Public Safety (Public Protection Orders) Bill — In CommitteeText is incorporated into the Bound VolumePublic Safety (Public Protection Orders) Bill — In Committee[Sitting date: 02 December 2014. Volume:702;Page:999. Text is incorporated into the Bound Volume.]Public Safety (Public Protection Orders) BillIn CommitteeTIM MACINDOE (Senior Whip—National):I seek leave for the debate on the Public Safety (Public Protection Orders) Bill to be taken as one question with separate questions to be put on each part at the end of the debate.The CHAIRPERSON (Hon Chester Borrows): Leave is sought for that purpose. Is there any objection? [Interruption] Order! Members will not debate across the Chamber in that way. We will move on. We turn now to the Public Safety (Public Protection Orders) Bill. The question is that Part 1 stand part.Part 1 JurisdictionJACINDA 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.KELVIN DAVIS (Labour—Te Tai Tokerau):I would like to speak to clause 4 in Part 1 of the Public Safety (Public Protection Orders) Bill. Clause 4 talks about the objective of the Act: “The objective of this Act is to protect members of the public from the almost certain harm that would be inflicted by the commission of serious sexual or violent offences.” by people who are currently coming to the end of their term.I am just going to the definition of “serious sexual or violent offending” which means: “the commission of 1 or more serious sexual or violent offences.” We are talking about a small subsection of people who are currently in prison who within 6 months upon their release are expected—despite their punishment in prison despite their attempts at rehabilitation—to more than likely be recidivists and cause harm to members of the public.I think that any New Zealander would say yes we need to have something that is going to protect New Zealanders from the threat of harm from these people. But as Jacinda Ardern has just said the public protection orders are not to be considered an extended form of punishment. We cannot punish people twice for the same crime—that is called double jeopardy—but I have to say that there are concerns around the New Zealand Bill of Rights as Jacinda has touched on.The Attorney-General expressed the opinion that this bill is not inconsistent with the New Zealand Bill of Rights Act 1990. The Attorney-General stated that “The critical issue is whether the provision for detention and other measures under the Bill in substance amounts to further punishment of sentenced offenders contrary to the longstanding rights against arbitrary detention and double jeopardy affirmed in ss 22 and 26 of the Bill of Rights Act or to civil committal as provided for in other New Zealand legislation and widely held to be compatible with these rights. The risk of breach of ss 22 and 26 was raised at the time that the Bill was proposed.”The Attorney-General concluded that “ … unless the Bill incorporated the key safeguards necessary for a civil committal regime it would not be Bill of Rights compliant. The Bill as introduced includes such safeguards at each of the stages of the making administration and review or cancellation of orders. The Bill also contains broad interpretative principles to ensure its operation as a committal and not punitive regime.” In other words there are safeguards there apparently so that people are not going to come under that double jeopardy case. Also in clause 4(2): “It is not an objective of this Act to punish persons against whom orders are made under this Act.”. Even if they are subject to a public protection order they will still be kept in prison but not in the secure wing.In fact if we go to the “Principles” clause in clause 5(d) it says: “persons who are detained in a residence under a public protection order should have as much autonomy and quality of life as possible while ensuring the orderly functioning and safety within the residence.” So they have to be kept within a residence within prison confines and they are to be given as much autonomy as possible to go about their lives but without being out there imposing a threat of serious sexual or violent offending against New Zealanders.Other principles in the bill include clause 5(a) which says: “orders under this Act are not imposed to punish persons and the previous commission of an offence is only 1 of several factors that are relevant to assessing whether there is a very high risk of imminent serious sexual or violent offending by a person:”. In clause 5(b) it says: “a public protection order should only be imposed if the magnitude of the risk posed by the respondent justifies the imposition of the order:”. So there has to be some consideration of the magnitude of the risk that the offender may pose to the community.One of the principles is also that “a public protection order should not be imposed on a person who is eligible to be detained under the Mental Health (Compulsory Assessment and Treatment) Act …”. In other words if they have a mental disability they will not be subject to a public protection order. As I have said clause 5(d) is about giving these people as much autonomy as possible even though they will still be restricted within prison confines.There are thresholds for imposition of these public protection orders. The person must be aged 18 years or older. So obviously anybody who is under 18 years of age would not have a public protection order put upon them. Also the person must be detained and imprisoned under a determinate sentence for a serious sexual or violent offence. So for the benefit of people listening a determinate sentence basically means that they are in there for a set length of time.Another threshold is that the person must be released from detention not later than 6 months after the