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Criminal Procedure (Reform and Modernisation) Bill

In Committee

Thursday 29 September 2011 Hansard source (external site)

PowerHon SIMON POWER (Acting Leader of the House) Link to this

I seek leave for all the provisions of the Criminal Procedure (Reform and Modernisation) Bill to be taken as one question, for one question to be put on each member’s Supplementary Order Paper or amendments, and for the debate to conclude at 4.50 p.m. and the questions to be put in time to report to the House by 5 p.m.

TischThe CHAIRPERSON (Lindsay Tisch) Link to this

Leave is sought for that purpose. Is there any objection? There is no objection.

Clauses 1 and 2, Parts 1 to 9, and schedules 1 to 6

ChauvelCHARLES CHAUVEL (Labour) Link to this

The Committee stage debate will include debate on the Supplementary Order Papers that the Minister has just referred to. I will talk about some of the changes that are being made in the Minister of Justice’s Supplementary Order Paper 281, and I indicate that the Opposition will support those changes, because they are the result of an agreed and negotiated process.

I place on record my thanks to those parties in the House that have worked with the Labour Party to bring about these amendments—the ACT Party and the Māori Party, in particular—and to the Minister for agreeing to the amendments. I also acknowledge the work of the Green Party. Those members were quite willing to be involved in the discussion in order to try to get to the position that we have arrived at today. It was always a pleasure to work with Kennedy Graham on the issue. I am somewhat sad that that wider discussion did not occur, but that might be a matter that the Minister decides to touch on at some point this afternoon, as that was effectively his decision.

In terms of the main objections that were made by the Labour Party in our minority report concerning the original draft of the bill, I think these are now well known. We did not like the idea of raising the jury trial threshold from the current level of 3 months to the level of 3 years, as was originally proposed. In respect of that matter, we have a proposal in the Minister’s Supplementary Order Paper to continue to raise the jury trial threshold, but not to the level that was originally proposed. The new level proposed is 2 years. It is a difference of 1 year only, as opposed to the difference between 3 months and 3 years. I think if members look objectively at this question, they will see that it is a much better system. It has to be said that the evidence given at the select committee and the analysis delivered in favour of a 3-month threshold really did not stack up in the view of many members, including me. In order to make the sort of fundamental change that would have been contemplated under that measure, I think really it was incumbent on the Government to make a better case than it did.

Why 2 years, as opposed to 3 years? I know that this is a matter that the Green Party does not agree with and will want to take issue with and take some calls on. I ought to admit, first off, that there is not a lot of science to it. The problem we have here is the lack of analysis that I referred to just now. We did not get, in my view, the sort of careful consideration of what the new jury trial threshold should be.

As I have said before, when this House deals with the New Zealand Bill of Rights Act, as we are, and seeks to amend it in a way that derogates from rights as opposed to augmenting rights, greater care ought to be taken. None the less, for the sake of getting agreement in order to preserve such fundamental liberties as the right to silence, we were willing to agree to the 2-year threshold, and there is some logic to it. If members care to look at the Crimes Act, they will see that there is something of a delineation in the regime concerning offences. More serious offences tend to be tried at above the 2-year imprisonment level and less serious offences, obviously, fall below that line. I think the example I gave in the second reading speech was of male assaults female, or an assault by an adult on a child. It will still be possible for that level of serious offending to be the subject of a jury trial if the defendant insists on it. So there will still be a safeguard, for relatively serious offending, at that 2-year level.

Could we have chosen another level? Could we have engaged in a less arbitrary process? Would that have been more desirable? Absolutely. But as I say, in order to preserve and maintain a position where a better solution than simply the 3-month threshold was achieved, this is where we find ourselves, and I do urge members to look carefully at the position as it is now proposed.

The other major problem with the bill as it was originally proposed is that it made major incursions into the right of the defendant, of an accused person, to say to the Government: “If you say I am guilty of an offence, then you must prove all the elements of that offence. I, as the person you have accused, am not obliged to help you prove me guilty.” That is a very important principle. I need not labour the point.

Government members have in the past referred to the provisions in the bill as being simply an innocuous way of bringing a bit more order and hygiene to the criminal justice system by requiring the defence to disclose the broad outline of its case to the prosecution. Those members have said that it was not a problem and that it was just a way of trying to speed up the system. Well, that is nonsense, and I am glad that the Minister has agreed that these incursions on the right to silence should go. The House of Lords back in the 1930s, when the State was much smaller and much less powerful, set out a ringing defence of the requirement of the Crown to always do its job to prove all the elements of an offence. The State is much more powerful and has many more resources available to it now. The citizen needs more protection than ever and, by agreeing to retain the right to silence, this Parliament has done what it should do in this case. I am pleased to say that we are supportive of the way in which the amendment is drafted.

There are a number of other matters that are dealt with in our minority report that the Minister has agreed to action, but there are also some further matters that I think should be dealt with in this legislation in order to try to speed up the criminal justice system without compromising the fundamental rights of New Zealanders. I have proposed these measures in Supplementary Order Paper 286, which is on the Table. I will speak to the amendments that are set out in that Supplementary Order Paper.

The first amendment relates to inserting a new clause 25A. This would apply only in cases where a person is arrested under what we are now going to call a category 1 or a category 2 offence. This used to be summary offending, or indictable offences that were able to be dealt with summarily—so they are the more minor types of offences—in the situation where the police cannot immediately bring the accused person before a court. So a person is arrested for a relatively minor offence and cannot come before the court in a speedy fashion. The provision that I am proposing will allow the arresting officer to release the defendant under this section and to serve the defendant with a summons that would require him or her to come to the court within 2 months of the offence, and the clause sets out some provisions there. It is really designed to try to speed up the system, as I said, without prejudicing the accused person or the person arrested. A similar procedure is set out in the proposed clause 26, which relates to what should happen following an evidential breath test.

Then, in clause 35, I have set out a provision that I understand codifies existing practice, but it is not a practice that is written down anywhere. I think it would be useful if the courts were to put this practice into effect, rather than simply having it as something that is observed as good hygiene. There is a practice known as disclosure. The Crown has to give disclosure against the defendant. That is the point at which the Crown sets out its case. The Crown says what evidence it has and what the defendant must respond to during his or her defence. Supplementary Order Paper 286 proposes that the defendant should have 21 days to consider the disclosure before having to plead. Before anybody thinks this is simply a pro-defendant move, it is actually designed to try to speed up the system. At the moment, if one is required to respond immediately to what one gets from the Crown, of course what one does is enter a tactical plea of not guilty, because it buys one time to respond. If we put in a 21-day limit, then we will actually avoid a whole lot of tactical not guilty pleas and we will achieve the Minister’s end of trying to speed up the system without doing anybody a disservice.

