Courts (Remote Participation) Bill

Hon SIMON POWER (Minister of Justice) Link to this

I move, That the Courts (Remote Participation) Bill be now read a second time. This bill provides a legal framework for any participant in any court proceeding to appear by video link, provided that certain criteria are met. I would like to commend the Justice and Electoral Committee for its prompt consideration of the bill and for the sensible amendments it has proposed, which the Government supports. The committee received eight written submissions on the bill and heard one oral submission.

I note that some submitters, and a minority on the Justice and Electoral Committee, were concerned about the use of video links in criminal substantive matters where evidence is being presented. In particular, there was a concern that this legislation might be used to prevent a defendant from being physically present at his or her trial. I do not accept that allowing a defendant not to be present at a trial by video link is an erosion of his or her fair trial rights. A fair trial is about the ability of defendants to participate in their proceedings. Physical presence alone does not ensure participation, and it certainly does not ensure effective participation; it merely provides an opportunity to participate.

Under this bill, each case will be examined by a judge on its merits. In some cases, the judge may decide that the physical presence of a defendant will ensure effective participation. In other cases, the judge may find that the defendant can participate just as effectively by video link. Clause 5 of the bill sets out the criteria that a judge must consider before deciding to use a video link in any proceeding. Clause 6 provides even more safeguards if the video link is to be used in a criminal proceeding. In criminal proceedings, a judge will have to consider the impact of the use of video links on the defendant’s right to a fair trial. Specifically, the judge must consider the defendant’s ability to comprehend the proceedings, participate in the defence, consult and instruct counsel privately, access relevant evidence, and examine witnesses for the prosecution. Where the judge is not satisfied that those criteria can be met through the use of audiovisual links, then he or she will not allow them to be used.

Before this bill was introduced, it was reviewed by the Attorney-General and the Crown Law Office. The advice provided by the Crown Law Office—which is publicly available on the Ministry of Justice website—was that the bill complied with the right to a fair trial and the New Zealand Bill of Rights Act. In addition, each time a judge permits video links to be used, that decision must comply with the New Zealand Bill of Rights Act. No defendant will lose the ability to participate in his or her trial as a result of this bill. The safeguards in the bill ensure that the defendant’s right to a fair trial is preserved. Equally, the rights and interests of other participants, such as victims and witnesses, can be taken into account in any decision to use video links. Video links can already be used for the evidence of witnesses, including that of the defendant.

I do not accept that New Zealand is going beyond other countries in allowing defendants to appear at their trial by video link. Video links can be used in criminal substantive matters in New South Wales, Victoria, and the United Kingdom. Bodies such as the Yugoslavian war crimes tribunal have also recognised that there is a legitimate place for the use of video links at trials.

I expect that there will be legitimate caution over the use of video links in substantive hearings. However, as the technology improves and the courts become more comfortable with its use, this bill will enable video links to be used in a wider range of situations, without the need for further amendment. I see no reason why video links cannot be routinely used for the appearance of defendants in procedural matters. The use of video links in these situations is a sensible and safer response to significant court pressures. It would reduce the need to transport prisoners to and from court, which can have tragic consequences, as it did in the case of young Liam Ashley.

The Ministry of Justice anticipates that by 2014, some of New Zealand’s busiest courts could each see up to 2,000 remand prisoner appearances by video link every year. This represents significant savings for the justice sector—and, I might add, it will increase the speed with which these matters can be heard—without compromising the rights and interests of defendants. To bring it down to the level of an individual offender, I tell the House that in early 2007 it cost the taxpayer $16,000, or $4,000 each way, to transport Graeme Burton from Pāremoremo to Wellington for two court appearances. I am pleased that around $2 million will be made available in the coming financial year to fund the installation of video link facilities.

I will highlight two of the more significant changes to the bill recommended by the select committee. Clause 8 contains a presumption in favour of the use of video links in criminal procedural matters where no evidence is being presented. This presumption has been strengthened by the committee. This is an important point. Although the use of video links remains properly at the court’s discretion, clause 8 now requires a judicial officer or registrar to consider using video links in criminal procedural matters if the technology is available. Although video links are not entirely new to the courts, this presumption will encourage a culture change among the judiciary, court staff, and court users to enable greater use to be made of video links. We should not be afraid to use what is now well-established technology to help make our system run more smoothly.

Video links may also be used in civil matters, under clause 7. This clause has been amended by the committee to ensure that the interests of other participants can be taken into account in any decision to use video links. For example, in custody proceedings in the Family Court, although the parties may consent to the use of video links, the child is not a party to the proceeding. The amendments to this clause ensure that the views of the child about the use of a video link can be taken into account.

Once again, I thank committee members for the work that they have done on this bill. I know that they applied themselves in a rigorous way to many of the issues that were brought up during the hearings and evidence that was presented, and the House and I are grateful for that. I commend this bill to the House.

Hon DAVID PARKER (Labour) Link to this

I concur with the Minister of Justice on the work that was done by the Justice and Electoral Committee under the good chairmanship of Chester Borrows, who, I am happy to attest, is a very effective chairman.

