Hon SIMON POWER (Minister of Justice) Link to this
I move, That the Bail Amendment Bill be now read a first time. This bill is the first of a number of pieces of legislation in the justice portfolio that the new Government will bring to this House in its first 100 days in office. The overriding principle in taking these swift actions is the need to put public safety first.
Unfortunately, public safety was not always at the forefront of policy making in the last term of the Labour Government, as the directive to reduce the prison population not only took priority but also often ran counter to the protection of the public. Last year’s changes to the then Bail Act were one example of this. As part of the Labour Government’s legislation to “arrest the sharp increase in the prison population”, it increased the threshold for remand in custody, from a risk that the defendant may abscond, interfere with witnesses or evidence, or offend on bail, to a real and significant risk. This meant that even if a defendant had repeatedly breached his or her bail conditions in the past, that defendant may not necessarily have been remanded in custody. To underscore this, another provision was inserted that prevented the court from being able to remand a defendant in custody for breaching bail conditions unless this meant that the defendant was a real and significant risk. The New Zealand Law Society, the Police Association, the Police Prosecution Service, and even a defence lawyer have all said that the 2007 changes effectively made it easier for people to get bail.
The Bail Amendment Bill I have introduced today reverses those changes. Initial estimates from the Ministry of Justice suggest that changing the law will mean that another 50 to 100 prison beds will be filled. However, the ministry has also signalled that this is likely to be an underestimate, because repealing the 2007 amendments will send a clear signal to the judiciary that the threshold for bail has been raised. This group of accused represents the type of line calls on who is being granted bail under the previous Labour Government’s law, when those people would previously have been remanded in custody.
The Government recognises that a person charged with a crime has the right to be considered innocent until proven guilty and has the right not to be arbitrarily detained. Everyone charged with an offence also has the right to be released on reasonable terms and conditions unless there is just cause for continued detention. However, those rights must be balanced against the safety of the New Zealand public. In his previous spell in Opposition the Hon Phil Goff proposed legislation that would have limited access to bail for repeat offenders. He argued: “At a certain point the safety of the community comes before the rights of alleged offenders.” In our view the previous risk test drew an appropriate balance between these competing considerations. Labour’s test raised the bar for remand in custody. The people who will have benefited from this amendment are not low risk. They are people who would previously have been remanded in custody. In those cases, giving the benefit of the doubt to the public rather than the accused will come at a cost. However, that is a price we are willing to pay to keep New Zealanders safe.
I want to make it clear that the Government will be implementing further campaign pledges regarding the bail system. We will be reviewing the Bail Act in order to improve compliance with bail conditions. In particular, we are concerned with the number of people failing to attend court. Between 1999-2000 and 2007-08, the number of defendants failing to answer bail increased by 155 percent. As at 30 September 2007 more than 18,500 cases were put on hold due to outstanding warrants to arrest. This suggests that many of those on bail already treat the system with some degree of contempt, and the pressure this puts on an already overloaded court system is unacceptable.
We will also be progressing work to make sure that bail is not granted in return for information that a defendant provides regarding a criminal investigation. This measure aims to preclude further abuse of the bail system, as occurred in January 2008 when a gang leader was released on bail after negotiating the return of stolen war medals.
Under this Government, public safety is the priority and will not be sacrificed. As part of our work programme on gangs and P we will also assess whether it is appropriate for people charged with drug offences to be eligible for electronically monitored bail in addition to home detention. The public of New Zealand deserve bail laws that put their safety first. This bill is the first of a number of measures that will restore public safety to its rightful place as the paramount consideration in justice policy, and I commend it to the House.
Hon CLAYTON COSGROVE (Labour—Waimakariri) Link to this
This is a serious issue and should be treated as such, but on examination of the Bail Amendment Bill—and I will show it for those who are watching at home—we find it consists of one page, plus the explanatory note on the front. It is four clauses long. This bill can only be described as a classic National Party hoax. Before the election National members talked tough, looked tough, and tried to stamp their feet. National stirred up as much fear in the community as it possibly could, then it comes into the House and produces this bill, its fourth bill, which is a hoax and which is flimflam. When this bill is passed at the end of this urgency there will not be one New Zealander who is any safer in this country than he or she is now—not one.
This is the level of in-depth analysis that National is engaged in. This bill of four clauses just creeps over the page, with one line on the last page. That is it. National is trying to say to the people of New Zealand that by altering a couple of words they will be safer. This bill is predicated on a number of deliberately false and deceitful—
Hon CLAYTON COSGROVE Link to this
I think the member is going to blow over there, Mr Deputy Speaker; you might want to get the men in white coats.
This bill is based on a couple of very false and deceitful premises. The first premise relates to the use in the Bail Amendment Act 2007 of the words “real and significant risk”, which, of course, were put into section 8 of the Bail Act, based on a body of common law precedents, in order to give more precision and consistency—and later in this speech I will quote from a member of the judiciary to substantiate that point. National members say that this change made it easier to get bail, and that it was done in some way to try to get the prison population down.
Let us deal with the latter point first. Here are the remand figures, and we know that the number of prisoners on remand went up by 30 percent between 2004 and 2008. I will give members some specifics. The remand prison population has continued to grow at a rate greater than the sentenced population despite, of course, the 2007 amendment to the Bail Act. In July 2007 the number on remand, including prisoners held in police stations, totalled 1,733 and comprised 21 percent of the total prison muster. By July 2008 the number had increased by almost 6 percent and constituted 23 percent of the total prison muster, so that puts the sword into the silly accusation National still tries to run out that this was some sort of sneaky way to get the numbers down.
National’s second point is that the Bail Amendment Act 2007 strengthened people’s ability to get bail. The real and significant threshold was chosen after examining judicial decisions on previous risk thresholds. In its 2002 decision on R v Hines, the Court of Appeal implicitly agreed with the High Court that to amount to just cause for a defendant’s continued detention, the risk that a defendant may interfere with a witness should be more than a nebulous and insignificant risk and should be a real and significant risk. That was the decision of a learned judge.
The Kahui case at the High Court was one of the first decisions after the changes came into force. In that case Justice Heath stated that the change to a real and significant risk “does not seem to me to put the test any higher than was under previous legislation, but rather to emphasise the need for a proper inference to be drawn from proven facts; as opposed to the Court engaging in speculation or guesswork about the possibility of a risk.” That is not from a politician or a political party. That is from a learned judge, Justice Heath, in a terrible case, as we know the Kahui case was, after these changes had been made. That puts the sword into the idea that the real and substantial risk threshold, a form of words based on common law precedent, somehow allowed a weakening in the bail laws.
In its explanatory note on the National Government notes that the changes the previous Labour Government made were intended to clarify rather than make significant changes. This bill has been dressed up as a turbo-boosted effort. Simon Power is the hard man now, it appears, on law and order. I presume National will roll out Judith Collins at some point in the debate, but maybe we have here the kinder and gentler face, the baby-faced assassin, on law and order, who is here to soften us up.