In my amendments to clauses 58 to 63 I have tried to set out a statutory basis for a very good system that operates in our courts at the moment: the sentence indication system. Again, it just operates informally off the back of the general powers of the court to do justice. This is a system whereby we can avoid trials going forward by allowing a judge to say: “If this went to trial on the basis of having read the file before me, you would probably get this sentence.” The defendant can think: “Well, maybe I should just plead guilty to this charge on the basis of that sentencing indication, avoid a trial, and get a discount for an early guilty plea.”, effectively. There is no statutory basis for that at the moment. It is a very sensible system. I am trying to put it into the bill so that we can have that in the legislation going forward.

My amendment to clause 105 will modernise a silly piece of the law that says one cannot address the judge in the District Court on the evidence at certain times. There is no reason for this archaic practice to exist any more; we should do away with it. Again, we might speed up trials.

Clause 128 will further confine the circumstances in which trial and sentencing can continue in the absence of the defendant. The Minister has agreed to narrow that quite considerably in response to a request from me and others. I am pleased that that has happened, but I would narrow it further to say that the court may not proceed in a defendant’s absence where a reasonable excuse for that absence exists. A good, simple test known to the law at the moment will not lead to a whole lot of test litigation, and we can proceed on that basis.

There are two final changes. My proposed new clause 176A will prevent the prosecution from offering new evidence or from correcting deficiencies where it could have done so earlier but simply failed to do so through its own oversight. Finally, my amendments to clause 361(1) and (2) will restrict the circumstances in which the court can give a costs order against a defendant or a defendant’s counsel to situations where a failure on behalf of one of those two individuals is exceptional and intentional and is done without reasonable excuse. I have not lobbied the Committee for these amendments or gone around asking for support. I hope the Committee will consider the amendments with an open mind. They would, I think, lead to a better system. Along with the Minister’s amendments, which we have agreed to, I think we would have a better bill.

It is not a perfect bill. There is much more work to do in making our criminal law better, quicker, fairer, and more responsive. We could start with the drivers of crime and address them in a multiparty fashion, and we could then look at updating the Crimes Act 1961 and the Summary Proceedings Act 1957. Many would say, and many have said, that those would have been better places to start than diving right into the procedure and the evidential rules, which is what this bill does. None the less, that is the choice the Government has made. We on this side of the House have done our best to cooperate, to offer constructive criticism, and to put forward amendments—whether or not they were on time—that try to make the bill better, so that New Zealanders will have a more efficient criminal trial system.

I hope we will have intelligent debate in this slightly shorter Committee stage than one would normally expect on a 600-page bill, and I am pleased that there has been such high a level of discussion amongst the parties and that we are talking very much about the detail of amendments. I think that is where we should be in the Committee stage. I would much rather that this discussion had occurred in the select committee, but we are not in that situation. I commend the amendments I have mentioned.

GrahamDr KENNEDY GRAHAM (Green) Link to this

I do not want to take up too much of the Committee’s time, in view of the need for speed. Let me begin first by paying tribute to the Ministers, starting with the Hon Rick Barker right through, obviously, to the Hon Simon Power, and Ministers in between, for the indefatigable work that has been undertaken on this Criminal Procedure (Reform and Modernisation) Bill. It is a 10-year project, more or less, and a huge amount of effort has gone in both by officials, whom I also acknowledge, and by Ministers. It is not a simple task. We understand the thrust of the bill. We understand the well-intentioned purpose of the bill. We would prefer not to stand in the way, and we know that we will not be doing so.

Let me also say that the Green Party is quite pleased to support the Supplementary Order Papers submitted by the Minister and, as well, by Charles Chauvel as, in our view, they make improvements upon the improvements. I recognise also the quite extraordinary efforts that the Minister has put in in the last couple of weeks to get agreement. On that basis I can only proceed from now with just a touch of sorrow that we do not appear to have complete unanimity in the Committee in the sense of at least netting us all, although hope can spring eternal for 5 or 10 minutes in the sense that we, for our part, have whittled down our concerns—at least, our concerns have been met—to the point of only three remaining. It might not be beyond the realm of the imagination, at least, if not the possible, that we could arrive at a consensus on those three concerns, as well, which no doubt would trigger support from the Green Party.

I will identify the three concerns, and, in the best constructive spirit, we have put on the Table two Supplementary Order Papers and a late amendment to address those three issues. Each of them is in the context of the broad theoretical comments I made in my second reading speech. It seems to me that the essence here is a trade-off between judicial efficiency and the principles of fairness. We will come down on different sides on that, and that perhaps reflects the different political philosophy as to which constituent segments of society we are representing. I did say that in my view we could strive to be as efficient in our judicial system as possible, but not at the expense of fairness, when we must not breach the perimeter of that fairness for the sake of any marginal incremental efficiency. I recognise that different judgments can be made on that.

Where we appear to differ at the moment is on three areas. Let me fast-forward to clause 128, where I understand that the clause as it is proposed now would have the court proceed in the absence of a defendant providing the court is satisfied that the defendant will not be prejudiced. We could have a defendant having a reasonable excuse that the judge recognises as a reasonable excuse, but the judge proceeding in the absence of the defendant. We think that that unduly penalises the defendant, and in Supplementary Order Paper 284 we propose adding the four words “and the defendant consents” at the end of clause 128(3). In our view that returns the balance of fairness, as we identify it, to the status quo ante. I recommend that particular amendment to the Minister of Justice and to the Committee.

The second amendment is to clause 431. We have it in Supplementary Order Paper 285. It is here that we part company on the overall thrust. The Sentencing Act identifies around 15 aggravating factors that a judge can take into account in determining a sentence and can increase a sentence if any of those aggravating factors are present, but they are all pertaining to the substance of the crime. Particular cruelty, abuse of a position of authority or trust, and so on all pertain to the crime. None of them pertain to the procedure of the trial. Now we would have the bill allowing a judge to increase a sentence—increase incarceration—purely through procedural non-compliance in the course of the trial. We believe that procedural non-compliance is in a category of its own and should not be included in an aggravating sentencing factor of that kind. We simply propose that clause 431 be omitted, and in our view that would also be within the context of that balance between fairness and efficiency.

