Courts (Remote Participation) Bill

I concede it has been busy. I pay tribute to the hard work that goes into that. I think it is important, while we are on this semi-jocular note, that we do not denigrate the dignity of this discussion by introducing ad hominem, endless, interminable arguments about whether the previous Attorney-General was or was not a lawyer. That is a red herring, and this issue is far too important to try to politicise it.

The 114 Acts that have been adopted have basically reflected two main themes of this Government: firstly, to be tough on crime, and, secondly, to cut Government spending. The public voted in its wisdom in 2008 and that reflects the themes and priorities of this Government. This legislation stands alone in iniquity in its attack on constitutional rights. Clause 9 of the Courts (Remote Participation) Bill attacks the basic constitutional right of New Zealanders to be present at their trial. We can look at the historical sweep of constitutional guarantees that underpin this nation’s democracy, inherited from England and honed by our own distinctive New Zealand experience. We go back to the Bill of Rights 1688 and the political rights that were enshrined, which are now in New Zealand law: representation before taxation, the election of the Sovereign assembly, which is this, and freedom of speech. We signed the Universal Declaration of Human Rights. Article 6 recognises a person before the law; article 7 relates to equality of the person before the law; article 8 relates to effective remedy against violation of constitutional rights; article 10 relates to fair trial, particularly in criminal trials; and, article 11 relates to the presumption of innocence. They have been translated into New Zealand domestic law, in the Crimes Act 1961. Section 354 of that Act gives the right to a defence, either by the person or through counsel, and section 376(1) gives the right to be present at a trial. That latter provision, the right to be present at a trial, which has already been identified tonight and last night, has been translated into the New Zealand Bill of Rights Act 1990 at section 25(e). It is a question of the interpretation of the right to be present.

The Minister last night chose to define effective participation as the right to be present—effective through audiovisual links. With respect, we fundamentally disagree with that. The right is an unsullied right to be physically present. There is no question in jurisprudential history that that is the correct interpretation in common law tradition. Clause 9(1) strips away that right, and places it in the hands of the judiciary. It takes out that inherent, absolute right.

I understand the meaning of the word “absolute”, and we have researched it. It is the difference between an absolute right and the absolute execution of a right. There is an absolute right, and we touched on this point with Simon Bridges last night. In the second reading last night Simon Bridges spoke about the air of unreality that the Opposition parties were bringing to bear on this issue. He said he thought there were trials held where defendants had been in absentia. I challenge Mr Bridges, the Minister, and every member of this Parliament, including every Government member, to identify the criminal trials in New Zealand over the last 50 years that have been conducted in absentia. Let us find them. Let us identify the criminal trials in New Zealand over the last half century where the accused has been in absentia.

If anybody is being unrealistic or has an air of unreality here, it is the Government. It is as if the Government has been bitten by the tsetse fly and we have a form of sleeping sickness here, whereby the Government is urging the New Zealand citizenry to sleepwalk its way into the surrender of a basic constitutional right to be present at one’s own trial.

The second point Mr Bridges made last night was that the right was not absolute, and the Minister has reiterated that. If that is the case, what is the point of clause 9(1)? Last night the chairman of the committee explicitly conceded that there was a surrender of a right, and I ask what the surrender of the right is.

And the Minister did tonight.

And the Minister reiterated it. We are surrendering something here, so let us define what it is we are surrendering. We are surrendering the right to be physically present at a criminal trial if one is the accused.

Just a moment ago the Minister told New Zealanders not to worry, and that an incredibly high threshold is being brought into the judiciary and the registrar in making a determination. Yes, that is a negative presumption. I understand; I can read clause 9(1). I know about negative presumptions. Instead of positive presumptions, if we introduce a negative presumption we have ceded the absolute right. If we have an absolute guarantee, it is 100 percent. The Minister is proposing that we cede that 100 percent guarantee and we introduce a 99 percent competence level, so that the judiciary will do what it is meant to, with a 1 percent chance that something will go wrong. I will not accept that 1 percent chance, and I recommend that the Minister does not, either.

Let us reflect on this. What is it that is driving this Government on this particular point? Does the Government recognise the magnitude of what it is doing, therefore it is trying to run it through? Or is it just oblivious to the magnitude of what we are doing here tonight? I ask what is driving this Government. Is it a motivation on saving? We are told the substantive motivation is cost savings and efficiency—a commercial price on a jurisprudential principle.

It’s just stubbornness.

I think there is a danger that it is turning into stubbornness. Let us diminish the level of tension a little, because we might be making a very egregious mistake tonight if we proceed precipitously. Let us think about deferring this matter for a moment. I ask what is driving the Government on procedure that prompts it to bring in the Committee stage the day after the second reading, with no notice. It was not on the Order Paper when I was at the Business Committee on Tuesday; it came in overnight, and I ask why.

I think that we need to reflect very carefully. We in the Green Party, and I dare say other Opposition parties, had indicated a readiness to support positively the introduction of audiovisual links into the courts system—no problem—but not at the expense of this constitutional right.

Bridges SIMON BRIDGES (National—Tauranga) Link to this

I want to come back to the point we have been debating about whether being present at one’s trial is a fundamental, absolute right. I come back to it because, as I have said, it is not an absolute, fundamental right. Everyone in this Chamber, and, indeed, in New Zealand, would accept that the norm in nearly all cases, if not all cases, is that an accused will be at his or her trial. I say to this Committee and to Kennedy Graham what I said last night: common law has evolved scenarios in a strain of cases where that right has been taken from the accused. I said to my friend Mr Graham that that came from the House of Lords. If we look around the common law world for a court that more jealously fights for the rights of humanity, we would be hard-pressed to go past the House of Lords, now called the Supreme Court. In 2002, it was made clear that there may be such cases.

Only for misconduct.

That is right and I will come back to that. It is a scenario that they have gone with, and High Court judges in this country have also gone with it in recent years. I found the case last night of R v McFall. I am aware of another case involving Justice Heath in the Hamilton High Court, as well. In those rare cases the accused had absconded and did not turn up for trial, so the judge said that the trial would proceed anyway. Mr Parker is right; it is because of misconduct. My point to this Committee is that I can envisage situations where we would have audiovisual links for the same reason. I accept that they would be very extreme cases. Kennedy Graham said last night that he did not accept that, but I said that there may well be cases, although not often, of an accused coming to court who is not insane to a criminal standard but who may have—let us put this euphemistically—serious issues where he or she wants to harm himself or herself or others. Perhaps the accused cannot be shut up at any time during the trial, and, for whatever reason, is hurling profanities at the judge. That happens more often than we would like to think in courts in this country.

And they can be removed now.

Dalziel Hon Lianne Dalziel Link to this

They can be, but I ask whether it is better to do the trial without them, which the common law could foresee, or to have the trial using audiovisual link. In that rare, extreme case—and I accept that it would be rare and extreme—an audiovisual link would be justified. Of the various manifestations, ways, and wherefores where we might use audiovisual links for an accused, that is just one situation where we might use it.

I say again to the Committee that common law has envisaged situations where an accused does not have an absolute right to be at trial. This bill leaves the door open, but—and let us be very clear—it does not leave it very wide open, at all. We have many safeguards in this bill. As I said last night, there are three clauses that a judge will have to work through to allow the use of audiovisual link, and clause 6 is exceptionally strict. When we work through clause 6(a), we see that it would be a very brave judge who works through that clause to rule in audiovisual link for an accused, and to not envisage an appeal up the chain of courts because of that. It may never happen, but it may do. We are doing the right thing.