In December 2007 the Ombudsman put out a report, which I am sure the honourable member Mr Power has. The Ombudsman conducted a review of the criminal justice sector at the Prime Minister’s request. He stated: “I express doubt whether this amendment”—this is the Labour Government’s amendment—“will have a major impact in reducing the number of custodial remands.” We know from the remand figures that it did not reduce the numbers; actually, those numbers went up. The figures he obtained from the Ministry of Justice, which is now Mr Power’s own ministry, showed that in 2004, 2005, and 2006 the percentages of custodial remand cases given a custodial sentence was 41 percent, 43.8 percent, and 44.3 percent respectively.
That is what we have learned judges saying, contrary to Mr Power’s spin and to the ACT Party’s tactics of trying to scare the living daylights out of people. I remember that during the election campaign Ms Wilkinson ran around the Waimakariri electorate saying that it was easy to get bail. Well, Justice Heath and the Ombudsman disagreed with that and the remand figures show that it is not true, but I suppose it was a good one-liner to try to scare ordinary New Zealanders with. In some respects, I suppose it worked, but we have to deal with reality.
What is National’s big hit on its first law and order bill? This is flimflam, this is propaganda, and this will not make one New Zealander—if we pass it tonight—safer out there in the community. If the National Government was really serious and not just talking tough, with Judith Collins wandering around like a latter day John Wayne, it could do something that would not cost any taxpayers’ money. The Government could call the Governor-General and trigger, by Order in Council, our parole legislation of two-thirds, and that would make people safer. That would make our communities safer. National would not have to bring it into the House because it has been done. It could simply ring the Governor-General, ask for an appointment, and ask him to trigger it through Order in Council. That would be a serious and substantial move, because the legislation that Annette King and Phil Goff put through is ready to go. It sits there now, raring to go.
My question to Mr Power is why will he not trigger that process. He comes to the House with this four-clause, one-page bill, and he will stand up over the next few hours and try to convince the people of New Zealand that they will be safer in and out of their homes once this bill is passed. He will try to convince the people of New Zealand that Justice Heath was wrong, that the Ombudsman was wrong, and that his own ministry’s figures are wrong. He will try to say to the people that the remand population went down, when the facts from his ministry show that is wrong, and he will try to build a case around this. I look forward to this debate, because it will be a lengthy one. This bill is flimflam. This is National talking tough, stamping its feet, yelling out, scaring the community before the election, and then trying to dress up a weak bill.
I ask Mr Power why, if this legislation is so good, he does not drop it into a select committee. If he wants to turbo-boost it through, then, OK, he could give it to a select committee for a couple of days, because it is only four clauses and one page long. It would take only about 10 seconds to read it, and maybe 1 minute to read the explanatory note.
Hon CLAYTON COSGROVE Link to this
Well, maybe it would be 10 minutes for that member, and that is just the first page.
If those members are so proud of the bill, then why do they not give it to a select committee and let it go through an examination? They could call in the stakeholders whom they say feel this is a good thing. They could call in the Law Commission and others and ask for their view on it. But, oh no, that will not happen, because then I suspect we would start to see the overlocking being unpicked on this legislation. We would start to see the cloth beginning to unravel and fray, legislatively speaking, around this legislation, because this bill is their big hit, their big turbo-boost to be tough on law and order. I say again that if they wanted to be tough on law and order and if they wanted to make people safer in their homes tonight—and they could do it now; I am sure the Governor-General would make himself available—they could trigger the Parole Act through Order in Council in one hit.
Hon Dr RICHARD WORTH (Associate Minister of Justice) Link to this
The Labour Opposition can scarcely be surprised by the Bail Amendment Bill, coming as it does in the context of clear policies announced by National whilst in Opposition.
I raise a point of order, Mr Assistant Speaker. It may have overlooked your attention, but the previous speaker in his contribution in the House failed to tell Parliament or the people of New Zealand whether Labour would be voting for or against this bill.
The ASSISTANT SPEAKER (Hon Rick Barker) Link to this
That is not a point of order. There was no point of order in that.
Hon Dr RICHARD WORTH Link to this
Perhaps, if I may, I will start again. The Opposition can scarcely be surprised by the passage of this legislation in the context of urgency today, because the National Party whilst in Opposition clearly telegraphed its position on a number of significant law and order issues, and this was assuredly one. I am a bit surprised by the comments of the Hon Clayton Cosgrove when he suggested that somehow because this bill is short it might lack some element of merit. This legislation is a significant, substantive change, and that is to be so clearly seen by the apparent opposition of Opposition members. It is a reality in the criminal justice system that it is necessary to balance a whole lot of interests, and they are the interests of justice, in that broad sense, and in the interests of victims, offenders, and issues relating to court process. It is scarcely surprising that this trial, which the Opposition embarked on when it was in Government, has lamentably failed. It lamentably failed because it was for an improper purpose, and that purpose, which was unsuccessful in the outcome, was to reduce the prison muster. That is clearly not what this legislation is about.
This is legislation that is substantially concerned with process and substantially concerned with public safety. If we look at the original provisions of the Bail Act 2000, it can be seen that if a person is not bailable as of right, then there has to be just cause for continued detention. And what should that just cause for continued detention be? That is not a very difficult question at all; it is whether a defendant may fail to appear at court on the date to which he or she has been remanded, whether there is the prospect of witness interference, and whether a defendant may offend whilst on bail. We have seen this trial, which the Opposition when in Government embarked upon, fail. We have seen it fail, I think, for substantially the reason that it was based on improper purpose. It is important in the context of law and order policies having an effectiveness and substance that we have legislation of this type. That is why the Government has introduced it. That is why the Government is determined to see its speedy passage and its effective implementation.
Hon PHIL GOFF (Leader of the Opposition) Link to this
That speech had the length and substance of the Bail Amendment Bill; it lacked in both categories. But the member, in his brief address, got the situation absolutely wrong, as did the Minister in charge of the bill. The Minister said Labour was about reducing the prison population. Well, I will tell him the facts, which are that under Labour the prison population went up by over 3,000—the biggest increase in the prison population in this country’s history—and four new prisons were opened. But, then, both Mr Worth and Mr Power said the intention of the 2007 amendment to the Bail Act was to reduce the prison population—
The explanatory note of the bill says absolutely the opposite of that. It gives the lie to the Minister’s repeated claim that that was the purpose. Let me read to him from the explanatory note of the bill in his own name. It states: “The amendments were intended to clarify the law rather than make any significant changes.” If the Minister does not believe that, why did he put that statement in his legislation? What he has put there contradicts in black and white what both he and Mr Worth have just said.