Now I move to the big one for us, and it pertains to the jury trial issue, which has been there right throughout from the very beginning. We recognise the complexity of this matter. I have been through pretty thoroughly the comments from the Attorney-General on it, in his New Zealand Bill of Rights Act review. I have looked at the submissions from the Law Society, the Law Commission, the District Court judges, and those against the idea, and at submissions from the community law centres, the Human Rights Commission, the Criminal Bar Association, and others. I see opinion coming down on either side if we increase the threshold from 3 months to 3 years, and that was the basis on which the submissions were submitted.

I understand that the argument is to increase it to a certain level for the sake of efficiency and financial cost-cutting. We understand the reason. In our view that reason is not sufficient to alter the New Zealand Bill of Rights Act. We understand that the New Zealand Bill of Rights Act is not entrenched. It should be; it is not. We understand that the right to a jury trial is not a universal human right. We understand that there are different systems. We understand that in the common law system it is arbitrary—or at least it is for societal determination—where the threshold of a jury trial is. We recognise that it can be 5 years in Canada and 10 years elsewhere. We recognise that there is probably agreement, as I think Charles Chauvel said, that it is not a science; it is an art. Let us get the art correct. The Minister in the chair, the Minister of Justice, might wish to comment on this, but our understanding from some of the submissions is that it is by no means proven that there would be massive and guaranteed cost savings gained by raising the threshold. That gives us pause, as well.

We speak for those people out there in New Zealand society who may choose to engage in civil disobedience, who may choose to go to the edge of the law and at times consciously violate the law in a peaceful manner for what they take to be a higher purpose. We will stand firm for those people. We do not think that cost-cutting and the efficiency of the judicial machinery should be at the prejudice of those people who are well intentioned. Let them have a fair trial at 3 months; let them be able to elect a jury. There are cases, there is argumentation, that if we raise it beyond 3 months we are prejudicing the inherent right to a fair trial of certain people. The Minister might wish to dispute that, but that is the position we take. We take it in full responsibility for them and in full recognition of the thrust of the bill. It is sufficiently important for us to oppose this bill on that point alone, with great sorrow, because we know the amount of work that has gone into it, we know the complexity, and we know the well-intentioned effort. We will not compromise on that point, and I hope that that is respected.

I do appeal at this last minute to the Minister, the Government, and the Committee to understand where we are coming from on this point and, at this late stage, to drop that reference to 2 years—instead of 3 years, it is 2 years; we understand that point, too—and keep it at 3 months, and that would make the difference. We have submitted an amendment at the end. It is late, but it is on the Table. I do not need to go into detail, as we have been here long enough to know how it works. It would simply restore the situation to the current law of 3 months for an election of jury trial. I appeal to the Minister and others to accept that, and then indeed we would probably have unanimity.

NashSTUART NASH (Labour) Link to this

There are two points I will raise and perhaps ask the Minister in the chair, the Minister of Justice, a couple of questions on. I start on clause 201, “Power to clear the court”. Clause 201 states: “A court may make an order excluding from the whole or any part of any proceedings in respect of an offence all or any persons …”, and it lists the people who are allowed to stay in the court after an order to clear the court has been given. The question I ask is on this: there is an exception for members of the media. The bill says that when the judge declares that the court must be cleared, the media are actually allowed to stay in there, except if it relates to the security or the defence of New Zealand—let us park that to one side.

Let me give an example. Clause 203 “Court must be cleared when complainant gives evidence in cases of sexual nature’’ is something I understand, completely agree with, and think anyone with a heart would agree with. But my question comes round to why the media is allowed to remain. Why put in the legislation that the media is allowed to stay in some of these cases when the complainant may, in fact, find the presence of the media intimidating to the point where they do not give evidence? I think we are all aware of a number of those cases where the media have stayed and these cases have been reported. I wonder where that line is between society’s right to know versus the right of the victim or the complainant. I argue that in some cases, and certainly in some sexual cases, the right of the victim or the complainant should override society’s right to know what happened in that trial. So that is the question: I wonder why the media are specifically being given an exemption.

Clauses 204 to 208 talk about the suppression of the identity of the defendant, and that includes the identity of defendants in sexual cases and identity of child complainants, or, in fact, where the judge determines that it is not in the public good. There are a couple of questions. Firstly, in the bill as introduced clause 204(1) stated: “A court may make an order forbidding publication of the name and any other identifying information about a person”. For some reason the Justice and Electoral Committee changed that wording to read: “A court may make an order forbidding publication of the name, address, or occupation of a person”. I would have thought that “name, address, or occupation” are simply a subset of “any other identifying information”. I do not know why the committee narrowed that provision right down from “any other identifying information”. I would have thought there was a risk that with identifying information other than name, address, or occupation someone whose name was suppressed could be identified. It is a question I have on that point.

Another thing also is that clause 204(2) states: “The court may make an order under subsection (1)”—which I have just read out—“only if the court is satisfied that publication would be likely to—(a) cause extreme hardship …”. What is the definition of “extreme hardship”? I am not too sure; it is not defined in the bill. Extreme hardship for one is not extreme hardship for another. We have seen a number of high-profile people in this country who have been given name suppression due to the fact they are a sportsperson or high-profile business person, yet others, who could well be identified within their circle of friends but are not considered high profile by the media or by the court, do not get name suppression. Where is that line? I have a huge concern about this. Again it comes back, of course, to the community’s right to know versus the rights of the complainant. I understand that, but there has been huge debate around this name suppression and where the line should be drawn. If you were an All Black—not you, Mr Chair—but if the defendant is an All Black—

TischThe CHAIRPERSON (Lindsay Tisch) Link to this

Could be!

NashSTUART NASH Link to this

—could be, no disrespect to your rugby-playing skills, Mr Chair—is that enough to cause extreme hardship? Clause 204(2) lists a number of times when the court may make an order to suppress a name, as it would cause extreme hardship. I understand that, but what is the definition of “extreme hardship”?

Another, in clause 204(2)(b) is “cast suspicion on another person that may cause undue hardship to that person;”. I would have thought that is a reason to actually name a defendant as opposed to suppressing their name. We recently saw a case where a high-profile person has been given name suppression and others—normally sports or business people—have felt they had to come out and say: “It’s not me. Don’t cast aspersions in my case. I have not done this.” In a recent case a high-profile rugby player has written an autobiography and he has put in that autobiography a case where he was sent to court, and I think he was tried, although I am not too sure. He did that because he did not want aspersions cast on other members he played with. What we get are cases where suspicion is cast on other people simply because there has been name suppression.