Chauvel CHARLES CHAUVEL (Labour) Link to this

I will deal with the points that have been made by the previous speaker, Simon Bridges, and by the Minister in the chair, the Hon Wayne Mapp. Firstly, in dealing with the points Simon Bridges made, I tell the Committee that I listened carefully to his speech; he has been a trial lawyer. He is one of the few people in the Chamber who can speak on this issue on the basis of some practical experience. But here is the problem with the provision that he explained, and that the Minister referred to earlier: it provides a discretion to a judicial officer to say to somebody who is accused of a crime: “Don’t show up to your trial. We’re going to do without you and you can appear on the screen.”

The legislation then goes on to fail to confine that discretion in any meaningful way; it is simply left up to the judicial officer, who, for the moment under the provisions that we are dealing with, is a qualified judge, a tenured judge. But who knows what this Parliament might do if that discretion goes through this door? Who knows what further weakening might occur to the protections? We might end up with community magistrates, justices of the peace, or other part-time or temporary judicial officers exercising this power. If we do that, if we allow that power to go forward in this bill without defining very carefully the sorts of circumstances in which a judge might justifiably try people in their absence, and potentially sentence people to imprisonment in their absence, then I think we are making a major mistake. We are making a major mistake by trifling with people’s civil liberties.

It is true, as Simon Bridges said, that in some cases the common law finds practical ways to ensure that the proceedings of a court are respected and not disrupted. If there is a disturbed defendant, he or she can be removed from the court, but one never knows until the person is there in front of the presiding officer how he or she will behave. It would be a gross violation of people’s civil liberties to say that because they misconducted themselves once, we will deny them the right to appear in a court ever again. We might say that we think it is likely they might behave in that fashion once more, so because we do not want to have that sort of behaviour in our court, we will just try them by video. That is the door that is being opened by the drafting of this legislation. The Minister in the chair is looking at me and shaking his head, but he knows as well as I do that unless the discretion that is provided by the legislation is better fettered, and unless we go through the bill and state the precise circumstances by which Parliament would be willing to countenance what is effectively trial in absentia—trial by video—then we are opening the door in that way.

My submission is that that is a very unwise thing to do. There is not a sufficient safeguard just to say that because it is a judicial discretion, it is OK. Scholars of legal history know that some of our judicial officers in the past have misconducted themselves. There is such a thing as judicial tyranny if judicial discretion is not defined. That is why we had the Bill of Rights in 1688. That is why there was a reaction to cases like the prerogative in saltpetre and the ship-money case. Those were judicial decisions. The King’s judges—the judges appointed by the executive—abused their power. That is why originally it was decided that we actually needed constitutional protections.

I echo what Lianne Dalziel said—that this is a breach of a New Zealand Bill of Rights Act provision. There is no vet from the Attorney-General, and although I have some sympathy with what Kennedy Graham said—about the need not to get into some sort of degeneration via interminable ad hominem arguments about whether the Attorney-General this time is better qualified than the previous one—here is the point: it is the Attorney-General’s job to vet these bills. This bill clearly breaches the New Zealand Bill of Rights Act and it clearly breaches, in turn, the International Covenant on Civil and Political Rights.

The worst thing about that is that we can make up all the legislation we like, but if it is in breach of those fundamental standards, we know what will happen. We are a party to the Optional Protocol to the International Covenant on Civil and Political Rights. If somebody is treated in the way that is envisaged by this bill and there is unfair treatment, the person may go to the United Nations Human Rights Committee and complain. There will be a finding that New Zealand is in breach, and we will be told that we have to fix the law to make sure that it is consistent with our human rights obligations.

This entire exercise, supposedly a money-saving one, is just an enormous waste of Parliament’s time. It is an enormous waste of time and money, because we will be back here doing all this again if we are foolish enough to legislate in this way.

I just say in closing that I hope the ACT Party will not vote for this abomination. ACT likes to call itself the liberal party. Sir Roger Douglas is in the Chamber; I hope he will uphold that party’s traditions, uphold what he says is his respect for civil liberties, and join the other parties in the Chamber—as I understand: the Māori Party, the Green Party, the Labour Party, and others—to vote this abomination down.

Turei METIRIA TUREI (Co-Leader—Green) Link to this

I am primarily concerned about the impact of this legislation on Māori, and I am sure the issues have been raised to some extent already. We know that in this country there is a bias against Māori in the legal system. We can see that in the research: the research shows that that is the case. It is at all levels, even in the Youth Court. A Youth Court judge has said that young Māori men who appeared before the court tended to receive a harsher penalty than Pākehā who appeared in the court for the same crime. That fact was recognised by the judge, and we see that in the research on this issue.

So knowing that Māori will suffer from real discrimination by the police and through the court system, despite efforts to reduce it, we need to consider what the impact of this legislation will be on that level of discrimination. Will it increase it or will it reduce it? It seems pretty clear to me and to others in the Chamber that the level of discrimination and prejudice against Māori in the legal system will be increased if they are not entitled to attend their own criminal trials.

We know that Māori are more likely to be stopped by the police, searched by the police, arrested by the police, and convicted of a crime. Research shows that the police tend to lay more charges against Māori to ensure that at least one of the charges will stick. Māori are more likely to be convicted in the courts and more likely to be imprisoned for the offence they have been convicted of. This is a serious injustice against a section of our community, and that cannot be justified.

This injustice is borne by that community, and it is borne by the whānau. They have to bear the excessive and unjustifiable levels of imprisonment and the financial deprivation. The whānau and the children of that whānau have to bear that financial deprivation. There are ongoing social and health issues. Prisoners who get out of prison and try to change their lives face difficulties when trying to gain useful employment or housing, for example. All those things are affected by imprisonment and by the unjustifiable discrimination of the legal system in that imprisonment.

This proposed law will exacerbate that discrimination and the costs that are borne by the whānau. It means that the accused will not have an absolute right to attend his or her criminal trial. Let us be aware that the enforcement of criminal law is the strongest action the State can take against its citizens. It has to be exercised with the greatest possible care and the highest regard for justice. The highest level of protection of natural justice is of critical importance if citizens are to have faith in the legal system.

By further separating the individual from the trial process the chances of discrimination against the individual are increased. It is much easier to separate oneself from the reality of a person’s life and from the process if that person is not present and cannot look one in the eye. If a person is not present in court, then one cannot hear, see, smell, and feel the content of the evidence the person gives to the court. It is much easier to ignore the humanness of a person if he or she is not present with us. We know that that is the case. That is why we are all here, for example. We do not operate in this Parliament by audiovisual technology, because we know it makes a difference to be present, and being present for the purpose of removing discrimination is even more important.

So for Māori, who we know suffer that discrimination, it will be worse. The cost of that, again, will be borne by the community and the whānau. The cost to the taxpayer will be increased through increased imprisonment, because we will see more Māori being convicted and imprisoned as a result of this law change. I can absolutely guarantee that. The cost to whānau will be increased as more and more of our people are unjustifiably taken out of our communities because the system itself is biased against them and it structurally increases its bias. Those costs are borne by the families and the children.

Parker Hon DAVID PARKER (Labour) Link to this

The Minister in the chair, the Minister of Defence, said in his contribution that it should not be an absolute right for an accused to appear at his or her own trial. He said it should be a matter of discretion. He also acknowledged that this was an important change from the status quo. I am not misrepresenting the Minister on either of those propositions, which he stated from the chair. He is right; it is a change of principle.

I want to address the issue of why then we do not have a New Zealand Bill of Rights Act vet. The New Zealand Bill of Rights Act vet should be given where there is a derogation of the civil liberties that are mentioned in the New Zealand Bill of Rights Act. That Act says that we should have the right to be present at the conduct of a trial so that we can face our accuser.

Plain English.

