Criminal Justice Reform Bill

Dr WAYNE MAPP (National—North Shore) Link to this

I want to take the Committee back to 1999. The public made it perfectly clear through the Norm Withers referendum that they wanted tougher sentences. What was the response of this Government? Its response was to introduce law that allowed a rapist sentenced to 9 years in jail to be released in 3 years. The Government went up and down this country trumpeting that as its response to the referendum of 1999. Well, the public saw through that sham, and on this side of the House we pointed out to the Government time and time again the deficiency in its legislation. At best, at that time, the Government only tweaked the legislation. It did not deal with the core problem. It has taken until now, 5 years later, for the Government to recognise in clause 120 of this Criminal Justice Reform Bill that the two-thirds parole rule had some common sense—the very rule, in fact, that the Government repealed in its 2002 legislation.

This Government is always going on about how it is tough on law and order. This Minister, Mark Burton, says so. But in 2002 it actually weakened the sentencing laws of this country when it substituted a two-thirds parole system—which, actually, the public said was not good enough—with a one-third parole system. That was a total betrayal of public trust. It is no wonder the public were disgusted with the Government on this particular issue. Frankly, I am surprised that it has taken so long for the Government to return to what was, at the very minimum, a common-sense position.

I want to make absolutely clear that National is committed to the policy that violent repeat offenders shall have no parole rights. The public has made it perfectly clear that people like that, who represent an immense danger to society, should not earn entitlements for early release, and that when the judge has heard all the evidence and assessed the circumstances of the crime, the criminal should serve the sentence that he or she was given by the judge. That is what the public wanted in 1999. This Government betrayed them in 2002. It has made a modest rectification in clause 120. But we are very clear on the National side of the Chamber that we have heard that concern and that—as we said in 2005 and will say for the next election—violent repeat offenders will not be eligible for parole under National.

I ask this Government why it does not listen properly to the people of New Zealand. For that matter, why does it not listen to its support partner, New Zealand First? Members of New Zealand First do not believe in parole either, yet I imagine they will vote for this measure today. It makes one wonder where New Zealand First’s ability to influence the Government is. People who are part of that particular class of criminal—the violent and repeat offenders—have used up their chances. The public needs proper protection from them, and they ought to be serving a proper sentence.

I want to put that very clearly on the record so that it is absolutely clear to New Zealanders where Labour stands—a weak, vacillating Government—and where National stands. National is determined that the violent offenders, who are such a scourge in our country, will not be eligible for parole. That choice will be clearly put before the people of New Zealand in 2008. My colleagues have been speaking at length about the Sentencing Council, and we put in a minority report about that. We are concerned that the Sentencing Council does—

Hon MARK BURTON (Minister of Justice) Link to this

I will take one final call as we come to the close of this part. After considerable debate the member Wayne Mapp wandered back to Part 1, so I think he has clearly concluded his Part 2 contribution. But I think if members translate what he said, it seems that he pretty much supports overwhelmingly the measures the Government is advancing in Part 2. The member—clearly, from the comments he has made and the comments his colleagues have made—overwhelmingly supports the general provisions of this bill.

I can assure the member of numerous examples of measures both in speeches and, more important perhaps, in legislative measures, that this Government has advanced so that serious repeat violent offenders will be dealt with harshly—and they should be. The safety of the community must be first and foremost.

Secondly, the member made reference to the influence of other parties. Well, I have to say to the member that the best way to have influence is to engage and to cooperate. I want to acknowledge that this bill is the better for the engagement and cooperation of New Zealand First, and of Mr Mark in particular, who worked very closely on the development of the front-end home detention. I think that is a progressive measure that will significantly enhance sentencing options for the bench and provide an option that I think the bench and the community will welcome, along with the resources to make sure that it can, indeed, work.

I acknowledge the various contributions members have made, and I look forward to wide support from the Committee for Part 2.

CHRISTOPHER FINLAYSON (National) Link to this

I just want to make a few comments about Subpart 3 of the Criminal Justice Reform Bill, which deals with amendments to the Parole Act. These amendments were canvassed by the Justice and Electoral Committee at some length. They deal with the situation where there is an urgent application to the Parole Board for a confidentiality order. As can be seen by clause 83B, which proposes to insert new section 13AA in the Parole Act 2002, applications may be made by the Commissioner of Police or the Chief Executive of the Department of Corrections, and applications have to be supported by an affidavit sworn by the applicant—they are not applications, in these extreme situations, that would be served on either the offender or the offender’s lawyer.

The important point I want to make is that when a confidentiality order is made, that information may not be disclosed or published to either the offender, which makes sense given the nature of the information that has been disclosed pursuant to the confidentiality order, or to the offender’s counsel. Now there were a number of us on the select committee who had to think long and hard about whether that was appropriate, because normally safeguards can be entered into to ensure that information can be given to the offender’s counsel in circumstances where one relies upon his or her professional obligations as an officer of the court. But it was decided that because of the nature of the information and the special circumstances that may cause the Commissioner of Police or the Chief Executive of the Department of Corrections to make such an application, given the nature of the information, it would not necessarily be forthcoming if the offender’s counsel was to be given copies of it. So I want just to emphasise that that is a very extreme measure, and I hope such applications will be made in good faith because I note there is no requirement, as there is with applications of a similar nature made in a civil context, that they be certified to be true and correct. I would hope that such applications are going to be very rare indeed, and will be made in good faith by those persons.

The point is that solicitors and barristers have obligations to the court, and it should only be in very special circumstances that they should not be entitled to receive that information. The only other precedent I know of, and maybe Mr Fairbrother will be able to comment on it if he speaks, is under the Terrorism Suppression Act, where certain types of applications can be made under sections 35 or 55 of that Act, and in very special circumstances the Attorney-General can make an application to the court that it is desirable to protect the classified security information, and that the information not be given to either the entity that it is sought to designate under the Terrorism Suppression Act or any barrister or solicitor representing that entity. One can certainly understand in a terrorism context why one would not want to part with highly sensitive classified information. This is another step along the way, and I want to assure the Committee that great care has been taken by me and others on the select committee to satisfy ourselves that such an application could result in an order whereby information may not be disclosed to the offender’s counsel. But it is a slippery slope, and I would hope that we would not be making that kind of legislative change very frequently at all.