Again, I would not mind a definition of the word “address”. It sounds pretty simple, if one was a postie. Does it mean someone’s city? Does it mean someone’s suburb? Does it mean the road someone lives in? Remember the media are allowed to be present during these trials. Are the media allowed to say: “Mr Businessman from Ngapuhi Road in Remuera, Auckland has name suppression.”? If that is not defined as “address”, because it does not specify that person’s exact house, then it is easier for an investigative journalist or someone who has the wherewithal to go through any sort of roll and determine that, OK it cannot be 95 percent of residents, and therefore it must be three, four, five people due to the fact there are only five people who fit the profile in Ngapuhi Road in Remuera, Auckland. So the definition of “address” would be good. This is why I am unsure why the select committee amended the words “any other identifying information about” and simply went to “address, or occupation”. So there are a couple of questions there, as well.

The other thing is one of the areas where we can have name suppression is, as clause 204(2)(d) states, where it would “create a real risk of prejudice to a fair trial;”. If it is a jury trial, then obviously the jury will know who this person is, anyway. If there is name suppression, then the media is not allowed to put this information out there, but in a lot of cases the name is out there. We are seeing this at the moment in the United States where Michael Jackson’s doctor is being tried by media. It is a shame, but that is the way it works. The question I ask is where the line between the community’s right to know and the defendant’s right to a fair trial lies. I am not too sure, and that is why I have major concerns about identity suppression. There are cases, of course, where it is an absolute given, and my personal view is that it relates to children, of course. If a child is a defendant, then we do not want that person’s name released in any way, shape, or form. I suggest other areas where perhaps it concerns a trial of a sexual nature. It does outline this in clause 205, and I completely agree with it. Clause 205, “Automatic suppression of identify of defendant in specified sexual cases”, makes complete sense, but these other cases I have concerns about. I just wonder whether the Minister can just allay my fears—there may be a very good reason for this—as well as the concerns of many others. It is a debate that has gone on in the blogosphere, through the courts, as well as in society over the last couple of years.

Again, I come down to clause 209 on the suppression of evidence and submissions. We come to that undue hardship test again, as well. I wonder whether there is an undue hardship test, or whether undue hardship is a concept that will be determined by the presiding judge. If it is, this may mean that undue hardship is, in fact, a term that will be open to legal precedent, as opposed to something that is defined by legislation, and I just wonder whether there perhaps should have been a definition of “undue hardship”. As I say, it is a relative term, but I think there could have been a test that outlined that matter. That is all at this point, but there are some questions there that I would not mind just a little bit of a steer on. Thank you very much.

PowerHon SIMON POWER (Minister of Justice) Link to this

After 10 years’ gestation for the Criminal Procedure (Reform and Modernisation) Bill, it would be remiss of me not to make a contribution on a range of issues that have arisen. In particular I will comment on Supplementary Order Paper 281 in my name, recommending a series of amendments to the Committee of the whole House after pretty substantive discussions with a range of political parties over a reasonable period of time. Before I get on to those points, I should just notify the Committee of the whole House that I withdraw the amendment on Supplementary Order Paper 283 to new section 277(10) that is to be inserted into the principal Act by schedule 3. I have been advised that there is a simple overlap between two subsections, and it is just a matter to tidy up on the way through.

It is worth reflecting that after something like seven discussion papers, a Law Commission report, an exposure draft bill, 6 months at a select committee, and numerous interactions with the legal profession, the judiciary, and just about anybody else who had an interest in this bill, the bill came out of the select committee with quite a number of changes made to it, after what can only be described as a comprehensive due diligence process. It became apparent, though, that there still remained some concern from some quarters of the House about a range of issues that they still required some amendment to. Remarkably, the issues seemed similar for a number of parties, so I was happy to sit down with them all and work our way through them.

As part of that process, it became apparent about halfway through the discussions that the legislation probably could have been advanced on a small majority. At that time it occurred to me that because the changes had been in gestation for such a long period of time, and because they were to fundamentally alter the way the criminal justice system operated, probably for the first time in 40 or 50 years on this magnitude, it was worthwhile to pause and engage, if you will excuse the rugby pun during the Rugby World Cup—

StreetHon Maryan Street Link to this

You missed “touch”.

PowerHon SIMON POWER Link to this

I did miss touch: touch, pause, engage. It was worthwhile to pause, engage, and talk to other political parties to see whether there was a way through this process.

My thanks go to John Boscawen, and the ACT Party, who approached those negotiations absolutely in good faith. We had a range of discussions about issues that, I have no doubt, genuinely concerned the ACT Party’s position on a number of matters. I thank publicly John Boscawen for the way he conducted those negotiations with me, and for the way he worked within his own caucus to see those negotiations end up where we are today. I thank Peter Dunne from United Future for his very constructive and determined advocacy on a number of points. I also thank the Māori Party, which also made clear to me, very early on, two or three areas of objection it had. I was pleased that the negotiations with other political parties in the House were able to relieve the Māori Party of those concerns, and then it too was able to pledge its support for the progression of this legislation.

I also thank the Labour Party, and a couple of people in that regard. First of all—and I know that he will probably deny it—I know how important this bill was to the Hon Rick Barker. I know that he spent a considerable amount of time as the former Minister for Courts trying to push this thing along. All I can say to that member is that, probably of anybody else in the House, he knows best how I feel. This is a huge piece of work, and I was not going to let it come unstitched at the eleventh hour because there were three or four—or slightly more than that, actually; five or six—areas where agreement could not be reached. Given the way that members of the Labour Party, and particularly Charles Chauvel, conducted themselves in negotiating these matters with me, I was very satisfied.

The nature of negotiations under MMP, particularly when we are trying to find a broad consensus beyond just a bare majority, means that not every party will get everything it wants. The truth is that that probably applied to every party in these negotiations, not the least of which was National, which had—and has, I guess—slightly different views on what the right to silence is and what issues in dispute are. None the less, we are where we are. I said publicly throughout this process that I would be practical and pragmatic about those discussions, and I believe the Government was. Here we are today with broad agreement from the second-largest party in the Parliament, the ACT Party, the Māori Party, and United Future—and I have not given up on the Greens just yet, because I will address Kennedy Graham’s concerns. He asked me to reconsider the jury trial threshold, on which I advise him in good faith that the Government will not do so at this point. I hope to be able to persuade him over the course of the next couple of calls that this bill is worth supporting, and I intend to give that my best shot over the next 6 or 7 minutes.

