Victims’ Orders Against Violent Offenders Bill — In CommitteeText is incorporated into the Bound VolumeVictims’ Orders Against Violent Offenders Bill — In Committee[Sitting date: 16 April 2014. Volume:698;Page:17373. Text is incorporated into the Bound Volume.]Victims’ Orders Against Violent Offenders BillIn CommitteePart 1 Preliminary provisionsHon PHIL GOFF (Labour—Mt Roskill): It is a night for it. This is Part 1 and the most important clause in Part 1 is the purpose clause 3 which acknowledges the ongoing serious effects of serious violent offending for victims and of course everybody in the House would acknowledge that as a matter that we need to address. Secondly it empowers the court on an application by the victim to make a non-contact order prohibiting the offender from having any form of contact with the victim. Both of those goals are worthy of support and the Labour Opposition has supported the first reading of the Victim’s Orders Against Violent Offenders Bill. But in the first readingof the bill we made it very clear that there were some fundamental flaws in the bill that needed to be addressed by the Law and Order Committee.The first flaw was a huge flaw. It said that you could make an application for a non-contact order as long as the person who had for example raped you had been sentenced to 5 years’ imprisonment or more. If however that person had been sentenced to only 4½ years’ imprisonment you got no protection under this bill. Mr Chairman you are the member of Parliament for Invercargill so you will be familiar with the case that led to this legislation being introduced. It is worth mentioning to the Committee that the gap in the system was highlighted by the case of an unfortunate young woman who had been raped and the offender had been sentenced. The offender had been sentenced to 4 years’ imprisonment. That offender having served the period of the prison sentence he was required to then moved in next door to his victim. Can you imagine how that young woman felt about that—to wake up every morning knowing that you are likely to confront in the street outside your own home the person who had been jailed for raping you? That was not a fair go and there was nothing that that woman could do about the situation that she was placed in. There was a clear gap in the system.I asked in the first reading and raised in the select committee—and I think Kate Wilkinson raised the same question actually in the first reading—the question of why there should ever be a threshold set at 5 years. Where did the figure come from? I suspected that it was an arbitrary figure and I think the evidence is that it was totally arbitrary. Then the select committee listening to the submission that Labour made on this said: “OK let’s lower it to 3 years”. I said “Three years fine. Where does that figure come from?” and there was no answer. That too was an arbitrary figure.Thinking back to the Sentencing Act and the Parole Act which I had been Minister of Justice for in 2002 I thought that well in the Parole Act there is a threshold level of 2 years that differentiates a less serious from a more serious offence. How does it differentiate it? For example if the sentence is more than 2 years the person will then come before the Parole Board before they can be released. There was a threshold that was already established in law. If you are sentenced to more than 2 years you are likely to be on the victim notification register. So it seemed to the Labour Party that we needed a threshold of 2 years not 5 years. The Minister of Justice who introduced this bill was saying that 5 years was going to solve it. The rhetoric was flourishing in the House about how important this was but when the Minister was confronted with the fact that the legislation did not help the very person whose case had sparked the need for the legislation basically she had nowhere to go.So I am happy to report back to the Committee that what we did in the select committee on the instigation of the Labour Party in reducing that threshold to 2 years makes a big change. The size of the change can be seen from the information that we elicited on it. At a threshold of 5 years this non-contact order was estimated to affect 10 people a year—10 people a year. I do not have the figures for the number of people who have been the victim of sexual violation each year but it would run into the hundreds or maybe even more—maybe into the thousands. The legislation as the National Government introduced it was plainly inadequate but that aspect of the legislation has now been repaired in the bill as reported back. To that extent this is a better piece of legislation. It was a victory for the Labour Party but most important it was a victory for common sense.The second thing that we were concerned about with the bill as introduced by the Minister was that you could not apply for a non-contact order until after the inmate had finished his or her sentence and had been released. Before the select committee we heard evidence from people who had been victims of efforts by the offender to contact them from within the prison walls. Minister Borrows the Department of Correctionsshould have dealt with that—it should have dealt with that—but this bill would have provided another protection if a non-contact order had been available for the victim. But even more important there was clearly the difficulty that when the person was released and before the victim could get a non-contact order there was going to be a space of time when the victim might be confronted with that offender either close to where he or she lived or where he or she worked.It made sense to us in the Labour Party that the non-contact order should be available not from the time of the release of the inmate into the community but from the time of sentencing the inmate to the prison sentence in the first instance. Again it was a victory for Labour and a victory for common sense that we were able to get that change. So in two really important ways this legislation as reported back to the House has been strengthened and it better meets the purpose set out in clause 3 of this bill.On the third issue I have got to give some credit for it to the New Zealand First Party as well as the Labour Party. That is the question of where the offender used a surrogate to apply pressure to his victim—where the offender approached a third party and said “I want you to contact this woman and say such and such.” We needed to have a way in which a non-contact order could be made to apply in those circumstances to a third party. You have to be careful in the way that you do that and we have set certain standards that have to be reached before a non-contact order can be applied. One is that the offender must have asked the third party to take this action involving the victim; secondly the third party must have acted on that instruction or request; and thirdly that must have affected in a negative way the victim and you could well see why it would affect the victim negatively. So the third change we were able to get was that a non-contact order can apply to a third party and that is also sensible.The last point that I really want to make