The comment was made that this is a short bill. I have no objection to legislation being short; what I object to is that this bill is entirely without substance. I say to Mr Power that this bill is simply window dressing. The Minister may say that is a political comment from the Labour Party, but, no, I am quoting from Professor Geoffrey Hall, who is the expert in New Zealand on sentencing and criminal law. He was talking about the companion bill, but that comment applies to both bills. He says the stuff is already there and “It sounds to me like it’s window dressing”. That is what Professor Hall, the foremost expert on New Zealand criminal law, says about this Minister’s effort to demonstrate that he is doing something.
This bill is a pathetic effort to show that the Minister is being tough on crime, when, by his own admission and by John Key’s own admission, this legislation will, at best, affect a handful of people. I ask Mr Power to tell me how many people will be affected by this legislation. He will not answer that question, but John Key did. John Key said it might affect 75 people. Does Mr Power know how many people are remanded into custody each year in our system? Does the Minister know that basic fact? He does not, so I will tell him. The number of New Zealanders who are remanded into custody each year, rather than being given bail, is 15,000. Mr Key says this bill might affect 75 people, but we were told in the justice briefing that this measure would affect 10 people—10 beds—next year. That is 40 people over the next 4 years. So here we have this legislation, which Mr Power struts into the House with and says is his top priority in criminal justice to make the country safer, and it is to affect 10 people. Frankly, that is pathetic, as is the fact that this legislation is being put through the House under urgency.
We want to have criminal law that is carefully considered. That means law that is considered by a select committee. That happens with regard to all legislation relating to criminal justice. Every bill relating to criminal justice goes to a select committee, because when it comes to criminal law we want to have proper scrutiny and we want to get the legislation right the first time around. Every New Zealander has the right to be heard on important legislation. This bill will affect 10 people in the next year, but Mr Power, as Minister, contrary to what he has said in the speeches he has given in this House year after year, is prepared to ram this measure through and to deny the opportunity for ordinary New Zealanders and experts like Professor Hall to have their voices heard. I know why the Minister does not want this bill to go to a select committee. It is because a select committee would reveal that this measure is flimflam, that it is window dressing, and that it has no impact.
If the Minister wants to do something that has an impact, then he knows he can go to the Governor-General today and ask him to bring into effect the 2007 amendment to the Sentencing Act, which would require a minimum detention period of two-thirds of a sentence before parole is granted. Will the Minister do that? That would affect hundreds of people; it would keep criminals locked up for a lot longer than they are at present. The Minister does not need legislation to do that. He could do it tomorrow; he could do it today. But that would have substance and a cost, so this Minister, this show pony, struts into the House to say this bill is his big deal in criminal justice, and it will affect 10 people in the next year. Well, frankly, that is farcical.
You see, the problem is that the National Government has to be seen to be doing something in its first 100 days. It said it would make an impact. The difficulty is that after 9 years in Opposition, National gets elected and, whether one is talking about the economy or law and order, it has no plan. It has no plan and it has no policy. So we get the show pony coming into the House with this piece of window dressing that does absolutely nothing.
Now Mr Power, ironically, is changing the legislation to put back in place the legislation that I passed in 2000, which National opposed then. It opposed that legislation in 2000 and 2002. Now that legislation, the bail law, did toughen the situation up. It resulted in an extra 2,000 people a year being locked up.
I tell Mr Power, since he has asked me, that what has happened is that we have significantly reduced the rate of offending while people are on bail. The Minister’s own explanatory note sets that out. The Minister says Labour was soft on law and order, and it did not make any difference in this area. I tell Mr Power that between 2004 and 2008, the latest figures that I can give the Minister, the number of people who were remanded into custody went up by 30 percent. That Minister is trying to tell the House there was something inherently wrong with our bail legislation and we were soft on law and order. But the number of people who were remanded pending trial went up by 30 percent. That 30 percent figure is 2½ times more than the fast rate of increase in sentenced inmates. We did that, yet this National Minister comes in and says National is going to make a real difference with legislation that will increase the need for remand beds in the next year by 10!
I tell Mr Power that that is a joke—an absolute joke. We will get to the sentencing legislation in the next bill and I say that is a joke as well, because Mr Power knows that it makes no difference. Professor Hall said that. This bill makes scarcely any difference. Just as the Minister said that the 2007 amendment to the Bail Act does not substantially change the test for denying bail, this bill does not change the test. So this Minister, after the National Party campaigned on law and order and how big a difference it would make, comes into this Parliament with no plan to do anything substantial. He refuses to implement the legislation that requires two-thirds of the minimum sentence to be served before parole is granted, when he can do that right now, and he brings us two pieces of flimflam that will not make a single New Zealander feel safer in his or her bed tonight or next year.
That is a disgrace. That shows just how shallow the incoming National Government is. It has had 9 years to prepare for what it would do to make New Zealand safer, and it brings into the House today two bills that, by National’s own admission, will not make a difference. The Government brings this legislation in under urgency, denying the right of New Zealanders to examine that legislation, because it knows that on any examination it will be shown to be flimflam.
Hon SIMON POWER (Minister of Justice) Link to this
I raise a point of order, Mr Speaker. Following the Leader of the Opposition’s speech, I point out that he has once again failed to tell the House and the public of New Zealand how Labour will be voting on this legislation.
Mr DEPUTY SPEAKER
DAVID GARRETT (ACT) Link to this
Once again I find myself, as a new member, sitting here totally bemused by the Opposition’s position on a bill. What the Bail Amendment Bill does is return us to the status quo in 2000, after the Bail Act that the former Labour Government had introduced was passed. If one follows that logic, the speakers on the other side are opposing this bill because they got it wrong in 2000. Is that right? That is the only thing they can be saying, if they oppose this bill.
Frankly, we have had some quite silly comments about its length. Does the Hon Clayton Cosgrove write a 25-page bill when a 2-page bill will do? It is very short because all it does is remove the “real and significant” risk test and return us to a risk test—a test that was put in place in 2000 by the then Labour Government.
The speakers on the other side referred to judicial pronouncements on the Act, and I see in the explanatory note that, as usual with judicial pronouncements, they were divided.
There is, of course, a need to balance the presumption of innocence with the risk to community. That is what bail is all about. There is a presumption of risk with all offenders—of course there is. But I say that any risk, even remote risk, is too much. The Hon Phil Goff has made much of the fact that only 10 people may be affected. Well, Graeme Burton is only one person. Thankfully, he killed only one person, but he darn near killed three. Those 10 people whom the Hon Phil Goff has referred to are 10 potential killers. One gets bail these days unless there is a darn good reason why one should not. All this bill does is return us to Labour’s position in 2000.