First of all, it is worth the Committee just reflecting briefly on what Supplementary Order Paper 281 in my name does—where the compromises have been made, and how much common ground we have come to. The Supplementary Order Paper amends the bill to retain a shorter, 6-month limitation period for the least serious offences. It prescribes safeguards for defendants by circumscribing when the courts are able to proceed in the absence of the defendant, an issue that I know is particularly of concern to Mr Boscawen. It removes the provisions requiring defendants to identify, before trial, issues in dispute—not the particulars, not what was actually going to be argued, but just issues in dispute—and removes the ability for a fact-finder to draw an adverse inference from a failure to identify issues in dispute. And, of course, it restricts the circumstances in which costs orders can be made and simplifies the miscarriage of justice test.

Unless I have read it wrongly, the Green Party supports all of that, in one form or another—unless I have read it wrongly. The outstanding issue for the Green Party—I guess the big hurdle for it—seems to be the jury trial threshold issue. Before I get on to addressing that directly, I will just sow a seed in the minds of Committee members here today, now that those issues have been resolved, and ask what effect this bill will have on victims, on witnesses, on court staff, on jurors, and on all the others who are in the court system.

The number of sitting hours saved will be 9,360. That is a vast reduction from the savings of the original bill, which would have seen 16,000 sitting hours being saved in our court system. But that is the nature of the system we work in. The number of court events saved before the agreement was to have been 43,000; following the Supplementary Order Paper in my name the number is now 36,650—that is, individual court events saved. People will be able to get on with their lives, and to move through the criminal justice system with 36,000 fewer court events. The number of cases that no longer need to be designated for a jury trial was previously to have been somewhere between 1,000 and 1,400; it is now between 750 and 1,200. The time to dispose of judge-alone or summary trials saved was previously to have been 5 or 6 weeks; here it is back to about 3 to 5 weeks, so that is not too much of a loss. In respect of time to dispose of a trial saved in the District Court, it was to have been 13 weeks; it is now 6 to 9 weeks—6 to 9 weeks. I will come back to why that is significant. The savings were originally to have been in the zone of $29 million, but are now back to about $23 million - odd.

So why does that time to disposal and the number of jury trials saved matter? I will talk about that in the context of the change to the threshold, because this is why the change in the jury trial threshold matters. I will just spend a bit of time on that. The specification in the Attorney-General’s report under the New Zealand Bill of Rights Act about a 3-month threshold for a jury trial—as the case is now and will be until this bill is passed—was that it “has had a profoundly negative effect on the conduct of criminal litigation in this country, causing serious delays in the criminal justice system, which may raise far more serious concerns about access to justice.” It goes on to say that the proposed increase in the jury threshold—this was when it was to 3 years, so I am not arguing about the substantive point—“would neither put New Zealand in breach of its international obligations”, which was a point acknowledged by the Green Party, “nor would it place defendants in this country at any comparative disadvantage to those in comparable jurisdictions.” The report notes that Canada, which in my opinion is one of the most liberal common law jurisdictions in the world, provides a threshold for jury trials at imprisonment for 5 years or more.

There is very little historical justification for the current 3-month threshold, which was originally based on the UK threshold at the time when the provision was enacted in New Zealand. But of course this no longer represents the UK position. Although the right to a jury trial—and this comes back to the time to disposal issue—is an important aspect of the criminal justice system, the critical issue identified by the Attorney-General is not the threshold at which the trial is elected but whether the right to a fair trial is preserved. Most significantly, and I really urge the Green Party to think about this, another important constitutional right under the New Zealand Bill of Rights Act is the right to be tried without undue delay—the right to be tried without undue delay. That is why the time to disposal matters.

When the absolute adherence to one right results in a negative impact on another, as I think the Green Party is putting the position, consideration must be given to the greater public good in redressing the balance to better ensure adherence to principles underpinning both rights—not just one right but both rights. And in this case we are not just talking about the right to a jury trial; we are talking, fundamentally, about the right of people to be tried without undue delay. When the court system and the justice system clog themselves up at the bottom end of the pipeline, without addressing what should really be occurring in those systems, but rather with game-playing and to-ing and fro-ing occurring at the front end of the process, the right to receive a trial without undue delay is put at risk—is put at risk. I ask the Committee of the whole House to give that right, under the New Zealand Bill of Rights Act, some serious consideration—some serious consideration.

And let us remember here that the criminal justice system and this legislation is not just about the rights of the defendant. There are other participants in the criminal justice system—witnesses, victims, jurors, and the like—who find themselves in that system through no fault of their own. We as legislators have a responsibility when we pass legislation to have their interests in mind as much as the rights of the defendant. It is absolutely critical that any legislation we progress here today bears that in mind as we work our way through the Supplementary Order Papers.

BarkerHon RICK BARKER (Labour) Link to this

I want to speak on the Criminal Procedure (Reform and Modernisation) Bill. Firstly, I congratulate the Minister of Justice on bringing this substantial piece of legislation to the House. I thank the Minister for his kind comments about me, and say that I do share his views on this legislation. I was the Minister for Courts for some time, and at a time when we had queues of people extending out of the court. I looked at our court system as an administrator, not as a legislator or a lawyer. When I looked at how our courts were run, I was dumbstruck. I could not think of a system that was as antiquated and out of date as our court system.

On numerous occasions I have read—I do not know whether people here have read it—the brilliant trilogy by Mervyn Peake about Gormenghast and the 77th Earl of Groan. He takes a pot-shot at the British aristocracy and how ossified they were. The Earl of Groan has a Master of Ceremonies, and at certain points of the day and at certain points of the week he requires the Earl of Groan to undertake a certain ceremony, the purpose of which is long since forgotten, and the meaning of which is completely irrelevant. But the Earl of Groan has to perform this ceremony. It is just a mind-boggling process. Well, the nearest I have seen to Titus Groan, the 77th Earl of Groan, and the Master of Ceremonies existed in our court system. There were procedures that went on that had absolutely no relevance to the people there. They were required to turn up to court, there would be a few words mumbled at the beginning of the session, and then it would be all over and the person would leave. The defendant would ask what that was all about. The person who had an interest, the victim, might turn up to see what was going on too, and they would ask what was happening, and be told it was a call-over, or it was this or it was that. If they asked why a certain thing happened, the only explanation was that it was required—because the Master of Ceremonies said that it was required.

