Parole Amendment Bill

I move, That the Parole Amendment Bill be now read a second time.

First of all, I’d like to thank members for their contributions to this bill in their first reading speeches. I’ve listened to the views and I’d like to address some of the points people made. Firstly, around what members of the National Party said about why this is happening now and what happened since the High Court judgment. The timing is unfortunate that we are on the last day of Parliament, but the June decision meant that we needed to have something before the House rose for the election.

Because public safety is the paramount principle in the Corrections Act that governs all of the Department of Corrections’ actions, driven by this, since the High Court judgment, our officials have explored all possible options to respond to the judgment, including a thorough assessment of possible litigation strategies that are unlikely to be successful, but the officials had to look at all those particular options. Operational changes were deemed not to be feasible as Corrections would have to separate out the residential providers from the programme providers and that would just take too long to set up.

Given the impact of the judgment and the complexity of the matter, it took some time to work through not only the legal implications but also any potential operational solutions. Over the month of July, the implications of the decision became better understood. Following advice from experts on the intricacies of the judgment, it became clear that operational solutions were not viable and that the key public safety risk lay with the daytime programme conditions being unenforceable. What that means is that these people on extended supervision orders (ESOs) would basically have been free to wander in the community. These are people with the most heinous violations of people—in particular, there’s a number of child sex offenders and other sex offenders. We simply cannot risk having them free to wander around in the community.

If I think about the Green Party’s contribution, and I’m disappointed that they and the Māori Party are choosing to vote against this, I’d say that for us to take this through the whole process—you know, a proper process; not through urgency—it would have meant probably nine months of engagement to get to this point. That means nine months where people on extended supervision orders are free to wander around the community—and they are the worst offenders. Now, the notion was raised that maybe public protection orders—believe me, Corrections has applied for these people to be put on public protection orders, but the bar is so high that they have missed out despite the nature of their offending.

I really appreciated the contribution of Arena Williams when she said, “Is being rehabilitated in the places you reside actually a punishment?” So, looking at a typical timetable of one of the ESOs, they are supported to have walks in the community, to go shopping, to eat out in the community, to participate in things; but it’s all supported. They have quite a lot of free time. As Arena Williams asked, is it really actually a punishment for them to be supported in the programmes that they are supported to do? Is it detention, given that they get to go out shopping and participate in things in the community—they’re supported to do that sort of thing, so is it really detention? Is it punishment? I think that the majority of fair-minded New Zealanders would say, no, it isn’t.

So there have been some good contributions from around the House, but I consider that the amendments in the bill are necessary to enable Corrections to continue to manage these high-risk offenders in ways that provide them with wraparound support through a single-provider model. All we are talking about is the ESOs: if they reside at a certain place with certain providers, the High Court judgment says that they cannot receive the daytime support—their programme—from the same people. I think most people would say, “Isn’t that great to have 24-hour wraparound support where they can stay somewhere where they can actually be supported to engage out in the community?”

As I said in my first reading speech, using a single-provider model to deliver both the programme and the residence conditions for these high-risk offenders is a longstanding practice of Corrections. It ensures these offenders have wraparound support and supervision during their reintegration in a stable and structured environment. While the ESO regime was introduced in 2004, the part of the Parole Act that today’s bill seeks to amend was introduced in 2014. Section 107K(3)(bb)(ii) was not intended to affect this longstanding practice of using a single-provider model, and the wording of the Parole Act has done so inadvertently. Instead, this section was intended to avoid offenders being subject to daytime programme conditions that were, in fact, de facto residential restrictions.

We need to pass this bill to urgently ensure that Corrections can continue to enforce these high-risk offenders’ programme conditions, despite the June judgment, and can continue to impose these conditions in the future to support the reintegration of these offenders and to keep the public safe; in particular, to keep our children safe. I further believe that the bill should be progressed urgently to mitigate risks of formal challenges which would undermine the rehabilitation and reintegration of these high-risk offenders.