Parker Hon DAVID PARKER Link to this

It is plain English. I heard the Minister in the chair then have a flick at the previous Attorney-General, whom the National Party criticised for giving a New Zealand Bill of Rights Act vet that was in favour of the Electoral Finance Act. The previous Attorney-General actually went to the trouble of doing a New Zealand Bill of Rights Act vet for that Act and justified his logic as to why it should have one. In this case we do not have a New Zealand Bill of Rights Act vet because the Attorney-General has not seen fit to address the issue of this derogation of my civil liberty and the civil liberty of everyone else in New Zealand to have the unconditional right to be at the trial if he or she is accused of a crime. It is an outrage. I agree with the speaker for the Greens, Kennedy Graham, that this is the most significant attack on civil liberties we have seen in this Parliament. It is an outrage that the Government is just pushing on remorselessly.

We bear some responsibility here. At the first reading all of the parties other than the Māori Party voted for this bill because we were not cognisant of the fact that this would apply at substantive trials, but that became clear at the Justice and Electoral Committee. The Human Rights Commission raised it with us and the New Zealand Law Society raised it with us, so the select committee looked at it in more depth. We found that there was no mischief here to be overcome, because at the moment there is no problem with letting the accused appear at his or her trial. What the Government really wants to do here is speed up preliminary matters, bail hearings, and adjournments, and not have the unnecessary expense of the defendant—the accused—always turning up. We agree with that, but the National Party should take a breath. It is wrong to proceed remorselessly with taking away this civil liberty. It is wrong.

The Minister also said that the judges would not do this; that there would be prejudice. That is a facile, superficial analysis of it. The judge will not know what the judge does not know at the time the application is made. How can one know at the start of a trial what is going to happen during the trial? We do not know what we do not know. We cannot know what we do not know. Injustices that could happen later in time cannot be known to the judge at the time that the application is made—for example, a juror falling asleep, an inappropriate relationship between the prosecuting counsel and the defence counsel, inappropriate signs from someone in the gallery, the judge falling asleep, the incompetence of a lawyer, the inability of the accused to get a decent view of the screen because he is being blocked in the prison by a corrections officer, and the inability of the accused sitting in a prison cell to say, in respect of a particular piece of evidence, “That’s a lie, cross-examine them on that.” How can that be done from a prison cell? This is so obviously unjust.

I ask the National Party to take a breath. I ask the ACT Party to vote in respect of a procedural motion that we report progress now. They should take a breath, report progress now, and let everyone reflect on this for a week before we push the button. If the Government still wants to use its muscle with the support of the ACT Party and vote it through then it can do so in a week, but what is wrong with waiting for a week on this? What is wrong with waiting for a week on this in order to reflect on whether a mistake has been made? I think that this has crept up on the Government. I saw the advice that the departmental officials gave to the select committee, which I am sure will be similar to the advice given to the Minister. I have to say that it was “once over lightly” in respect of the constitutional principles. As Kennedy Graham has said, it was approaching this issue from a point of view of administrative efficiency rather than constitutional principle, and that is where this has gone wrong. I do not blame the Government for that. These things do go wrong, as evidenced by the fact that all of the parties except for the Māori Party voted for this at first reading. But now that we are alert to this issue, it is time to take a breath and slow down.

In a short period of time I am going to move a motion that we report progress. I encourage the Government to think about reporting progress now, before this goes to the vote. We can avoid making a mistake here by taking a breath and just reflecting on this. I am sure that the Solicitor-General was not the person who was responsible for the New Zealand Bill of Rights Act vet; it would have been someone lower in that organisation. I am also sure that the Attorney-General, who gets advice from the Solicitor-General on New Zealand Bill of Rights Act vets like this, came to the select committee a week ago and said to us that he would look at it again because he saw our concerns. In fairness to the Attorney-General, because this has come up on the Order Paper so fast, he has not yet had the opportunity to do that and to get back to the select committee where this was raised as part of the estimates process a week ago. I would like to give the Attorney-General the opportunity to do that, because I know that he takes his New Zealand Bill of Rights Act vet responsibilities seriously. I would be most disappointed if the Government does not agree to report progress before this matter goes to a vote tonight.

The control of that lies not just with the Government but also with Sir Roger Douglas. I know that the ACT Party thinks that it has done a deal and that it has an obligation to support this legislation, but I suggest to Sir Roger Douglas that in this situation it would be appropriate to report progress now and just let the bill come up on the Order Paper again. This is not a matter on which the Government will rise or fall. This is not a matter that goes to Budget or that needs to change this week rather than in 2 weeks’ time. I suggest that that is the appropriate thing for this Parliament to do, in the face of the criticisms from the Human Rights Commission, the Law Society, and all of the parties except National. I know that even the ACT Party is nervous about this and it just feels that it has an obligation, having made a commitment to vote for it. I suggest that it is time to take a breath.

Pillay LYNNE PILLAY (Labour) Link to this

I agree with absolutely everything that David Parker said, and also with my friend and colleague Lianne Dalziel, who spoke before. She did not refer to the Human Rights Commission submission until later in the piece, because she had a lot of other things to say before that. I will be honest: it is a great submission. During the dinner break I took it away to read again and, unwittingly, I deprived Lianne Dalziel of her reference notes. But I acknowledge the Human Rights Commission and, again, the Law Society for their common-sense approach towards this bill. David Parker and other members have talked about the Courts (Remote Participation) Bill, and certainly no one in this Chamber has any opposition to the smooth running of courts, access to justice, or efficiency. Justice being served fairly surely has to be the first principle.

Prasad Dr Rajen Prasad Link to this

Not seen to be done.

Hone Harawira Link to this

I completely agree with the member. That has to be the first principle.

We have seen in this Committee many, many doubts raised. The solution is not as hard as that. There are some very good Supplementary Order Papers and amendments on the Table. I know that the ACT Party may feel bound by some sort of relationship with the National Party—God knows what has happened to achieve that—to support this bill in its entirety without looking at some very sensible amendments. I say to the Committee that if this bill goes through as it is, there is no trial period and it will be brought into effect in its entirety.

What does that mean? In many instances there will be lots of efficiencies. But concerns have been raised from this side of the Chamber and from the Green Party about those situations where the accused does not consent to remote participation. What is the downside of that? Let us look at it firstly from the defendant’s perspective. We all know from sitting in select committees how difficult it sometimes is for people to participate. I can see many members—the member from the Māori Party is almost nodding his head—

I’m going to sleep here, Lynne. Give it up.

Prasad Dr Rajen Prasad Link to this

I am sorry that I cannot keep the Māori Party member awake, but it is his job to stay awake in the Chamber. He could go walkabout to wake up; it is his job to stay awake in the Chamber and to listen to this debate.

When it is about a fair trial from the defendant’s perspective, it is about their being able to face their accuser. All we ask for is the ability for remote participation to happen by agreement. In many, many, many instances remote participation will be appropriate. But, as my colleagues have said, in a trial situation somebody may feel completely intimidated—we have seen it in select committee, let us face it—by the sound, which may not be as good as it should be, or by the flickering video coverage. It throws people off from what they are saying; they are distracted. What do they do? What does it look like? It looks like they are a bit shifty. All of those things can have major implications in these situations. Do members agree?

Absolutely.

Power Hon Simon Power Link to this

Rajen Prasad agrees with me.

We have seen so many situations that have given the Government an opportunity to fix this bill so that every member in this Committee can support it. The Human Rights Commission advised that there should be a trial period. What is wrong with that? We have seen many situations where the Government has imposed new legislation that has been absolutely disastrous—nothing short of a disaster. If that is the case, I ask why in this situation, if the Government is so confident that this legislation will work, it does not have a trial period. Why not? Why not look at the sensible amendments from David Parker and from Kennedy Graham of the Green Party that say that these are substantive issues, and we should have agreement between the parties? In many instances that agreement will be achieved. Let us do it as a first step. If it works, once it has been tested, things can move on. But this Government is determined not to have a Bill of Rights Act vetting, and not to listen to the people, the Human Rights Commission, or the common sense from the Law Society, which says that there are some problems with this legislation.