We had large queues of people outside our courts at 10 o’clock on a Monday morning, and it was a shambles. The whole place was paper-based. I have never seen so much paper in my life. I asked the court staff why there was all this paper, and they said it was a legal requirement—they had to have paper. I said that we conduct legal transactions in the Customs Service, and there is not a piece of paper anywhere. They are all perfectly valid legal transactions, and there is not a sheet of paper there. But I would go to court after court and there would be great stacks of paper hanging perilously over the staff. How they found their files, I will never know. All of those things clogged up our court system.

I started to make inquiries about what was going on, and I have to say that there was a bewildering network of overlapping, intersecting law that simply did not work. Each court was taken as its own jurisdiction; each High Court had its own systems. It was an absolute muddle. While all of that was sitting there, more and more people were waiting to get through the court system. We could do everything possible to speed up the court system in terms of buildings, staff, and staff training, but the system overwhelmed us. I started digging around and I came across the work that the Minister has referred to, but it had stopped. It had stopped simply because it was too hard. I thought of that at the time, and I remember saying to some of my justice staff: “Well, shouldn’t we have the words of Kennedy when he sent the space rocket to the moon: ‘We go not because it is easy; we do it because it is hard.’ ”? Their faces were a bit white, but we restarted the work. I have to say that a lot of this stuff dates back to 1947 and a lot of the legislation and the way in which the courts do things has remained unchanged since 1947. I would often remark to the staff: “Well, have things not changed in New Zealand since 1947?”. They replied: “Of course, Minister, they have.” But nothing else has changed.

This legislation is a fabulous piece of work, and I think that the real issue here for this Parliament is that we have had Ministers of Justice of all hues for many years who have been really interested in the important principles of justice, but very few have taken much interest in the administration of justice. I think that is to the detriment of the justice system, and it reflects poorly on this Parliament. I hope that what happens subsequent to this legislation is that this Parliament continues to take a keen interest in the administration of justice, because it is the administration of justice that is critical to the public’s perception of our justice system. If the public feel that the justice system is incompetent, Mickey Mouse—dare I say it—and harking back to Gormenghast, the Earl of Groan, and the Master of Ceremonies, they will treat our justice system with contempt. The public have a right to expect that our justice system is administered in the style or the manner in which the rest of our society is administered—fast, efficient, and effective.

This is a fabulous piece of work, but there is much more to do. One of the things that was very dear to my heart was to get rid of the paper and have an electronic system. I know the Minister is as keen on that as I am, and a lot of good work has been done on that. It will not happen overnight, but, like the shampoo ad, it will happen. It needs to happen, because we have files that are missing, files that only one person can deal with, and so on. We have to have electronic files so they can be accessed by all and processed much more quickly. I have looked at electronic systems overseas, and I am deeply impressed by how much more efficient they are than our paper-based filing system. We need to get on and fund this, and improve the legislation so that we have an efficient administration of justice.

I come back to the issue of jury trials. I agree with the comments made by the Minister of Justice when he talked about the New Zealand Bill of Rights Act and the obligations of the system to take into account the interests of the victim as well as the interests of the defendant. The critical part of this is to have a system that brings cases to trial for decision quickly and promptly. We still have an unacceptable delay. But I think there is another argument in favour of shifting the threshold for jury trials, and I will put it to the Green Party this way. It is a practical observation, because I am a practical person. I want to back up the truck to another part of my job: I was responsible for dealing with making recommendations to the Governor-General on royal prerogatives of mercy. I had a case before me from a man who had committed rape quite some long time ago. This conviction for rape was impeding something he wanted to do, which I will not tell members. I went through the case. A young woman who was a friend of his came by his house one night to see the man’s partner. He dragged her into the bedroom and raped her. This was a premeditated act, a brutal act. When I read the case notes—the trial decisions were very short in the late 1950s—I was quite surprised, but I was revolted. The thing that struck me most about the case was that for that rape the man received a 1-year jail sentence.

In the context of this Parliament today that is unthinkable—utterly unthinkable. I say to the Green Party that many of the cases that were heard at that time would have had a similar threshold. What has happened in the last 30 or 40 years is that the sentences we impose for things have shifted dramatically and have gone upwards. A 3-month threshold when it was put in, in the 1940s, would have been for a very significant offence. The only thing that has not changed in this time has been the threshold for a jury trial. Had there been some process of indexing the threshold of the jury trial to the types of cases and the terms expected, I say to the Green Party that we would have arrived very easily at a threshold for a jury trial that is much higher than what is proposed in the bill, and nobody would have said a thing.

A jury trial in the 1950s was rare, because the threshold was high. But what has happened over succeeding generations of Parliament is that we have raised the threshold for cases, we have raised the stakes in terms of the penalties, but we have never raised the threshold for a jury trial. If one thinks about the 1950s, a 1-year sentence for rape, and the threshold for a jury trial at 3 months, one is talking about a very serious offence. If this Parliament simply continued consistently along the argument of the Green’s view that 3 months was sacrosanct, I respectfully suggest to the Green Party that in 40, 50, or 100 years’ time a person would have access to a jury trial for a parking ticket. [Interruption] Well, I have to say that. The threshold would get that. Everything else moves, but the threshold for a jury trial does not. There are times when this Parliament has to say that when all of the other elements of the justice system are moved, then it is time for us to move the basis for a jury trial. I think that is a practical observation, as well as the observation that other people have made.

There are many things that can be said about this bill. I support it. I think it is a very good piece of work. I commend the Minister for his efforts on it. I also think that we will have to come back to my theme and look at the other elements of this. One of the other pieces of legislation that needs updating is the Judicature Act 1908. It is a fabulous piece of legislation. In another life I had to make submissions on, for example, people who had been erroneously paid holiday pay and had been overpaid. I always quoted the Judicature Act 1908.

PowerHon Simon Power Link to this

That’s right.

BarkerHon RICK BARKER Link to this

That is exactly right. But I have to say to the Minister in the chair that it won the case without anybody else, because no one knew about the Judicature Act 1908. They said: “Wow!”.

PowerHon Simon Power Link to this

Altered your position in reliance.