I’d like to take the opportunity to again address some of the points first raised at the first reading. Can I start by thanking the Hon Judith Collins for her contribution and by echoing her support for staff at Corrections who have dealt with an incredibly complex issue here. For example, because these are the most high-risk offenders currently able to live in the community, all have exhibited long-term patterns of serious sexual and/or violent offending, pose a real and ongoing risk of reoffending, and most have histories of child sex offending. Many also have significant or complex health challenges such as diagnosed disabilities, fetal alcohol spectrum disorder, schizophrenia, and personality disorders.

As the Hon Judith Collins said, corrections officers work with these people whom most people would never want to engage with. I think her speech answered some of the points raised by the Hon Paul Goldsmith in his contribution, in particular with regards to the timing of this bill today.

When this law was changed, the previous Government and Corrections were confident in their interpretation of the Act that the purpose of section 107K(3)(bb)(ii) allowed for offenders to reside with their programme provider. When the Parole Board sought a declaratory judgment, Corrections was therefore dealing with an incredibly complicated legal situation with outcomes that were incredibly difficult to predict. It is not generally good process to use an urgent amendment to try and pre-emptively override a potential court judgment, so Corrections found it appropriate to follow the legal court case and explain the historic interpretation of the section of the Act and the Government’s intent in amending it to read as it does.

As has been said this morning, the court case has now issued its judgment and this bill is here today to do what, as parliamentarians, is a core part of our role. For me, public safety, and especially the safety of children, must always remain our number one priority. So I thank the House for accepting the legislation today and we will pass it accordingly.

Also in response to the Hon Mark Mitchell, I would like to emphasise to him paragraph three of the legislative statement to ameliorate some of his concerns. There is a low number of affected offenders, but, due to the high-risk profiles of these offenders, Corrections and its contracted providers have continued the longstanding approach of managing these offenders through a singleprovider model since the June judgment. Corrections has continued to protect community safety since the judgment—in other words, whilst working through a very complex topic with the potential for significant unintended consequences if the wrong amendments were to be made.

I am running out of time, but turning to my colleague Golriz Ghahraman, I understand of course that this bill has intersections with the New Zealand Bill of Rights Act, as I outlined in my first reading speech. However, it remains my view that Parliament was right to legislate with this regime in 2014 and that upholding it today is appropriate, therefore, as well. These are serious offenders, as has been well canvassed, and we cannot ignore the public risk that would come from letting these conditions lapse.

The question is that the motion be agreed to.

Thank you, Madam Speaker. I want to thank the Minister for answering a number of questions that were raised in the first reading of this bill and I don’t want to elongate the process unnecessarily.

The alternative, which seems to be what the Greens are proposing, is that this very small group of serious repeat offenders, primarily sexual offenders—this group has been described as having a variety of very complex needs, including drug and alcohol addictions, physical and intellectual disabilities, and mental health challenges, and some of them show a lack of remorse and empathy; a very small group, 26 people currently. The alternative, I suppose, is that they’ve served their prison sentence and we should let them just go for it.

The problem with that is that there is an extremely high risk that they will create new victims. It’s a pretty hard call just to say that those people—the next victims of these people that can be very highly predicted to create those new victims—should just pay the price of a sort of strict reading of the human rights legislation. That’s why the House has taken the view that public safety should take pre-eminence, but it is why, also, the regime, as implied, requires frequent reviewing by the Parole Board to make sure that nothing more than is required is imposed on those people.

We can debate the human rights implications of it, but that, strictly speaking, is not really the issue of this legislation. The practice has been in place since 2004 around having people kept in overnight in one facility and having the programmes provided by the same provider in the same place during the day. So it’s really a simple question of whether that is legal or not. As we’ve seen, that has been challenged and, as a consequence of the judgment, the Parole Board is now bound to amend the affected conditions of those 26 people and may be required to remove the programme conditions where an offender residing with the provider is intended to be supported; that is put in jeopardy by no longer being lawful. The inability of Corrections to enforce the programme conditions means that that group of offenders could be out, as the Minister said, on the streets. We’re not prepared to take that risk. We’re not prepared to take that risk in terms of public safety, and that’s why we ultimately support this bill going through.