date on which the chief executive applies for a public protection order against the person. Clause 3 says: “chief executive means the chief executive of the department that is with the authority of the Prime Minister for the time being responsible for the administration of this Act” and that is generally the head of the Department of Corrections. We look forward to debating this bill thoroughly and going through each of the parts. Kia ora.DAVID CLENDON (Green):I am pleased to take a call to speak to some of the detail of this bill and to highlight the reasons the Greens are not supporting this legislation through the House. It goes right back to the regulatory impact statement. We are basing this legislation on very little evidence and that point was made in the regulatory impact statement by the officials who note that it is not possible to accurately report recidivism data for such a small unique subset of offenders. There is not a lot of evidence surrounding this legislation to support what is quite a Draconian measure—and it has to be described in those terms. It is quite a Draconian measure to go to this extent. The lack of compliance with the New Zealand Bill of Rights Act and indeed international conventions and standards has been noted.It is interesting again to note the earlier evidence we had from officials. We heard from officials that three pieces of legislation similar to this in four Australian states—legislation that enables the ongoing detention of inmates after the expiry of their sentences—have been found by the United Nations Human Rights Council to breach the International Covenant on Civil and Political Rights. Given the similarity of that legislation to what is being proposed here it is most likely that New Zealand will find itself on the wrong side of the United Nations Human Rights Council and I think that is very regrettable—not least of all given that this afternoon in fact we are progressing legislation that the Greens do support and believe will achieve much of what is intended to be achieved with this legislation.Much has been made of the principles of this bill and we constantly hear this reference to the fact that it is not punitive. Clause 5 “Principles” states: (a) “orders under this Act are not imposed to punish persons”. I defy anyone to suggest that this is not a form of punishment. Semantically yes you can dance around that to some extent. But looking at the conditions that can be imposed on people subject to these orders essentially it is detention perhaps with one or two more creature comforts and with a modicum more of “the autonomy and quality of life” that this legislation talks about but it is an inherently punitive regime.People are prohibited from possessing quite a long list of items without specific permission from a residence manager acting on behalf of the chief executive—basic things like tobacco and alcohol. Yes of course nobody supports the use of tobacco—I certainly do not—but they are free people and adults are entitled to make their own decisions. In prisons of course alcohol and tobacco are banned and they would also be banned in the so-called residences. Electronic communication devices are not allowed—people cannot own phones in other words. There are very significant restrictions on access to mail. They may watch television and receive newspapers but any incoming or outgoing mail will be censored by the manager of the residence. These are punitive conditions. These do reflect quality of life or autonomy. People may not keep live animals for example. People are denied pets which are a commonplace sort of a thing that people have in their real lives.A decision for a public protection order to be imposed on a person rests heavily on this issue around health assessment so that a person coming up to the end of their determinate sentence will be assessed. Essentially there must be at least one registered psychologist and one other person who must be at least a psychiatrist registered to practise in New Zealand. That is all well and good. The court will be presented with two reports then the court itself or the person to whom this assessment applies can also choose to have health assessments done by other assessors—other psychiatrists or psychologists.There is no guidance in this legislation as to what the courts should do when as will inevitably happen there is conflicting advice or evidence. These are very subjective issues. Psychiatry—and I feel I can say this with no reflection on the profession—is an inexact science. There is a level of subjectivity. There are clinical tests surely but equally there is a high level of subjectivity. What is a judge or the courts to do in the situation where there are two for and two against for example? I think that that is quite unsatisfactory given the consequences of the assessments that can be made and the fact that this could effectively see people kept in detention basically for ever.The point has been made that there is quite a high bar required in order for these public protection orders to be triggered. To an extent yes and equally there are the health assessments—the psychological assessments and so on—but the decision is made by the court on the balance of probabilities which is a bar that is set for civil proceedings. A balance of probabilities is not sufficient for a criminal investigation for a ruling in a criminal court and yet effectively as I have said people who have these orders made against them will be kept in conditions not dissimilar to prison. It is very similar in fact to the situation that a person might be in if they were close to release for example—the self-care unit type of thing—although arguably a person in a residence would actually have fewer rights and more restrictions than somebody