BarkerHon RICK BARKER Link to this

Exactly. It was fabulous legislation. The point about this is that the Judicature Act covers a vast array of things, but it is out of date. Again, when I suggested that we embark upon a rewrite of the Judicature Act 1908 the officials went white as well, because it would be very, very difficult. I say to Parliament and to the Ministry of Justice that these are things that have to be done, not because they are easy; we have to do them because they are hard. We have to do them to make sure that the administration of our justice system is what the public of New Zealand expects. Everything else is being administered differently and improving in its pace and efficiency, and there is no reason for us to have an antiquated system of administering our courts—none whatsoever. I do not believe that a pile of people should turn up at 10 o’clock on a Monday morning and have to wait there until 2 or 3 o’clock in the afternoon for their case to be heard. No hospital sends out a note saying: “Hip operations on Monday. Tell everybody who needs a hip operation to turn up at 10 o’clock, and then you wait your turn for the surgeon to come to you.” No one else does that, but our justice system does.

There are many other aspects that our justice system practises that were appropriate and OK in the 1940s and early 1950s, but they are not OK today. This Parliament must continue to update the administration of justice. If we do not do this, the perception the public has of our justice system will fall well behind and they will not be getting the justice system they deserve. Thank you.

BoscawenHon JOHN BOSCAWEN (Leader—ACT) Link to this

It is always a privilege to work collaboratively with parties on both sides of the House in discussing legislation. We have just heard from the Hon Rick Barker a very, very good argument for passing the Criminal Procedure (Reform and Modernisation) Bill. Although he is a member of the Opposition, as a former Minister for Courts he has set out some very eloquent arguments for passing this legislation. I also compliment the Minister of Justice, the Hon Simon Power, on the arguments that he put—in particular, the way that he reasoned well his arguments for the Green Party to support this bill in its amended form.

There are significant changes in this bill, which I will be discussing shortly, and the Minister acknowledges that. But I have to say that throughout the negotiations that the ACT Party conducted with the Minister, we were incredibly conscious, as I said to the Minister on many occasions, that there are good things in this bill—there are good things in this bill. We recognise that the justice system is outdated and cumbersome. We recognise, as the Hon Rick Barker just told the Committee, that we have large queues of people turning up at the courthouse at 10 o’clock on Monday morning who are left waiting for many hours. Although there were important principles to stand up for, we were also concerned not to throw the baby out with the bathwater, and not to lose the considerable benefit of all the many years of work that have gone into this legislation.

Like other speakers in this debate this afternoon, I pay tribute to my parliamentary colleagues. As I have mentioned, I have been involved in negotiations with Mr Power over the last couple of months, and I thank Simon Power for the generous comments he made about me and about his negotiations with the ACT Party. Just recently I was talking with Kennedy Graham of the Greens, but I have also had extensive discussions with Charles Chauvel.

This is a wide-ranging debate. We are taking this bill as one question. So I would like to use this opportunity perhaps to make some wider comments on the submission process. I have been a member of Parliament for just going on 3 years. In the time that I have spent here it has always amazed me how easy it is for members of the public to make a submission on legislation that is before Parliament. In fact, Parliament and civil society demand it.

In the year prior to my coming to Parliament I ran a campaign against Labour’s Electoral Finance Bill. I made a submission, I asked to be heard, I turned up at the Justice and Electoral Committee, which was chaired by Lynne Pillay, and I was given 10 minutes to state my case. I found it an amazing experience that individual New Zealanders could make a written submission, ask to be heard in front of members of Parliament, and state their case. As a parliamentarian myself I know that sometimes submitters are not well listened to, particularly if they express views contrary to one’s own, but, generally speaking, submitters are treated courteously and their views are respected.

We depend on people and organisations making submissions on legislation. Just yesterday the Justice and Electoral Committee heard urgent submissions on the Video Camera Surveillance (Temporary Measures) Bill. A number of organisations and members of the public had come together at relatively short notice to make submissions on the legislation.

Coming back to the Criminal Procedure (Reform and Modernisation) Bill, as Mr Power said, this bill was with the Justice and Electoral Committee for 6 months. There were a number of submissions from no less a person than the Chief Justice herself, from various Criminal Bar Associations, from the Law Society, and from practitioners. But I want to use this opportunity to publicly acknowledge three particular people who were involved in the submission process, whom the parties that have been involved in negotiating this legislation are all very well aware of. They are Patrick Winkler; his assistant, Samira Taghavi; and Roderick Mulgan. They are three barristers who believe so strongly in upholding the right to silence as a major constitutional principle that they have put an enormous amount of time into this legislation. I imagine they will have spent literally hundreds of hours preparing submissions, studying the provisions of this bill, and lobbying members of Parliament—in particular, Mr Graham, Mr Chauvel, me, the Māori Party, and Mr Power.

We need to pay tribute to those three people because I suspect, with the exception of Mr Power, no other people in New Zealand today have contributed more to the format of this bill than those three with the work they have done. I think Supplementary Order Paper 281 represents a back-down by National. It is a very important back-down, and it is a back-down of major constitutional significance. This Parliament owes a huge debt of gratitude to those three people, as it owes to other New Zealanders who come to this place to make submissions on legislation because they believe that in a civil society we need to have good legislation and they are prepared to spend their time on it.

The Minister referred to the Supplementary Order Paper and to the major changes that it represents. Clearly, as he outlined, there is a difference in the view held by National and others in this House as to what contributes to, or what in actual fact is upholding, the right to silence. I will take just a few minutes to read from Supplementary Order Paper 281—in particular, the section headed up “Issues in dispute”. That particular issue has drawn major concern from the ACT Party. It says: “Currently, the Bill requires the defendant to formally identify the issues that are in dispute before the trial. If the defendant fails to identify those issues adequately, the Bill allows the fact-finder (whether Judge or jury) to draw adverse inferences from that failure when deciding whether or not the defendant is guilty.”

This 640-page bill, when it came back from the select committee, required a defendant, a person charged by the State, to tell the State—the police or the Crown Law Office, whoever is bringing the prosecution—the aspects of the charges that the defendant disagreed with and what they disputed. If the defendant failed to do that, the judge or jury was able to draw an adverse inference, which means the judge or jury may have found that person guilty when they otherwise would not have.

Why was it important that we take that provision out? I believe that Mr Chauvel outlined the reasons for that very, very well this afternoon. He said that it is a well-known constitutional principle that when one is charged, it is up to the State to prove beyond reasonable doubt that one is guilty. It is up to the State to prove the charges beyond reasonable doubt. It should not be incumbent upon the defendant to assist in their own prosecution. To put it another way, it should not be incumbent upon the defendant to help to find that they are guilty. As this 640-page bill came back before the House, that is exactly what we were setting ourselves up for.