I will say why the Labour Party, with a somewhat heavy heart, will vote against this Courts (Remote Participation) Bill, because 99 percent of what this bill will do in practice is good. For 99 percent of the time when the powers in this bill are exercised to force a remand hearing or a bail hearing to be heard without the presence of the accused, no injustice will be caused. But there is no need to take away the right of an accused to attend his or her trial; there is no need for that. It is a fundamental right of mine if I am accused of a crime, or of anyone in this Chamber or any other person who is accused of a crime, to attend the trial at which I am, or they are, being accused of that crime. It seems to me such a fundamental right that I cannot believe we are so lightly brushing aside that right and saying it is now a matter of discretion for a judge as to whether an accused has the right to be present at the trial where he or she is being accused of a crime—accused; not necessarily guilty, but accused.

I have faith in our judicial officers. We have a pretty benign political climate at the moment in terms of standing up for people’s human rights. But it may not always be that way, and we will have the occasional judge who has a rush of blood to the head and thinks that a person might be a terrible, evil person who ought to be put away. Maybe there will occasionally be a former prosecutor who aligns himself or herself a little too much with the prosecution. That happens. It does happen on occasions. It does not happen a lot, but it does happen. In this bill, we are, for the first time in New Zealand’s history, taking away the accused’s absolute right to be present for his or her trial.

Why is that important? Well, the sense of fairness, the sense of justice—or injustice, if one does not have the right to attend one’s trial—will be ever held by the person who cannot attend his or her trial when he or she wants to. For ever that person will wonder what went down that he or she did not see. Was the judge asleep? Did members of the jury fall asleep? Were faces being made at that person’s expense when evidence was being called in his or her defence? Were inappropriate pictures being shared amongst members of the jury that the accused did not know about and, therefore, had a right to challenge? Those are just a few of the examples that I can think of as I stand here speaking. The accused will not necessarily know that that is happening. Even though the accused might have a video link into the prison where he or she is sitting in some little cell—assuming for the moment that we trust completely the Department of Corrections officers never to frustrate that process, which is a pretty big ask, I would think; at times I could foresee that process being abused at the prisoner end—and even if we assume that that end of the process is perfect, there is only one camera in the court, and that camera is looking only at the witness or at the lawyer. It will not be focused on the jury, it will not be focused on the other lawyers, and it will not be focused on someone who might be at the back of the court, holding up some sort of protest sign.

This is outrageous legislation. Tonight we are taking away the right of an accused to be present at his or her trial. I say to the Minister that it is not the international norm. We were spun that by the officials from the department for a start, and when we dug into it, we found that it was very rare. There is the occasional exception starting to appear in some overseas jurisdictions. Most of them have not done it, and those that have done it were wrong to do it. There is no mischief here to be cured. We had no evidence at the select committee that there was a problem that needed to be fixed. We did not have one instance pointed out to us that it was wrong that the accused had the right to appear at his or her own trial; there was not one instance. The Minister will take away my right and the right of every other New Zealander to protect ourselves against the actions of the State by appearing in our own defence. It is now a matter of discretion for the judge. That is wrong.

What did others say? The New Zealand Law Society and the Human Rights Commission both submitted strongly and both said it was wrong. Given that there is no evidence of any malpractice or something going wrong here that needs to be fixed, I ask why the Government would override our existing civil liberties in the face of severe criticisms from both the Human Rights Commission and the New Zealand Law Society, ignore those concerns, and take away the unconditional right of the accused to be at his or her own trial.

If an accused acts up when he or she is at the trial and disrupts the proceedings, the judge already has rights of contempt to control the way in which the accused handles himself or herself in court. If that person is in contempt of court, he or she can be sent down to the cells. I have never seen that happen, but I am sure it happens occasionally. Judges have the right to do that. If something goes wrong in their court, they already have the ability to control it. But, in my opinion, there is no justification for taking away the right of the accused to be present at his or her trial. Sure, in the 99 out of 100 cases where this will be used in a bail hearing or an adjournment because a witness is not available so the trial cannot proceed, or because the parties are not ready, then that is fine. I can accept that on those call-overs, on those non-substantive trial dates, there should be the ability to override the will of the accused. It should be very slow for the judicial officer to exercise that discretion where the accused is opposed to it, but that discretion ought to exist. I agree with that. But for the substantive trial where a person may be accused of murder, where his or her liberty is at stake, where his or her whole life, if we think about it, is at stake as a consequence of a possible conviction, for the person not to have the unconditional right to attend his or her own trial is just wrong.

What saddens and perplexes me is that I do not understand the problem that is meant to be addressed by this legislation, because we were not given any instances at the select committee to show why this was necessary. I think that this is just bad policy that has arisen in the start by accident. I think the departmental officials thought that it was a good thing that we use technology to reduce court costs, to speed the costs of court procedures, and to speed up trials, which are both good objectives, because we should not have long periods between people being charged and their eventual trial, and we should not make these processes any more complex or expensive than they need to be. It was a good ambition. But the Government’s thinking was too woolly. It did not distinguish between call-overs, adjournments, bail hearings, and the trial where someone is being accused of something for which he or she could be convicted and lose his or her liberty.