still completing a sentence in a self-care unit in one of our prisons. I hasten to say that I support the notion of units like that within prisons as self care is a step is towards release and reintegration further down.We note that people subject to these orders will be allowed to work if they can generate an income for themselves within their residence or by some means acceptable to the residence manager. That is allowed; they can earn money and have it managed on their behalf by the residence manager. I think the kicker there is though that when a person begins to earn money they can also have the ticket clipped despite the fact that they are in detention and they have completed the sentence to which they were subject for whatever crime they have committed. Nevertheless if they start earning money then a certain amount of that can be taken off them—to meet the cost of their board and lodgings presumably—which seems a pretty unhelpful thing.There is some peculiar language in terms of rehabilitation. We are told in clause 33 that residents are “entitled to receive rehabilitative treatment if the treatment has a reasonable prospect of reducing the risk to public safety posed by the resident.” This is not an expectation or something we would seek to insist upon; it is an entitlement something they may do. The question of whether or not a person subject to an order actually is able to get rehabilitation or some sort of programme is actually down to the assessment made by the residence manager.These must be quite extraordinary people these residence managers. When a person moves into a so-called residence the residence manager is responsible for a needs assessment to identify special medical requirements the cultural or religious needs of the individual any skills or capacities of the individual and any educational needs and finally they can assess any steps to be taken to facilitate rehabilitation and reintegration. That is an extraordinary load to put on one individual I would argue. We do not know what sort of level of requirement what expectations there will be or what qualifications people might require for these jobs. We do know that while they are acting as a residence manager they may not perform any function under the Corrections Act which would exclude a number of people. But it does seem that we are putting a great deal of reliance in a sense on these residence managers who may conceivably be managing a residence of as few as one or certainly only a handful of people.The practical application of this legislation leaves open many more questions than it answers regarding the ongoing conditions that these people will be subject to. Any time they leave and enter the residence they can be strip-searched and it can be an obligation. They can be forcibly strip-searched. They can be put in “seclusion” which is rather gentle language. Essentially they can be put in solitary confinement and kept there until the residence manager deems it appropriate that they should be released. They can be restrained physically—forcibly restrained. All of these are conditions that inmates in prisons are subject to. I see very little to differentiate between a person allegedly under a civil order—a non-punitive order—in a residence and the conditions that apply in a prison. For these and other reasons we will be opposing this legislation.DENIS O’ROURKE (NZ First):I want to take a short call on this bill at this stage to make some comments about what the Greens have said in relation to this bill because New Zealand First does have a different approach from theirs although I do respect the fact that the Greens are very much of a mind to preserve and improve human rights. Indeed New Zealand First—and particularly me—is interested in doing so as well. However it has to be admitted that as in this case there are often tensions between personal rights and the public interest. The plain truth is that there are some people who are imprisoned and who are then eligible for release but who remain a danger to the community. We have actually seen in recent years some fairly spectacular examples of that therefore this is not an issue that can be ignored. Consequently New Zealand First embraces this bill and welcomes the initiative taken to deal with that situation however uncomfortable it may be.The real crux of the bill is simply this: is an order really necessary? If it is then it is not a question of punishment; it is a question of protecting the public interest. So I am glad to see that the court must not find that it should issue an order unless it finds that there is a very high risk of further offending. The presumption is that there will not be grounds for an order. These grounds have to be proved so the court must be satisfied that the respondent exhibits a severe disturbance in behavioural functioning established by evidence of specified characteristics to a high level. That is a high bar and so it should be.It is true that there are people who fall into that category and who are not necessarily mentally disordered. If they were then we have a regime for the committal of those people to mental facilities. However there is a gap between that and those who are entitled to freedom and that gap is where there is a person who is not mentally disordered and would ordinarily be entitled to their freedom but who is considered to be so dangerous that they cannot be allowed to go free. It is a very very small number of people but history has demonstrated that they do exist and this legislation is necessary to deal with them in the view of New Zealand First.I note concerning the review provisions that the Justice and Electoral Committee has added clause 17(2) and (2A) to require a court reviewing a public protection order to consider