Goff Phil: Public Safety (Public Protection Orders) Bill — In CommitteeText is incorporated into the Bound VolumeGoff Phil: Public Safety (Public Protection Orders) Bill — In Committee[Sitting date: 02 December 2014. Volume:702;Page:1006. Text is incorporated into the Bound Volume.]Hon PHIL GOFF (Labour—Mt Roskill):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.