If the Crown will be taking away someone’s liberty, then the person whose liberty will be taken away should be able to stand up at his or her trial and participate in every aspect of it. The accused should see everything that goes on. If members in this House do not think that sometimes inappropriate things happen in court, well, I am sad to say that they are wrong. Those things do not often happen, but they sometimes do. Whether it is witnesses behaving inappropriately, jurors behaving inappropriately, or even occasionally judges behaving inappropriately, if I were the accused I would feel less able to protect my interests if I did not have the right to be there. If I was not there to be able to see those things when they go wrong, and to protect my interests, I would feel an injustice had been committed, and that I was not properly able to protect myself against the power of the State. The State has all the power and the resources here. It has the police, it has the prosecution service, it employs the judges, and it has all the money. We need to protect the civil liberty of the accused to be present at his or her own trial.

CHESTER BORROWS (National—Whanganui) Link to this

I rise in support of the Courts (Remote Participation) Bill. I acknowledge the work of the Justice and Electoral Committee, as previous speakers have done. It is important to note a couple of points made not only by the Minister of Justice but also by the Hon David Parker in his first speech on this bill. So I too acknowledge the substantial ground within the bill that we agreed upon, and I acknowledge the real concerns that Labour members have expressed in their minority report. Later I will articulate the reasons why the Government has come to the conclusion to proceed with the bill in the way it has.

The first point to note is that in civil proceedings, there is no real argument. We should use audiovisual links for appearances by witnesses as appropriate. That is something that has been conceded, there has been a movement towards that for some time, and it has been flagged.

The second point is that in procedural hearings—matters such as bail applications, call-overs for trial, and maybe name suppression applications—where no evidence is called, there is, again, agreement across the House that an audiovisual link is an appropriate medium for a defendant to be able to appear in the court. That is because the defendant is represented, the arguments are clear, and there is no contest as to the evidence that is being given, or if there is, it is being well canvassed.

Then there is the point the Minister made. He said there is a safety issue. Lastly, I guess, there is the issue of the cost to the taxpayer, and that is no less an issue, especially in the matter, quoted by the Minister, of the transportation of a particular prisoner from Pāremoremo to the Wellington High Court for two procedural call-overs. But the fact is that audiovisual links are used in those procedural matters right around the world in all sorts of jurisdictions, sometimes with consent and sometimes at the discretion of the judge. Nevertheless, all sides of the House agreed that that was appropriate.

The sticking point really was on substantive hearings, which are hearings where evidence is called, and the removal of the right of an accused to be physically present in the courtroom, and a move towards giving judges the discretion to overrule a lack of consent and insist that a trial be heard via the use of an audiovisual link. I think that the thrust of the argument put forward by the previous speaker is that justice must not only be done but be seen to be done, and the ability to see justice being done should not be limited by wherever the camera casts itself.

The point that David Parker made in respect of where the cameras are pointed during the course of the trial is quite valid. In considering that, we have to think about the demographics of people who appear before the court as accused persons. By far the majority of them struggle with literacy, struggle with understanding, struggle with the language used within a courtroom, and struggle with an inability to communicate with their counsel in legal terms about the ingredients of a crime. In many instances, they struggle with engagement with the legal system. We know that the people who end up going to jail are overrepresented in those areas, as well as in areas such as drug and alcohol dependency. Somewhere between 61 and 65 percent of them have mental health issues. We can see where Opposition members are coming from in respect of the perceived unfairness of taking this step, which they deem to be a step too far.

The point was also well made that when we look around the world, we see that no other jurisdiction is going where we are going. At the same time, when we look at the criteria that are held within clauses 5, 6, and 9, we see that they are quite stringent. Clause 5 lists the general criteria for allowing use of audiovisual links. The decision maker—the judge—has to consider the nature of the proceedings, the availability and quality of the technology, and the potential impact of the use of the technology on the effective maintenance of the rights of the parties to the proceedings, including the right to assess the credibility of witnesses and the level of contact with other participants. We can understand that that is a good general parameter of the considerations.

Clause 6 deals specifically with criminal proceedings. The judge has to consider not only the criteria I have just articulated from cause 5 but also the ability of the defendant specifically—and this is exactly the concern the Opposition has—to comprehend proceedings, to participate effectively in the conduct of his or her defence, to consult and instruct counsel privately, to access relevant evidence, to examine the witnesses for the prosecution, and to assess the level of contact the defendant has with other participants.

We can imagine the difficulties for a person who, as we have already accepted, may not have the ability to engage with counsel and instruct them, or to pass on the nuances that he or she is picking up from the evidence given by a witness. We can imagine the difficulty for the person in terms of communicating all that during the course of the trial while the evidence is being given—for instance, in a cross-examination sequence of questions. A judicial officer or registrar must consider those criteria, as well as how well the defendant will be able to communicate—the defendant may wish to communicate inconsistencies or some “yes, buts” to counsel—and any adverse impression that may arise through the defendant or any other participant appearing by means of an audiovisual link.

As one looks through that list of criteria, one would hope—and the Government certainly believes—that a decision maker takes all those criteria into account in making decisions about whether someone will appear via an audiovisual link. The decision maker has to climb over a very high hurdle to make that decision. Then, clause 9 refers specifically to the use of audiovisual links in criminal substantive matters.