The second point I want to make in this Part 2 speech deals with my proposed amendment on Supplementary Order Paper 126 to Subpart 2, which deals with amendments to the Sentencing Act. Yesterday, in response to the statements that I made about my Supplementary Order Paper and the requirement that when a court was dealing with sentencing guidelines it should have regard to any sentencing guidelines rather than adhere to them, as the proposed clause 40 inserting new section 21A suggests, Mr Chauvel commented that one should read on a little further and go to the subordinate clause of new section 21A—namely, “unless the court is satisfied that it would be contrary to the interests of justice to do so.” But that is, with respect, a rather superficial response, because it is clear that the subordinate clause set out in new section 21A is to be the exception rather than the rule. Given the realities of sentencing practices, as I have explained, that subordinate clause will be the rule rather than the exception. The principal clause is going to be simply a redundancy because—I ask the Committee—how can one impose consistency when there is more than one guideline?

I explained last night that the only guidelines the National Party has seen are the guidelines that were given to me when I was in England. No one from the Law Commission or from the Minister’s office has condescended to provide them for us, although we know they are in existence in draft form. But we have a number of Sentencing Council guidelines. For example, a judge sentencing a person may have to consider a reduction in a sentence for a guilty plea. A judge may also have to consider a guideline entitled “new sentences”, or one concerning seriousness. If one is dealing with multiple guidelines provided by the council, the only sensible thing one can do is to have regard to them, and that reflects the reality of sentencing. What I have proposed is utterly consistent with the English statute. Section 172 of the Criminal Justice Act provides that every court must have regard to a relevant guideline.

When one is sentencing one cannot simply rely on the provision at the end of new section 21A, if it is enacted—namely, that it can be applied because the court would be satisfied that it would be contrary to the interests of justice not to do so—and ignore, in reality, the first part of the section. If we are to be diligent parliamentarians, the section should be drafted in accordance with the reality of sentencing practice, and that reality is reflected in the proposals I have set out on my Supplementary Order Paper.

I come back to the point that, as drafted, the provision is redundant in reality, and I am also sure that, as drafted, it will be a recipe for meaningless appeals, because there will be constant challenges to decisions made on sentencing, with possibly both parties arguing that the sentence imposed is not consistent with guidelines. I think that if the provision is enacted, we will have a recipe for confusion and unnecessary litigation.

RON MARK (NZ First) Link to this

I wish to take just a short call to allay some of the concerns expressed by Dr Wayne Mapp. Yes, it is true that although New Zealand First is supporting the passage of this legislation through the House, we do have concerns about parole. Mr Mapp has informed members that the National Party now has a policy that it will repeal parole and there will not be parole for—I think he said—violent offenders. That is quite a turn of events, because in the 11 years I have been in Parliament this is the first time that the National Party has had such a policy.

Dr ASHRAF CHOUDHARY (Labour) Link to this

I move, That the question be now put.

Dr RICHARD WORTH (National) Link to this

I raise a point of order, Mr Chairperson. I was just a little concerned that in the course of Mr Mark’s speech he referred to Dr Mapp when I think he was referring to me. He certainly did so on one occasion. I think he did it inadvertently. Although I am flattered to be known as Dr Mapp, it could be appropriate that—

HEATHER ROY (Deputy Leader—ACT) Link to this

I have put forward some amendments that I would like to bring to the attention of the various parties in this Committee. They are fairly simple in their nature, and they are all around the subject of victims’ rights and the ability of victims to present to the Parole Board. I would like to have subclause (3) omitted from clause 96, subclause (1) omitted from clause 97, subparagraphs (ii) and (iii) of new section 45(7)(b) omitted from clause 98, clause 101 omitted, and also clauses 102 and 104 omitted.

The reason I want those amendments made by this Committee is simple. Although the ACT party was not represented on the Justice and Electoral Committee, I understand that the committee heard a large number of submissions from victims, but these have largely been ignored in the committee’s report. In fact, the victims of various crimes are feeling quite aggrieved—firstly, about that, but, secondly, about what they perceive as a lack of ability to be heard now before a Parole Board, except under exceptional circumstances. I would like to call on Parliament to cut out the provisions of the Criminal Justice Reform Bill that remove the victims’ right to be heard by this board on whether criminals should be let out of prison.

This bill, currently before us in the Committee stage, should take victims’ rights into consideration. I believe that this debate should be halted until the Government has lodged a Supplementary Order Paper to remove these provisions, but in the absence of the likelihood of this happening I have put forward these amendments myself.

When the select committee reported on the bill, none of the members on the committee bothered to comment on victims’ submissions, which begged them—and the victims were begging, because they felt personally aggrieved—to remove this right. Labour, National, and the Green members on the committee spent a lot of time looking at the confidentiality of evidence of prisoners’ wrongdoing. They worried a lot about the rights of criminals, but the victims of a large number of crimes felt that their voice would not be heard, at all. They feel, really, that no apology for the biggest impact of the bill on victims will be heard, and that provisions to shut victims out of Parole Board hearings will happen if this legislation is passed and these amendments are not made.

The committee did manage to spare a paragraph to endorse some meaningless words, which were put in to pretend that parole is a privilege, not a right. But it did not even note that the attendance of victims at hearings will now be a privilege, not a right. The Parole Board will grant the privilege only if victims agree to confine themselves to discussing the “risk to the safety of the community” posed by the criminal’s release, and “ways of managing any risks …”. No longer will they be able to protest about the simple injustice of a criminal’s early release and the hurt that it does to victims, who have already suffered far too much. So board members, by locking the door, can now protect their delicate ears against the demands that a meaningful part of a sentence be served. They need not hear these protests against the board’s conversion of a sentence into a trivial price for what very often are vicious crimes.