It is just like how there are problems with national standards, just like how there are problems with the accident compensation scheme, and just like how there are problems with the Government’s law and order “three strikes” policy. All of those problems could be avoided if Government members would put aside their big egos—I am talking about Wayne Mapp—and listen to the people. How hard is that? Let us listen to what the people say. The people say that we need to test this legislation. We need to make sure that justice in New Zealand—or “New Zillun”, as the Minister, Wayne Mapp, would say—is delivered in the way it should be, in the way that we are proud of in our country. I heard David Parker. What a common-sense suggestion from David Parker.

I raise a point of order, Mr Chairperson. I just want to give Lynne Pillay some time to recover from her coughing fit. That is why I am taking this point of order.

Hone Harawira Link to this

I raise a point of order, Mr Chairperson. If the member does not mind, I would like to—

Roy The CHAIRPERSON (Eric Roy) Link to this

No, the member has the call. Just give her a moment to compose herself.

HONE HARAWIRA Link to this

Mr Assistant Chair, I would very much like Hone Harawira to take this call. I am really choked up about this.

HONE HARAWIRA (Māori Party—Te Tai Tokerau) Link to this

When the Courts (Remote Participation) Bill came up for its first reading debate, as soon as I read it I knew exactly what it would mean. I did not understand all of the talk about substantive this and substantive that, but I knew that it would be this kind of bill, and that scared the hell out of me. It scared me, because I have been a defendant in many, many cases—many, many cases—and I knew that I would have ended up in jail after quite a few of those cases if they had been done by video link.

The reason is that people find it easier to send somebody to jail if they do not have to face them. It is just like the way that kids find it easier to shoot somebody in a video game, but if we put a gun in their hands, they freak out. But when they can do it by video game, they will do it. You see, kids use video to rape people, to maim people, and to kill people because video takes away one’s connection with what is being done. It takes away one’s connection with the decision that one has to make. That scared the heck out of me. That is the reason why we spoke against the bill at the very first reading. We knew exactly what it would mean.

I will use as another example—it has nothing to do with courts—my comments last year about the white m- - - - - f- - - - - s. Apparently, hundreds of people felt really, really comfortable about writing to the newspapers, writing to the Race Relations Commissioner, and slagging me off on television, on the radio, and everywhere else. But do members know what? I flew all around the country, I went all over the place in those couple of months, and not one person—not one—came up to me face to face to say: “I did not like what you did.” Do members know why? It is because people found it easier to push the button another way. They find it easier to vent their anger against something if they do not have to connect with it.

People find it easier to dispense with people if they can do it by video. There is no justice, none whatsoever, in a defendant being stuck down in a jail during his or her court proceedings. There is no connection between that person and what is going on in the courtroom.

Somebody mentioned that the defendant cannot nudge his or her lawyer and say: “Hey, hang on—that’s a bloody lie.” It is different for me, of course; I have never ever had a lawyer. I defended myself in all of those cases. How would it happen in those circumstances? I am not a lawyer, but I have always defended myself. But if I were being held in—

Hon Member

A bush lawyer.

I am a bloody good bush lawyer; I have only ever lost one case. That is better than every lawyer I know. I tell all the lawyers here not to go patting themselves on the back that they do a good job, because, basically, they do not.

I defend myself because I have been to court so many times and have seen lawyers stand up, after doing a really poor job and after their clients have gone to jail, and the first thing they have said was: “May it please your Honour …”. I sat there as a young fella, as a 19-year-old, watching that going on in courts when I was working for Ngā Tamatoa, being a friend in court. I thought to myself: “Hell, I ain’t ever going to let nobody get me sent to jail and then get up and say: ‘May it please your Honour …’ ”, so I taught myself to defend myself in court.

I ask what would happen to me if I was defending myself. Would they hold me in custody as they have in the past? Would I get a chance to actually argue my case? Where would I do that from, if I was down in the separation wing at Mount Eden Prison? How would that happen?

This is scary stuff, I tell the Minister of Justice, all the National members, and ACT, as well. This is not just about efficiency; this is a scary step down a slippery slope that we will not quickly come back from. We may never come back from this, and that is why I am so scared about it. I can fight things, but this is scary. Once we disconnect ourselves from defendants, we disconnect society from justice. We walk away from the right that the defendant has to be there.

This bill is all about the rights of the State and the rights of victims, and that is fine. They all have rights. But so have defendants, because they are not actually guilty until they have been convicted. But in this case, defendants do not even get the chance to defend themselves, because they are locked away in front of a little television screen. Yes, it can be said that that might be at the whim of a judge, but why should a judge bother to go through the hassle of having somebody called up from Rimutaka Prison to go all the way up to Auckland for a call-over date—which may end up being turned into a court case because the police may say at the last minute that they are ready to go—when the judge can do it just by video?

As soon as judges know they can do it by video, everything will become video. Once we get there, we get into that push-button kind of justice, where kids can kill somebody because it is done by video, and where people who are too scared to face those they supposedly have to dispense justice upon are quite happy to shut them off and wipe them out because they are locked away in a little TV box. That person becomes like an ad that we do not want to watch any more—we can just turn it off.

The quality of justice will be determined by the quality of the screen, and when the screen starts to get all fuzzy, we can stop looking at the screen. When the sound gets a bit hazy and we are a bit tired, will we ask for the sound to be turned up? If we are on the jury, will we ask for the video to be stopped until such time as it is fixed? Hell, no! The judge will say that we can hear it, and that we do not need to see the person, because we know the person is there.

Before we know it, even the defendant will not have to be clearly on the video; the court will be able to say that the defendant is actually in his or her cell, but the TV is focused on where the defendant would be if he or she were not in the cell. That is not justice.

This legislation is not about justice, and it should not be just about money. In relation to efficiency and all the rest of it, I say that justice is not about models of industrial efficiency; justice is about rights. This bill is scary legislation.

If ACT is not ready to vote against this bill, then I will support David Parker’s recommendation that we report progress and have this bill stood down for a week so that everybody—particularly National members—can have the chance to have a really good think about it, take a deep breath, and realise that it is scary. I know that even Dr Mapp, who is currently the Minister in the chair, does not want to go ahead with it. Somebody mentioned the Attorney-General. I happen to know that the Attorney-General does not support this legislation. If the Attorney-General does not support it, then why, I ask, is it going ahead?

For one final time, I say that this is scary legislation. We spoke against it at the first reading; we will be speaking against it at every reading. I sincerely hope that we all come to our senses on this and vote it down. Kia ora tātou.

Clendon DAVID CLENDON (Green) Link to this

Kia ora koutou. This debate on the Courts (Remote Participation) Bill is troubling on many levels, clearly. What we are talking about here is the fundamental right of the accused to face his or her accusers. That is a right that has been enshrined for centuries, and now it appears that on a matter of convenience, efficiency, and cost savings, that right has been placed under threat.

It is concerning to see almost a trend emerging. Earlier in this sitting we were debating the issue of prisoners’ and victims’ compensation, and within the context of that debate I proposed that there was an absolute responsibility on the State to protect the human rights of an inmate in prison. But that was challenged. A question was raised that perhaps the human rights of an inmate could be diminished or compromised in some way that was still legitimate. The arguments about justice, about rightness, and about absolute rights —or not—have been engaged in at quite an articulate level. I will not endeavour to respond or to reiterate them.