Numerous tragedies have arisen from people on bail being released when they should not have been. We have heard statistics, and I am sure we will hear more in this debate, but I prefer to talk about examples. Michael Curran murdered 2-year-old Aaliyah Morrissey while on bail for killing 24-year-old Natasha Hayden. At the time that Curran killed Mrs Hayden, a young woman with whom he was having an affair, he had 22 criminal convictions, including two for indecent assault on a girl under 12. He was released by Justice Cooper, who said that a strong case was not enough; a strong case was not enough, so he was released on bail. Not long thereafter he killed a young girl. I am more interested in those kinds of examples than 16 percent of this or 10 beds there. Those examples are the things that concern me. The Michael Curran case is not a lone case. I can bring numerous examples to this House and I probably will do that in my next contribution. There are many of them, sadly.
This bill does nothing but return us to the status quo in 2000, a status quo created by the former Labour Government. Labour members in arguing against this bill are simply saying they got it wrong—they made a mistake. If they want to say that, fine. I do not agree that they did make a mistake, as it happens; I do not agree that they did. This legislation takes us back to the status quo in 2000, and nothing more.
I come back to the risk test. It is quite true that some people who are remanded in custody—in fact, quite a few—are later found not guilty. That is because the test under our law of “beyond reasonable doubt” is very high. But we must remember that, despite what is said in the newspapers frequently, being found not guilty is not being found innocent. There is no such verdict in our law. I am expecting to hear a lot of figures on how many people in remand were found not guilty. I simply make the point that there is a difference between being found not guilty and being found innocent. I say that where there is any doubt at all—and, clearly, this is what the Hon Phil Goff thought in 2000—we should err on the side of caution and protect children like Aaliyah Morrissey from predators like Michael Curran. That is all this bill does. It returns us to the status quo introduced by the former Labour Government in 2000. The ACT Party is very happy to support this short and succinct bill, which does just that.
METIRIA TUREI (Green) Link to this
The Green Party will oppose the Bail Amendment Bill, although we will be supporting National’s—
I thank the member. We will be supporting the Sentencing (Offences against Children) Amendment Bill, which is due to be debated in the House some time today or maybe tomorrow.
The amendments to the bail laws in 2007, I understand, were simply designed to align that legislation with the common law. We supported that legislation at the time and we see no reason at this stage to change our view. In fact, the changes to the bail laws were of such minor consequence that the issue was not really debated when the legislation came back to the House after its select committee process. It is unfortunate that there has not been a chance for this bill to go to a select committee so that we could discover whether there is a need to change and revert back to pre-2002 circumstances. We have no evidence before us that that is an important thing to do, and without that evidence it is very difficult to argue that it is necessary. I understand from Labour members that, in their view, the impact of the amendments to the 2007 legislation was not necessarily significant. Again, it is very difficult to judge this without there being a select committee process that properly looks into the matter.
In our view, bail should never be granted when there is a risk to the safety of the public. David Garrett has raised a very extreme case of where bail was granted, and we absolutely agree that granting bail is absolutely inappropriate in cases such as that. In the past, the judiciary has made mistakes that have resulted in terrible tragedies, as outlined. No doubt further mistakes will be made in the future, because no matter how good or strong the rules that we establish in this House are, mistakes will always be made. But it is a falsehood to suggest to the community that those mistakes are the norm or that those extreme cases are the norm. It is our concern for the majority of cases that raises our objection to this legislation.
We need to have rational, evidence-based criminal law changes, not fearmongering for political gain—and much of the dialogue around extreme cases is just that. The fact is that the vast majority of bail is given in the correct circumstances, particularly to younger offenders, first-time offenders, and those charged with minor offences. In those circumstances it is absolutely correct to keep those people as far away from jail as possible in order to protect the community. We know that reoffending rates are much higher among young and first-time offenders who are in prison. If young people and first-time offenders are put into prison, they are more likely to reoffend when they come out. That is a fact that is not often talked about in public during the rhetoric about law and order that goes on. If our aim is to keep our communities safe—or at least safer—from crime, then we must make sure that those categories of offender are kept out of prison. It is also a fact that the longer a person spends in prison, the more likely they are to reoffend when they get out. So these are essential considerations to bear in mind when we are looking at bail law. If being in prison is a contributory cause of reoffending, then keeping non-violent offenders out of prison is the best way to keep our communities safer.
There are other issues, too, such as the unjustified imprisonment of, especially, our younger people. I found the comments of Beven Hanlon, the president of the Corrections Association of New Zealand, to be compelling. In commenting on the bail amendments he said his main issue was where we would put all the prisoners. Although the Bail Amendment Act of 2007 freed up beds in our prisons, he said that the estimate of 100 or more beds in prisons was far too high in terms of what this law provided, and that New Zealand would go back to having prisoners kept in police vans and police cells. We know that there have been many cases of violence, and, indeed, killings, in police vans and police cells.
That point, of course, leads directly to the earlier comments made by both the current Minister of Justice and the current Minister of Corrections about double-bunking in our prisons. Those who are obsessed with retribution will applaud the idea of this practice, but double-bunking—which is, in fact, overcrowding in our prisons—and the practice of keeping prisoners in police cells and vans are causes of violent assaults against staff and other inmates, and also a cause of suicide. Also, such practices increase the culture of violence and abuse inside prisons, and this will spill out into our communities. In effect, these are predictable and predicted outcomes of the National Government’s policy. Such policies will increase violence in our communities and make our communities less safe, not safer. This increase in violence has been premeditated by this House and by those who vote for this bill. They must share some responsibility for that inevitable outcome. These policies put Department of Corrections staff in particular at direct risk. Staff in any environment have the right to be as safe as possible. Corrections policies that elevate the risk for staff are grossly irresponsible, and the Minister of Corrections should bear some responsibility for any incidents that might occur.
New Zealand also has a very high rate of youth suicide. It is higher for those between 15 and 24 years of age than for any other age group. The Māori youth suicide rate is nearly double that of Pākehā. The suicide rate among young offenders in adult prisons is extremely high. I understand that there are, after all, only four youth offender units in New Zealand. Increasing the remand rate for young offenders, where the only place they have to go is into adult prisons, will increase the suicide rate for those young people, and those offenders may have been charged with fairly minor non-violent offences. For some, remand will be a death sentence.
For Māori the impact is even greater. All the research proves that Māori are more likely to be stopped by the police, searched by the police, arrested by the police, convicted in the courts, and denied diversion—more so than any other population in New Zealand. The Māori imprisonment rate is extremely high because of the racist filters in the legal system that target and punish Māori simply because they are Māori. Any amendments to the bail legislation will exacerbate that racism.
I agree with Simon Power that corrections policy is failed social policy. During this spell of urgency we have already passed two bills relating to social policy that will fail Māori and our communities in general. The tax legislation will take money out of the pockets of our poorest families. It is the extraction of wealth from the poor in order to pad the wallets of the rich. The rich become even more fearful and aggressive in their attempts to keep their wealth and continue to punish the poor simply because they are poor. The poor struggle to manage increasing State intervention in their lives in order to make some headway, all the while moving one step forward and two steps back. The increase in income disparity will lead to social unease, as it always does. This action is pre-meditated. This House is choosing to create a less fair and less safe society.