is on the question that still worries me a little. It is that to get a non-contact order the victim has to file an application in the civil court. What worried me—and I know that when Andrew Little spoke on this at the introduction he expressed concern about it as well—is what cost does that impose on the victim that might be unfair? Will there for example be a filing fee for a non-contact order? That is a question that perhaps you could just clarify Minister Borrows. I do not think we have had an answer on that. If you could get an answer from the officials that would be very helpful.The second question is whether the victim will have to secure the services of a lawyer in order to get the non-contact order. We were told that basically the victim could file that order themselves but there may be cases in which legal assistance would be necessary. If that is the case Minister my second question is this. Will there be legal aid available to the victim in every case in order to secure necessary protection through a non-contact order? Or will there be cases where the victim—usually herself—has to go to some expense in order to get protection against the offender? I think it is really important that we try to eliminate costs that might be imposed on the victim. The victim did not ask to be a victim. This is a way of providing protection for the victim but I would hate to think that there were victims who were discouraged from seeking a non-contact order because there were financial barriers in the way of their getting that assistance. I hope you have got both of those questions Minister. I know that in the last bill you made a real effort to answer those questions and I would appreciate you addressing those two questions.I want to finish with this. This bill is a better bill because the proposals made by the Labour Party were adopted by the select committee. I thank the select committee for agreeing to that. I even thank the Minister for agreeing to that.DENIS O’ROURKE (NZ First): This Victims’ Orders Against Violent Offenders Bill is one of a number of moves needed to improve the rights of victims and to support them where they have been subjected to violence. Fear and anxiety about unwanted contact with the offender can be as bad as the offence itself and can impair the recovery and ability to enjoy a normal life. In this Part 1 debate I wish to comment only briefly on clause 5. Clause 5 defines a violent offender as a person who “has been convicted of a violent offence that affected the victim; and has been sentenced to a term of imprisonment of more than 2 years …”. In the bill as introduced this was 5 years or more and we regarded that as narrowing the field down far too much. I think that is what other parties have concluded as well. Instead of requiring sentencing to a period of 5 years or more I suggested at that stage that it would be more appropriate instead to require sentencing only of offences punishable by 5 years’ imprisonment or more. That would have broadened the scope of legislation to capture offenders whose sentences were less than 5 years but who had committed an offence serious enough to enable a court to sentence them for 5 years or more.The Law and Order Committee has now instead amended the definition to “more than 2 years”. That of course is the other way that would substantially widen the offences to which the section would be applicable. I agree with what the Hon Phil Goff said about that. The offences to which it would have applied were far too few; the scope was far too narrow. What is being done now although my own suggestion was not adopted is sensible and acceptable to New Zealand First. After all if the offence was so serious as to attract a significant imprisonment term at all then the victim should be able to use this new law. It is another step forward for victims and it deserves our full support. We support what is being done. Even though it was not New Zealand First’s own particular suggestion that was adopted it has the same effect and therefore we feel able to support that particular provision in Part 1 which we had been previously concerned about.RAYMOND HUO (Labour): The Victims’ Orders Against Violent Offenders Bill aims to stop violent and sexual offenders from living and working near their victims. The change has been prompted by a specific case where an offender who was jailed for rape in 2004 lived upon his release in 2011 next door to his victim. Police at that time had no power to force him to move away. So there is obviously a gap in the protection available to victims of serious violent and sexual crime.I would like to take this opportunity to thank the submitters and I would like to draw the attention of the Committee to the concerns raised by the National Council of Women of New Zealand. In its submission it expressed concerns that the reference to physical injury was too narrow. It was suggested that the definition should include references to suffering mental torment torture mental and psychological harm emotional injury and traumatic stress. It is also suggested that the definition should include close family members of the victim if they have suffered physiological or psychological trauma because of the violence suffered by the direct victim.A number of the submitters raised very valid points and also questioned the bill being limited to violent offences that incurred a term of imprisonment of 5 years or more. As stated by the Hon Phil Goff in his earlier contributions that has been reduced to 2 years by the Law and Order Committee. I commend the select committee for listening to the victims and listening to the submitters. Some respondents from Rural Women New Zealand were concerned that in rural semi-rural or smaller urban areas it is not always practical for the order to be made available to the police station nearest to where the victim resides.The Law Society also recommended a number of minor changes to the proposals in this bill. The first was that the term “violent offence” as defined in clause 4 and as usedthroughout the bill should be replaced with the term “serious violent offence” as that term is used in section 86A of the Sentencing Act 2002 and is identically defined. Secondly clause 17 requires information on non-contact orders including the making varying and discharging of a non-contact order to be made available to the police. Clause 17(3)(c) allows for the order to be sent by ordinary post. Given the important consequences that can flow from the breach of an order a more reliable method of informing police should be used. The Law Society believed that the mechanisms in paragraphs (a) and (b) seemed appropriate but that if the postal service was to be used then the documents should be sent by a traceable method. Thank you.Hon MARYAN STREET (Labour): I take a short call on the first part of the Victims’ Orders Against Violent Offenders Bill. Every now and then we pass pieces of legislation here that have the potential to have a really dramatic and worthwhile impact on people’s lives. I just want to go back to the original purpose of the bill as was stated in I think the Bills Digest actually. The essential purpose was that the bill “provides that a victim may apply to a District Court for a non-contact order in respect of a violent offender and that an application may be made at any time after the offender is released from prison. However a victim may not apply for a non-contact order if there is in force a protection order against the offender under the Domestic Violence Act … or a restraining order against the offender under the Harassment Act …”. This really touches on the lives of many women and I just want to draw the Committee’s attention to them for a moment.In Nelson we have seen an increase in the instances of violent crime. In the latest statistics that were released recently there was much cause for celebration as crime statistics were going down but not sexual or violent offending statistics. Whether that is a function of more women being prepared to report violent crimes against them and sexual offences against them whether it is in fact a greater level of assiduousness on the part of the police who are very committed to bringing perpetrators of sexual and violent offences to book or whether it is that there are indeed more offences occurring and there is more crime in this area nobody is entirely sure. So out of those three possible reasons nobody has sufficient evidence to say which is the dominant contributing factor. Are more crimes happening are we reporting them more or are the police better at dealing with and resolving these crimes?I think the prospect of having somebody who has violently and sexually assaulted a person be released from prison and wash up in close proximity either to where the victim works or lives is arevictimising of the victim. Hopefully and I believe that it will this bill will address that issue and will give—and it is women I think of in particular. Before anybody gets up and says that males are victims too I know that but predominantly it is women. And to the women whom I talk to who work with women’s centres sexual abuse counselling services Rape Crisis and all of those chronically underfunded bodies that are out there in the community trying to assist women to cobble together again the fractured parts of their lives I want to say that this bill will help; it will provide some protection from therevictimising that can happen in these instances. The case in Invercargill has been the one that has had attention drawn to it in particular but it is not the only one. Sometimes it does take a ghastly case of that nature before Parliament moves to take action and repair the wrong and fill the gap that exists in the legislation and the legislation’s authority.One of the things that I particularly approve of in this bill—I was not a member of the Law and Order Committee which this bill came to and nor did I hear the submissions—but one of the things that I think is a positive outcome is that “victim” is defined in a way that I trust is consistent with legislation we have been debating just in the last hour and a half. The victim is a person against whom a violent offence iscommitted by another person is a parent or legal guardian of a child or a young person who has had an offence committed against them or is a member of the immediate family of a person who has had that violence perpetrated upon them. There is a caveat in that definition of course that says that obviously if the parent legal guardian or family member is in fact the one charged with such offences then clearly they are not the victim in this instance. But it is good to see that there is a recognition that the shock waves of these sorts of crimes go through families and remain in place for a long time. And it takes a long time to recover to regain and repair a fractured life and to begin to approach the world again as a whole person. Having family and the impact on them recognised as well—with the proviso of course that they are not the perpetrators—is a useful supportive device.I will take another call later on other parts of the bill but as far as Part 1 up to the end of clause 6 is concerned I think those are the most significant points. Thank you.Hon CHESTER BORROWS (Associate Minister of Justice): I would like to congratulate the way the Law and Order Committee and speakers have engaged in this debate and have moved the Victims’ Orders Against Violent Offenders Bill through the process of the select committee. Comments made earlier by the Hon Phil Goff that indicated that both sides of the House—he singled out the Hon Kate Wilkinson as somebody who had been part of it. It is great to see that sort of across-House debate.I guess that as much as I endorse fully the comments of the previous speaker the Hon Maryan Street I think it is important to acknowledge that there is a whole swathe of victims who will not be covered by this legislation here. What we know is that only about one in 10—and I would sort of tag on to the back of that “if that”—female rape victims report a rape and what we know is that only about 33 percent of all rapes taken to court actually result in a conviction. So if we accept those rules of thumb—and I think we are probably being generous in the amount being reported—only about 0.3 percent of those people who are victims of rape those female victims of rape will actually be covered by this piece of legislation. So the challenge before this House is to have a reporting system an investigation system a prosecution system and a sentencing system that actually encourage people to report crime because it is specifically these matters that very rarely get reported.It would be interesting to know—and I do not know of any work that has been done on it—how many rape victims who having reported the rape against them to the police and having gone through this process actually would ever go on to report a second rape. I know a lot of rape victims and I cannot think of any who having been through the process said that they would go through the process a second time.I want to just also explain to the Committee or acknowledge the hell of a long way we have come in respect of the investigation and the reporting and so forth of rape crime. When I first became a detective I was operating under the old detectives manual. The Committee would be absolutely astonished at the advice it gave to young detectives in those days about being very suspicious about females who complain of rape and that they largely put themselves in a position where it is brought upon them by the clothing they wear or where they are late at night and all those sorts of things. That was not rewritten till 1985. Prior to 1985 it was not an offence to rape your wife for instance. Prior to 1985 what we would call rape with an implement was only an indecent assault and did not even amount to a sexual violation. That offence came into force only in 1985.I remember investigating a rape in Nelson in about 1980 I guess—and this goes back to the comment made by the Hon Phil Goff and thankfully I do not think this would ever happen today. Two young men had given a girl a ride home from a party. She was the worse for alcohol and probably so were they. They drove her up the Maitai Valley.They both raped her twice. I remember the case well because I got in trouble for