Parliament, it seems, is ganging up with those in the justice establishment who are contemptuous of the public demand for real penalties for crime. Time and time again communities and citizens of New Zealand have voiced their very loud concerns about real penalties not being served for crimes, and the rights of victims not being heard and certainly not being listened to. Victims are seeing the scandalous parole process put back behind doors that are firmly closed to them. That is surely not fair, and at worse is quite scandalous in itself. I would like the other parties in this Committee, when considering this stage of the legislation, to think very carefully about the amendments I have put before it, and to support them. Thank you.

CHARLES CHAUVEL (Labour) Link to this

I want to make two contributions in response to matters already raised by other members in this Committee stage. [ Interruption] I am glad that Dr Mapp is so keen to hear those contributions. It is always good to have an appreciative audience. The first comment I want to make relates to the matter raised by Mr Finlayson, as to the additional protections inserted by the Justice and Electoral Committee in Subpart 3, which relates to the provisions concerning secret witnesses—so-called—before Parole Board hearings. The situation, as the member set out, is that we have sought to enhance the due process protections that exist when this scenario arises—that is, when an application is made for evidence effectively to be heard in a manner that will not be disclosed to the person applying for parole.

It will be recalled that Mr Finlayson spoke of the protection inserted whereby the select committee felt it was appropriate to require the grounds for making an application of this nature to be set out in an affidavit, on oath or by affirmation, by the statutory officer applying for the order. So it will be necessary for that person to depose as to the reasons why this extraordinary breach of the normal principle—that a person should know the evidence against him or her—should occur.

The other protection, which I do not think Mr Finlayson mentioned but which is worthy of recording, is that we have set out in the committee report, and in the bill, that these powers ought not to be delegable. It is a departure from the usual rule in the laws relating to the State sector that a chief executive may delegate functions to his or her employees. In this case, the power must be exercised only by the Commissioner of Police himself or herself or by the Chief Executive of the Department of Corrections. Again, this is a token of how seriously the select committee took the provisions in order to try to make sure that they should not be able to be exercised except in the rarest of cases.

The other matter to which I want to refer relates to the contribution from Heather Roy. I have just looked over her proposed amendments. It seems to me that one of the difficulties with what is suggested is that all provisions in the legislation relate to Law Commission proposals to remove the right of victims to make oral submissions to the Parole Board. There is no change, as far as I can see, to the ability to make written submissions to the Parole Board. The omission of these provisions would simply maintain the status quo, where certain victims have a right to make submissions. I suspect this would not really be desirable, because parole decisions are, after all, supposed to be based on an assessment of risk, and victim submissions are relevant to that only in extremely rare cases: where the victim can provide information relating to the offender’s risk of reoffending.

In my view—and this was a matter raised in the select committee—to go down the path that the amendments suggest would be to hold out false hope to victims of crime, by suggesting that somehow their views will be taken into account in circumstances where the statue simply provides that they cannot be, because they are not grounds that the Parole Board can legitimately take into account when it assess risk, which is, after all, its job. Thank you, Mr Chair.

KEITH LOCKE (Green) Link to this

Those who have read the commentary from the Justice and Electoral Committee will see that the Green Party was particularly concerned about the confidentiality orders, whereby information would be provided to the Parole Board on a confidential basis. We then have under Part 2, in clause 83B, subsection (4) of section 13AB: “To avoid doubt, anything that may not be disclosed or published under a confidentiality order may not be disclosed—(a) to the offender; or (b) to the offender’s counsel or other representative of the offender.” It is very hard to get any justice in such a situation, and to stop people from giving false information, if even the lawyer of the person is not able to know the information. That would only encourage people to give prejudiced, biased, false, etc. information to the Parole Board, so I think it is a very dangerous way to go.

It was the National member Mr Finlayson who recently drew a parallel with the Terrorism Suppression Act 2002, saying that the Act has a whole section about classified information not being given to the person or group accused of being terrorist. It is very hard to defend oneself in judicial proceedings against accusations if one is not aware of the information available. There is some provision in the Terrorism Suppression Act for, possibly—it is not obligatory—a summary of the classified evidence to be provided to the lawyers for the accused.

One of the things that worries members of the Green Party is that hiding from people and their lawyers information that is part of accusations made against those people that could be very detrimental to their future has now crept from the Terrorism Suppression Act into our criminal legislation. We see it in the Ahmed Zaoui hearing proceeding in Auckland. There are two stages to the hearing around his security risk certificate. The first stage is public source material, and, unfortunately, there is secrecy around that, in that the media are not allowed to cover those proceedings even though they concern material completely in the public domain. I have written to the Commonwealth Press Union about that, and I hope the media will make great play of their being excluded from a hearing that has publicly available material as the only content of it.

The second stage—which will start later—of the hearing in relation to Mr Zaoui’s security risk certificate concerns the classified information, which will be completely withheld from Mr Zaoui and his counsel. The special advocates appointed by the Inspector-General of Intelligence and Security, Stuart Grieve and Chris Morris, will be prevented from even talking to Mr Zaoui’s counsel after receiving that classified information and assessing it. They somehow have to act on Mr Zaoui’s behalf at some distance, without communicating with Mr Zaoui and his lawyers, even though they were appointed by the inspector-general.

Members can see the complications that are being introduced into our legal system in its various aspects: the Terrorism Suppression Act, the security risk certificate procedure, and now the Criminal Justice Reform Bill. We do not want to go too far down this track, because it gives the State, in effect, greater powers to determine the future of a person without judicial constraint. In this case, it is not just the State we are talking about; people who might be prejudiced against a particular prisoner or whomever can operate in secrecy and get away with providing information that is not tested.

Dr RICHARD WORTH (National) Link to this

No one else has spoken about Supplementary Order Paper 127. I am glad the Minister, the Hon Mark Burton, is in the chair, because I believe it would be helpful if he could offer a short explanation as to why that Supplementary Order Paper in his name lies before us. I know what its purpose is, but the question is why this is being done. What it is about is amending the Prisoners’ and Victims’ Claims Act 2005. That legislation was due to expire on 30 June 2007, and the plan is to extend that date to 1 July 2010 in this particular, and critical, part of the bill.