whether the subject still poses a very high risk of imminent serious sexual or violent offending taking into account the reports provided to the court. There will be plenty of evidence for them because the reports of two psychologists or psychiatrists are needed and the person themselves can obtain a similar report. So the matter will be properly investigated and I feel sure that we will not see New Zealand courts with the benefit of that sort of information lightly making an order for the detaining of these people.So I cannot agree with the approach taken by the Greens which I feel is too extreme. It goes to the point of saying: “Maybe there is a problem but human rights are so important that we just have to ignore this problem.” Well New Zealand First does not feel like that. We acknowledge that there is a problem. We acknowledge that there are people in this category while at the same time acknowledging the importance of human rights. We say that this bill is sufficiently well drafted to protect people from arbitrary imprisonment even those who have been in prison for serious sexual or violent offences and who therefore should be subject to one of these orders. We feel that the tension between personal rights and the need for public protection is still adequately covered with this legislation.We do not feel that the way that this legislation is drafted would result in people losing their freedom without that high bar of evidence having been achieved and I would expect that only a handful—literally a handful—of people would ever be subject to those orders. But of course we are going to have reports to Parliament and there is going to be good supervision so if we find that there are a lot more people who are detained in this way then Parliament will know and will have an opportunity to review the legislation.So I think that the situation is so serious that this bill is warranted and that it is well drafted and it is well balanced. The protection of the individual is still maintained but this very serious problem is dealt with. The public has a right to expect that Parliament will act in this way to protect them because there have been problems—serious problems—in the recent past and we simply cannot afford to not do anything about them. So I am afraid that I think that the Greens have gone too far in terms of the protection of human rights without taking into account extreme circumstances and these would be extraordinary and extreme circumstances where a person would be subject to this sort of order. So New Zealand First will continue to support the bill for those reasons.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.BARBARA KURIGER (National—Taranaki - King Country):I move That the question be now put.POTO WILLIAMS (Labour—Christchurch East):Thank you for allowing me to take a call on the Public Safety (Public Protection Orders) Bill. A little later on I hope to also speak on the Parole (Extended Supervision Orders) Amendment Bill which is a bit of a compendium I guess of pieces of legislation designed to cover off various aspects of looking at our most serious offenders.The main purpose of the bill that has been introduced is to empower the High Court to issue public protection orders that allow for the detention in a secure facility of people who have been through the prison system and who have come to the point where they are being released into the general public. However due to non-compliance perhaps with their rehabilitation and through stringent assessments they still pose a risk of serious harm to the public. That is where I believe that in this bill—and my colleagues have already spoken about it—there is a very delicate balancing act between what we would consider to be issues under the New Zealand Bill of Rights Act and the paramountcy of keeping the general public safe.We are talking about a very limited number of people who would be a party to these public protection orders and quite stringent measures to ensure that we have got it absolutely right in terms of those people who will be detained under these orders. We are talking about violent offenders and some very serious sexual offenders. These are the people for whom our prison system has not had the desired effect of rehabilitation or perhaps those who have refused to take responsibility for their offending and who do in that regard pose a threat to the public.I know that the Green Party members raised the issue of human rights and whether this legislation does actually breach the New Zealand Bill of Rights Act and whether it is appropriate to continue to in their words detain a person for longer than the sentence prescribed by a court of law. I suppose that the basic principle of a decent and fair society is that we determine what is right and what is wrong and we set the punishment accordingly. We have an expectation that those punishments are completed by offenders.But what is very significant about this particular bill is that we are intending to protect the public from some very serious offending so it is a balancing act. The bill is very prescribed in how a court will deal with a public protection order and in the criteria that we need to use to actually approve those public protection orders. The assessment needs to be done by at least two health professionals and it is weighted on the balance of probabilities that the offender poses a very high risk of serious sexual assault or serious reoffending.That is a much different level of evidence required than if we were looking at a criminal court and looking at a different level of evidence which is currently that under the Solicitor-General’s prosecution guidelines. So we are moving the jurisdiction from the criminal jurisdiction into the civil jurisdiction through the High