unlawful detection and made a bit of case law—if you ever want go and have a look at it. In any event we arrested the two men. One of them got 3 years’ imprisonment for rape and one of them got 9 months’ periodic detention for rape. Thankfully we see now that there is pretty much a minimum tariff for rape of about 8 years and a 20-year maximum so I do not think you would ever find somebody convicted of rape getting a 2-year sentence these days let alone a 5-year sentence. I would like to think so in any event.So I just acknowledge that it was important to move that threshold down to 2 years. Also the change that was made so that the application can be made on sentence or any time after sentence rather than release is important. But again I just acknowledge that there are a whole lot of victims here who will not be captured by this because there was not a conviction there was not even a report and in male rape I suggest that the figures are even less than 1 in 10.It is important that the protection was extended to surrogates because people who are involved in family violence crimes against family members and particularly sexual crimes are in a class of people who are very good at manipulation. They are also very good at getting people to do things for them and that would include using surrogates to contact victims.There were a couple of points that were raised by the Hon Phil Goff. One of them related to whether there was going to be a filing fee in respect of this. I can assure the Committee that the District Courts Fees Regulations 2009 will be amended to ensure that there is no filing fee. What does filing entail? Filing entails filling in a form similar to what we do now in an application for a protection order. Most people would be able to do it without legal advice. If there was a need for legal advice an application for legal aid could be made in any particular way but I would suggest that people—friends and supporters of a victim agencies such as Women’s Refuge or Victim Support or the police themselves—would be in a position to be able to assist anybody filling in the forms which would amount to making an application under this legislation. Legal aid could be available if that was required in the normal circumstances. In any event making or filing an application amounts to completing a form. I know that some forms can be relatively complicated but I also am sure that those people who need to fill in that form would be able to do so with the assistance of the agency if they chose to do that their friends or supporters or the people who are behind the court counter ready to receive the application.The point was made by the member Raymond Huo about whether these services were available around the country and whether for instance the police would be able to access an order once it was made. The way in which the police are currently resourced particularly electronically would mean that a simple check on the name of either the offender or the victim would be able to easily identify whether there was such an order in place.I just want to reassure the Committee given the comments and the questions that were raised that I believe that the bill goes a long way towards settling a number of issues. An aside was made by the member about the resources of Women’s Refuge. I understand the challenges of resourcing these social agencies but in the end we are talking about filling in a form. I do not think that that would suck up a whole lot of resource from an agency charged with and taking on the vocation of helping and supporting the needs of vulnerable people. I will leave it there but I hope that I have covered the questions outlined by those.JAN LOGIE (Green):Tēnā koe Mr Chair. I cannot help but rise in response to the Associate Minister of Justice’s speech. Thank you Minister for acknowledging thevery low conviction rate we have for sexual violence in New Zealand. I would like to acknowledge that it is the most conversational I have seen the Committee and I think it is the character of the Minister in the chair and I appreciate it.Hon Phil Goff: He’d make a good Minister of Justice wouldn’t he?JAN LOGIE: Yes he would.Hon Phil Goff: And he could recognise a conflict of interest and be honest about it.JAN LOGIE: Well I am not going to go there Mr Goff. I am going to stick to the positive issues at the moment. I do want to acknowledge the Minister for acknowledging that low conviction rate and the low reporting rate. I want to pick up on that point and recognise that this bill is part of a much wider piece of work and thinking which we need to be doing as a country in terms of what we need to do to improve reporting rates and disclosure rates.I would note the Law Commission’s work which hundreds of New Zealanders submitted on on this very point around how we could change our pre-trial systems and trial systems to improve the conviction rate—and my utter utter disappointment in that being taken off the work agenda for the Law Commission before it was able to be completed and after hundreds of New Zealanders had submitted ideas. There were very high levels of agreement around some of the points and recommendations within that report—for example having the victims’ support workers being available to victims when they first disclose at the police station rather than just on the day of the trial and to have advice and to have an agency brought in so that a victim is aware of their options at that first stage. There is a whole range of things in that commission report that would provide us with a pathway to improving those reporting rates. When we are looking only at answers like the Victims’ Orders Against Violent Offenders Bill which are important but are after the fact I think we are not doing our best.I think we can certainly do a lot better and we have been hearing through the Inquiry into the Funding of Specialist Sexual Violence Social Services which again I thank all parties in this House for supporting. A number of those services have been bringing up concerns regarding the justice process. How harrowing that is the need for support systems and for them to be funded to walk through that process with survivors—they do not have that capacity at the moment—and to be able to be there with people afterwards. So we do have a lot of work to do in this country and this bill is a very small part of the puzzle. That is not to dismiss anything that is positive. We have got to support all of the positive initiatives but really it would be great to have a far more comprehensive view where we could all come together based on the best evidence and the community’s experiences and really really get a handle on changing our culture and making sure that all the victims and survivors are properly supported.Part 1 agreed to.Part 2 Non-contact ordersANDREW LITTLE (Labour): This Victims’ Orders Against Violent Offenders Bill as other members have said in the earlier parts of the debate is a very important piece of legislation addressing yet another small but significant gap in the growing raft of protections that we have in place for victims of crime—in this case victims of very serious crimes. Indeed the cases where we know that