The employment relations amendments will increase the numbers of disenfranchised and vulnerable young workers. Those workers will find the constant employment to benefit roller coaster to be one that forces them into greater debt, unstable housing, and illness. The 13-week stand-down period—which will still apply because the Minister of Labour, Kate Wilkinson, has been too naive to figure out how to fix it—will mean that families will face long periods without work or income support. Their children will move from school to school as their parents try to find secure employment. This will lead to reduced educational achievement and despair with the education system.
The increase in truancy fines that is coming up in the new education bill—which is yet to be tabled, I understand—will simply suck even more money out of the pockets of families who are desperately trying to find some stability for their children but are having to make the unpalatable financial choice between whether to buy food, to pay the rent, to pay the power bill, or to get warm clothes and shoes for their kids and still have their kids able to attend school regularly and successfully. Of course, the move to standardised testing that is coming up shortly, with league tables for primary schools, will, as has been proved in the US, increase the gap between the educational outcomes of the wealthy and the poor—and between Pākehā and Māori—advance the privatisation of the education system, and further lock out New Zealand children from their rightful entitlement to high-quality public education.
CHESTER BORROWS (National—Whanganui) Link to this
I rise in support of this legislation. It is something that has been called for by a number of people who work at the coalface of our judicial system. I have been approached by policemen, prosecutors, Crown prosecutors, defence counsel, and judges sitting in the District Court, and I have spoken to judges sitting in the High Court and to victims. Every one of them says they need to have this change.
Members on the other side of the House have quoted Professor Hall and Justice Heath—two people. None of them have quoted those judges at the coalface, who sit in the District Court every day and deal with those people who present a threat to their victims on a daily basis. It is hard, too, to work out what Labour will do with this legislation, because it has not said as yet. If Labour members are going to oppose it, will they be opposing it because in their view it does nothing, or will they be opposing it because of what they did in 2007, which did nothing? Those members cannot call it flimflam and they cannot say that it does nothing now, if it really changed something back when they altered the phrase “risk” to “real and significant risk”. This legislation lines up very much with some of the changes that the Labour Government made earlier in its tenure. One of the changes it made, of course, was to take the time threshold for parole down to one-third of the sentence. Recently in the last few weeks we have seen Mr Shipton and Mr Schollum released on parole after serving just over 3 years of an 8-year sentence. They follow long after Mr McNamara, who was released after serving about one-third of his sentence. Mr McNamara was not a prisoner who showed exemplary behaviour. Members may remember that he was the prisoner who fathered a child while he was behind bars—sentenced under the Labour Government—and then used as the reason for his parole application the fact that he had a child and wanted to be released so he could be with his child. That is the way Labour views the judicial system and the way it should operate.
We have to remember too that under Labour we ended up with a system that in the last 12 months has seen 79 people charged with committing murder while out on bail. Who in their right mind believes that the place for accused murder offenders is out in the community? We heard a salient example from the ACT Party—an extreme example, but salient—of someone committing further crime while out on bail. The previous Minister of Justice said it is not easy to get bail, but we know that just about every offender who appears before the court does get bail. In fact, the vast majority of prisoners who apply for bail have it granted. We know that a significant number of those people go on to offend while out on bail. We know, for instance, that while accused murderer Chris Kāhui—who was later acquitted before the court—was out on bail for murder, he breached his bail conditions on four occasions. We also know that the five offenders accused of the murder of Navtej Singh are out on bail and they have also breached their bail conditions. We know, as can any idiot watching the television screen, that the nature of that offending was something that happened spontaneously; it was out of control. We now know that those people are out on bail, and we now know that they have breached their bail conditions on several occasions. When we talk to the District Court judges, the Crown prosecutors, the police prosecutors, and the police who have to enforce the curfew conditions of offenders out on bail, they say: “For goodness’ sake, change the law.” The National Party had the courage of its convictions to campaign on that, and it will do it.
I will finish with a couple more points. National members have been accused of jerking around with the rules, procedures, and conventions of this House by bringing this bill before the House under urgency. We want to look back at what the Labour Government did under urgency. I will never forget standing here and listening to Labour members put through the bill that retrospectively OK’d $800,000 of taxpayers’ money that was taken away. As my colleague Simon Bridges will know, I have spoken to and interrogated a hell of a lot of people who have told lies and porkies in front of me. I remember watching Dr Cullen, and I remember thinking to myself that there was a guy—and all his body language indicated it to the House—who did not believe a damn word he was saying. He was wrong to do it. That showed that the Labour Party is prepared to pour scorn over taxpayers and over voters; it does not care. Well, here is National, which is listening to the voters. Here is National, which is prepared to put its money where its mouth is. Is it good legislation? Let us hear Labour members give 10 good reasons why they are not going to support it.
Hon ANNETTE KING (Deputy Leader—Labour) Link to this
I am delighted to be able to speak on the Bail Amendment Bill while David Garrett is still in the House. The member’s speech in this debate was the first time I have heard him speak. I congratulate him on now being a member of this Parliament. Coming in as the spokesperson for the Sensible Sentencing Trust, he has come in with an agenda; that is fair enough. But I listened very carefully to Mr Garrett talking before the election about the “three strikes and you’re out” policy—a very strong ACT policy. Up and down New Zealand people listened to what he said. Those who voted for ACT heard it. They did not hear what he said after the election: that this policy, should it be implemented, would have no impact on the number of people going into prison for another 15 years. I say to Mr Garrett that that was not an upfront, truthful approach to the people of New Zealand. That was not what ACT candidates said on the hustings where I was. That was not what ACT candidates said. Not for one moment did they believe that, if this policy were implemented, somebody might be affected by it only in 15 years’ time. All I can say is that that is not a straightforward way to start one’s career in this place.
I listened to Chester Borrows and I ask why he is not the Minister of Police. He should be the Minister of Police. He has a lot of information and a lot of knowledge. I believe he would be a very fine Minister of Police, but he was shifted to one side. I have to correct him, however, on one thing he said; when it comes to the justice area, perhaps he is not so well informed. He raised the issue of people offending on bail. I suggest he reads this bill. I point him to page 4 of the explanatory note of his Minister’s bill, where it states that offending on bail under a Labour Government was reduced—not increased, but reduced. I point him to page 4 and ask him to have a read. It shows the drop in offending on bail under a Labour Government. The impression the member left for the public was that offending was going up and was out of control. That is not what is in his own Minister’s bill.