Yes, we can argue about the timing and we can argue why perhaps they could have had a plan B in place maybe to do it fractionally more quickly. Fortunately, it hasn’t come up in the two months since that judgment and public safety has been maintained. So, ultimately, we accept the need for this legislation and we support it. It’s pleasing to see that across most of the House there is a willingness to do what needs to be done in order to keep the people of New Zealand safe and we’ll support this bill from here on in. Thank you very much.

Thank you, Madam Speaker. I also wanted to address some of the concerns raised by my Green Party colleague in relation to this bill.

I spoke in the first reading about the national manager of high risk at the Department of Corrections noting that it was difficult to find acceptable housing. It was noted that she also said, at paragraph 17 of the declaratory judgment, “If the court were to find that single agency provider arrangements are immiscible, Corrections would need to consider making applications for the more restrictive PPOs in respect of some or all of those individuals.” I would say, firstly, that if you are subject to those public protection orders (PPOs), you’re, essentially, required to stay in secure facilities—prison-like facilities. So those people would be subject to far greater New Zealand Bill of Rights Act breaches, and I don’t think that’s justified—not while Parliament considers its position. I simply don’t.

As the Minister then pointed out, Corrections has actually applied for PPOs for some of these individuals, and they fall short. The Minister was pointing to the gap there. This is a bill that addresses a gap, by necessity.

The last thing I would say is that my view in relation to bills like this is that the word “review” is very important, and I do think that this is something that a future Parliament should turn its mind to. Several members have raised very important questions that this House ought to consider.

Finally, as this may be the last time I speak in this Parliament, for this term, I would just like to say that the Justice Committee, to whom this bill would have gone, has worked very collegially. I do think the speeches across the House today are showing that we take these matters very seriously. I commend this bill to the House.

In the spirit of the comments that were made by Vanushi Walters, the chair of the Justice Committee, can I acknowledge her and the outstanding work that she’s done leading that committee, and the other committee members that are in the House. This is not going to be my last speech in the House—because we do have to get this through urgency—but just following on from her comments, I do want to pick up on one of the comments that she made around public protection orders (PPOs).

Make no mistake that if there is a gap in the system, the public should not pick up the tab for that and they should not be exposed to that additional risk, especially when you are talking about the seriousness of the offending that these offenders have actually committed, which is, for most of them, sexual offending against kids. I’m sorry, but a PPO is absolutely appropriate, because we do not want to be playing Russian roulette—

Hon Kelvin Davis: The judge makes that decision, though.

Hon MARK MITCHELL: —with the safety of the—well, I’m addressing the issue that was raised by the chair of the committee, who said that it would be inappropriate, if there was a gap in the system, to apply a PPO to an offender, and I disagree with that. The Minister himself is still in the House and has laid out for us clearly how risky and how dangerous these offenders are, so it’s far better that they have a PPO and we know where they are and that we protect the community. That’s not what was put forward by the chair of the committee.

Hon Kelvin Davis: But the judges make those decisions.

Hon MARK MITCHELL: The other point that I want to make—sorry, what was that, Minister?

Hon Kelvin Davis: Yeah, I said I agree that judges make the decision on the PPOs.

Hon MARK MITCHELL: Yeah, OK—thank you. Thank you for clarifying that. The Minister agrees with the point that I just made.

I do want to acknowledge the Minister for seeking the advice from the High Court and at least getting this issue fixed. I do have an issue around the timing. I appreciate the fact that he has responded to the issue that I raised in my first reading speech, but I’ll still say that they should have been better organised.

Look, our front-line corrections officers are expected to respond immediately. They don’t have the luxury of sitting around for six weeks or two months to try and get something right. I feel that it would have been incumbent upon those that were responsible for getting those amendments done to have already done some of the work and already had that well down the track so that we didn’t expose and have that risk for two months waiting for this bill to come to the House.

But, on saying that, as we have said clearly, it’s important to get this through urgency. I support this bill.

I want to be crystal clear: the Department of Corrections has continued to protect public safety following the declaratory judgment. I want to join with the Minister Kelvin Davis in thanking those corrections officers who discharged their duty with nothing but dignity. They do such important work for our communities by making sure that public safety is upheld and by overseeing these programmes, which, ultimately, are rehabilitative, and which take people from a state where they cannot re-enter the community and continuously try to provide them with the care and the rehabilitation that they need.