The Minister of Justice, when he spoke a little earlier, referred to clauses 6 and 7 creating a very high bar of criteria to assure that only in the most exceptional circumstances would a prisoner not be there to face his or her accuser. I refer to clause 6, which talks about the defendant being able “(a)(ii) to participate effectively in … his or her defence;”—participate effectively. I suggest that it is almost an oxymoron to suggest that a person could participate effectively in a trial at the end of a camera, on a screen.

I have been very intrigued to sit here observing the Minister in the chair, the Hon Wayne Mapp, during the course of this debate, and to see the extent to which non-verbal communication is such an important part of this ongoing discussion. With all respect to the Minister, I hope he will excuse my treating him as an item under observation. At the moment he is smiling and nodding. At different times in the discussion he has nodded quite thoughtfully, accepting points made. At some points he has arched his eyebrows, very clearly signalling that something of interest, something surprising, has been said. At other points he has shaken his head quite firmly, indicating that he has not agreed with a point being made. Those are visual clues that can inform a debate, enrich a debate, and give a person a genuine means of effectively participating in a debate. If we remove those non-verbal cues and clues, then a person is clearly at a major disadvantage in engaging in a discussion or an event that could have very serious and long-term consequences for that person’s well-being.

I am not a lawyer. I have taught resource management law; I have no familiarity with criminal law. But I do have some experience with videoconferencing. In my previous incarnation as a sustainable business adviser, I used to advocate videoconferencing, particularly for large organisations that routinely sent their employees—be they lawyers, architects, or consultants—around the country. Videoconferencing is a very effective means of communicating, even at a quite high level, on serious and complex issues. One can achieve that communication by videoconference. However, the requirement for underwriting that is that there must first be a relationship established. I deny that anyone can have a meaningful, purposeful, and satisfactory engagement by videoconference with someone with whom he or she has not formed an initial relationship. That is a key underpinning to the effectiveness of videoconferencing. So I argue that by simply putting a prisoner in front of a camera, and having a courtroom looking at a screen, a relationship cannot be established. The non-verbal cues are not available to that person. It is undoubtedly an absolute compromise and a denial of the notion of effective participation.

I will say in passing that the Greens absolutely support David Parker’s proposal to suspend this debate to allow for a moment in which to think, to breathe, and to look for better options. But there is a very easy remedy to the debate this evening. We have on the Table Supplementary Order Paper 150 from my colleague Dr Kennedy Graham. It states quite simply, in new clause 9(1): “AVL must not be used in any criminal substantive matter for the appearance of a defendant, unless the defendant so elects.” The amendment puts the right back where it belongs; it gives the defendant the right to choose.

Mr Bridges made the point earlier that the right of appearance in a court could be taken away through misbehaviour. In fact, that right would not be taken away or denied through misbehaviour; that right would be surrendered. I have a right as a member of Parliament to stand and speak in this Chamber. It is not an absolute right, but it is a very, very powerful right. If I were to stand here and hurl abuse at the chair or at a colleague, or if I were to begin throwing glasses of water about—I assure members I do not propose to do that—the right to appear in this Chamber would not be taken away from me; rather, I would be surrendering that right through my misbehaviour and my abuse of this place. It is exactly the same situation as the few instances that Mr Bridges was able to muster.

We have not yet heard a substantial reply to the challenge put by my colleague Dr Kennedy Graham. Let us have a list of the criminal cases in this country in the last 50 years that were conducted without the defendant being present.

The question has been posed—and I will finish by posing it—about the need for haste. What is the need for haste? What is the need for urgency in this matter? The House is not in urgency. This is a relatively straightforward piece of legislation, or it could be. It has been around for a wee while. A few weeks would not make any significant difference to the outcome—whether the bill is passed in its present form or in an amended form. We would most certainly support a motion to suspend the debate, and on that point I thank members for their attention. Kia ora.

Graham Dr KENNEDY GRAHAM (Green) Link to this

I do not intend to take up too much time. A lot of the points have been brought to the surface very well in this debate. I reiterate our support for David Parker’s call for the Committee to report progress, because there clearly is a need for further consideration to be given to this. I do not think that our colleagues on the Government benches dispute the fundamental importance of this issue. So I think the Committee should report progress.

I want to reinforce a point Charles Chauvel made. He was wont to raise the matter that however distant the spectre might be, it is a spectre of tyranny. The point about protecting against tyranny is that we introduce watertight absolute guarantees against it. Just as one is not half pregnant, one is not half tyrannical. We either have a democracy or we have slid into tyranny; we are on a slippery slope—the 1 percent we were talking about before.

I see that the body language of the Minister in the chair, Wayne Mapp, is riveting. If I were being beamed in on an audiovisual link I would not be able to see it. I would not be able to benefit from Mr Mapp’s colourful body language. I take the points he is making with his body language, and I will adjust my comments accordingly. But I could not do that if I were being beamed in on an audiovisual link. I think the point is made.

Let me pick up on what Charles Chauvel said about tyranny. If I may, I will quote from, basically, the authority on this subject in New Zealand, which is A and P Butler’s The New Zealand Bill of Rights Act: a Commentary. I quote from page 850. It states: “The right to be present at trial is protected by section 376(1) of the Crimes Act 1961, which states ‘Every accused person shall be entitled to be present in court during the whole of his trial, unless he misconducts himself by so interrupting the proceedings as to render their continuance in his presence impracticable.’ ”—which is the point that my colleague David Clendon was making when refuting the point by Simon Bridges. One surrenders one’s right to be there through one’s conduct; that is not a rationale for withdrawing a person’s right, I say to Mr Bridges.

Let me continue reading: “It is a hallmark”, the authors say “of repressive regimes that a person can be convicted without the ability to participate in the deliberations of, and appear before, the tribunal empowered to convict. The right to be present in order to be effective must mean that the State cannot so organise the court system as to engineer the accused’s non-participation.” That is what we are doing with this bill. We are organising ourselves in such a way as to surrender that right through the court system. I appeal to the Minister. Where is the Minister of Justice? He wafted through here 10 minutes ago like the ghost of Hamlet’s father. He came amidst us. He continued walking, and he went out of the other door. He has come in once or twice—

Roy The CHAIRPERSON (Eric Roy) Link to this

The member cannot refer to the absence of another member.

Hone Harawira Link to this

I refer to the presence of the Minister in the chair, whose body language continues to inform me, with the benefit of being physically present in this Chamber. I finish.

Locke KEITH LOCKE (Green) Link to this

I was looking for the motivation for this change in such traditional rights, which we have defended over many generations, and it seems to be all about money. We will save a bit of money. We will save the trouble of transporting defendants from their cells to the courts and save a bit of money here and there. Really, we cannot sell justice like that.

As I think Charles Chauvel pointed out, we might save a few dollars by having the video links from prisons through to courts, but we will lose a lot more because this law will not last. There will be all sorts of challenges to it, including, as Charles Chauvel said, appeals to the United Nations Human Rights Committee. There is an international backdrop to justice now, and it can be appealed to. As has been pointed out by my colleague Kennedy Graham and by Charles Chauvel, the right to be present at one’s own trial is a fundamental right in both the New Zealand Bill of Rights Act, the International Covenant on Civil and Political Rights, etc.

There is also a phrase: justice must not only be done but be seen to be done. It would be ironic if justice were seen to be done by those who happened to be in court at the time—the judge, the lawyers, perhaps some media and some people in the gallery, who would see justice supposedly being done—but the person who it most affected, the person who might be imprisoned and sent away for life, were not in court to see justice being done. That would be such a huge injustice. Among those who were convicted in this way it would lead to a feeling that they had been wronged. They would be very bitter, and they would be a problem—in some sense, rightly a problem—in the prison system because for a long time they would be carrying the feeling that they had been wronged. In the community there would be a lot more cases like the Thomas case, where people thought: “This person was wrongly convicted, and one of the reasons they were wrongly convicted is that they were not present in the court and did not get a fair go.”