Court and using the weight of evidence that we have through professional assessment to determine whether this individual will be at risk of reoffending.I do have some questions though for the Minister around the process of rehabilitation for our serious offenders and what is being done to rehabilitate them particularly our serious sexual offenders. I also have a question for the Minister about whether the New Zealand public can have confidence that other offenders going through the prison system are actually rehabilitated to the point where they no longer pose a risk to the public. There are some issues that concern me about our process for supporting offenders through our prison system so that we can be assured that when they are released—JACINDA ARDERN (Labour):I want to come back to some of the review processes that are being established around the public protection orders particularly under clause 14 of Part 1. I do think the review process is important given that as has already been stipulated this is a civil regime which is a departure from the well-established principles within our justice system. Those were the points that were raised by the Greens.Although I agree with the principle of what is being done here with some significant caveats I would be interested in whether the Minister Hekia Parata wanted to explore the difference between the use of preventive detention versus the orders that we are looking at today. Preventive detention is used internationally for an offender who has a potential risk at the time of sentencing of repeating their offence if they are not given an indeterminate sentence. So a judgment is made at the time by the judge that the seriousness of the offending and the nature of the offender are such that an indeterminate sentence needs to be used. But the threshold for that in New Zealand as I understand it is an offence punishable by no less than 5 years’ imprisonment. The standard in these sets of orders is 7 years so that is a higher threshold test. So actually those who might be up for consideration for preventive detention could end up as the exact same offenders who end up being detained under public protection orders.But the punishment is somewhat less for the public protection order given the additional freedoms that are granted and given that it is a civil regime. Yet there are I understand currently as of 30 June 2010 719 prisoners serving indeterminate sentences. Compare that with some states in Australia: Victoria has 54 prisoners Queensland has 350. Comparatively we use preventive detention at what would seem like a relatively high rate. I would be interested if there were any other international comparisons. There are 719 uses of preventive detention which has a slightly lower threshold probably targeting the same group.Preventive detention probably has a lower set of tests as well because we are requiring a range of tests by psychologists health assessments and an ongoing monitoring regime by the courts on a yearly basis to ensure that that public protection order should still apply. Under preventive detention a parole board can say it does not want to see you for 5 years which is quite different from this regime.It is interesting that we draw the line here to say that a public protection order would be a breach of human rights but a preventive detention order which is granted at a time when there has not been say a sentencing period to assess whether or not a prisoner is indeed an ongoing risk is somehow a greater breach. I am sure that there are all sorts of reasons around our justice system that would determine why that is at the point of sentencing and so on but when you actually just break it down it is an interesting question to ask which one you could consider to be a greater breach of someone’s human rights: the decision at the beginning for a sentence that would usually attract perhaps only 5 years that says actually we are not going to tell you whether or not you are ever going to be released because we consider you that much of a risk versus an individual who after serving 7 years is determined under a very high threshold to still be a risk and we determine that we will do a yearly ongoing monitoring at a lesser enforcement level—so not within the prison system but within a civil regime. I understand why they are obviously two different bars but if you break it down like that one might consider the issue somewhat differently.Going back to the review process which is set out in clause 14 it is an annual review. My question is whether at that annual review—and the Minister might like to clarify this; my apologies if it is contained in the bill—a full assessment will happen each and every time within that review process which is set out in clause 14 because it did not seem quite clear to me whether it would. The initial assessment as to whether or not someone should have a public protection order apply to them is that they will have a report by a health assessor—at least two separately prepared—JONO NAYLOR (National):I move That the question be now put.A party votewas called for on the questionThat the question be now put.Ayes96New Zealand National 60; New Zealand Labour 32; Māori Party 2; ACT New Zealand 1; United Future 1.Noes25Green Party 14; New Zealand First 11.Motion agreed to.The question was put that the amendment set out on Supplementary Order Paper 20 in the name of the Hon Amy Adams to Part 1 be agreed to.A party votewas called for on the questionThat the amendment be agreed to.Ayes107New Zealand National 60; New Zealand Labour 32; New Zealand First 11; Māori Party 2; ACT New Zealand 1; United Future 1.Noes14Green Party 14.Amendment agreed to.A party votewas called for on the questionThat Part 1 as amended be agreed to.Ayes107New Zealand