this bill had it been in place earlier would have had some effect are harrowing and distressing cases. These are cases where an offender usuallysociopathological in nature not content with the violence they have inflicted upon their victim some time afterwards wants to carry on victimising the victim sheeting home the terror that they inflict upon them and continue to remain in contact or in close proximity to them. So this bill provides a very important device that will protect those victims in the way that we already haveprotection orders in domestic violence cases—for those who are victims of that type of offending.We should note that we still have issues with enforceability—the extent to which the protection orders are enforced the means we have to enforce them or at least the resources we have to enforce them. So we do not want to create another important device to protect victims that is found wanting not because of the device itself but because we simply do not have the means in our enforcement agencies to provide proper and adequate enforcement. So I make the plea to the Associate Minister of Justice that as he rises through the ranks of Cabinet and develops a louder voice beyond justice principles and into the allocation of resources he makes sure that the administrative and enforcement requirements of matters such as this are properly met through proper resource allocation and budgeting.Part 2 deals with the mechanics if you like of applying for an order that a victim can make against a violent offender under this bill and indeed the conditions or the contents of that order. There is a two-step phase if you like. A victim can apply for an order without notice and that can result in a temporary non-contact order and there are conditions associated with that which a judge can put into it. That of course needs to be eventually served upon the offender. Once an offender is aware of an application having been made that then becomes an on-notice application. When an order issues as a result of the on-notice application it becomes a final non-contact order. Again there can be conditions attached to it as indeed there should be. So that is all good. As my colleagues have said in the earlier part of this debate in this Committee stage of this bill we welcome that particular change. That is important.There is also scope added in by the Law and Order Committee for an order to be extended to other people—those who have aided and abetted the offender and those who have been party to the offence in some other sort of way. A victim who secures an order can have the order extended to those other people so that they can be afforded protection against all those who may have malicious intent against them. That provides a very well-rounded set of provisions for those orders. Amidst all the muttering on the Government benches at this highly animated time at the moment—there is clearly something going on that the thousands of people watching tonight will be interested to know and perhaps we will hear a bit about that. As we deal with this very important piece of legislation and as members on the opposite side of the Chamber are distracted by some activity going on in their quarter let us not understate as we develop our rubric—indeed our matrix—of victims’ rights and victims’ provisions just how important this will be.One of the important changes that I know was achieved in the select committee process was the threshold for the making of the order so that the conditions under which an order can be made are now set at a slightly lower threshold. The offender has to have been subject to a term of imprisonment of 2 years or more as opposed to 5 years as appeared in the original bill. So that starts to make it a little more meaningful. But I cannot go past the point that if the provisions are to be truly meaningful—just as we want with protection orders and other parts of not only our criminal jurisdiction but the civil jurisdiction of the family court legislation—they have to be enforced. Those who are protected by the laws need to know that there are the means that they can summon up at short notice to provide them with enforcement and therefore the protection that the order promises.On that basis these are welcome developments. The rest of Part 2 provides as you would expect for effective and sensible administrative procedures that allow for an amendment of the order or indeed a discharge of the order. We would hope that the nature of these orders and of proper enforcement is that victims get to a point wherethey are no longer fearful for their person and themselves that they themselves can take control that they can shed these orders under their control get on and pick up their lives put them back together and be happy.So this bill is welcome as I have said and I know that this Committee will be doing the right thing for those people who are affected always against their choice in this sort of way and who are subject to violent offending and who were it not for these orders could be re-victimised time and again. This is a good thing and I look forward to supporting it.The CHAIRPERSON (H V Ross Robertson): I call the honourable member Denis O’Rourke.DENIS O’ROURKE (NZ First): A very good choice Mr Chairman. Regarding Part 2 of the Victims’ Orders Against Violent Offenders Bill I firstly want to comment on clause 7. As introduced this clause provided that a victim may apply to the District Court for a non-contact order in respect of a violent offender and that an application may be made at any time after the offender is released from prison. The requirement that an application must be made after the release of an offender from prison was of course too late. I said at the first reading that the victim should be able to apply for an order at any time after the conviction so that the court could make an order to have effect immediately as from the date of release. My concern then was that there was likely to be a significant delay between the victim learning of the offender’s release and the making of an order and its service upon the offender and that that would potentially be a period of high risk for the victim. That issue I am glad to see has been addressed by the Law and Order Committee and the amended clause is now acceptable to New Zealand First.Regarding clause 9 though I am disappointed that this has not been amended in the manner that I suggested at the first reading. In clause 9 subclause (1)(a) says that the court may make a non-contact order if it is satisfied that there are ongoing effects of the offending for the victim. But I question why the court would have to be satisfied that there are ongoing effects of the offending. What would the victim have to prove to satisfy that test? It would have been better I think for that paragraph to have been deleted altogether. Similarly subclause (1)(b) should also be deleted. It refers to the possibility of the contact between the offender and the victim being detrimental to any of the ongoing effects referred to in subclause (1)(a) which I have just mentioned. It should not be necessary for a victim to have to prove those things. Subclause (1)(c) and subclause (1)(d) are I believe sufficient by themselves. These provide that the order is reasonably necessary to avoid contact. I think that that is really what the issue is and that would be sufficient for the victim to have to establish.In my view this is the only notable defect in the bill. It is therefore as I have said a little bit disappointing that the amendments that I suggested were not made. Nobody whom I know of has come up with a good explanation about why ongoing effects will have to be proved or why they have to be shown to be detrimental. It is sufficient that the order is reasonably necessary. That is nice and wide and general and it is good enough for a victim to have to prove only that in whatever the circumstances may be. So I am a bit disappointed that those amendments have not been made but it does not detract from the value of the bill as a whole.Clause 11 sets out the effect of a non-contact order—now amended to temporary non-contact order—and it prohibits the offender against whom it is made from having any form of contact with the victim as we know. In addition the court may prohibit the offender from entering living in or working in a specified area. The concern I had was that subclause (1)(c) should be qualified by the addition of an exception as to the entry into an area that is incidental to or necessary for the purposes of the offender’semployment. Although we need to make an order effective we should also see that it does not unnecessarily cause problems for the offender in obtaining or maintaining their employment.Subclause (1)(c) I am glad to see has now been deleted and instead we now have new clause 11A entitled “Effect of final non-contact order” which is much more comprehensive and has more refined powers for the court to specify so that the effects of the order will be no more than needed to properly protect the victim. I am very glad to see that that has happened. Similarly new clause 11B is welcome. It deals with the need for a final order to be directed by the court to apply to specified other persons whom the offender may encourage to engage in the same kinds of behaviour as the offender’s. Again I am glad to see that included.Lastly concerning clause 15 I suggested at an earlier stage that the court should be required in this clause in considering whether a discharge of the order should be granted to consider some specified matters such as the record of the offender in complying with the order the behaviour of the victim also—which may of course also justify a discharge—and obviously the places where the victim and the offender live permanently amongst other things. I note that this clause has now been deleted and replaced with much more comprehensive provisions in the new clause 15 and that an additional clause clause 15A has been included to address the sorts of issues I had suggested be looked at.So again the amendments sought by New Zealand First have largely been included to our considerable satisfaction. For those reasons with the reservation I expressed earlier New Zealand First will be happy to continue to support the bill as amended.Hon PHIL GOFF (Labour—Mt Roskill): Can I say that it is refreshingly honest of Minister Chester Borrows to acknowledge that although useful the Victims’ Orders Against Violent Offenders Bill is relatively small in its effects and it does not tackle the wider and more serious underlying problems.I concur broadly with the figures that the Associate Minister of Justice used that showed that at best 10 percent of those who are victims of rape report the crime and that at best 3 percent of those who are victims of rape get accountability through a conviction in the courts. Actually the rape survivor groups say that the figure Minister is probably closer to 1 percent but let us say 1 percent to 3 percent. When only 1 percent to 3 percent of those who suffer as victims of a horrendous crime get accountability and get justice then it is time to change the underlying fundamentals of a justice system that is failing those who are such victims.I want to contrast Chester Borrows’ attitude with that of the Minister of Justice who wrote to me on 14 March. I have got the letter in my hand. I had raised—advocating on behalf of the rape survivor groups—that we actually need to take a more fundamental look at what is happening in the area of sexual offending. What I got was a reply that was full of excuses such as “We’re doing this minor thing we’re doing that minor thing and those bigger things that the Law Commission talked about they’re just too big and we can’t do it.” They are not too big. They are not too big when we are failing 99 percent of those who are victims of sexual offending. I just cannot wait for the day when maybe Mr Borrows is in the chair as Minister of Justice—perhaps as early as next week or the week after—Hon Maryan Street: Tomorrow.Hon PHIL GOFF: —maybe tomorrow judging from the activity on the other side of the Chamber—because I think he would at least take an honest view of it. It is refreshing to have that level of honesty where somebody can tell the truth the whole truth and nothing but the truth which unfortunately is not a characteristic of the present Minister of Justice and hopefully she is the outgoing Minister.I want to look specifically at Part 2 of this bill. In Part 1 we addressed the fact that the major change that was necessary in this legislation was to have a threshold where a non-contact order could apply to those who had been sentenced to 2 years or more for their sexual offending as against the 5 years that Judith Collins introduced this bill with. That is the most significant and the most important change in the bill. Otherwise this bill would have dealt with 10 people a year when we are talking about literally thousands of victims. It was a nothing bill and the Labour Opposition supported by the other Opposition parties in the Law and Order Committee got that essential change to lower the threshold to 2 years.The other changes we got come within Part 2 of the bill which we are looking atat the moment. Under clause 7 the application for a non-contact order can be made not at any time after the offender has been released from prison but at any time after the offender has been sentenced in respect of the offence. That is the second most important change in this bill. It means that the victims can get that order from the time of sentencing before the offender has actually really got into the sentence in prison not after the offender is released with that gap after release and the threat the victim may feel from a person who ends up living near or working with them despite the fact that that person is the victim and the other person is the offender.The important thing in relation to these non-contact orders is that it does fill a gap. You cannot get a non-contact order if you are eligible for protection under the Domestic Violence Act 1995 as you can get a protection order under that Act. But again let us not pretend that a protection order means protection. We saw that in the tragic case down south where a maybe disturbed or angry person shot the two children of a woman who had a protection order against him. So