Those corrections workers do not need the extra challenge of dealing with rules which are unclear. The best thing that this House can do now is to clarify the rules about how they are meant to continue to discharge that duty that they do for all of us with honour. That’s what this bill does, and I thank the Minister for his work in bringing it to the House.

Thank you, Madam Speaker. I rise on the second reading of the Parole Amendment Bill. I’d like to thank the Minister, the Hon Kelvin Davis, for clarifying how this bill came about. Clarity makes it much easier for people watching what’s happening to know exactly why we are pushing this bill through under urgency.

As I stated, I visited a facility that looks after daytime and night-time parolees, and, as the Minister stated, they are allowed to go out for walks and be part of a community and go shopping with supervision. These 27 that we are talking about, which this bill is going affect immediately, are, we know, a high risk to our children. Our children’s rights have to come first, over the New Zealand Bill of Rights Act. However, in this bill, in terms of the New Zealand Bill of Rights Act, we have a review every two years, so these parolees will be reassessed to see if their circumstances have changed. So we are trying to balance the rights of both those who we have to keep safe within our communities as well as these people who have offended, and, as stated earlier, they are high risk. They have mental health issues. We need to still be able to look after them for them to get that rehabilitation. We know that sometimes the rehabilitation will not work, but at least they are getting support, they are being assessed, and they are being looked after by people that know their circumstances.

We know that some of these parolees will be able to use their persuasiveness to persuade people that they are OK, but we need to know that those who are looking after them will be aware of what sort of persuasiveness these parolees try so they can push the boundaries to make themselves seem better than they are.

It’s a sad reality when mental health and intellectual disabilities are in place, and the thing is that we need to make sure that those with mental health issues and those who have intellectual disabilities are looked after a bit more. If we can identify their needs a little bit sooner, they may not go down this track of becoming the worst offenders in terms of sexual violence.

It has been a great honour in this last term to be able to stand up for the corrections officers that look after these people. It is quite sad that they also found that many times they have not been listened to. They put their lives on the line every day that they go to work; it’s the same with our front-line police. I take my hat off to those who deal with these types of offenders, because not everybody would want to do that.

And in terms of this order, as you read through it, there are about six sites around New Zealand. As many people say, they don’t want it in their backyard, but we do need to house them somewhere and our communities will have to be understanding. Communities need to be aware and to be brought along on any further offenders being put into their community.

As I said earlier in my first speech, in Christchurch a facility was to be put in and the public came together and said no, not in this area, because of where it was located, and that was totally understandable. There were many schools in the area, especially girls’ schools. So I understand that a lot of communities don’t want this measure, but primarily we’ve got to make sure that New Zealanders feel safe and that our children feel safe. Those who are mothers will understand that they become mama bears when it becomes vitally important for their children. I have not been fortunate to have a child myself, but I am a stepmother and am soon to be a step-grandmother, and I am looking forward to making sure that their safety and wellbeing is put first.

Again, as I stated, this measure is a breach of the New Zealand Bill of Rights Act. However, a review will be done every two years so that these people are being assessed and we’re making sure that their rights are not being eroded. So with that, I commend this bill to the House.

Thank you, Madam Speaker. Since we’re doing these speeches thick and fast, I will repeat some of the concerns but also respond to some of what I’ve heard in the House since.

The Green Party does oppose this bill. We don’t see the problem as having arisen moments ago, and the type of urgent approach that’s been taken by the Government, some of the these concerns were raised—well, the majority, actually, of the core concerns that came up in the June declarative judgment of the High Court were raised in a judicial review in 2016. We see this as having been a core issue raised some seven years ago, ignored by two different major party - led Governments. So to deal with these significant rights issues on the final day of the sitting of this Parliament in extended hours in one go is not acceptable, given what’s at stake, given that we’re not talking about some technical discrepancy—people have used the word “anomaly”. Actually, in the criminal justice system, the rights that have been raised as being breached are not anomalies at all; what is an anomaly is seeing a bill or a system that’s been in place that breaches so many of the New Zealand Bill of Rights Act rights being passed without examination in one morning.