National 60; New Zealand Labour 32; New Zealand First 11; Māori Party 2; ACT New Zealand 1; United Future 1.Noes14Green Party 14.Part 1 as amended agreed to.The result corrected after originally being announced as Ayes 96 Noes 25.Part 2 Procedural administrative and miscellaneous mattersThe CHAIRPERSON (Hon Trevor Mallard): We now move to Part 2 which is debate on clauses 90A to 125 on the schedule and on the Minister’s typescript amendment to the schedule.JACINDA ARDERN (Labour):I just really want to pose a couple of questions along the lines of Part 2 which is substantively a procedural administrative and miscellaneous section to the bill. It does go into some detail in Part 2 under clause 97 around the reports that are to be provided to the review panel for the purposes of reviewing a public protection order. This is I think an important clause given that we have only just recently debated as a select committee at the Justice and Electoral Committee the information that is provided to parole boards as a matter of course when considering a parole. It is a useful comparison to make I think because although this schedule sets out information that should be provided to a review panel it states under clause 97(f) in Part 2 that this includes “any further or supplementary reports requested by the review panel to be provided by any person including the chief executive the manager of the prison or the residence in which the person is detained and any health assessor”.The issue that we have discovered when it comes to reports provided to the Parole Board and would likewise be an issue with the review panel is that you know what you know. You can request information that you know might be available but for instance we have seen with the Parole Board that orders that are made in a civil regime were not routinely being provided to the Parole Board. A privacy agreement under the Judicature Act I believe it is is going to allow an agreement between the Ministry of Justice and the Parole Board to ensure that actually rather than having to request information it is provided as a matter of course. This may not be an issue when it comes to the review panel. I have not spent enough time looking at it but it is just something I would flag with the Minister of Justice. When we do have a case of requiring a review panel to ask for information we actually need to put the responsibility on those who hold the information to provide what they consider to be important because it is very difficult to make a direct request for information you do not know exists.I also want to just briefly ask a couple of questions on some other functional parts of the bill such as how the residences will be established and who will be employed to run them. Is it anticipated by the Government given that we are likely to have only five to 12 offenders held under this legislation that there will be the establishment of simply one residence on prison grounds; if so has consideration been given to which prison grounds that would be and what effect that would have on the footprint of the prison ground? Obviously some of our more modern prison facilities have been constructed in such a way that there are work programmes on site and various other rehabilitation programmes. To what degree would that be interrupted by having to partition off a piece of land in order to allow one of these residences to be established? Could the Minister perhaps share whether or not there has been any specific thought given to one site or multiple sites?Also for instance if there is one site that obviously would save a significant amount of money. Cost based on the regulatory impact statement was a consideration for the Government. I want to know whether or not having one site would breach any of the policies that are held by corrections around allowing offenders to try to be as close as possible to family. If for instance they have served their sentence in an Auckland prison but actually the one site in which these residences are constructed is in Christchurch I want to know whether or not we are going to have any ongoing issues with that given that this is a civil regime rather than part of a punishment as it were.Equally obviously there are some issues in clause 100. It talks about establishing residence managers. I am wondering whether or not these will be Department of Corrections staff because it states that a person must not perform any functions under the Corrections Act while that person is a residence manager. So obviously it is stipulated here that they will not have powers as given by the Corrections Act but is it anticipated that they will have the same degree of training that a corrections officer or staffer would or would they be for instance more in line with a social work qualification? What threshold test would we like them to meet because obviously a corrections officer or staff member has a particular set of thresholds that they must meet?I also wonder given that this is not strictly going to be considered in the same way that a regular corrections facility is whether or not the same powers of inspection that are held by a member of Parliament for instance will apply. That is the ability under the Corrections Act for us at any time to visit a corrections facility. Will that power under the Corrections Act apply to the residences for us to at any point visit in order to inspect and ensure conditions are appropriate and that the legislation is being met? Will that apply to these residences in the same way? I think that is an important point. We provide an inspectorate function particularly given that this regime is not intended to be the same as a prison. Making sure those checks and balances are in place is important. That may have already been considered and