Those who would suffer the most, as my colleagues Metiria Turei and Hone Harawira have said, would be the people who are most marginalised in society. It would be the people who do not have nice suits and well-appointed relations to, in a sense, give them some protection. It would be the people who do not have much money, the people who have had problems in their past. So the bill would lead to only greater differences in the application of justice, as my colleague Metiria Turei said.

I have been on a jury in a fairly long trial. One of the things that struck me while I was on that jury and was part of deliberations was the body language—what was said directly, the way people looked, and the way their eyes flickered. All of those things, when defendants are giving evidence, are very influential on the jury; I could see it. In this case, there were two people with two versions of the truth, arguing quite passionately for their side of the case. I could tell from the jury I was on that a lot of the judgment of the body language, and the subtleties of how they presented their case, would not have been picked up on any video. Also, their ability to see each other and the way each of them reacted was quite important in that case—or at least for the defendant and the main witness against the defendant.

I think it is important not to proceed with this bill. I support a delay, and I support the amendments put forward by David Parker and Kennedy Graham. Thank you.

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

I want to follow on from my colleague Hone Harawira’s comments earlier about the success he had in court. I can say that I have defended someone in a High Court trial once in my entire life, and we lost. I have a 100 percent failure rate in terms of my career in the legal profession.

Don’t want that recorded in Hansard.

Dalziel Hon LIANNE DALZIEL Link to this

I have it recorded in Hansard because I am just taking off my hat to that member. He has obviously been very successful in defending the most colourful client, I would imagine, that any lawyer could hope to have on any occasion.

However, I want to be serious about this issue because we are dealing with a very important matter here. I repeat that I did not believe for one minute that we would be dealing with the Committee stage so soon after the second reading of the bill. The reason I did not think we would be doing the Committee stage so soon is the serious issues that all Opposition parties have raised about the elements of this legislation that are of concern to us. I am in the middle of reading a book called The Rule of Law written by Lord Bingham.

Chauvel Charles Chauvel Link to this

Still reading it.

Dalziel Hon LIANNE DALZIEL Link to this

I am still reading it because I left it in Wellington. I have only just picked it up again. I know that several colleagues are now lining up to read it, and Charles Chauvel will be the first one to have the book after I have completed it. I would have brought the book to the House tonight if I had known that this bill was going to come up on the agenda again today. The reason I would have brought it is that it is a very simple description, in book form, of an incredibly complex set of precedents, history, and the law that has come together to protect some fundamental human rights in the rule of law. We all use that phrase “the rule of law”. It flicks off the tongue quite easily, but it is not so easy to define. This book defines the phrase exceptionally well, and talks about those protections that are put in place to make sure that people are not subject to the arbitrary whims of either a judicial discretion or indeed a lawmaker or decision maker of any form. It is a very important principle that we must uphold in this country. I think that what has been forgotten in this debate is that a fundamental part of the rule of law is the right of the victim to confront the accused, and also the right of the defendant to be present in the court.

That right to be present is written out in the New Zealand Bill of Rights Act. The right to be present at trial is provided for in section 25(e) of the New Zealand Bill of Rights Act. It is stated in the law. I still cannot understand, for the life of me, how anyone can say that there was nothing to report to this House in terms of section 7 of the New Zealand Bill of Rights Act. The absence of an accused from the courtroom is an issue that will have to be confronted. As the Human Rights Commission addressed in its submission, it is likely to colour any jury’s perception of the accused and the trial, regardless of any direction to the contrary from the presiding judge. This raises serious issues in relation to the right not to be compelled to confess guilt or to testify under section 25(d) of the New Zealand Bill of Rights Act.

A number of other comments have been made. I think my colleague Keith Locke made a very good point about the nature of video presentations and how they can colour the proceedings, and they can. I think this is a very important point. I recall very clearly talking to somebody from Grey Power about what it was like to make a submission to the select committee by way of an audiovisual link. That person said to me that it was not possible to tell from the exchange over the audiovisual link whether the submission was having any impact on the members of Parliament who were hearing it. That person felt that the hearing was respectful—there were not people shuffling around or anything like that—but was unable to read the body language down the audiovisual link. All that person could do was take from the language that was being spoken what was being said, but that did not necessarily indicate what was meant. I think the difference between what one says and what one means can be captured only by a face-to-face assessment of the demeanour.

There is an expression in Māori—and I know that I will pronounce it badly so I apologise for that—kanohi ki te kanohi, which means face to face. It is a critical part of Māori culture. If that is the case, then that makes the statements that Hone Harawira made even more important to the debate that we are having tonight. It suggests that we know that Māori are disadvantaged within our legal system now. I have made this statement before, and I will keep on saying it until somebody realises that it is right. A Māori is much more likely to be stopped in the street if a crime has been committed; or if a Māori is seen in a fight, he or she is much more likely to be stopped by the police. A Māori is much more likely to be arrested if he or she is stopped. A Māori is much more likely to be charged if arrested, and is much more likely to face more serious offences if charged. A Māori is much more likely to be found guilty, and is much more likely to be sentenced to prison if found guilty.

The entire justice system is predisposed against our tangata whenua. Taking away kanohi ki te kanohi, as a matter of judicial discretion, is offensive on such an important level that I believe that this Government must stop the process of this bill proceeding tonight. It must consult not only Māori but also other parties in this Parliament that have raised, I think, very legitimate concerns about the nature of the breach of the New Zealand Bill of Rights Act and, I suspect also, our obligations under the Treaty of Waitangi. The Treaty does refer to our equal rights under the law. I do not believe that this bill supports equal rights under the law, at all. In fact, it will further disadvantage those who would rely on that approach being adopted. I believe that Parliament needs to think very carefully about what the New Zealand Law Society said: “While it is desirable that AVL systems should be used to the fullest extent possible, they should be used only where appropriate. The Society disagrees with the suggestion that because AVL systems are installed, they should be used. AVL systems are useful but only to the extent that they improve judicial decision making and outcomes. A focus on achieving efficiencies should not override the need to ensure that proceedings are conducted in a fair and just way in which the rights of all parties are protected.”

That is the reason why our party cannot support the continued passage of this legislation. I believe that if everyone could take a deep breath, pull this off the Order Paper tonight, and take the time to reflect on how we could make a minor amendment to clause 9—that is all we have to do—then we would have unanimity in the House for the procedural matters where this audiovisual link system would work extremely well and would make the savings that the Government is looking to make under these particular circumstances. I believe that that would satisfy the rule of law, and I believe it would satisfy every party in this Parliament. I believe it would satisfy the objectives that the Government set out with legislation designed to save money, but we do not have to save money at the expense of giving up one of the rights that we hold dear under the New Zealand Bill of Rights Act.

Bridges SIMON BRIDGES (National—Tauranga) Link to this

That was an interesting speech given by Lianne Dalziel. She has done some book-dropping, and I will do a bit of name-dropping. I have met Lord Bingham of Cornhill twice; once at Oxford and, prior to that, in his chambers, and a finer judge would be very difficult to meet. He was, and I am sure still is, the best of the best. For him it was all about listening, which was good for me because that meant I did a lot of talking. He—

Dalziel Hon Lianne Dalziel Link to this

Have you read the book?

Dalziel Hon Lianne Dalziel Link to this

I have seen it but I have not read it. I am about to come to that. Like another great jurist, Lord Cooke of Thorndon—not so far from here—our greatest jurist, Lord Bingham had a very thick, if you like, conception of the rule of law. I intuit, as Lianne Dalziel would, that he attributed to the rule of law substantive concepts of what law should be about—that it should include rights to a certain kind of trial and the like.