So we have this House on notice that what we’re passing breaches six of the 30 fundamental rights contained in the New Zealand Bill of Rights Act—that’s one in five of the fundamental rights that are being breached. Normally, when the judicial branch of Government puts us on notice that rights are being breached, that isn’t a trigger for this House to pass urgent, unexamined legislation to make it legal for us to continue to breach those rights; normally, that’s a signal for us to come back, take the rights breaches seriously, hear from the community, hear from experts, and examine the law.

Now, I’ve heard one National Party speech that I find particularly offensive in terms of the mischaracterisation of the balance that the Green Party is talking about here. Of course we’re not talking about a balance of the rights of child victims of sexual offending as against the offender. It’s extremely offensive that that member, especially a lawyer, would suggest that. The balance of rights that have been raised with us here, as always, is the balance of the breach, the incursion on someone’s rights, as against what is necessary in a free and democratic society to uphold the interest that the bill is seeking to protect.

So the interest being public safety: do we need to impinge on a particular right in that particular way in order to uphold public safety? And that’s always the case. We always have to examine rights breaches in that way. It’s absolutely not the case that we get to invoke the name and the harm of child victims in order to justify anything we want to pass in this House, and, in particular, holding that balancing exercise of what is necessary in terms of rights breaches, as against any interests that we’re trying to protect—in this case, public safety. This is absolutely at the heart of a human rights - based system and always a careful assessment in justice lawmaking, because of course it’s in the criminal justice space that prejudice is always high. Sympathies rightly run deep, so to invoke the name of victims to justify rights breaches in an unexamined way, or to criticise anyone who wants to engage in that balancing exercise, which is necessary and our duty, is offensive.

So, coming back to this process, the process means that we won’t have that examination, that we will pass law just to make it legal to continue those rights breaches. We’ve heard repeatedly about some of the issues that the offenders that this bill will apply to have. We’ve heard the seriousness of their offending. We’ve heard that they are the most dangerous, but we’ve also heard that public protection orders will somehow not apply to them or that they won’t meet that standard. It’s not to say that public protection orders should always be utilised, but if we are really talking about the most dangerous offenders then I do have a question of why they aren’t quite dangerous enough for public protection orders.

I also have a question around why we won’t be implementing, for example, a sunset clause, which would have made this urgent and unexamined process that we’re running through here, if it is that urgent, more in line with what we normally want to see in a democratic system, which is to say, “OK, we quickly need to take care of this. We don’t want any unintended releases.”—we’ve also heard that this isn’t really detention, but of course a court found that it was—“but we will, in fact, examine the law.” What we, in fact, need to say in that law, and what we need to, in fact, empower Corrections to do, as against the rights that may or may not be breached in a proper legislative process later on—and we will necessitate that by building in a sunset clause here. That hasn’t happened either.

So this is a degradation of the way that we normally do things, and the law itself is a degradation of rights, and it’s been done in an entirely unexamined way. So we don’t commend it to the House.

Kia ora e te Mana Whakawā. Always a pleasure and privilege to stand and make a contribution, and this is the Parole Amendment Bill, second reading. This Government takes public safety and the integrity of the justice system seriously. I would like to acknowledge the victims and their families who unfortunately have to experience these offenders. As a registered social worker, I’d like to acknowledge all the probation officers and those who work in the field who continue to support rehabilitation to change these serious offenders. As we’ve heard, the bill amends the Act to clarify that offenders subject to an extended supervision order can reside with their programme provider at the provider’s residence. Again, this Government takes public safety and the integrity of the justice system seriously, and on that note, I commend the Parole Amendment Bill to the House. Mālō ‘aupito.

Chris Penk—five-minute call.

Thank you, Madam Speaker. It’s an interesting debate and an interesting week, indeed, in Parliament in relation to New Zealand Bill of Rights Act issues. I join with others, including the Minister the Hon Kelvin Davis, who have acknowledged the work that is done by corrections officers. Their work is difficult and dangerous, and these are non-trivial issues for us all to consider, not only, of course, in terms of the substance of the offending and risk to community but also, of course, in terms of the human rights of all concerned.