my apologies if that has been stipulated because I see that during the debate on Part 1 actually there was some discussion around Parliament being provided with reports on those who are covered by these public orders. So I am equally interested as to whether or not we have that ongoing role of inspection.I also would like to know whether or not the residence would be covered by our public corrections management. Will these residence managers be contracted out? Would we see the likes of Serco operating these residences or will they be held within the public regime? That is an important question for us on this side of the Chamber because we have very strong views about any form of our justice system even this element that falls within the civil regime being contracted out. We see it as a money-gathering exercise by third parties. We do not think it necessarily leads to any better outcomes. In the end we think the taxpayer ends up footing the bill.We have seen numerous examples where Serco has inappropriately managed the facilities that it has been running offshore. We have seen some debacles around the way facilities have been managed. Even in New Zealand we have our own examples where we have higher numbers of prisoner-on-prisoner assaults within our private prisons where they are not subjected to the same information-sharing regime so it is not as transparent. We would be interested to know whether or not it is the intention of the Government to contract out the management of these facilities in the same way it has some of our previously public prisons or even the prisons it is building such as Wiri. It would not surprise me if for instance the Government has already decided that the site where the residence will be is in one of these new facilities given that they are currently under construction and it would provide an ability to do that. That is a piece of information that I would like the Minister to clarify. I think it is incredibly important to the way these residences will operate in the future.KRIS FAAFOI (Labour—Mana):Thank you very much Mr Chair for a chance to speak on Part 2 of the Public Safety (Public Protection Orders) Bill. I just wanted to hone in on clause 112 which pertains to inspectors. Within the clause it says that the chief executive may designate one or more lawyers to act as independent inspectors. I think the point that my colleague Jacinda Ardern made just before she finished her contribution to this debate around the role of inspectors in this specific case where we are dealing with a very small number of people is a very pointed one. We do want to make sure that this small group of offenders—people who pose an extreme risk to the public—are managed and managed properly. Because it is such a small and sensitive group of offenders and potential offenders we want to make sure that it is the duty of the State to manage them.The appointment of inspectors in these residences that are being proposed under this legislation is a very important one. The people who will come under these types of public protection orders will still continue to have the rights of prisoners and inmates as they probably would have had under the sentence that they previously were on. I do note that in Part 1 they will still have the ability to make phone calls but those phone calls will still be able to be monitored. I think that is one of the things that an inspector will monitor closely—whether or not that has been done properly.I guess in the context of recent events around Phillip Smith and his management before his escape from prison or detention you would hope that the inspector in cases where we are dealing with public protection orders is given the right tools and the right resources to make sure that any arrangements that are made—or any details that are within this bill—to allow the monitoring of phone calls or any other communications are done properly so they can do their job. We have seen in the last month what can happen when things are not monitored properly. Someone who was in prison for a very serious crime was able to go on unmonitored leave was able to organise a trip to South America was able to obtain $10000 for that trip and I understand during his time in prison he was also able to use some student loan money to fund some of his operation.We hope that the inspectors described in clause 112 will be given the freedom and the ability to do their job properly because at the moment we question the confidence that the public would have in their ability to monitor things like this if we have serious cases like this. We are very happy that Phillip Smith is back in New Zealand. He should never have been out in the first place. But if the job of the corrections service was done properly and if it was run properly by this Government the likes of Phillip Smith would not have had the ability to be able to leave detention to be able to board a plane to South America to be able to get a passport. It is one thing for us to put in this legislation the ability to monitor or the ability to inspect but that actually has to be done at the front line. We question whether or not this Government has the ability to do that although we may commend the fact that this piece of legislation does build those things in.These are very serious offenders. We do realise that we are taking away a degree of their freedom but there is the ability to review that in here. But as it pertains to clause 112 in Part 2 we do ask and will continue to ask questions of the Government while it is building these safety systems into the legislation about whether or not it is actually able to carry them out and able to monitor some of the behaviour of some of our serious criminals who are in prison here in New Zealand. It is a sad state