There is no doubt that law and order was a major election campaign issue. In fact, a campaign to make it a major election issue started, I think, almost 2 years before the election. It seemed that the National Party had decided that if it could not buy the election, then—along with its backers, those who control the media, and those who own the media—it would scare the voters into its camp. As so many commentators and academics have said, whipping up law and order as a political issue is very much like using race as a political issue. We know how successfully the National Party used the race issue against Māori to lift its poll ratings: it almost won the 2005 general election by whipping up the race issue. Everybody on the National front bench—with the exception of Christopher Finlayson, but including John Key—jumped on that race-based campaign. Those members had no qualms about taking the poll gains that Don Brash brought them with that campaign. Of course, once John Key became the leader he then decided he needed to broaden his base, so he popped down to McGehan Close and found a nice Māori family, who became the poster for his now broadened approach to New Zealand. But National members banked the race-driven poll ratings; they never repudiated their basic assumptions, and they moved on to their next target, which was to whip up the same response on law and order for the 2008 election campaign.
Do not get me wrong: safety in our community is very important. Every murder is a tragedy and every assault is wrong. Family violence in this country is a national disgrace. Street violence is unacceptable. The tools we use in this country, like most other countries, are a combination of legislation, education, and enforcement. We use these tools to try to combat crime in our society, but the tools have to be effective. I say to Simon Power, for whom I have great respect, that this bill is not an effective legislative tool if it is intended to put more people in prison. That is the basis on which he has put up this bill—to put more people in prison. But this bill will do nothing of the sort. He is talking about a handful of people at the margin.
I tell Mr Garrett they would not have all been murderers or even have committed violent crimes. Ten more people by 2009 would have been in prison and 40 more people by 2011.
You see, the change to the Bail Act in 2007 was never about putting more people in prison. The changes made by Phil Goff in 2000—
I tell Mr Garrett that I am correct. The changes made to bail law in 2000 by Phil Goff were real, big changes. They were significant. The change made in 2007 was not about putting fewer people in jail—and I will go over that in a moment. That was not the purpose.
This bill is just flummery, and that distresses me.
It is just flimflam, as my colleague says. The 2007 amendments were about clarifying the bail law. They were never about remand beds. Mr Power has read his very short bill, but I am surprised that he has not read the explanatory note. The explanatory note was probably written by the Ministry of Justice, because it would have given him this advice. [ Interruption] I ask Mr Garrett whether he is listening. It states: “The amendments [of 2007] were intended to clarify the law rather than make any significant changes.”
Why did we need to clarify the law? Well, it became quite obvious. The ministry’s advice was that we needed to clarify what was considered a risk under the previous risk threshold. It came out of case law—out of a Court of Appeal 2002 decision, the Queen v Hines. In that case it was stated that to amount to just cause to continue detention, the risk should be “more than nebulous and insignificant and should be a real and significant risk”. On the basis of that and other decisions we decided, on advice, to use those words in the amendment of 2007.
It was not about more people or fewer people going to prison. That is why it is flimflam to be making this change under urgency. I tell Mr Power that this bill makes very little difference to the status quo.
Therefore we will not be voting against it. It makes very little difference. It is flimflam. I believe that if the member had really wanted to make a difference, then he would have picked up some of the tough measures that exist and are in law now. One of those is the two-third parole provisions.
The Bail Amendment Act 2007 is passed, I tell members of the House. I tell Mr Garrett that the law is passed. It need only be triggered by an Order in Council. It would make a significance difference. I say to Mr Garrett that the ACT Party, as a coalition partner, should put pressure on the National Government to implement that legislation. An Order in Council could be drawn up today, could go through Cabinet on Monday, and the Governor-General could sign it off in the afternoon. It would make a significant difference for the safety of people in New Zealand. But the National Government is not doing that. It wants this piece of flummery to be its flagship legislation.
SIMON BRIDGES (National—Tauranga) Link to this
It is my great pleasure to rise in this House to speak in favour of the Bail Amendment Bill. It was good to hear the Hon Annette King say the Labour Party will support this bill. It shows quite clearly that Labour admits that it got the bail law absolutely wrong in 2007 when it voted to change it. Labour did not know what it was doing then, and now it will not be opposing this bill, which will change the law. I commend the Hon Simon Power for his courage in bringing before this House our first piece of legislation to toughen up the criminal law in this country and to bring it more in line with what the people want to see.
I tell the Hon Darren Hughes that I come to this House with a lot of experience in the bail laws. I have prosecuted, and been involved in, hundreds of bail hearings both before Labour’s law change and after, and I have learnt a bit about this law and what it means, with the life experience that I have.
All I would say about the Labour Government’s amendments to the bail law in 2006 and 2007 is that they made it easier for crims. I say to the Hon Annette King, when she talks about 10 cases affected, that I have prosecuted at least 10 cases that were fine calls—where the judges made it very clear that because of this change made to the law in 2007 they were letting the people out on bail. I say also to this House that the measure by Labour, when it amended the law, was entirely fiscally driven. It was not about justice or about criminal law; it was entirely fiscally driven.
I say to the Hon Clayton Cosgrove that I am glad he is still a member of the House. He shows that a little bit of knowledge is a very dangerous thing, with his comment on Justice Heath in the Kāhui case. Yes, he was right; the learned judge did say the law made no difference. But what, cumulatively, the law is and what the various judges in this country have said is, in fact, expressed in the most influential commentary on criminal law in this country, Adams on Criminal Law: “Judges have expressed different views of the effect of the statutory amendment;”. It cites many cases that were in favour of the no-change position; but then goes on to say: “Others consider the amendment has set a higher threshold for refusal of bail.” That is actually what it did do in the District Court. The High Court judges did not know what the Labour 2007 amendment Act meant. This Government is changing the law back. I commend this bill to the House.
LYNNE PILLAY (Labour) Link to this
I believe that this bill should be renamed the “Wasting Parliament’s Time on Meaningless Legislation Bill”.
Hon Lianne DalzielAnd we are doing it under an urgency motion. Again, there is no opportunity for comment by the public. There is no ability to scrutinise this bill and say how effective or ineffective it is, what it does, or how it could be improved. There is no chance given, whatsoever. This is another case of turbocharged legislation. It is a glowing example of the tough, strong National Party. This bill has minimal effect, but it is absolutely essential that it is rushed through under urgency. I want the Minister to take a call—certainly when we have more discussion in the Committee stage—to explain why this bill is being rushed through under an urgency motion. I think it is an insult. It is an insult to this Parliament but, more important, it is an insult to the good people of this country, who are denied the opportunity to come to the select committee.
That is right. I am sure there will be people who support this bill; they should be given the opportunity to come to the select committee and make comment on it.
But—and, I think, more important—people should also be able to come and say how they believe the bill could be improved: suggest things they think could be better, and other actions this Government could take to improve the bill or to live up to the Government’s promises of getting tough on and cutting crime. I cannot wait to see the crime rate drop dramatically in this country in the next few months under a Labour Government—I am sorry; I meant under a National Government. It did actually drop under a Labour Government. That was a slip of the tongue, but the crime rate did drop under a Labour Government. I cannot wait to see how under a National-led Government the crime rate will drop. This is a glowing example of the National - ACT - Māori Party Government having no substance and no style of doing things. A myriad of meaningful pieces of legislation could be before this House. We could be having a question time where we in Opposition could be fulfilling our role of holding this Government to account for all the terrible things it has done.
