Ardern Jacinda: Public Safety (Public Protection Orders) Bill — In CommitteeText is incorporated into the Bound VolumeArdern Jacinda: Public Safety (Public Protection Orders) Bill — In Committee[Sitting date: 02 December 2014. Volume:702;Page:999. Text is incorporated into the Bound Volume.]JACINDA ARDERN (Labour):It is my pleasure to take a call on what is quite a substantive bill and which to date we have been debating alongside the Parole (Extended Supervision Orders) Amendment Bill. I thought it would be useful when debating Part 1 which sets out substantively how the public protection orders will work to put just a little bit of context around the fact that we are debating an order that will—as the regulatory impact statement states—apply to a very small number of offenders.As set out in Part 1 the definition of the individuals to whom this bill will apply probably amounts to what has been estimated—I imagine by the Ministry of Justice—to be roughly five to 12 individuals in a 10-year period. That is set out in some of the clauses at the beginning of the bill that talk about serious sexual or violent offence—meaning “an act committed before on or after the commencement of this section”. This type of sexual crime punishable by 7 or more years’ imprisonment and a range of other offences are set out in Part 7 of the Crimes Act 1961. Obviously applying what is essentially a civil order to sentences that may reach a threshold of only 7 years’ imprisonment may seem like a low bar to be setting but I think the Justice and Electoral Committee was right in allowing flexibility at the end of an offender’s sentence to establish a range of other threshold tests which are quite high.So although the initial sentencing bar may be considered to be low in that regard there are a number of tests set out by this bill that are quite robust and require a number of significant assessments that will be tailored to the time and place at which the civil order may be applied and will assess whether or not any rehabilitation for instance has been successful or progressed with that particular offender. I will come to that in a little bit more detail in time. But the Ministry of Justice on that basis has established that the bill will affect roughly five to 12 offenders in a 10-year period—so not a large number despite the criteria being a bit broader. So that really I think points to the fact that the additional threshold test is quite high.I do think though that given that we are debating a civil regime being added—and that is a significant departure from what we have currently—and given that the Government has not been interested in introducing a sentencing council to assess whether or not we are sentencing appropriately and consistently in New Zealand it would be useful to perhaps assess maybe via a select committee regime or maybe the Auditor-General could do this those offenders who are subjected to both extended supervision orders and public safety orders. The reason I think that could be a useful exercise is that of course we have the option of preventive detention in New Zealand. You could almost say that that is the front-end version of a public safety order. It would be useful to assess whether or not there are common or consistent themes among offenders to which these backstop measures are applied that perhaps were not utilised at the point of sentencing. A preventive detention sentence is a much easier way to deal with these offenders than having to wait until they come to within 6 months of release with the trauma obviously that a victim goes through at the point of an offender’s sentencing having a sentence that is coming to an end and then 6 months before the end going through the process of a decision being made that they are not safe for release and that this additional order needs to be applied.So it would be good if we had some kind of regime to look at and assess the kinds of offenders who are having these orders applied to them and whether or not there are actually things that we are missing at the point of sentencing that our judiciary could learn from. I would be interested in the Minister’s view on that on whether or not we could build a process around that. Again because it is a significant departure from our existing justice system I think those kinds of checks and balances would be useful.I think the other important context to apply to our debate around Part 1 is the fact that we know and our statistics tell us that actually only 8 or 9 percent of sexual assaults even get to the point where they are considered for these kinds of measures. That speaks volumes about this area of our justice system more broadly. The fact that our Crown prosecutors and our police even second-guess whether they would advise a friend or family member to go through our justice system says that yes although these backstop measures are important we need to spend time on and the Government needs to focus a lot more of its energy around the process that a victim goes through to even bring an offender to this point in our justice system.Speaking specifically to Part 1 though which does set out the assessment that is applied for a public protection order—basically the way that the orders function generally—I think it would be a useful exercise in that context to look at the regulatory impact statement that was carried out which talks about some of the alternative regimes that were considered before we got to the regime contained within Part 1.As I understand it there were five options that could have been considered. The first was a strengthened version of the existing extended supervision orders—which I understand the Committee will be debating shortly—under which offenders would continue to be closely managed in the community. So really we have actually got that already. The extended supervision orders legislation covers sexual offenders and violent offenders who are currently not covered. So the Government has essentially done both. That one has been dealt with.The second option was the expansion of the scope of the Intellectual Disability (Compulsory Care and Rehabilitation) Act to enable offenders who are borderline intellectually disabled to be managed in a secure health facility until their risk is reduced. The obvious issue with this is that not every offender who will be considered an ongoing risk to the community would have an intellectual disability. In fact the bill in clause 12 of Part 1 actually contains some specific provisions that treat those offenders differently from offenders who are regarded not to have an intellectual disability. That clause sets out that where a court is satisfied that it could make a public protection order against a respondent and that that respondent may be mentally disordered or intellectually disabled it is instead obliged—instead of making a public protection order—to direct the chief executive to consider the appropriateness of an application in respect of the respondent under section 45 of the Mental Health (Compulsory Assessment and Treatment) Act.I would be interested to hear from the Minister though whether the Ministry of Justice has done any assessment of how many individuals may be captured by this; or of the five to 12 whom we are talking about as maybe being covered has the ministry excluded those who may fall within this reassessment regime and may be covered by the Mental Health (Compulsory Assessment and Treatment) Act? If so does that not point to an issue with perhaps initial sentencing in that they would be considered to have either an intellectual disability or mental incapacity that deems them fit to be dealt with under this alternative Act rather than a public protection order? Does that mean that perhaps the assessment regime and the initial sentencing would have been inadequate if that was not identified at that point? So that is just an interesting question there. I would not mind hearing from the Minister in the chair. So that obviously rules out that option. It would not cover every target offender and cover all risk.The third option was a new civil detention order under which people including offenders would be detained in a secure facility in the community. Interestingly there was a view that although that might I believe cover the New Zealand Bill of Rights Act it was potentially too costly. Obviously it means establishing new facilities outside. It is interesting that the Ministry of Justice within its regulatory impact statement chucked that out as perhaps the reason why it would not do it in that way.Fourth is a continuing detention order under which offenders would be detained in prison. There is a considerable New Zealand Bill of Rights Act issue there because of course we must be clear that this is not an extension of punishment; rather it is a civil regime that is focused on public safety which is why I think we have arrived at the new form of civil detention using public protection orders but within prison grounds. Obviously that was seen as a neat way of covering off all of those issues. I think that contextually it was important to look at Part 1 within the other options that were considered but I would be interested in the Minister’s reflection on my questions.