Members of the House who were in Parliament in 2004 will remember that legislation. It was highly controversial, and it culminated in the passage of the Prisoners’ and Victims Claims Act in 2005. That legislation was about setting up a code to enable prisoners who believed they had been abused to make claims against the prison authorities. There was then to be established a compensation fund from which to provide payments if they were successful in those claims, and a priority was established for paying out any money that the prisoner got in compensation. If it was not possible to trace the victims, the prisoner got it all.

There was huge concern about that legislation on both sides of the Chamber, it is fair to say. A number of deeply philosophical and troubling questions arose from it. For example, if there was a fund, how was that fund to be allocated when there was more than one victim? Should the money go to the first victim, should it be spread equally, should a person who was more scarred get more money than a person who was less scarred, and issues such as that? It was made clear that because of the concern that Parliament had about this legislation, it should expire with the close of 30 June 2007. That is made very clear in Part 2 of the principal Act.

Now we have, by a side wind, a Supplementary Order Paper that seeks to perpetuate what is clearly an unsatisfactory circumstance. No one doubts that prisoners should be safe; that is not the argument. Where excesses occur, action should be taken. But I believe that the action that should be taken in respect—

LYNNE PILLAY (Labour—Waitakere) Link to this

I rise to take a call firstly to support the Minister in what I believe was a very sound explanation of the consideration being given to victims and of Supplementary Order Paper 127 in his name, relating to the sunset clause. I also want to speak in opposition to the amendments in the name of Heather Roy relating to the reported right of victims to make oral submissions to the Parole Board.

Certainly there was considerable discussion with the advisers from the Law Commission in terms of the admission of the provisions that maintain the status quo. It was argued that for victims to give an oral submission would serve to re-victimise the victims, if I can use that term. Parole decisions are based not on the crime but on information relating to the risk posed if the offender was again put within the community. Of course, victims can make written submissions, but there is the expectation of their going to the Parole Board and relitigating and reliving the pain and the trauma that they have experienced. In some instances, the belief that recounting the crime would have quite an influence on the Parole Board’s decision really raises false expectations. It certainly was the view of the Justice and Electoral Committee that that would be a disservice to victims. It would not give them a right, but really, it would raise expectations about what they believed their right to be.

So based on the information and the advice that the committee was given, the decision was not to hear oral submissions at the Parole Board but that written submissions could certainly be forwarded to it. That would mean that the process was fairer and did not raise victims’ expectations. The Parole Board would consider parole on the basis of the risk posed by the offender should he or she be put back into the community.

I would also add that the committee is currently carrying out an inquiry into victims’ rights. Very much of what we have heard and of what is in our minds—and I speak on behalf of all the committee members at this point in time—is a concern about victims during the process and about how they are supported. There should be transparency and integrity in the process, whether during the prosecution of the offender or at the parole end. We want to provide clarity and certainty for victims. Raising their expectations about the impact of an oral submission on the effect the crime has had on their life does them no service at all; it does them more of a disservice. That is why I stand and say I do not support the amendments proposed by Heather Roy. Thank you.

Hon MARK BURTON (Minister of Justice) Link to this

I have taken some advice on the amendment that Heather Roy has put forward. I have also listened to my colleague on the Justice and Electoral Committee. I think Heather Roy’s amendment is well intentioned. I have no question at all that her concern is genuine, as I think it is for every party in the House, that in advancing this bill we should be advancing the interests of the victims of crime, first and foremost. I think we could have had considerable debate, and had we had the luxury of time we could also have gone away and everyone could have taken advice, consulted widely around the community, and reached an informed view as to whether this particular amendment adds, in any meaningful way to the value of this legislation for victims, in terms of their participation in the parole process, and, in particular, the Parole Board hearing process.

The problem we have is a practical one. The Committee is reaching the very, very end of the debate on Part 2, and it has to make a decision on whether the amendment the member has put forward is to be supported. If it is not supported, then it will be lost. If it is supported and comes in, it may prove to make little effective change. But I have reached the conclusion, and I have discussed this with officials, that it does little harm, if any. I have concluded, as the Minister responsible for the bill, that I will support Heather Roy’s amendment. I think it basically reflects reasonably the views genuinely held by members around the Chamber that we can make progress on the bill in a sensible way and take it on good faith that the intent is positive. The advice I can give members is that the officials’ advice is that, whether or not it does great good, certainly it will do little harm. I thought it would be useful to members to give an indication that I am prepared to support this amendment, on behalf of the Government.

RON MARK (NZ First) Link to this

I just want to rise and thank Heather Roy for bringing that matter to the Committee and placing an amendment before us. I have to say that eleventh-hour advice from her friend Stephen Franks, a man whom I consider a colleague, is often better if it is received well before the eleventh hour. I have no doubt that Heather will take that very firm advice and guidance back to Stephen Franks, to ensure that we are more timely in our submissions and in expressing concern over issues in future.

I thank the Minister. New Zealand First stands with victims—it always has and it always will do. We strongly criticise the Victims’ Rights Act the Labour Government passed last term, because we do not think it goes anywhere near far enough. We are a party that believes that if it is OK to give inmates compensation, then we should be giving compensation to the inmates’ victims for the actions that resulted in those inmates becoming inmates in the first place.

That leads us to the other issue, which is the amendment to deal with the sunset clause. Suffice to say that we will be supporting the Government’s Supplementary Order Paper 127 reluctantly and on the condition—which the Minister has accepted from New Zealand First—that this Supplementary Order Paper will give the Government time to readdress this issue, once and for all and finally.

We have a fundamental difference from National and Labour on this issue. It is very simple and this is how it goes. If I am prosecuted for assaulting the Minister and I go to jail, then the Minister gets absolutely no compensation for that whatsoever. He gets the satisfaction of knowing that justice has been done. If, while I am in prison, I am being guarded by Mr Simon Power and I, as an inmate, am assaulted by prison officer Power, then how is it that I, an inmate, get compensation for Mr Power’s common assault on me as an inmate? It does not make sense to New Zealand First members. New Zealand First members believe that what should happen is simply that Mr Power should be treated in exactly the same way that I was when I assaulted the Minister. He should be charged, he should be tried, and if he should be found guilty, then he should be sentenced. If he ends up in the cell with me, then that is it—end of story. There is no compensation for the Minister when I assault him, and there should be no compensation for me when Mr Power assaults me when I am an inmate. It is pretty simple. No one should get compensation for that act.