of affairs. We have got a recent example of someone who was not monitored properly and who was able to gain a passport and to board a flight to South America and make a laughing stock of the Department of Corrections. That simply is not good enough. We recognise that in this legislation there is a degree of safeguard in there with inspectors and with the ability to monitor phone calls. We would ask whether this Government if it is willing to put these kinds of safeguards into this legislation as it does with other areas of corrections is able to staff and resource that properly.I do notice that there can be the appointment of one or more lawyers. My understanding is that there is going to be a very small number of inmates who may come under the close inspection of this piece of legislation. But we would hope that that inspectorate role is taken seriously because we do not want to get ourselves into another Phillip Smith situation. If this Government is going to stick true to its word and true to its word to members of the public that it is going to keep them safe—that is the purpose of this bill because these are serious offenders who we think would have a high degree of probability of offending as soon as they are released. This inspectorate role should be taken seriously if there is the ability for corrections—and I hope it is that department that will be monitoring these inmates—to be monitoring mail monitoring phone calls and any other communication that inmates may have so that they would not be able to go and book a flight to Chile they would not be able to go and renew their passport under their first name and they would not be able to go and get their hands on $10000 so they could sustain themselves if they were to escape from prison.If the Government could answer any questions around the resourcing of the inspectorate role we would welcome that because as of recently we have seen an example that does not fill the public with much confidence.A party votewas called for on the questionThat Part 2 be agreed to.Ayes107New Zealand National 60; New Zealand Labour 32; New Zealand First 11; Māori Party 2; ACT New Zealand 1; United Future 1.Noes14Green Party 14.Part 2 agreed to.ScheduleThe question was put that the following amendment in the name of the Hon Amy Adams to the schedule be agreed to:in the item relating to section 47(1) of the Mental Health (Compulsory Assessment and Treatment) Act 1992 replace “penal institution” with “prison”.A party votewas called for on the questionThat the amendment be agreed to.Ayes107New Zealand National 60; New Zealand Labour 32; New Zealand First 11; Māori Party 2; ACT New Zealand 1; United Future 1.Noes14Green Party 14.Amendment agreed to.A party vote was called for on the questionThat the schedule as amended be agreed to.Ayes107New Zealand National 60; New Zealand Labour 32; New Zealand First 11; Māori Party 2; ACT New Zealand 1; United Future 1.Noes14Green Party 14.Schedule as amended agreed to.Clauses 1 and 2JACINDA ARDERN (Labour):I want to make a very very brief call on this part as it was something that obviously was debated by the Justice and Electoral Committee and there were some changes made. The select committee recommended amending clause 2 of the bill so that provisions would come into force on a date separate to that which was originally drafted. The original drafting suggested that the Act would come into force on the day that is 1 year after the date on which the Act received the Royal assent but the select committee instead wanted to allow provisions to come into force on a date appointed by the Governor-General by Order in Council so that multiple Orders in Council could be made bringing different provisions into force on different dates.It seems that the select committee wanted to make allowances for consent processes and I guess the different dates that may sit around those provisions that were set out in Part 2 but still allow that any provision not brought into force earlier would come into force 1 year after the bill receives the Royal assent. That then speaks to the question I asked in Part 2. Obviously that implies that we may have multiple residences multiple consenting processes. The bill actually does also say that it allows for contracts to be made between the Department of Corrections and private providers. The fact that the select committee made this adjustment suggests to me that there may already be consenting processes in train; we do not know. But I would be interested to hear from the Minister whether indeed this is the case.That is not to say it is not a sensible provision. We always try to make sure that commencement clauses are tailored to the specific needs contained within a bill which may not be uniform but if there is extra information it would be useful if the Minister perhaps shared it with the Committee at this point.A party votewas called for on the questionThat clause 1 be agreed to.Ayes107New Zealand National 60; New Zealand Labour 32; New Zealand First 11; Māori Party 2; ACT New Zealand 1; United Future 1.Noes14Green Party 14.Clause 1 agreed to.The question was put that the amendment set out on Supplementary Order Paper 20 in the name of the Hon Amy Adams to clause 2 be agreed to.A party votewas called for on the questionThat the amendment be agreed to.Ayes107New Zealand National 60; New Zealand Labour 32; New Zealand First 11; Māori Party 2; ACT New Zealand 1; United Future 1.Noes14Green Party 14.Amendment agreed to.A party votewas called for on the questionThat clause 2 as amended be agreed to.Ayes107New Zealand National 60; New Zealand Labour 32; New Zealand First 11; Māori Party 2; ACT New Zealand 1; United Future 1.Noes14Green Party 14.Clause 2 as amended agreed to.Bill to be reported with amendment presently.