Obviously, the constitutional element, in terms of the court having made a ruling and Parliament deciding to respond to that, is interesting in itself. I won’t rehearse the ground that’s been traversed already by others in relation to those other issues, but I just acknowledge the Attorney-General’s report on the inconsistency, as he sees it, with the New Zealand Bill of Rights Act of this bill, and he identifies four different bases for that. One is the right of persons finally convicted not to be further punished—and we can have a discussion about whether there’s punishment involved in terms of the programmes—freedoms of movement and peaceful assembly, the right not to be arbitrarily detained, and the right to natural justice.

As other National Party members have already made pretty clear, we do support the Government not only in terms of making the bill but also having this truncated process, for the reasons that have been set out. So I will just make a couple of reflections on the fact that Parliament, rightly, must be able to declare its own intention in relation to bills, and if it’s the case historically that bills have been passed into law and the intention of Parliament at that time wasn’t clear to the courts, then it’s incumbent on Parliament—so Parliament has not only the right but the responsibility—to offer some clarification, and that’s what we’re doing here today.

I’m just trying to get my head around it. I’ve only seen the bill relatively recently, and likewise the Attorney General’s report, but I think what’s happening is not so much that the courts have said that the legislation is inconsistent with the New Zealand Bill of Rights Act—so it’s not that they’re making a declaration of inconsistency that we’re needing to respond to—but they’re interpreting it in a way that has a certain effect in the real world, albeit that’s one that they would regard as consistent with the New Zealand Bill of Rights Act. I know that’s pretty gnarly stuff and quite complicated, but I think it’s worth us saying for the record that it’s not that we are happy with the idea that we make law that’s inconsistent with the New Zealand Bill of Rights Act, albeit if there are sufficient policy justifications, then we can.

Lest anyone listening should think that we are totally blasé about New Zealand Bill of Rights Act (NZ BORA) issues, it’s that we ultimately reserve the right to make decisions that are appropriate for a democratic institution. Courts are not democratic, and if I say that, that’s not meant to sound dismissive or negative about them, but their great beauty is that they’re not democratically responsive. They shouldn’t be subject to the baying of the crowds, etc. But, then again, we in this place owe our position to responding to the needs and the desires of the community through elections, and so on. So I think our constitutional arrangements are pretty good in that way. It means that in this case we’re having discussions on Parliament working quite quickly to clarify its intention.

I will leave my remarks there, except only just to say, if I may, that I think it’s been a really interesting discussion about the idea of whether the conditions that are being imposed are in the nature of a punishment, as opposed to something that’s for the benefit of the offenders. I think that perhaps because these are mandatory and they’re imposed. In the language of the NZ BORA report, they do have a punitive nature in addition to being rehabilitative. But I think it’s probably fairer to characterise these as a continuation of the punishment that had already been imposed by the courts, rather than a separate and additional one. So, to my mind, it’s less of a double jeopardy - type situation and more of a matter of clarity in terms of the conditions on which a person may eventually be reintegrated into society. I join others on this side of the House and, indeed, the Minister and the Government in commending the bill to the House.

Thank you, Madam Speaker. It looks like I’m the last speaker on the Parole Amendment Bill. This is not an easy strike to balance. The heart of this is all about taking the public safety and the integrity of our justice system very, very seriously—and also, we respond to the recent High Court judgment. But the intent of this bill is to amend the Parole Act to clarify that offenders subjected to an extended supervision order who live in the community can now be required to live with their rehabilitation programme providers. It’s also all about taking the victim’s safety very seriously as well as protecting the offender’s human rights and dignity as stated in our bill of rights. We do so by providing them with structured and wraparound support to minimise the risk of reoffending—because we are talking about some of the worst offenders, so this bill is timely. Without further ado, I commend this bill to the House.

Bill read a second time.

According to a determination of the Business Committee, the bill is set down for committee stage immediately. I declare the House in committee for consideration of the bill.

In Committee

Parts 1 and 2, the Schedule, and clauses 1 to 3