I have referred to the criteria for the use of audiovisual links in procedural matters, so those two clauses, clauses 6 and 9, are two extra-significant hurdles that the decision maker has to consider before an order is made in respect of the use of an audiovisual link for criminal substantive matters. The decision makers consider the previous criteria, but they also take into account whether the parties to the proceedings consent. A judge thinking on that has to consider those very high hurdles before making a decision. It is important to note that when some members of the Justice and Electoral Committee quizzed officials in respect of how they came to this point, they said it was from the mode of evidence approach, whereas the concerns of the committee were really around an access to justice approach. The majority of the committee felt that the officials would have come to it from that access to justice approach.

I had a conversation today with probably one of our leading counsel in this area and in human rights matters, and he made the point that the law is quite incremental and a lot of the public do not understand quite how that happens. A recent decision has been made whereby someone who made a complaint to the police and gave an interview alleging sexual abuse does not have to appear before the court to give evidence-in-chief at all, or be available for cross-examination. That is another step forward that has happened through the common law process.

So with the implementation of this bill we can conceive of a situation, however remote it may be—and this is the Opposition’s point—in which a defendant may be charged with a crime, the complainant is not available for cross-examination, and the defendant is not there either. It is a significant step that has been taken. I can say that I am convinced that the work of the officials in the drafting of the bill has put in very, very high criteria. The Government does not come to this position lightly. It is aware of the transitions and improvements to technology and the ability over time for appearances by audiovisual links to significantly enhance the participation of an accused person in a matter like this.

Hon LIANNE DALZIEL (Labour—Christchurch East) Link to this

It is a shame that we could not reach consensus on the Courts (Remote Participation) Bill, because the underlying principle that the Government was trying to espouse when it used the expression “Justice must not only be done; it must be seen to be done.” is precisely the point that we on this side of the House have been making. Justice cannot be seen to be done when the accused is not able to represent himself or herself at the hearing. It is a fundamental breach of our New Zealand Bill of Rights Act.

Of course Labour members agree with the principle that audiovisual links can play a useful role in interlocutory proceedings but not in substantive hearings and certainly not otherwise than by consent. That is the fundamental difference between the Government and the Opposition on this issue. Despite the statements from the Minister of Justice about the assessment of compliance with the New Zealand Bill of Rights Act, the Human Rights Commission does not agree. I want to spend a bit of time going through the Human Rights Commission’s submission, because it has some really important points to make.

When I refer to the commission’s submission to the Justice and Electoral Committee, I want to reorder its statement about why it does not support the bill in its current form. I want to put at the top, as the first reason, that the bill risks eroding important victims’ rights. We have had an entire discussion from two members of the Government that referred solely to the position of the accused, but what about the victims’ rights to face those who have been accused of offending against them? There is a right that sits with victims that has been completely ignored by the Government.

Let me read through all of the reasons why the commission does not support the bill in its current form, and why it believes that it does not comply with certain rights in the New Zealand Bill of Rights Act and is incompatible with international human rights instruments, “particularly the right to a fair and public hearing, the right to be tried ‘in his presence’, and the right of the accused to defend himself in person;”. As I have said, the commission believes that the bill risks eroding important victims’ rights; that beyond judicial review as affirmed by section 27 of the New Zealand Bill of Rights Act, there is no provision to appeal a decision to use audiovisual links in a specific case; that the use of audiovisual links may impact on victims’ rights to participate in the proceedings, and the longstanding principle that victims have the right to confront an accused; and that there has been no evaluation of the impact of the use of audiovisual links in criminal matters. My colleague David Parker explained very carefully to the House the risk of our going down a track based on advice that suggests far more widespread use of this particular technology in criminal trials—in substantive proceedings—than can be identified from the evidence. I think the Government will be asked to account for all of those matters as we proceed with the debate on the bill.

Very few adjustments need to be made to the bill in the Committee stage to have unanimity on it across the House. It would not take very much for that little bit of extra work to be done, and for us to achieve the outcome we would like to achieve.

Dr KENNEDY GRAHAM (Green) Link to this

I must say that it is with considerable sadness that I rise on behalf of the Green Party to address the Courts (Remote Participation) Bill, at least in the sense of the way things have developed in the last few months. We initially entered this exercise with the intent of supporting the bill. We certainly supported it at its first reading and its referral to the Justice and Electoral Committee, and, as has been established by both Government members and Labour Party Opposition MPs, that constructive spirit worked its way through pretty much the whole of the select committee process. The problem that arose was that it became apparent that there is this one, what I would call fatal, defect in the bill. It is a very narrow one, but it strikes very deeply. If it is only 1 percent of the text of a bill that a party finds objectionable, it would have to go very deep for that party to oppose it. I put it to the Minister and to Government members that this is a case in point. I do so in sadness, but I also do so in hope, because I do not believe it is too late to change one minor but fundamentally important point.