a piece of paper does not actually necessarily provide real protection but it is a way of warning a person off. If we really want to solve this problem we have got to go much deeper than something as simple as that.The other order that is available is of course under the Harassment Act and that is a non-harassment order. That is available if the person is actively harassing the victim. There was this gap and the bill is at least successful in closing that gap. That does not mean to say that the non-contact order will be made automatically. Clause 9 of the bill sets out clearly that the court makes a non-contact order when certain conditions are met and I think they are reasonable conditions. There needs to be ongoing effects of the offending for the victim. That will not be a high threshold. For anybody who is a victim of sexual offence there will be ongoing effects. That is part of being a victim. So that threshold will be easily met.Clause 9 refers to the possibility of contact between the victim and the violent offender. Well of course that is necessary for the non-contact order to be given but there are cases—New Zealand is a small country—where the offender will end up living near to the victim or working close to where the victim is. In those cases the victim must be given a remedy that says to the offender: “You might be released from the prison. You might have done your time but the rights of the victim are still more important than the rights of the offender.” That is why these non-contact orders should be given.The making of the order must be reasonably necessary to avoid contact and must take into account all of the circumstances. All of that is common sense. The application can also be without notice if that is required and it is important that that sort of protection can be provided immediately if it is required and if the person had not taken the step of a non-contact order while the individual was still in prison. The other thing is that the duration of the order will go for whatever time the court orders unless the order is discharged or unless the court has set no time limit and 2 years have expired.So I think that the bill that we have got now is a useful piece of legislation. It does provide assistance to victims in a narrow set of circumstances but if you are the individual who is affected in that way—even if the figures are only in scores rather than hundreds—this bill is something that we should support because those people do deserve protection.I want to come back to where I began and that was to concur with the Minister in the chair the Associate Minister of Justice and say that it is time—and I have made this comment before—that we look at alternatives that work a lot better. I have been approached by rape survivor groups that say actually in some cases victims do not want a court process at all. They have no confidence in the court process. They do not necessarily want to see the offender locked up and the key thrown away. Often it is the case that they know the offender really well. They do not want a prison sentence. They do want a process where remorse can be shown or reparation or restitution offered—something that shows that the offender can be held accountable and that action can be taken against the offender that is meaningful to the victim.What I am saying to the Minister—and seeking his concurrence and the Committee’s—is that this bill is good in the very limited impact it will have but let us give the Law Commission proposals a chance. Let us look at the possibility of an inquisitorial system rather than an adversarial system. An adversarial system simply does not work in the area of sexual offending. Let us get even more serious about restorative justice and where the victim opts for that process let us make that process available. There would at least be some accountability in a situation where 99 percent of rape victims get no accountability at all.JAN LOGIE (Green): I would like to speak a little bit more around the non-contact orders. We do absolutely support the lowering of the level to the 2 years’ imprisonment as opposed to the 5 years as in this bill when it was introduced. I spoke in the earlier stage a little bit about some of the challenges that we have to make this more viable or useful for the majority of victims of sexual violence in New Zealand. I would like to just briefly go through some of the changes that were recommended in the Law Commission process so far that would help make that possible.In the Law Commission’s report—in what we have had so far from it—there were three proposals that received almost universal support. They were child protection orders a specialist sexual violence court at the point post-conviction and alternative processes for sexual offence cases which the Hon Phil Goff has just been talking on around restorative justice processes. Although the Minister in the chair the Associate Minister of Justice mentioned earlier some of the differences from the time when he was working as a police officer when the sentences were very low for sexual violence I personally still remember the public discussion we had at the time we raised the sentencing for rape. It was a very controversial decision and one that I actually think needs reviewing because it is acting—and we hear this back from people—as a disincentive for people entering the justice system. It is such a high level that people are going to be put away for that it is a disincentive to using the processes. Also we do need to acknowledge that the majority of offenders are known to their victims. They are family; they are family friends. The thought of sending somebody away to jail for a very long time is a disincentive to actually holding that person accountable and getting the response that most victims and survivors want which is having an acknowledgment of the crime and knowing that that person is not going to offend again and that others will be safe. Sadly we do not have that system yet. This bill deals only with those very rare cases where that conviction has happened and does put that measure in place but it is not enough.I would like to also just talk a little bit about how this may apply in a domestic violence situation and also acknowledge the extending of this out to what people are otherwise referring to as surrogates which is usually the harassment of a victim by family or friends of the perpetrator. That is a very real dynamic in domestic violence in this country and everywhere. When I was working in Women’s Refuge that was quite a common experience. We would be with a woman and she would be hiding because her abuser had friends and family out looking for her. It was not possible for her to feel safe walking in a public space because she never knew where they might be and whom she actually even needed to be looking out for. So it is very important that there is a provision in this bill to protect victims from harassment from other people when there is a concerted effort to harass them.But again we also need to be looking at how our court systems are working to support this kind of measure of protection. The reality is that a lot of our Family Court decisions at the