I make the point—I will link this to the Courts (Remote Participation) Bill, Mr Chair, you will be glad to know—that there is another very distinguished school on the rule of law that includes Joseph Raz, a very well-known jurist from Oxford. It says that the rule of the law is not so much those substantive concepts but a process, and very much about—we can put it in one phrase—the rule according to law, not men. In my view, this bill, which presumably will become law, complies with the rule of law. We will all know in this House through a set of prescriptions in clauses 5, 6, and 9 exactly what a substantive hearing is and the criteria by which judges are to judge whether an audiovisual link is to be used for the accused. So I come back to it being rule by law, not by men. I think it would meet most definitions of the rule of law, if not the thicker conception that the likes of Lord Bingham and Lord Cooke would have, where they bring in principles—

He had a set of principles.

Tremain Chris Tremain Link to this

—I accept that—but they are principles that are contestable. Not all people can always sign up to them. Where law is multifaceted and where it is complex, there are often areas where exceptions are needed, areas where thick rules cannot be subscribed to.

I want to pick up on something that Keith Locke raised. It is a misconception that has run throughout this debate from a number of speakers, which is this issue of body language. I know that Kennedy Graham was doing so in jest when he referred to the Minister in the chair and his various mannerisms. But in jury trials in this country for decades—I will venture, as I have not been around quite that long—there has been a standard direction in the judges’ Bench Book, which they guard jealously, that makes it quite clear that jurors should take body language into account. The direction says that by examining the witness and paying close attention to his or her body language, eyes, and so on, one might get a good steer on what a witness is about. However, the most recent research on this point, and the best research, makes it quite clear that body language, mannerisms, and language are inherently unreliable. I said in the first reading debate of this bill that the twitchy witness might well be the most honest witness, and the witness who is stone-cold sober, looking straight ahead—perhaps, a professional witness; often a police witness—may nevertheless be the one who is shielding things. In that regard, our Bench Book and the way we do things in New Zealand may need to be updated to take into account the science on body language. I accept we are losing something when audiovisual links are used, and that will be taken into account under the legislation that we are passing in this House, but we are not losing as much as people might think by losing body language. Body language can be notoriously difficult to interpret, and can lead people down the garden path.

We have been talking a lot about wins and losses. Hone Harawira has won most of his cases where he has been the defendant personally, and Lianne Dalziel lost her one defended case as counsel. I do not often get to do this so when I do I make the most of it: I have been counsel in over 100 jury trials in the District Court and High Court in this country, and I won over half of them. So there you have it.

Hipkins CHRIS HIPKINS (Labour—Rimutaka) Link to this

I was not intending to take a call on the Courts (Remote Participation) Bill. I actually came down to the House to take a call on the next bill that is on the Order Paper. However, when I sat down and listened to one or two of the speeches and then picked up a copy of the bill and read it, I was absolutely shocked and appalled by the legislation that the Committee of the whole House is currently debating. I could not sit here in good conscience and not say something about it.

It seems to me pretty fundamental that when somebody is accused of something and is facing a court trial, the accused should be allowed to be present. There should not be the ability to prevent the accused from being present. If the accused chooses to opt out, and says that he or she is happy to do it by audiovisual link, OK, I am comfortable with that. But the accused should not be forced into the position where the only way that the accused can participate in his or her own trial is by way of an audiovisual link.

I guess we should not be surprised, given the Government’s history when it comes to democracy and to individual human rights. We have seen the Government do away with local government in Auckland, without as much as a second thought for the principles of democracy. We saw the Government do away with a whole democratically elected council in Christchurch, without as much as a thought for democracy, and it was done under urgency. Paul Quinn has a bill before the House at the moment. He wants to remove the right, or, should I say, the duty, of prisoners to vote. That basically sums up the Government’s attitude to democracy and human rights. This bill, in its present form, is yet another attack on people’s human rights. As Lianne Dalziel pointed out, it is absolutely inconsistent with the New Zealand Bill of Rights Act, and I am absolutely shocked and appalled.

Generally speaking, I support the idea that an audiovisual link could be used much more widely, not necessarily just in the criminal justice system but across the whole of Government. Actually there are huge savings to be made. But we are not talking about a teleconference to approve some minutes or to organise the staff social function. We are talking about something that can have a fundamental, life-altering impact on somebody. It could be any one of the members of this House in a court case. It could be any of our families. It could be any one of our neighbours, our friends, or our constituents. Anybody can be the subject of court proceedings. This measure could apply to anybody, and it could have a fundamental impact on that person’s life. If we pass this bill, we are saying that we do not think that person should be entitled to be present for those proceedings if the person chooses that that is what he or she wants. I think that is absolutely outrageous.

I agree that in some instances audiovisual proceedings are appropriate. We have talked about some of the more minor procedural matters that can be dealt with through an audiovisual link; I have no problem with that. But it comes down to a fundamental point of principle. Why should the accused not be there and not be able to see what is going on? The accused should be able to hear in person what other people within that proceeding may be saying about him or her. The accused should be able to hear what the lawyers are saying and be able to read the body language of the people in the courtroom.

I do not care what Simon Bridges says; I think that body language is important. We have teleconferences for select committee meetings, where submitters come through on an audiovisual link. I find that the teleconferences in a select committee meeting are far less valuable than being able to sit at the other side of a table and actually hear what somebody has to say, to read his or her body language, and to be able to engage in some real, meaningful discussion with that person. I appreciate that for some select committee proceedings we have to accept that that is the reality—that teleconferences are the only practical way to do it. But again, it is a whole different scale. What we are talking about here is much more fundamental than that. We are talking about people potentially going to jail. We are talking about a whole lot of things that can have a huge impact, not just on a person’s life but also on the lives of the people in that person’s family and on everyone around that person. As I said, that person could be any one of us.

Let me tell members, if it was me, I would want to be in the courtroom to hear what is going on and to see what is going on. I would not want to be forced to attend that proceeding through a video link, where all I could see was whatever whoever was controlling the camera at the other end decided was fit for me to see. I do not think that is right, and I do not think that most New Zealanders would think that is right. If any New Zealander was in that position, and had to make the call whether he or she wanted to be sitting staring at a TV screen or be in the courtroom where he or she could see what is actually going on, I think most New Zealanders would say that they would like to be present in the courtroom.

Hughes GARETH HUGHES (Green) Link to this

Kia ora, Mr Assistant Chair. It is a privilege to be here tonight. In my short 5 months as an MP in this Chamber, I do not think I have found a bill that is more important than this Courts (Remote Participation) Bill tonight. I was not going to take a call but, like Mr Hipkins, I could not not speak, in all good conscience. Of the 114 bills that Mr Graham has said that Parliament has passed in this term, I think that this is the most fundamental; it goes to the heart of our constitution in New Zealand.

Like Mr Harawira and a few other members of this Committee, I have been a defendant in court cases. Because of my environmental activism I have faced minor criminal charges in a court. Although the cases were not the substantial cases we are talking about tonight, where people can go to jail for an awfully long time, I thought that I would share some of my experiences with this Committee so that members get a flavour of what it is like to be a defendant in a court. Court is a confusing, noisy, crowded place, full of tough-looking people, and full of procedure, pomp, and protocol. It is so foreign to people like—

What about the member? You’re not that tough-looking. So you’re just a pussycat?

Hughes GARETH HUGHES Link to this

No, I am not a pussycat, but I am talking about what court is and about its environment. As a defendant, the person is going to a foreign place about which he or she does not have any experience. The defendant has lawyers—of whom we have enough representation in this Chamber—who understand what is going on, but a defendant is confused and does not know what is going on. The defendant has only the direction of his or her lawyer. Tonight we are talking about taking an already confusing place, and a place that is already foreign to many people, and making it more confusing, more foreign, and harder to understand. It will be near impossible for people who do not have any experience with courts to defend themselves, and to follow what is going on through a tiny screen, potentially, in their cell.