The fact is that we now have a system where that compensation is being paid out, so the Government has at least tried to mitigate that circumstance by making the compensatory payments available to the victims in the first place.

DARREN HUGHES (Junior Whip—Labour) Link to this

I move, That the question be now put.

The CHAIRPERSON (H V Ross Robertson) Link to this

We now have some further amendments. They are all in the name of the member, the honourable Heather Roy. The first is to clause 96. It is an amendment to omit subclause (3).

Hon MARK BURTON (Minister of Justice) Link to this

I seek leave for the amendments in Heather Roy’s name to be taken together, unless any member has objections, because they basically all relate to the same part of the bill.

KEITH LOCKE (Green) Link to this

I raise a point of order, Mr Chairperson. I would just like to correct the Green vote.

SIMON POWER (National—Rangitikei) Link to this

I raise a point of order, Mr Chairperson. I apologise to the member but I think some confusion has arisen because of the replacement of Supplementary Order Papers between, I think, 122 and 127. Because you are following the numbers and not the clauses, I just want to make clear, and check with you Mr Chairman for the benefit of the Committee, that Supplementary Order Paper 127 is the one from the Minister that would extend the sunset clause on victims’ and prisoners’ compensation. That is correct, is it not?

Hon MARK BURTON (Minister of Justice) Link to this

Yes.

SIMON POWER (National—Rangitikei) Link to this

I raise a point of order, Mr Chairperson. I think all the Committee needs to know is that if the Chairman would take the time to just make sure that the Committee is aware of the content of Supplementary Order Paper 127. The Minister is confirming it by nodding. But perhaps it would help the Green Party if the chairman gave us a brief description of what is in that Supplementary Order Paper.

KEITH LOCKE (Green) Link to this

I raise a point of order, Mr Chairperson. I would like to correct the Green Party vote on Supplementary Order Paper 127. We would like to cast a vote against that particular Supplementary Order Paper.

RON MARK (NZ First) Link to this

I raise a point of order, Mr Chairperson. Can you please clarify for me that the member is seeking leave to have those votes changed but the votes have already been tallied and the result of that vote announced, therefore—

SIMON POWER (National—Rangitikei) Link to this

I raise a point of order, Mr Chairperson. Before you took the vote on the question that Part 2 as amended stand part, I am not sure whether you gave the Committee the result of the previous vote on Supplementary Order Paper 127. If I am wrong I apologise, but if I am not I would not mind hearing the result, please.

RON MARK (NZ First) Link to this

I raise a point of order, Mr Chairperson. That is precisely what my previous point of order was. I wanted to know whether the result of the vote had been announced. You said it had and that leave had been given. The reason I asked that question is that the Standing Orders require leave to be sought—

SIMON POWER (National—Rangitikei) Link to this

Well, what an interesting 30 minutes we have just had on the Criminal Justice Reform Bill, the title of which is now the subject of the debate, as is the commencement date. The interesting thing about the commencement date is that what is about to commence is quite different from what was going to commence 25 minutes ago.

Yesterday, when the National Party raised issues with the Minister over the rights of victims of crimes to appear before the Parole Board in a very limited and narrow fashion—only at the invitation of the Parole Board and only on certain limited matters, such as public safety and the like—the Minister purred, cooed, checked with the officials, and told us that everything was all right. I said at the time that I was worried about the ambiguous nature of these particular clauses, and I was worried that the victims of crimes throughout New Zealand would consider it to be a loss rather than a win to have victims’ rights heard on what otherwise could be seen as a bill concerned only with offenders’ rights. The interesting thing, of course, is that this very point was raised by Victim Support at the Justice and Electoral Committee when the bill was before that committee.

Then the most curious series of events occurred. As Heather Roy tabled her amendments to the bill, National looked at them quickly, and was supportive of them. Ron Mark, on behalf of New Zealand First, quickly made an assessment that the amendments were worthwhile and decided to support them. All the while Lynne Pillay and Charles Chauvel were put in the odd position of standing up and rejecting the amendments for various reasons, which I am sure they believed to be right and proper—which they were not.

Then the Minister stood up and took a call, and in one of the most glaringly obvious and clever understandings of MMP that we have seen in this Chamber for some time, he realised, after doing the maths on his fingers and toes, that these particular amendments would pass whether or not the Government supported them. This meant that the rights of victims to appear before the Parole Board would remain as they are today, and that the issues National had raised in the Committee yesterday—and that were put on paper by Heather Roy on behalf of the ACT party—would stand forever inscribed as the Government being opposed to any lack of ambiguity around a victim’s right to appear before the Parole Board.

Not only were Charles Chauvel and Lynne Pillay completely sideswiped and had their legs knocked out from under them, having stood in the Committee to speak against Heather Roy’s amendments, but the Minister—who is a Minister because he is able to do numbers, unlike his two colleagues—realised it was all going to turn to custard. All of a sudden the ambiguity that National had referred to yesterday became a problem for Labour, and it was suddenly a problem for the Minister of Justice, who stood in a reasonably chastened way and said: “Well, we don’t want any ambiguity on this; let’s just make it all crystal clear.” He talked to the officials, who shook their heads. But the Minister, who takes political responsibility for the numbers game in this House, worked it out, and the Government supported ACT’s amendments, the contents of which were pointed out to the Government yesterday by National—then there was not a problem; today there was a problem. The Government has finally realised the mistake of its ways, because of Victim Support, because of National, because of ACT, and because of other organisations outside the House that have strong views on these issues, and it was forced to back down, despite sending its loyal troops Lynne Pillay and Charles Chauvel in to argue the contrary.

