Franks Stephen: Parole (Extended Supervision) Amendment Bill Sentencing Amendment Bill (No 2) — Third Readings 
Franks Stephen: Parole (Extended Supervision) Amendment Bill Sentencing Amendment Bill (No 2) — Third Readings 
[Volume:618;Page:14195] 
STEPHEN FRANKS (ACT) 
: 
 It is interesting that when the United Future spokesman was summarising he managed to characterise the Parole Act and the Sentencing Act as villains to be dragged back into this House to be dealt with. Of course it is very hard for United Future members to look in the mirror or to look at the people they sit amongst and admit that those Acts passed by this Government would not be operating if United Future had used its vote to bring the Government down. United Future has propped up this Government and in the end it cannot wash its hands of the fact that this Government has maintained an attitude that is completely at odds with United Future’s values on almost every issue that United Future says it holds dear. 
However I am in a curious position on this legislation. I support Margaret Wilson’s views entirely. I support what Margaret Wilson said about this legislation because she was right. This legislation trashes an ancient and very valuable principle—the principle against double jeopardy. It is explicitly retrospective and quite unnecessarily so. I am sorry that people seem to feel there is a sort of macho credit in asserting that retrospectivity does not rank when it is weighed against the interests of victims. That is not a necessary balance. 
It was perfectly in order for Margaret Wilson to have written what she did and for the solution to be very obvious—and the solution does not ignore victims’ interests. Victims’ interests would have been just as well—in fact probably better—secured simply by dumping the foolish privacy provisions that restrict or discourage the police and every other authority who has knowledge about these sex offenders from warning people who could be vulnerable. 
It would be very simple for the authorities to tell the communities in which these people settle exactly what they have done—simply to advise the communities of the proceedings in open court the conclusions of the court and the sentence that has been served and to warn people to keep an eye out. The community does not need to rely on the agencies and the Government officials who believe they know best and that they should be the only ones allowed this information. 
There was a solution that would have been perfectly consistent with Margaret Wilson’s warnings about the grave breach of established principle and with the interests of prospective victims. If the 44 people for whom the worst form of retrospectivity is reserved in this legislation had been named and had their photos published the entire community would have made sure they were kept out of temptation’s way. That disclosure would have been completely consistent with longstanding principles of justice. If the courts remained transparent we would not be pressured to impose fresh sentences of supervision after the men serve their time. We would not be creating that dangerous precedent of going back and effectively resentencing. 
There is no getting around the fact that this is a new law to confine people for what they may be thinking of doing not for what they have done. It has been a proud boast of our law for centuries that it punishes people for what it is proven they have done not for what some authority or expert theorises they might want to do. We have to remember that despite the grave figures for reoffending by sex offenders even the best predictions about the worst of those offenders are right less than 50 percent of the time. In other words we will confine offenders on suspicion that they may reoffend and we know that at least 50 percent of them will not do so. 
There are far better ways of dealing with this and the first is to have decent sentences. The second would be to trust New Zealanders and communities. When these people go out into communities their neighbours should know what they have done. Everyone should be keeping an eye open for them. When they get into a position of temptation they should be harried out of it by vigilant police. There are not so many of them that that is an unreasonable burden. If the community knew they would ring the police as soon as they were suspicious. ACT would substantially increase the sentences for what those offenders do and there should be supervision at the end of every new sentence but that would not override our ancient principles. 
This is an attempt by the Government—and it seems by every other party in this House other than New Zealand First which is voting for this legislation—to preserve the discredited Privacy Act. I say to Mr Alexander that the 10 or 15-year-old theory that privacy stands ahead of every victim is what is being protected here not the victim. This legislation is to protect the Privacy Commissioner and those absurd privacy codes. It asserts retrospectivity by Mr Goff as if it were a badge of honour. He should know that it is a badge of shame for any Minister of Justice. For once I will say that I honour Margaret Wilson for being so uncompromising in her comments on this legislation. She was right. If only she had insisted in Cabinet on a solution that then fitted with her conclusions. 
This legislation also omits the other changes that should have been made in the Parole Act and the Sentencing Act. This legislation makes some absolutely ludicrous changes. The Supplementary Order Paper I put forward was a solution that would have helped Mr Goff politically. When he faces Don Brash’s speech on Sunday he will wish he had accepted the advice of the Parole Board which he appears to want to keep. There is no place for parole but he wants it. He would wish that he had accepted at least the urging of the ACT party over last month that the Parole Board be allowed to consider the purposes of sentencing. 
Deterrence denunciation and accountability are all of legitimate interest to victims. They are all legitimate interests for the Parole Board to take into account. Instead the board is very carefully confined to one role and one role only—to unpick the sentences given by the courts. According to the anointed that surround the Minister of Justice the courts cannot be trusted. They may actually sentence people to a term of imprisonment that delivers some sense of balance. They may even give a retributive sentence. The Minister could not stand that idea so his Parole Act made sure that the Parole Board deliberates in secret to unpick the decisions of open courts and is allowed to take into account only what Mr Goff calls protection of the public. Protection is only one of the four recognised purposes of sentencing. He would have done well to accept my amendments that would enable the Parole Board to look at the other purposes. 
The legislation also provides for the courts now to have more simplified grounds for setting a non-parole period. In my opinion the non-parole period will now be seen by judges—were that regime to last—as the important part of their sentencing. Judges know that the non-parole period is now regarded by the public as the real sentence. The courts now have a near open sesame to set the real sentence through non-parole periods. 
As I read the new criteria section 86 of the Sentencing Act is now no longer confined to extraordinary or unusual cases. Judges will now be able to use it to set a sentence they want with one qualification: this legislation does not allow them to go past the two-thirds of a sentence parole threshold. All that has done is restore the position for the courts to where the National Party had left it automatically for violent offenders. Parole was not available for serious violent offenders before two-thirds of a sentence had been served under the National Party’s much maligned legislation. It was rightly maligned. It did not allow truth in sentencing. However we have a Minister of Justice who stands up in this House almost every day when questioned about parole and brays about having got rid of automatic release. He has now given the courts the power to stop early release but stopped it at what was automatic for the National Party. That is so cynical and it will be amusing to watch him wriggle and struggle over the next week or two to persuade people of the toughness of a policy that was anything but.