Potentially, there will be technical problems. This bill will give an awful amount of power to the videographer, so what will happen? It will be the defendants who will suffer. Videographers will have so much power. They will choose what will be filmed and what will not be filmed. By the power of omission they can vastly influence a defendant’s right to a fair trial, and they can influence what the defendant will experience. The defendant could be being abused or be acting under duress in his or her cell, but the jurors and other people in the courtroom would not know.

Jurors will suffer. They will have no access to those all-too-human qualities. Mr Bridges can claim that body language is not important, but as human beings we know that it is. It is an essential part of who we are. As Metiria Turei said earlier, it is an important part of our humanity to be able to look our accusers in the eye. Jurors will find it essential to be able to talk, to see, and to view the defendant and the accused.

As members have discussed tonight, it is so much easier to find a person guilty, or to send him or her to jail for a long time, if that person is not even in the same room. Studies in human nature have shown that that is consistent and is what will happen. We will see more people being convicted and facing longer times in jail because of the decisions made in this Chamber tonight. This legislation will affect the poorest and most vulnerable Kiwis—Māori, the young, and the poor. Those who least understand the legal justice system at the moment will be taken further away from it. It will be those who cannot afford a lawyer—or two lawyers; one lawyer to sit beside the defendant in the cell, advise him or her, and explain what is going on, and the other lawyer, who is in the courtroom—who will suffer and, ultimately, justice will suffer. This bill is taking away our centuries-old right, and taking away a cornerstone of our transparent, fair justice system. It is a right and a fundamental civil liberty to be present at one’s trial. This bill takes away the accused’s choice.

The Green Party supports videoconferencing. As Greens, we encourage its use because of the considerable environmental benefit, but an accused person needs a choice. I celebrate the justice system, which is investing $2 million in audiovisual link technology, but I say that defendants need a choice.

Why are we debating this bill tonight? Ultimately, the reason is cost savings. We are trying to make things cheaper for the justice system, but that is cheapening justice. What we will get is justice on the cheap.

We have heard speaker after speaker from a host of parties in the Committee condemn this bill in the strongest language, not because of political reasons but because it has a fundamental injustice. I urge the Government to take a breath, take a cup of tea, and put the legislation on hold for a week. If the Government does not, then I urge the ACT Party to stand up and vote against this bill. This is a travesty and an injustice. Kia ora.

Quinn PAUL QUINN (National) Link to this

It is a pleasure to stand up in the Committee stage to speak on the Courts (Remote Participation) Bill. I remind the previous speaker, Gareth Hughes that the total bill has not been condemned, as he suggested. In fact, the only area of contention is clause 9 and some of the associations with regard to that. Principally, the contentious clause is clause 9.

However, I thought that in this call I might focus on some of the other clauses, because I was becoming a little afraid that the Chairman might rule that the speeches were being repetitive and would, therefore, close down the debate. I know that a number of other clauses need to be discussed.

One aspect that I will particularly focus on, in this call anyway, is the efficiency that the audiovisual system might bring to procedural matters, particularly in respect of interlocutory procedures and setting court dates, and those sorts of things. The use of modern technology will be a most efficient thing. Figuratively speaking, one will be there in person but via a video link. I think we have been getting hung up a little bit about the 18th century definition of “in person”. Time and technology have moved on.

Getting back to this particular aspect, the Green member of the Justice and Electoral Committee, Dr Kennedy Graham, has made, and continues to make, a valuable contribution to the discussions on not only this bill but also other bills. He agrees that the only clause of contention is clause 9, but the rest of this bill we all unanimously support. In fact, the leader of the Labour Party team on the select committee, the Hon David Parker, who also always makes useful contributions, agreed that the only contentious part of this bill is clause 9.

In respect of civil proceedings the bill will progress efficiency, particularly where the people involved are overseas or are at other ends of the country. I think we should focus on those good aspects of the bill, and I look forward to the ongoing discussion.

Power Hon SIMON POWER (Minister of Justice) Link to this

I have listened closely to this debate, both during the second reading of the bill and during the Committee of the whole House. I have been in my office listening to the contributions of a wide range of speakers from a number of parties on this issue, and I have been persuaded by the Committee of the whole House that we need to make amendment to the issue that has been the subject of considerable debate this evening, this afternoon, and during the second reading. To that end, I have tabled, and the Chair will put the question at the appropriate moment, the following amendment to clause 9: to add as subclause (2) after line 26 on page 6 the following subclause: “(2) Despite subsection (1), AVL must not be used for the appearance of the defendant in a trial that determines his or her guilt or innocence unless the defendant consents to the use.”

The quality of the contributions from all parties on this issue this evening has caused me to think carefully about this very delicate issue. As somebody who regards himself as having a view from time to time on what justice should look like, I am persuaded that indeed when it comes to a substantive matter in respect of a trial, we are not discounting the use of an audiovisual link being applied, but if the defendant does not consent to its use at that substantive level, then he or she should have the ability to require a physical presence at the time that the matter is heard.

I want to reassure our parliamentary colleagues of the plan from this point if the bill proceeds from the Committee of the whole House and through the third reading. I thank representatives from each of the political parties who have indicated that with the tabling of this amendment, they will now see fit to change their view and support the legislation. I acknowledge Labour’s Lianne Dalziel, Kennedy Graham, Hone Harawira, and David Garrett from the ACT Party, for taking part in some discussions, as they say in other jurisdictions, behind the Speaker’s Chair. This is a worthwhile step. I will say that the initial trial period in which the audiovisual link will be rolled out in Auckland will concentrate on procedural matters alone. It will be interesting to see how it develops. I am not ruling out coming back and having a further debate about whether it is appropriate to expand the use of an audiovisual link at some later time. I think that is appropriate, once we see how the system beds in.

But this is one of those moments in the Committee of the whole House when the quality of debate has been high. It is a rare moment, I have to say—after 10½ years, although it feels longer. I am persuaded that the amendment should proceed and I hope now that members who have felt strongly about this issue are reassured that the matter is addressed and they will see fit to support the bill from this point.

Graham Dr KENNEDY GRAHAM (Green) Link to this

I rise firstly to thank the Minister and reassure him that what, in our view, had been arguably the most worrying day in the forty-ninth Parliament has transformed into the most reassuring example of parliamentary democracy in action. There has been reasoned debate, impassioned debate, and a very constructive response from the Minister, and we appreciate that very much. In light of his proposal, to which we give our assent, I hereby withdraw my Supplementary Order Paper 150 amending clause 9.

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

I will take a very brief call to thank the Minister in the chair, the Minister of Justice, for listening to the debate and for responding in the way that he has. I think it has been a very good debate over the last couple of days, and the result reflects that. I indicate for the record that we will be withdrawing Supplementary Order Paper 149 in the name of David Parker in order to support the Government’s amendment to this bill. As I think I said in my comments in my second reading speech yesterday, that one small amendment to clause 9 would mean unanimity in the House, and I think we have achieved that. I think that the Minister should be congratulated.

Pillay LYNNE PILLAY (Labour) Link to this

Along with my colleague, I congratulate the Minister in the chair, the Minister of Justice, and say that this is a good start for some progressive moves on the Government’s part. As Simon Bridges pointed out, I was very choked when I gave my speech. Simon Power probably noticed in his office, too.—

Power Hon Simon Power Link to this

Sorry, I didn’t.

Bridges Simon Bridges Link to this

He did not. I was very choked during my speech. It is very good to see some progress.

It was emotional.