This is a good day for MMP, because a common-sense result occurred, despite the Government giving assurances yesterday that there would not be a problem. Today it has recognised that there was a big problem. It was a big problem, because if the Committee had voted on this the Government would have—

Hon MARK BURTON (Minister of Justice) Link to this

I want to assure Mr Power that my socks remain firmly on my feet. I did not require my toes for counting! I want to repeat what I said before. I think we arrived at a point at which members had seriously raised concerns. I think the points my colleagues were making were entirely valid. I am not convinced that the amendments that Heather Roy has brought forward will, in a material way, advantage victims. But, on balance, in a situation where the intent, I believe, was genuine, and where it appears no harm could be done, it did no harm for members of Parliament to simply support a measure that, clearly—overwhelmingly—parliamentarians would want to support, and that is the notion of looking after the rights of victims. So I do not regard it either way as a particularly big deal.

One way or another, these are not significant changes. They will have limits. They may or may not have any meaningful impact but, on the balance of it, it was simply time to find a positive way of moving forward. Indeed, as Simon Power says, this is MMP, and MMP requires accommodation. From time to time it requires that all of us listen, consider an argument that is made sensibly and fairly, and respond to it. So the amendment has become part of a much larger measure, which we are now seeing move forward.

I welcome the introduction of what are very significant changes to New Zealand’s criminal justice system. We are seeing the movement towards the introduction of the Sentencing Council. We are seeing a raft of community-based sentences, which will significantly enhance the range of choices available to judges and to the community in terms of appropriate sentencing. Of course we want to see, where necessary, the use of appropriate custodial sentences. But this legislation will enable a raft of non-custodial alternatives where they are the best option, with the appropriate support and conditions around them that can give the bench—and, perhaps most important, the wider community—the confidence that they indeed represent significant advantages for the wider community, both in terms of safety and in terms of the way these options deal with those who have offended against society.

In the end, it is in the best interest of every member of our community that those who have offended ultimately do the time or pay their debt to society, but rehabilitation is an important part of the total Effective Interventions package, which this legislation is part of moving forward. It is absolutely in all our interests that effective rehabilitation treatment programmes and so on are available in order that those who have offended can ultimately be rehabilitated, rejoin the community—which the vast majority of them do—and become contributing members of the community.

So I say to members that I think this is a positive day for Parliament. We have seen MMP busily at work but, perhaps more important, we are seeing major legislative change that will significantly improve New Zealand’s criminal justice system.

RON MARK (NZ First) Link to this

It was interesting listening to my friend and colleague Simon Power’s speech, but Simon did leave out a couple of small steps in the chain of events that occurred. In actual fact, after New Zealand First had consulted with Heather Roy and received our email from our former colleague Stephen Franks, we consulted the Minister Mark Burton. As was typical of the Minister throughout this whole process, he did something I have found it difficult to have achieved from other quarters in this Chamber. That is, he listened; he did listen. I find it interesting that Simon Power and other National Party members should now be trumpeting a success on their part in claims and statements that they always wanted this amendment to occur. I am reading pages 16 and 17 of the bill right now, which contain National’s minority report. And guess what? It makes no mention of the clauses that Heather Roy has now amended. It says: “National members are also concerned about proposed amendments to the Prisoners’ and Victims’ Claims Act. We oppose moves to extend the Act beyond 30 June 2007.” But that issue relates to Supplementary Order Paper 127. It does not deal, in any way, shape, or form, with clauses 96, 97, 98, 101, 102, or 104.

Mr Power did make a speech on those clauses. But National has been accused by the Sensible Sentencing Trust and by Stephen Franks of paying lip service to victims’ rights. In that the issue is not included at all in National’s minority report, it would appear that Mr Franks is quite correct. National is, dare I say, grandstanding on that issue. The fact of the matter is that there is a lesson to be learnt here. One should look to Heather Roy as an example and look to the Minister as an example.

New Zealand First was challenged severely in the debate last night by Mr Henare, who said: “What are you going to do about it? What have you done?”. I say to Mr Henare that here is a perfect example of what can be done if one wishes to work constructively, as Ms Roy, the Minister, and I—now supported by National—have done. Yes, this is a fine example of MMP at work, but it requires, for a start, a Minister who is prepared to listen. We have had that. I do not particularly want to see some of the former Ministers of Justice from National reappearing on the front benches of a Government, because they did not listen, did they? Tony Ryall is a perfect example. Tony Ryall knows everything, he knows what is best for everybody, and he is the first to tell anyone that. So I do not expect to see any changes in MMP with that man as the Minister of Justice in a new Government, should that ever eventuate.

New Zealand First wants to put it on the record that we do believe that effective rehabilitation is not only important, but essential moving forward. But our serious belief is that the Department of Corrections and the Ministry of Justice over the past—God knows how long—decade or 15 years have been running rehabilitation programmes that simply are not effective. We think that the changes to home detention in particular are a good move forward, but we would have to say that New Zealand First is putting the justice sector on notice—on notice. Our confidence in home detention has been severely undermined. We are happy that back-end home detention has been removed. We are very happy that home detention has now become a sentence in its own right, which will be given by the presiding judge who has heard the case, immediately, at sentencing. We believe that that is a very definite, positive step forward. But we still have grave reservations as to the way in which home detention is administered. We view with a high degree of scepticism the claims by Ministry of Justice officials and Department of Corrections officials that home detention is well administered and that the number of breaches is minimal and very low.

We know from our sources inside the departments and the industries concerned that many of the breaches of home detention are never recorded, because people consider them to be of minimal concern. Well, we do not agree with that. So we say that with the passing of this bill—and everyone is on notice from our chair—home detention is still up for further observation and further monitoring, and if we do not see severe progress being made in respect of the administration of home detention we will be first to the front looking to see it repealed. We would say that the Government is on notice again.

HEATHER ROY (Deputy Leader—ACT) Link to this

This bill at this stage is, in fact, a victory for MMP—and a very sweet one, I have to say—because it is not about who changed their mind at the last minute and who said this and who said that; it is about the rights of victims. I am delighted that, as a member of a party with just two members—and after the next election that will not be the case any longer—our amendments had the support of the Committee of the whole House as common sense. That is, in fact, very, very good, and New Zealanders can be proud of the way Parliament has operated this afternoon.