Moana MackeyThat is right; this is why we are under urgency. Why do we have this flimflam piece of legislation before the House at the moment? Why are we going through every single stage at this point in time? What would we normally be doing? We would be having a question time. We would be asking the members on that side of the House why the Government has slashed KiwiSaver, why the Government has provided tax cuts for the wealthy at the expense of modest income earners and families, and why the Government has brought in the 90-day bill without taking it to a select committee. Why has the Government done that, at all?
Members will see how it all comes together. I thank Mr Power. If he follows this, he will see that it will come together very soon. In response to Mr Power, who is wondering why, I will suggest what the National Government, which is looking towards a brighter future, could have done. It could have build on better legislation—on legislation introduced by the Labour-led Government. It could have built on paid parental leave. It could have built on 4 weeks’ holiday, early childhood education, apprenticeships, KiwiSaver, Working for Families, and much, much more. Instead, it did not.
When I chaired the Justice and Electoral Committee—
That was in the heydays. I acknowledge that at times Chester Borrows was on that committee with me, and I acknowledge that working with him now on the new Justice and Electoral Committee—
Dr Worth is also on the committee, and that is very good, as well. I know that Chester Borrows, as chair of that committee, will comment on how impressive it is to see submitters come to select committees and be given—[ Interruption]. Well, that is right. But I know that Chester Borrows would have liked and enjoyed people coming to select committees. The Law and Order Committee chair—who is the Law and Order Committee chair?
Exactly. Under the expert stewardship of Sandra Goudie—oh, that is why the bill did not go to a select committee; I get it now. I am sorry, but I get it. The Government could have sent the bill to the Justice and Electoral Committee, where I am sure Chester Borrows would have been happy to have it. I think that every chair of every select committee, and any member of a select committee, would acknowledge the committees’ robust debate and input—be it positive or negative—and how effective it is to have that submission process. To deny that process just because the Government has no confidence in the chair of its select committee is absolutely ridiculous. This bill should have gone to a select committee because I know that meaningful input from the public and from organisations would have only enhanced this bill. So why is the bill being rushed through? Why are the public, organisations, and the police not being given the opportunity to comment?
In respect of Labour’s Bail Amendment Act 2007, which this bill seeks to repeal, Justice Heath actually recognised that it did not raise the test; it was more a codification of what was practised. Remand figures—if I can talk about remand figures—show that the prison population has not decreased. In fact, despite the 2007 amendment to the Bail Act—and I have some figures here that I will share with the House—the remand population totalled 1,733 and comprised 21 percent of the total prison muster. By July 2008 remands had increased by almost 6 percent, and constituted 23 percent of the total prison muster. So the Act certainly did no harm, as the National Party is claiming; it really just shows that this bill is meaningless. And this bill does no harm. The harm, as I said before, is in its not going to the select committee, and in the wasting of good time. The bill does not achieve anything.
It is lightweight; it is a slogan—a slogan piece of legislation. It is a hoax on the public, and it is another example of sloganeering, where National is grandstanding on what is essentially just a repeal of the clarification of what is current practice. This is the National practice of smoke and mirrors. If National really wanted to get tough on crime, it would bring into further effect the two-thirds parole law that Labour has already passed.
I ask when the Minister will do that. Instead, this bill is about the scoring of political points; it shows the wishy-washy sloganeering, electioneering method of the National Party. National’s claims that this amendment will make it easier to get bail are not supported by remand figures. I look forward to members on the other side of the House in upcoming debates actually clarifying for this House what this bill will achieve.
MELISSA LEE (National) Link to this
I am surprised. I may be new in this House but I am surprised that the Labour Party seems to have forgotten that we have had the biggest submission from the public: it was called the election, and those guys lost. Law and order was one of the major points on which New Zealand voted against Labour.
I rise in support of the Bail Amendment Bill. The purpose of this bill is to put public safety first. Fifteen thousand people marched in South Auckland to say that it is not right that people like Navtej Singh, Joanne Wang, and Yin Ping Yang died at the hands of people who had been bailed.
Perhaps you have short memories; I will just remind you. You keep saying that public submissions were not made—
Hon Darren Hughes Link to this
I raise a point of order, Mr Speaker. Yesterday and the day before we had long dissertations from the Deputy Prime Minister, interrupting speeches, when the word “you” was mentioned. I think it is only fair that if the Government wants to play that game all through the urgency motion, the Opposition will respond. So I am doing that now.
In reference to the member’s comments, I remind him of course that we had the same problem with Ms Pillay, as you will recall, Mr Assistant Speaker, because you were in the Chair at the time. The Opposition did not interrupt her speech at that point. The member knows that the interruption of another member’s speech needs to be for a significant point of order.
Hon Dr Michael Cullen Link to this
Could I take this matter a stage further, because at times when listening to these speeches, and occasionally with some of the points of order, there is a little bit of a problem about the ruling that has been given over many years on this matter, which is worth exploring.
There are two ways in which people use the word “you” in conversation and in speeches. There is the sense where we use the word “you” when it is referring to you, and in the House that means you, Mr Assistant Speaker. It cannot actually mean “you, Mr Power”, although if one says “you, Mr Power”, then that is actually slightly different. It is quite clearly not “you, Mr Speaker”. However, also in absolutely normal English usage, the term “you” is meant as a substitute for “one”—in other words, a general person who is not a specific person. I have listened to speeches a couple of times when people have used “you” in that respect. It is actually a bit trivial to raise a point of order when people have used the word “you” in that context or other contexts. “You did this. You said that. You, you, you …” is clearly referring to “yourself”, but if it is used in the innate general sense of “one”, or a person, then it seems to me it is not worth pulling up the business of the House for interruptions.
The ASSISTANT SPEAKER (Hon Rick Barker) Link to this
Each member has made a very good point. It is not acceptable to use the word “you”. The Hon Dr Michael Cullen makes a good point—that in fact there are many uses of the word. I tend to be reasonable with its use, because we have some new members here who need to learn the rules. But in response to the Hon Simon Power, I say that simply because people do not object at the time, it can only be taken to mean that they accept the rules. If people object, they should say so at the time. An old pearl I learnt in history some years ago is “silence means consent”.
I support this amendment bill because we should never again allow the senseless killing of people like Navtej Singh. He was a hard-working father, husband, and son, working at his liquor shop, minding his own business behind his counter, when people walked into his shop and shot him dead. Joanne Wang was run over while she was trying to stop the people who had snatched her bag. The bastards ran over her while her son watched her die.
What about the Korean tourist killed in Nelson by Hayden Brent McKenzie? McKenzie was already serving a life sentence for murder when he killed Jae Hyeon Kim in 2003. Kim’s body was not even discovered until October this year. What anguish his family must have gone through, not knowing, and then to discover he was killed by this very hateful person!