We are not talking about civil trials. We are not talking about the procedural dimension of criminal trials. We are talking simply about the substantive trial of a criminal case, and in that context we are talking only about the rights of a defendant. We are not—at least, the Green Party is not—talking about whether witnesses should or should not submit evidence via audiovisual links. We are prepared to see witnesses in substantive criminal trials submit evidence via audiovisual links. What we are not prepared to see, and what we suggest is a fundamental tenet of common law systems in New Zealand, the UK, Australia, Canada, and the United States, is the right of the defendant to be physically present in the substantive hearing of a criminal case. That is an absolute principle that cannot be measured in terms of dollars saved.

I reach for the various authorities on criminal law, and I look up “in absentia”. Under the phrase “In absentia in common law legal systems”, I see the statement “conviction of a person in absentia, that is in a trial in which they are not present to answer the charges, is held to be a violation of natural justice. Specifically, it violates the second principle of natural justice, audi alteram partem.” By contrast, in some civil law legal systems it is permitted to have trial in absentia. Various cases are cited in the common law system. I understand the Minister cited New South Wales, Victoria, and the UK. I do not think that that is a fundamental tenet of the judicial system, the criminal law system, in those countries. I look to the United States, to the constitution and cases in 1844, reiterated in 2004, where the principle of natural justice is held to be inviolate when it comes to substantive hearings of a criminal nature.

I think we need to be very careful how we proceed from here, because I see from a release on 3 June that the Government has already released $2 million to roll out the audiovisual link system throughout the courts. In introducing the second reading, the Minister was drawing the distinction, and it is an interesting distinction, between effective participation and physical participation. I would respond that the only effective participation in a substantive criminal trial is physical participation. That is an absolute principle from which one cannot derogate. We have to understand that in almost every case the defendant is in a weak position. If we cede the absolute nature of that principle, we have essentially taken away the fundamental protection that the defendant will have in such a trial. We are farming out that protection to a decision by the judge or the registrar.

To what end are we doing this? I ask the minister what the rationale is for ceding the absolute principle of the right of the defendant to be present in a criminal trial. I look to the Minister to reply in the fullness of time. What is it that has changed so seismically in our system that there is a justification—an explicit, transparent justification—to do that? What are the reasons? We are told that it is “improved efficiency, cost savings, increased safety, increased access to justice, and improved quality of evidence”. Are cost savings what will take away the absolute right of the defendant to be physically present? I ask what price, what dollar figure, we place on that. Is it $100,000 for one miscarriage of justice per year, discounted to $150,000 for two? How much are we going to save, and how do we look around and tell our citizens and, indeed, our children that it was worth it to take away this right because we saved a few hundred thousand dollars in Vote Justice?

Let us put it to the test in the legislature or, indeed, in the executive. Let us suggest that Cabinet meet by audiovisual link for a 6-month period. The Minister of Justice and the Prime Minister would not be present; others could be. The Minister of Justice can participate in Cabinet decisions, including his own portfolio decision-making, by audiovisual link from his electorate. There is no need for him to be physically present—it will save costs! Let us see what happens with the body language when he is not present. We have heard suggestions as to what is and is not picked up from one angle of the camera. To suggest that a defendant can completely comprehend what is going on in his or her murder trial by watching, from 100 kilometres distance, from one camera, is ludicrous—is the judge winking? I hope this can be rectified in the Committee stage.

The Green Party is not against the advance of technology in introducing audiovisual links. We support the bill in its thrust, with the single, narrow exception of the right of the defendant to be physically present in the substantive hearing of a criminal trial. It will not take much for the Government to cede a point on this, and I hope that pride does not get in the way. We are talking about striking at the fundamental heart of our criminal law system. If that is not done, then the Green Party will reluctantly oppose the bill on that sole point alone. As a signal of our intent, we will oppose the bill on this second reading. In the event it is voted through into the Committee of the whole House, we shall work constructively to see whether we can clarify that one point so that we can resume a positive vote for it. Thank you.

TE URUROA FLAVELL (Māori Party—Waiariki) Link to this

Kia ora, Mr Assistant Speaker, tēnā tātau katoa i tēnei pō i a tātau e kōrero nei mō te āhuatanga o tēnei pire. I tōna pānuitanga tuarua anei tonu ngā whakaaro o te Pāti Māori. Kai te noho āhua rangirua mātou o te Pāti Māori i tēnei wā. Tino pai ki a au te āhuatanga o ngā kōrero kua puta i te pō nei, nā taha e rua, ā, tae rā nō ki a mātau e noho nei, ā, ki tēnei mema i kōrero ki mua i a au. Pai ki a au te whakarongo ki āna kōrero, kī tōna whakamārama, otirā, ngā kōrero o te Rōpū Reipa, a Hōnore Lianne Dalziel. Ka mutu, ki te hōnore mema a David Parker i mua i a ia, ka mutu ki te Minita.

[Thank you, Mr Assistant Speaker, and greetings to us all as we address aspects of this bill tonight. Here are some views from the Māori Party in its second reading. At this point in time, some of us in the Māori Party are somewhat uncertain about it. For me personally, I enjoyed what I heard from speakers on both sides tonight, including ourselves seated here. I liked what the Hon Lianne Dalziel had to say in terms of what the Labour Party think about the bill, and her explanations. I enjoyed the Hon David Parker’s contribution as well, earlier on, and then the one from the Minister.]