moment are working against this level of protection. We do not have a system in place that understands and ensures in particular that the people involved in custody decisions through the Family Court actually understand domestic violence. I was at a seminar last week organised by the Family Violence Clearinghouse. They brought out a US expert Dr BobGeffner who is an expert in custody decisions where there are accusations of child abuse or domestic violence. He is well known over all of the literature. It was very disturbing to hear that in New Zealand we have been getting people who have been thoroughly discredited in the US and who are not allowed to give evidence in the courts there coming out to New Zealand and training people in our courts on matters relating to the supposed best interests of the children in custody decisions through our Family Court.We have no system of oversight to ensure that the counsel for the child the lawyers or the mediators in our systems actually understand domestic violence. Decisions are being made that are putting our children at risk and are taking children from situations of domestic violence where their mother usually has left the relationship and giving joint custody arrangements putting that woman and child at risk because they are having to negotiate shared custody in the context of a violent relationship. As a country we can put things like this in place but if we do not address the absolute fundamentals that underpin it all we are not going to get the result that I believe in and I am sure that everyone in this Chamber wants. We want women to be enabled to get out of violent relationships offenders to get the support and treatment they need to be able to change their beliefs and their attitudes and their behaviours and children to be given back to healthy parents and have hope for themselves of a healthy life free of violence and living up to their own potential. Sadly we do not have those systems in place as a country at the moment. This bill becomes just so piecemeal in that context.CAROL BEAUMONT (Labour): Rising to speak on Part 2 of the Victims’ Orders Against Violent Offenders Bill I join others in acknowledging that this is a small but significant step forward that does fill a gap. It will in part be recognising the ongoing effects of serious violent offending on victims by giving them the power to apply for a non-contact order. Part 2 of course is the part of the bill that actually puts that in place and provides the mechanisms and the substance to those provisions of non-contact orders.The non-contact order has been I think significantly improved by the work of the Law and Order Committee. Again as others have I want to acknowledge the fact that there is good cross-party support for this provision. It does I think reflect a concern that many have about the types of violence and intimidation that do exist and not solely but often are used against women. It has been good tonight to recognise across this Committee the understanding that there is about the problem of sexual violence—thefact that those who are victims and survivors of sexual violence often have extensive ongoing impacts of that violence that in fact as I described earlier this evening having listened to the submissions to the Social Services Committee inquiry have been described as a very traumatic ongoing series of impacts on health on the ability to form relationships and on a whole range of substantive issues. So this bill does provide assistance.I guess one concern that I do have and it is based on recent reflections on protection orders in domestic violence situations is that of course there does seem to be a concern about the enforceability but also the way that breaches of protection orders have been allowed to happen almost with impunity in some cases and we have seen some very significant consequences recently of that. So in establishing this new provision I think we do need to make sure that looking at non-contact orders what happens around breaching them and how that is actually implemented is going to be important for us. As others have said those non-contact orders can relate to the offender entering defined areas residing in specified areas and working in specified areas. Some of this is about the potential for psychological abuse not just physical abuse given the fact that somebody who has taken such a significant and abhorrent action against another person can then essentially put themselves in ongoing contact. So as I say that is good to see.I think that the reflection of others on what we really need for victims and better outcomes for victims and survivors of sexual violence is important particularly in terms of the criminal justice system. This bill is one small thing and the fact of the matter is we need a comprehensive look at this area for the reasons that have been articulated about the low level of convictions and the actual experience that victims of sexual violence face going through the court system and seeking justice. So although these orders are useful we should not kid ourselves that there is not a great deal more to do.I have to say that the current Minister of Justice—and we do not know how long she will stay in that role—has brushed aside suggestions of better legal responses to sexual violence. In the letter to the Hon Phil Goff she refers in fact to a bill that we dealt with earlier this evening the Victims of Crime Reform Bill. She talks about some of the provisions that are already in place and essentially says that some of the wider reforms that you might expect in this bill that we are dealing with tonight around these non-contact orders and the Law Commission’s report on alternative trial processes were all brushed aside.It is quite clear to those working in the area that there are a significant number of reforms that need to be made that will start to deal with some of the low conviction rates and also some of the brutalising experiences and difficulties that people face in trying to get justice in this area and there are particularities around sexual violence that make it difficult. There are evidential issues where there often are no other witnesses but there are things that can be done about that: prosecution guidelines about what needs to happen here better support in court and safety in court. Issues around court delays actually are a problem in this area as well because when it is a very emotionally intense process as it is in sexual violence trials delays can just really make it worse for that survivor. Another issue is the adversarial process itself which is really what the Law Commission deals with. The lack of boundaries and some of the behaviours of defence lawyers—The CHAIRPERSON (H V Ross Robertson): I am sorry to interrupt the honourable member. The time has come for me to report progress.Progress to be reported presently.House resumed.The Chairperson reported the Victims of Crime Reform Bill with amendment and that the Committee had divided it into four bills progress on the Victims’ Orders Against Violent Offenders Bill and no progress on the Vulnerable Children Bill.Report adopted.Sitting suspended from 9.56 p.m. to 9 a.m.(Thursday)