I thank the Minister for his comments about my amendments. I thank the National Party for its support, and I thank New Zealand First for looking very quickly at those amendments when they came forward at the last minute, as, indeed, they did. But I would like to spend a moment just contemplating what might have happened had these amendments not been supported, because the Minister says he is not sure what effect they will have. I think they will have a very profound effect for victims in the future. Victims’ rights are very often set aside when crimes, particularly crimes of a very vicious and brutal nature, are committed. Very often the rights and the privileges accorded to criminals are not, in fact, accorded to the victims of crime, and that reflects a very, very sad part of our society.

The select committee, I notice, in its commentary that came back to the House after the select committee process was worked through, did not bother to comment on the victims’ submissions, and there were many, I know. I think that is very regrettable. There was no mention of that from any of the parties on the select committee. I think this shows how our parliamentary process works, in that these issues can be raised again in the Committee of the whole House so that the right result can be arrived at. Victims now will have the same ability they have at the moment to present to parole boards, and that should, and will, remain a right. It will not be a privilege. They will not have to be invited to come before parole boards; they will have the right to do so, as was previously done. That is exactly as things should be.

I will focus only on this matter in my speech. Of course, this bill is about a wide range of issues, and the ACT party does not support many parts of the bill, but, in fact, it is very, very pleasing that the amendments that came forward to the Committee in my name this afternoon have been supported by the Committee as a whole. I hope that victims listening to this debate are able to have some degree of satisfaction at that point.

JUDITH COLLINS (National—Clevedon) Link to this

We have definitely seen MMP in action, and we have seen something else that will surprise many commentators on Parliament. We have seen a fleet-footed, agile Minister of Justice manoeuvring around MMP and the votes and being rolled. That was what was about to happen to Labour. The Minister of Justice has, like a mountain goat, negotiated those tricky passes. He has come right through them. I have never been as impressed with him as I am now, and I congratulate him on being able to count. The counting would have told him he was about to be rolled and, in fact, victims were going to retain the right to be able to attend a parole hearing in their own right, rather than simply if they were asked. It took Mrs Roy and her work to get that through. I congratulate her on that, because I have always seen her as an extremely good member of Parliament. “Good on Mrs Roy.”, I say.

One of the things that I think we should look at in this bill is that it is actually about keeping people out of prison. It is about getting the prison numbers down. Part of that little plan was stopping victims from being able to turn up at parole hearings and actually say what they wanted to say. I see Mr Mark is nodding and agreeing with me, so I do not understand why he is, in fact, voting for this bill in its entirety. I say that because this bill has other provisions that are also about keeping criminals out of jail and out in the community.

One of those is the idea of a Sentencing Council and sentencing guidelines. The Sentencing Council is all about replacing the power of a judge, who currently has such discretion, with a council that will tell judges pretty much what to do. Judges already look at precedent. They already have guidelines, and they work to those guidelines. But they also have the ability—a much greater ability at the moment—to look at the evidence, look at who is saying what, make some judgment calls, look at the age of the person, look at the whole background, look at someone’s previous history, and make a call as to the sentence. That is the role of a judge.

So why do we need a Sentencing Council to come in on top of judges, all of whom are highly experienced people, and tell them how they need to do that work? We already have sentencing guidelines. They already take into account precedents in relation to sentencing, and they already take into account the facts. Instead, this measure is some sort of attempt to get a whole pack of limp-wristed sociologists from Steve Maharey’s next workplace at Massey University to come along and tell judges what to do. That is who will be on that council—a whole pack of limp-wristed sociologists, all about to tell everybody why a person is a mass murderer, or why a person happens to have 16 convictions for attacking people and the last lot are for rape and murder. That is the sort of nonsense we will get from a Sentencing Council.

I am particularly concerned too about the sentencing guidelines, which some of my colleagues have referred to today. We are not allowed to know about those guidelines, but apparently the Government has sent them all around the country to various other people whom it wants to agree with it. But, yet again, those guidelines are all about cutting down the time that prisoners spend in jail. On the one hand the Government says that it will resile from its previous position and say that people cannot get parole until they have served two-thirds of their sentence—in other words, the National Party’s policy, and that is fine; we can share it with the Government—but on the other hand the Government is to make it easier for people to serve much shorter sentences in the first place. That is one of my concerns. I know that is why the Government wanted to keep victims out of parole hearings. It did not want victims like Mrs Croskery, from my electorate, and many others turning up and saying it is not fair to grant parole, because people who have done the crime should do the time.

We say there should be no parole for recurrent violent offenders. They should not be getting parole in the first place. Victims and their families should not be hauled in to come and tell the Parole Board what has happened to them. They should not have to relive that every single year and, when there are multiple offenders, on multiple occasions. Victims and their families should be able to get on with their lives as much as they can, knowing that, thankfully, the perpetrators of crime are locked away in jail and should stay there.

Dr WAYNE MAPP (National—North Shore) Link to this

As I indicated earlier, National notes that the Government has finally recognised the errors in the 2002 legislation, when it introduced what was, frankly, one of the most outrageous law and order policies this country has ever seen. The reason I say that—for the benefit of the Minister in the chair, the Hon Mark Burton—is that the Government was warned repeatedly at the discussion phase, through the select committee process, by the public, and by parties informally that to introduce a policy that would allow the worst offenders in the country to get out of prison after serving one-third of their sentences was a betrayal of public expectation.

The public had given the clearest possible indication to the entire House, by an overwhelming majority, that it wanted serious violent criminals to be more severely dealt with, not more leniently dealt with, as the Government delivered up. Yes, the Government did make some amendments in the Committee stage in recognition of that, but they were belated and feeble, and the public saw that at the time. It has taken another 5 years for the Government to finally recognise its mistake, and it has now restored the two-thirds parole provision.