It is clear from the Minister of Justice’s speech on the second reading of the Courts (Remote Participation) Bill that the bill’s purpose is to enable greater use of audiovisual links in New Zealand courts. We know that information technology advances are being seen everywhere, so it is probably appropriate that we move in that direction. I have really enjoyed tonight’s debate and the views that have been put forward. I suppose that it is balancing out the benefits versus the downsides of this legislation, and that is where the Māori Party’s view sits at the moment.

I say to the Minister that the Māori Party is prepared to let the bill go further on its course and to give it some support, knowing full well that we certainly want to advance some of the ideas put forward by Dr Kennedy Graham. I understood his kōrero, because it was along the same lines. These are some of the concerns. Pēnei i a mātau o te Pāti Māori, e pērā anō hoki ngā whakaaro.

[We of the Māori Party share those views.]

If we are to look at the benefits, I think it is clear that costs will be reduced in the court process if the participants are not required to travel from one end of the country to the other, or even to travel half the country. Instead, the court will go to them. That is good. Pai tonu tērā. We have an expectation of improved safety and security for all of those involved in criminal cases. Pai anō hoki tērā. [That is fine, as well.] We recognise that increased access to justice will come, because the audiovisual links will enable matters to be heard in provincial areas without the need for the judge to travel on circuit. We know that a large number of court cases have been backed up for some time. In my area in Waiariki, getting to court has sometimes been a long, long time between drinks.

We reckon that there might be an improved quality of evidence by making it easier for witnesses to participate. We hope that there will be enhanced efficiency in relation to the evidence of expert witnesses and interpreters. We hope that the system will assist victims and witnesses to appear in court without being confronted in person by the accused.

I certainly latch on to the discussion from Kennedy Graham and Labour members in respect of the fundamental right they have talked about—that is, the accused has the right to attend his or her case in person. I hear that debate.

These advances all appear to be relatively non-contentious and straightforward, but—and, of course, there are obviously some buts—the hub of our concerns rests with clause 6 in Part 2. It can be said that our concerns revolve round the safeguards that protect from the impact of technology the right of the defendant to a fair trial in criminal matters, which is pretty much the debate at the moment. Of course, we in the Māori Party believe in the pursuit of justice—te whāinga i te tika, ngā te pono—and we rest a lot of faith in the legal system’s ability to deliver that.

The strange thing is that in looking at the submissions—and I understand there were about eight submitters—we saw that the Human Rights Commission’s sole concern seemed to be about the speed with which this initiative is progressing. In the short time available to make a submission on this bill, the commission was unable to complete a full analysis of all the types of cases that would come under the broad categorisation that the bill anticipates. The human rights implications in any non-criminal case involving detention or other penalties need to be carefully considered.

From our perspective, we want to be assured that the use of audiovisual links actually improves court efficiency, safety, and security, and that it does so without causing harm to any person. When we were looking over the submissions, the New Zealand Law Society brought to our attention the statement in the explanatory note that the bill will ensure that all audiovisual link facilities are installed in courts and that they can be used to their full potential, but that they must be treated with caution. It suggested that although it is desirable that audiovisual systems should be used to the fullest extent possible, they should be used only where appropriate. That is a minor detail, but in that sense, it is still a caution to note on our part.

We will be looking for advice on the writ of habeas corpus—that is, the writ to protect persons from being harmed by the judicial system. This, again, is an important legal instrument that safeguards the rights and freedoms of the individual, and we hope that it will not be sacrificed by any of the moves being made in this bill.

We have said a number of times in this House that the Māori Party supports a restorative justice system, where victims are empowered. We want to know that court proceedings will be conducted in a safe environment that will ensure the physical safety of all court users.

Finally, I will turn to the submission from the Whitireia Community Law Centre. It told the select committee that it agrees with the overall purpose of the bill to provide for the greater use of audiovisual links. However, the centre queries the effectiveness of the measure and queries how audiovisual links will be used within courts, especially when used for participants in criminal proceedings.

We have heard stories of defendants who have attacked the judiciary, court officials, and others. We will support this bill at its second reading, but we want to know that safety is assured for all in the court, and that the right of a defendant to a fair trial is protected, as well. We will be looking out for advice on that matter during the Committee stage.

I say, in closing, that we will be paying close attention to the discussion and hopefully picking up on the key points. I am not a lawyer, but I do understand the general principle that was stated earlier by a number of members. We hope that those members’ concerns can be addressed. We look forward to having some Supplementary Order Papers and also to working constructively with the Minister and with other parties to see whether we can come to a place where we will all be happy. In those circumstances, we will be supporting this bill at its second reading, but with the proviso that we will be taking a very careful note of what happens at the Committee stage and into the third reading. Kia ora tātou.

SIMON BRIDGES (National—Tauranga) Link to this

This has been an interesting and, at times, thought-provoking and high-minded debate. We have heard some interesting comments on the principles of criminal law. But I have to say that from where I have been sitting there has also been, to some extent, a degree of unreality in the debate.