I would like Opposition members to read the victim impact report, to see what kind of damage these criminals do to innocent families. Perhaps they do not actually have the emotions to understand what it is like to be a victim. I mentioned it in my maiden speech—
I have worked as a reporter, and I have worked as an adviser for the police in Auckland. In my experience, and from the things I have heard the police say and watch them do, I know they are chasing the same offenders over and over again—offenders who have been bailed. That is a waste of the police’s valuable time. We need to protect the hard-working, law-abiding citizens of New Zealand instead of protecting the rights of these criminals.
As I said, and as the Opposition keeps forgetting, we did not have public submissions, apparently. But as far as I am concerned we had the biggest public submission on 8 November. It was called the election, and the people of New Zealand said no to Labour. One of the very, very important things on which they voted against Labour, now in Opposition, was the law and order issue. More than 15,000 people marched in South Auckland because they were sick and tired of 9 years of non-performance by the then Government. Has the Opposition forgotten that? We are here doing something, instead of wasting the time of this House, and taxpayers’ valuable money, so those members should just accept it. We are here to do a job, and we are doing it. Thank you.
RAHUI KATENE (Māori Party—Te Tai Tonga) Link to this
Getting tough on crime is always the hallmark of a new Government. If we roll the clock back to 1999, one of the baby steps of the new Labour Government at that time was the introduction of the Bail Act 2000. Eight years down the track we have amendments proposed to get even tougher on crime by amending that 2000 Act. The effect of the Bail Act 2000 was immediate and severe. Between March 1997 and March 2007 the sentence muster increased 35 percent, from 4,493 to 6,053. During the same time, however, the remand muster increased a massive 214 percent, from 550 to 1,724.
Seven years down the track, conventional wisdom, assisted by case law, suggested that the original 2000 Act should be refined to clarify that the risk should be more than nebulous and insignificant, and should be a real and significant risk. It is a sensible suggestion, one would think, to articulate a clear and concise interpretation of the law. So last year the 2007 change was made to better clarify the law, in line with case law on the subject, particularly the Court of Appeal’s decision in R v Hines. In introducing the concept of a real and significant risk, this brought the legal consideration of bail into line with how the Department of Corrections currently does its risk assessment reports. Again, it was a useful initiative, one would think, to see links being made between two justice sector agencies.
Perhaps the most salient point of the 2007 legislation was the obligation it placed on the police to provide evidence to the court on risk. Why is that so important? The onus to show one’s evidence means there is a process to counter any possible bias or prejudice. Decisions about granting bail are therefore made on the basis of evidence and a robust process. The responsibility to prevent prejudice or bias being of undue influence is vital in order to counter the problems that have emerged when there have been any elements of discretion in the system at large.
The unintended consequences of the use of discretion in the criminal justice sector is an issue that has concerned the Māori Party, but also is an issue of concern to many other commentators in the sector. The recent work undertaken by the former Government, called Effective Interventions, describes the fact that four to five times as many Māori as Europeans are apprehended, prosecuted, and convicted; six to seven times as many Māori are given a custodial sentence or were serving prison sentences; and 11 times as many are remanded in custody awaiting trial. To break the remand statistics down further, in 2003, while 10 out of every 100,000 European people were remanded in prison, the figure for Māori was 110 out of every 100,000. But it gets worse. Last year’s report by the Ombudsman Mel Smith, which investigated issues involving the criminal justice sector, revealed that there has been a marked increase in the volume of offenders who have been remanded in custody. Between 1991 and 2006 the number of remands as a ratio of all inmates grew from 9.7 percent to 20 percent.
These statistics are all going in the wrong direction. Twenty years ago, Moana Jackson, in his groundbreaking research TheMaori and the Criminal Justice System: a new perspective—he whaipainga hou recorded that when all necessary variables have been considered, Māori record instances where their sentences, or the rejection of a Māori-based alternative, can be attributed only to judicial insensitivity and prejudice. Ten years ago a joint Te Puni Kōkiri and Ministry of Justice study found that the court system is meaningless to many Māori; too many Māori are receiving poor-quality legal advice; prosecution practices for Māori differ from those of non-Māori; lawyers, court staff, and the judiciary have been found guilty of culturally inappropriate behaviour; Māori offenders are receiving inappropriate sentences; and imprisonment has been proven to be ineffective.
Less than one year ago the Ombudsman suggested that a royal commission of inquiry was urgently required to undertake a comprehensive review of the criminal justice system. The reason for his call for an inquiry is spelt out in black and white in the programme for action for Māori in the Effective Interventions programme pursued by the previous Government. In that report a specific recommendation was introduced to investigate the impact of the exercise of discretionary powers in the criminal justice system. The Ombudsman and the Chief District Court Judge have both publicly supported the value of the real and significant provision. Their argument is that without this provision too many people are remanded into custody unnecessarily, and this is particularly of concern for people who are facing low-level charges or non-custodial sentences.
Given all this background, the proposal to remove the words “real and significant” from the Bail Act reverts the legal position back to that prior to 2007 and provokes further questions. Why would one want to remove specificity from legislation to deliberately return to the concept of risk and, with it, the attendant problem of loose interpretation? Why, when the Ombudsman and key justice sector agencies all appear to agree that there is an element of discretion that works against Māori outcomes in the justice sector, would anyone seek to take the risk to introduce the possibility around even more discretion?
There is a very key issue that I believe every member in the House and every party represented would absolutely agree on. That is the fundamental importance of public safety. We must not expose the people to any element of risk, and we must do all that we can do to restore a sense of peace within our communities. But we cannot agree to legislation that invites loose interpretation or an element of subjectivity or discretion, when there is a real alternative in sight. That alternative was to tighten up the law, and to make it more specific by defining risk as being real and significant, as the 2007 amendments did. That was why, when the amendment to clarify and tighten the provisions came before the House last year as part of the Criminal Justice Reform Bill, the Māori Party supported the legislation. We supported that legislation then, because we wanted to ensure that offenders are not unnecessarily remanded in custody rather than on bail. Our policy position has always been that we seek initiatives to lower the incarceration rate and to reduce the use of prison as a response to offending. We want to protect the public from harm, and the clarification of real and significant risk does that, in our estimation.
But we are also keen to engage in a much wider debate around the Government’s law and order policy, and we anticipate that Minister Sharples, in his capacity as Associate Minister of Corrections, will be an active participant in that debate. The debate must consider these three issues posed by the Ombudsman last year: the wide philosophical issue of what is the purpose of a remand, and whether and when bail or custody is appropriate; that the increase in prison muster is undesirable in terms of the impact on offenders and families; and the demand for increased Government expenditure on prisons. The overrepresentation of Māori should be an area of significant focus. Thank you, Mr Assistant Speaker.
A party vote was called for on the question,
That the Bail Amendment Bill be now read a first time.
Ayes 106
Noes 7
Bill read a first time.