Of course, it is all too late really because the public has moved on. Political parties across this House have moved on. The Government says: “Oh well, it might be just knee-jerk responses by parties.”, but it is actually a thought-through proposition. We have not said: “No parole for anyone at all.” We have been quite selective, actually. We said there should be no parole for violent repeat offenders. That is a narrow class of people. In truth, it is quite a lot of people and they make up a large percentage of people in prisons. [Interruption] Yes, they do. The Minister may not believe that, but if he knew the figures he would know that those people make up a large percentage of people in prisons.

Violent repeat offenders are the people whom the public wants to be protected from. They are the people who should not be getting parole. They should be serving the full length of their sentence, and in fact that really means we should trust the judges to get their sentences right. Judges hear all the evidence, they hear from the victims, and in the courtroom they have information about particular offenders that we in this Parliament by and large do not have, other than what we read in the papers. They decide what the sentence should be, and the public ought to be able to trust that sentence. The public should be able to trust that when a violent repeat offender gets 9 years as a deterrent and to protect the public, that person will serve 9 years. Clearly, it is recognised that that person will ultimately get out and there needs to be post-sentence supervision, and I know the Government has looked at that. But to wait 5 years for belated recognition that the two-thirds provision should be restored is actually missing the boat, because things have moved on, I say to the Minister, and violent repeat offenders should not get parole.

We say to the Government and to the public of New Zealand that in 2008 there will be a choice. People will be able to decide on the Government’s response, which is parole for violent repeat offenders. This Government will give violent repeat offenders parole. It is in the legislation that it is attempting to pass in this House.

CHRISTOPHER FINLAYSON (National) Link to this

I really enjoyed the spectacle that occurred about half an hour ago when, after devastating contributions by Charles Chauvel and Lynne Pillay, the Minister Mark Burton changed his mind from opposition to support. I was kind of hoping that those two members would reappear in the Chamber to make devastating speeches in favour of the Sentencing Council, because I was holding my breath in the hope that the Minister would then stand up and say: “Well, actually, I oppose it.”

The Sentencing Council is a vile creature. Parliament has given birth to a body that the public and the judges will react very strongly against. It is unconstitutional. It seeks to press-gang judges into the executive for wholly illegitimate purposes. Time and time again during the Part 1 debate I came back to clauses 9 and 10 and asked honourable members to focus on what exactly was being proposed. Really, what was being created was a body that, for example, would facilitate the provision of information to enable penal resources to be effectively managed. When one looks at the functions of the council, one sees that it is a body that is being created essentially to control the prison population or prison muster. So judges, as part of this creature, are required to provide information on the likely effect of the guidelines on the prison muster.

That is not the function of the judiciary, and I am deeply sorry that this Parliament has created such an unconstitutional creature. I believe that what has happened here is, for the first time in the history of this Parliament, the melding of the executive and the judiciary. I believe that this Parliament will have cause to regret that. It is a major constitutional outrage, and I am very disappointed that good lawyers and members of Parliament like Mr Fairbrother did not stand up and oppose it. Mr Fairbrother was remarkably quiet during the debate, because as a criminal lawyer he knows exactly what the function of the judge is in a criminal trial. He knows that a judge is not expected to be a mere automaton and simply apply sentencing guidelines, but that the judge has a very complex task to perform—

Dr RICHARD WORTH (National) Link to this

Members on this side of the Chamber have repeatedly urged on the Government that this measure should not be passed. But, with politics being all about numbers, it seems that the Government does have the numbers, on this occasion, to pass this legislation.

Mr Finlayson has just sat down after making a number of comments about the separation of powers, and about how inappropriate it is to involve the judiciary in the executive function. That is a concept that should be obvious to members opposite, just as the constitutional affront should be similarly obvious. It is interesting to reflect that in other jurisdictions there are Sentencing Council equivalents. For example, in the United Kingdom there is a Sentencing Advisory Panel, and there is a raft of legislation around that. But those structures are not in the same form as the structures proposed in this bill.

One of the worst provisions, I would suggest, is this new provision in section 21A, inserted by clause 40, “Court must adhere to sentencing guidelines”. There is something very odd—

Hon MARK BURTON (Minister of Justice) Link to this

I thank members for their various contributions. It has been an interesting afternoon in Parliament, and generally the debate around what are important matters to do with the organisation of the criminal justice system has been worthy of Parliament.

I say to the member who has just resumed his seat, Dr Richard Worth, that I do not for a moment agree with him that the Sentencing Council and sentencing guidelines in any way reduce the requirement of a high level of judgment and, indeed, wisdom on the part of judges. Of course, the guidelines provide ranges for judges to operate within, but it is interesting that the concept enjoys its highest level of support among the judiciary, among those who make the most judgments—

JUDITH COLLINS (National—Clevedon) Link to this

I rise to take a short call on this matter because the Minister has set out a challenge. He has referred to the membership of the Sentencing Council, and I think he alluded to some comments that I might have made where I referred to the pinko sociologists of Steve Maharey’s friendship who will be appointed to this council. Actually, I stand by those comments.

When I look at clause 11(1) of the bill I see that the council will consist of “(a) 1 Judge of the Court of Appeal … (b) 1 Judge of the High Court … (c) 2 District Court Judges … (d) the chairperson of the Parole Board: (e) 5 members”—that is, five members—“who are not Judges, appointed by the Governor-General on the recommendation of the House of Representatives.” That is the same House of Representatives that will go ahead today to put forward this bill and pass it—in other words, the Government and its mates.

Frankly, when we have five members of the council who are not judges, how can we not infer that the point here is to get a whole pack of sociologists who will be Steve Maharey’s mates when he is back at Massey University? I stand by those comments.

The Minister today effectively alluded to the fact that this Government is trying to cut down the number of people in jail. This bill is about many things, but primarily it is about cutting the prison muster. We do not want people in prison, but, then again, we do not want people to commit crimes. But if they commit the crimes, they have to do the time.

It is a nonsense to put these five members in charge of the judges who hear the cases, and who sit on the bench every day and understand what is going on. The Government will put them in with a whole pack of people—like all the Labour MPs who have just announced their retirement.