We have heard from a number of speakers now, for example, that there is an absolute right for an accused person in this country to be present at his or her trial—an absolute right. Well, I tell this House that that is not the case. There is not much in criminal law that is absolute. Although the circumstances where an accused person would not be present at his or her trial are, I accept, rare indeed, that should not be elevated to a fundamental, absolute, never-transgressed right. For example, there is a strain of cases in this country in the High Court, often in multi-accused trials, where, in order not to hold up the trial, and also because the accused may be seen to be trifling with the case—perhaps he or she has not appeared for his of her case—the trial proceeds in his or her absence, the evidence is called, and he or she will be found guilty or not guilty at the end of that case, and rarely with very significant penalties imposed.

JACINDA ARDERN (Labour) Link to this

I will begin by first referring to the contribution made by the Māori Party on the Courts (Remote Participation) Bill. That party was essentially seeking assurances from the Government that some of the issues that Labour had raised would be addressed. I say to the Māori Party members, who at this stage are supporting this bill, that we have raised those issues in the Justice and Electoral Committee and we have raised them directly with the Attorney-General, but to date we have not reached a satisfactory conclusion. That is the reason why the Labour Party will not be supporting this bill. I urge the Māori Party to reconsider its position, given that I am very sceptical that its members will receive the assurances they are seeking.

Obviously, other speakers have already traversed the background to this bill: the fact that when it was first presented to this House it was focused on the notion of the courts making better use of new and advanced technology, and basically on the use of audiovisual links in criminal and civil proceedings. The Government’s criteria were put before us, and Government members argued very strongly in favour of the use of audiovisual links, for three substantive reasons. One was the cost: the savings that could be made. Then there was the argument based on efficiency grounds, and, finally, there was the issue about the safety of other participants in a proceeding. For certain areas of criminal matters we agreed with that, and we highlighted it in the first reading that for simply procedural matters—like remand, etc.—we had no objection to audiovisual link technology being used. But what we do object to, and what we will continue to object to strongly, is the proposal that for substantive criminal matters, audiovisual link technology could be used, thereby removing the ability of accused people to be present at their trials.

Why do we object to that? It is because we were not simply using a set of criteria that sat around cost efficiency and safety. We had in mind another set of criteria that is enshrined in our law, and that goes well beyond even the history of this Parliament. Those are the criteria we would all know well: that when it comes to criminal matters there should always be a presumption of innocence, the right to face one’s accuser, and the right to be judged by one’s peers. Elements of this bill fundamentally remove those rights, which were the set of criteria on which we judged this bill and on which it has failed.

I will reflect briefly on the part of the bill that has become the most contentious. To those who may be interested in that, I say it is clause 9, which states “AVL must not be used in any criminal substantive matter for the appearance of a participant unless a judicial officer determines to allow its use for the appearance of that participant in the proceeding—(a) in accordance with the criteria in sections 5 and 6;”—and I will go over those criteria, because I think they prove a useful point—“and (b) taking into account whether the parties to the proceeding consent to the use.” Chester Borrows, who is the chair of the Justice and Electoral Committee, which considered this bill—and he is an excellent chair—raised what he considered to be the high bar that is set out in this part. But I think that in doing so, he still demonstrated our point. There is a bar, and of course any bar can be jumped over. In fact, there is still the ability to have an accused person’s fundamental right removed via this clause. The judicial officer has complete discretion. That officer is able to take into account the views of other parties, but there is no compulsion for the officer to take into account, for instance, the accused’s position against audiovisual technology being used for his or her substantive trial.

I guess, really, that if we were to simplify this argument, I would ask members of this House this: if tomorrow any of us were in a situation where we faced a trial on a substantive criminal matter, and we were given the option of using audiovisual link technology to appear in or observe our own criminal trial, would we opt to use it? I assume—because I know that certainly in my case I would not—that the position of many members in this House would be to say no. Why? I think the reason is quite obvious; in fact, the criteria demonstrate the point. It is because the audiovisual link creates a detachment between the accused and the proceedings that are so vital to the trial that he or she faces.

If we go through the criteria that a judicial officer is required to consider in determining whether audiovisual link technology will be used, we find this is what clause 6 sets out: “A judicial officer … must also consider … (a) the ability of the defendant—(i) to comprehend the proceedings; and (ii) to participate effectively in the conduct of his or her defence; and (iii) to consult and instruct counsel privately; and (iv) to access relevant evidence; and (v) to examine the witnesses for the prosecution; and (b) the level of contact the defendant has with other participants; and (c) any adverse impression that may arise through the defendant or any other participant appearing by means of AVL, and whether that adverse impression may be mitigated.” I find it interesting that those criteria set out all of the detrimental impacts that the use of audiovisual links may have in a substantive criminal proceeding. Clause 6 sets out all of the reasons why the use of audiovisual links could limit an accused’s access to justice in his or her own substantive trial. I think it shows and demonstrates the fundamental difference between appearing before the court and observing it from behind a screen.

