invented back in 2002, but when we brought it in today, when we were looking for it, and Ms Upston will remember—when we were looking at this quite vital part of the rights of personhood of a victim in this context, because that’s what it is, it’s not just about the usefulness of the statement, because that is the cloak we’ve kind of put over it, but really; it’s an assertion of the rights of personhood of the victim. It was difficult to find where we would put it, because the excuse for getting a victim in to give a statement normally is that it’s going to be useful to the sentencing process. We don’t have a sentencing process here. We had no room to play with. We had to, essentially, invent an option that the victim would be there at the disposition hearing when the decision is made that the person be committed for treatment. And that in itself has always seemed to me really quite significant and a bold move by the member in writing this bill. It recognised that final piece of the puzzle or that—it’s not the final piece of the puzzle; the middle piece of the puzzle, which is allowing them the right to stand and have their say in a courtroom that they otherwise do not have, pretty much unmediated provided they stayed within those bounds of civility. I would like the member to discuss why that was important to her from the beginning and to people who were the victims who came to her for representation in this matter.

That would be one thing I would really appreciate hearing on, and I think we all would. I think this is going to be something where academics are going to drill. Academics are going to have a field day with this bill because it is that significant. I certainly would, were I still in the ivory towers rather than the wooden building with the faux Grecian—lovely Grecian!—columns.

Thank you, Mr Chair, for an opportunity to speak to this fourth part on victim impacts statements. I think, for those members who aren’t fortunate enough to be on the Justice Committee, you’re getting a taste today of the level of detail with which we went through this bill but also how seriously we took this issue. And I spoke earlier tonight about the overlap between the justice and the health policy space, which I think is also a question about this part of the bill. But that conflict or that overlap was also present when we considered operational matters as well.

I didn’t take a second call on the last section, but one of the interesting questions that was raised there was procedurally, operationally what happens when a patient commits an offence while they’re out on leave? And what are the operational connections between justice and health that ensure that that data is captured and quick steps are taken? So, again, I would make the point that we need to be actively considering the interaction between the health and the justice space.

So in relation to the changes that are made here, this absolutely sits in that point of tension space in terms of giving victims a right to have their say, but also questioning, really, the impact that has on a relevant decision-maker, particularly in the health space, and what impact it should have. But this part of the bill isn’t just about the provision of the victim’s views, which we do have at clauses 14I and 14J; it’s also direction to judicial officers not to take into account withheld parts. So, again, you see that really fine approach to balancing of rights.

I would also point out a significant section, which I know is important for many of those who we heard from. And that is 13A, which is, really, the notice for victims or persons or offenders subject to mental health or intellectual disability of care. It’s the right to be notified of a person or offender’s designation. What we heard from a number of people who submitted to the select committee was a sense of fear about offenders being out in public. But I would also say, equally—as much a sense of anxiety about not knowing what was happening. And, again, the Chief Victims Advisor puts this really well when she describes interviewing victims, and she says they describe this feeling of being sort of in limbo and really being unheard and unseen. And so I do think that this is a really significant piece of the bill.

Then, perhaps, my question—as we’re nearing the ends of the parts of the bill—as well for the member is just reflecting on pace of change. I think there are a number of pieces of legislation that are upcoming in the House, including the safe areas bill at some stage, where we’ve seen moves from the likes of Australia in those areas before New Zealand has gone into those areas ourselves. I know that there have been moves in New South Wales to review their legislation in this space. I also know that Canada have made an attempt to change the verdict requirements. And the question is really: have the changes that have been made across all parts of this bill done justice to the pace of change internationally? Are we keeping up with our neighbours across the Ditch? Are we keeping up with like jurisdictions—for example, Canada—but also the most recent research in terms of the experience of victims and the experience and also the rights of patients who are in the care of mental health facilities as well?

Thank you, Mr Chair. For many people listening to this committee of the whole House, they will realise that the amendments to the Victims’ Rights Act are probably the most critical in terms of achieving the policy intent of this bill.

One of the questions that was asked before, about the introduction of the victim impact statements—and, again, standing in the shoes of a victim: that they are a victim of a crime through no fault of their own, and so many of them have no or very little understanding of the justice system, and definitely, probably, less of the health system around mental health. As we as a country have progressed the rights of victims, one of the areas that has become more and more important for—and “closure”, in this instance, just sounds trite, but I can’t think of a better word. The ability of the victim to give a victim impact statement in court is a really important part of the process for them to resolve some of the trauma that they have dealt with by the very nature of being a victim. That trauma exists whether you are a victim of a sane person or an insane person. So these amendments in Part 4 provide more of that equivalence between the health and justice system that we talked about before, but very much in the ability of a victim to get some form of closure or to get to the next stage of their grief and trauma.

But the other part, when the member refers to new section 30A, inserted by clause 14O, that, I think, is important to put on record—because in the submissions from victims, there was not one that had ill-feeling or blame or hatred or anything for the special patient. In fact, it was in many cases quite the opposite. There was deep concern by the victim about the ability of the special patient to recover. And I think that’s a really important part of this particular clause with new section 30A, because the victim wants to know: is that special patient getting treatment? Are they being supported on their journey back to their community and their family? Because to many of them, it felt like a black box: there was a special patient, they were found not guilty on account of insanity, and then the victim heard zero about what happened to that special patient. I was really moved by the submitters and their very generosity and need for them to understand and be kept informed in some way, shape, or form of what happened to the special patient.

I move, That the question be now put.

The question is that the Hon Louise Upston’s amendment to Part 4 set out on Supplementary Order Paper 98 be agreed to.

Amendment agreed to.

The question is that Part 4, as amended, stand part.

Part 4, as amended, agreed to.

Part 5 Consequential amendments to other enactments, and Schedule 5