We can relate that to something that we all know well. I have already heard the experience of select committees being raised, and that is a very good example. As select committee members we have experienced the wall that is generated by communicating with an individual via a video link. In the same way, anyone who watches the proceedings of Parliament via television will not feel a part of the proceedings in this place, compared with someone who is sitting here amongst us as a participant in what goes on here. I think that that is the best way to describe the distance between an accused who appears by audiovisual links, and an accused who is able to be present at his or her own trial. That is without mentioning the access that that person has to his or her lawyer, who of course will need to be present for the substantive trial and will not be able to communicate with the accused person via a video link as the proceedings occur. I think that sets out very clearly all the reasons why we should exercise caution with regard to this clause, and that has not occurred in the way that it is set out currently.

I want to very briefly raise a quick point. I find it contradictory that when it comes to the fundamental civil liberties of an individual, the Government is willing to hand over discretion to the judiciary, yet when it comes to “three strikes” it has removed all discretion from the judiciary, because in that case the judiciary might somehow hand down a penalty that is not the maximum, which is obviously what the Government now strives for in every case. The discretion of the judiciary is obviously something the Government will give and take at will.

Other members have already talked about the fact that the Attorney-General appeared before the select committee and said he did not feel that there had been any breach of rights under section 7 of the New Zealand Bill of Rights Act. When the Attorney-General appeared before the select committee on another matter, we raised this issue. We asked him to clarify that it was his intention when he first reviewed this legislation that for substantive trials an accused could be refused the right to appear. We have not yet had that advice back. I really would urge the Attorney-General to proceed quickly with giving his advice on that, for the benefit of all members in the House.

I highlight again that the New Zealand Law Society submitted that audiovisual links should not be used for substantive criminal matters, as did the Human Rights Commission, and that has been discussed at length.

Finally, I highlight the fact that in this case I had expected the Minister of Justice to seek an absolute majority on this significant issue. Instead, he has chosen to exercise power rather than wisdom.

KANWALJIT SINGH BAKSHI (National) Link to this

I stand to support the Courts (Remote Participation) Bill and address some of the points raised by the Opposition. This bill clearly sets out the parameters for the judiciary to decide whether an audiovisual link is to be used. This was well discussed during the select committee proceedings, and it was decided by majority that this report should proceed further.

The audiovisual link facility will be used both in civil and criminal proceedings. This bill is part of many legislative changes that this Government has introduced to make our courts work more efficiently and effectively. This system is already being used in many countries, like Australia, Canada, the United States of America, and the United Kingdom. The Australian jurisdiction, in particular, is internationally recognised for its effective use of videoconferencing in legal proceedings.

There is a real need to enhance the efficiency of our judicial system. There has been a 10 percent increase in the number of trials that our courts have to deal with. Although our police force has undoubtedly made a marked improvement in bringing people to justice with increased prosecutions, it has meant an increased burden for the courts to deal with. With ever-advancing technology the audiovisual link system will be seen as a real advantage in streamlining the efficiency of our justice system. An audiovisual link can be used, for example, for a witness living overseas, thereby cutting costs. Another advantage is that expert medical witnesses living overseas can use the link.

I say in conclusion that this bill will greatly reduce costs and, moreover, significantly increase the number of cases that can be brought before the courts. This will make the system function more effectively and efficiently. The bill will also greatly reduce distress for victims and witnesses, who may have to wait a year or more before their cases are heard. I fully support this bill. I believe it will be a vast improvement, and an excellent step forward for our justice system.

LYNNE PILLAY (Labour) Link to this

I stand to speak on the second reading of the Courts (Remote Participation) Bill, along with my colleagues. I share their concerns.

We have heard the previous speaker and other speakers talk about the efficiency gains this bill will bring. But I would say to the House that we have not really seen any evidence of inefficiency under the current system. We in Labour are not fundamentally opposed to the use of remote participation. Rather, we believe that in this instance, with new technology, with new ways, it is really important to err very much on the side of caution. We have heard the arguments of efficiency and access to justice on one side, but on the other side we have the very important principle that justice should be seen to be served. The question my colleagues have raised, and I raise, concerns the right of the accused to be present in the court to put his or her case and to participate fully in the court process. With remote participation one is not able to participate fully. Also, victims have the right to confront the accused.

Certainly, we on this side of the House have no problem whatsoever if the parties consent to an audiovisual link being used in substantive criminal proceedings. Our concern is that the consent of either the accused or the victim is not required, and at this very early stage that is very risky. Certainly, this Government has taken some risks and has let nothing stand in its way in terms of implementing legislation, no matter how unprincipled or how inappropriate that legislation may be.

PAUL QUINN (National) Link to this

I rise to support the second reading of the Courts (Remote Participation) Bill. I will start by commenting on the Justice and Electoral Committee. I think we have reached the stage during the course of this parliamentary session where we have enjoyed each other’s company and we have respected each other’s views. As David Parker referred to, we have developed an excellent working relationship. But occasionally we have disagreed, and this is one of those occasions; I can accept that. Basically, the issue that we disagree on in this bill is the second aspect of what it tries to achieve. There are three aspects: firstly, the use of audiovisual links in criminal proceedings; the second aspect is the criminal substantive hearings; and the third part covers civil matters.

I get a bit annoyed when Opposition members stand and lecture us, as they have this evening, instead of acknowledging in a civilised manner the fact that we have differences. We are a Government that was elected to govern. Opposition members stand and say that we are using power, not wisdom, when they made an art form of that very phrase—an art form of it.