As the Minister well knows, he asked the ACT Party for its five votes in support of this bill back in August. We had an option. We could have said yes, that we would pledge those five votes, and with those five votes this bill could have come back and it could have been passed through this House without any amendment whatsoever. Let me repeat what I said during the second reading debate. The five ACT MPs held solid on that issue. We were absolutely united that we were not prepared to support the legislation in that form.

Finally, I once again acknowledge the huge amount of work that Patrick Winkler, Samira Taghavi, and Roderick Mulgan put into convincing me and my colleagues of the importance of that position, just as they put work into convincing other parliamentary colleagues.

I am prepared to leave my contribution at that. Other speakers, I know, will want to speak in the debate. There have been a number of other changes, and I referred to those during my second reading debate. On this occasion I have focused just on the right to remain silent. Thank you.

BarkerHon RICK BARKER (Labour) Link to this

I want to follow the Hon John Boscawen on a point that is related to the theme made by the Minister of Justice, and it is about negotiation. I think it is a credit to this Parliament and a credit to MMP, which people should acknowledge, that we have negotiations on this sort of legislation. The Criminal Procedure (Reform and Modernisation) Bill will go through the House, it will be confirmed, but no one will make the connection between the style of Parliament we have and the outcome. But I think it is really important to make that connection.

In the past we had first past the post, the leading party would have made the decision, and it would simply have been imposed upon the Parliament. What we have now is negotiation and discussion, and we reach an agreement. I think we should celebrate that. If the Greens are unhappy about the decision at the end of it, at least they have been part of a negotiation and a discussion. I think this is of great credit, and I think we should mark that.

I want to endorse the comments made by John Boscawen. I am not sure I will always agree with everything the man says, but it is fabulous that we have this discussion. I do not think the public see this aspect of this Parliament very often. It happens very often, but this is a clear demonstration of how it has happened, and I commend the Minister for the way in which he has conducted those negotiations. It takes a leadership position to say: “I am willing to negotiate.”, rather than: “I say, and you will follow.” I think the Minister has taken a very good leadership role on this, and I hope he sets this as a model for other Ministers to continue. I hope that will be the legacy he leaves—that this is the style by which we do things and the style by which we arrive at decisions. Of course, not everybody will agree; we are human beings. But at the end we have a decision that is strong and robust and has been well debated.

I want to come to a minor point, now that we have dealt with all the higher things. I am really interested to see that the Justice and Electoral Committee has done some very good work—and the bill does some very good work—on community magistrates. One of the things that the Law Commission, in its report Delivering Justice for All: A Vision for New Zealand Courts and Tribunals, recommended at one stage was that the District Court be split into two. One court would deal with minor offences, and the District Court would deal with the bigger offences that the District Court deals with in its jurisdiction. In actual fact, we would have tribunals, a lower court, the District Court, the High Court, the Court of Appeal, and then the Supreme Court. We would have a multilayer of courts. I always thought this was a bit extravagant for a country of 4 million people.

I think that the evolution of JPs and community magistrates dealing with minor matters is a good thing. It means that we keep the single jurisdiction of the District Court. The District Court, after all, is the court that deals with most of the volume of our court work. It is the real workhorse of it. The District Court has the most courts. It is where we have the most judges. Its lists are longer, and the number of cases it deals with is much larger than in any other court, and that is as it should be. But being able to have community magistrates and JPs dealing with some of the machinery of the District Court is, I think, a really good innovation. It will help to speed up the process of justice and ensure that people get through this. I am very pleased to see that the jurisdiction and the powers of community magistrates and JPs have been extended, enhanced, and strengthened. I think this is a very good innovation.

I could go on about this legislation. There is a lot of very good work in it about upcoming potential epidemics, about getting rid of boroughs, and about changing all the structures. This is a vast piece of legislation that covers a myriad of issues, and I think the select committee and the people who have done the work on this bill have done a fabulous job. I feel it will take quite some years before people feel the full effect of the benefit of this legislation. It is long overdue and well done.

HipkinsCHRIS HIPKINS (Labour—Rimutaka) Link to this

I am very happy to take what will be a relatively brief call on the Criminal Procedure (Reform and Modernisation) Bill. I agree with what my colleague Rick Barker said about the importance of Parliament coming together on matters such as this, and I acknowledge the contribution that the Minister of Justice has made to this debate. Generally, in the 3 years that I have had the opportunity to sit in this House, I have found that Committee stage debates are far more useful, constructive, and informative when Ministers, as well as Opposition members, engage in the debate. Sometimes we can spend an awfully long time talking amongst ourselves on this side of the Chamber. When Ministers engage in the debate, I think that makes it a lot more useful.

However, I want to sound a word of caution around the way the Minister framed one of the central issues in this debate, which is about the right to a jury trial and the right to a speedy trial. He framed the issues as if those two things necessarily were in conflict with one another, and that is something I fundamentally disagree with. I do not believe that the right to be tried without undue delay necessarily should result in a trade-off with the other rights that somebody has when they are being tried. If we were going to go down that road too far, in fact we could find that the court system could be made a heck of a lot more efficient timewise if we did away with a whole lot of the other rights that people who find themselves before the court system have at the moment, as well. So I think we have to be very, very cautious if we want to frame this debate in that particular way, as the Minister did.

I listened very carefully to the first contribution of my colleague Rick Barker. It was actually the points he raised in that speech that sold me on the extended time frame for a jury trial. As he pointed out, the lengths of sentences for different crimes have changed significantly since the threshold was first established, and it seems to me that it is therefore reasonable that there be some indexation of the penalties relating to the threshold for a jury trial. I think that he made a very reasonable point, which ultimately convinced me that we are probably doing the right thing in extending the time frame to 2 years, which is what Supplementary Order Paper 281 will achieve.

I do note in this debate that this is only the second time that the New Zealand Bill of Rights Act has been amended since it was first enacted in 1990. The first time it was amended—in 1993, not long after it was first passed—the amendment extended the protection it offers. This is the first time since that law was passed that Parliament will be voting to reduce the protection afforded by the New Zealand Bill of Rights Act. I think it is really important therefore that in doing so there is broad consensus amongst the Parliament about that. I think it would be very unwise for a Government to do as others have suggested and pass an amendment simply by a narrow majority. I acknowledge the fact that the Minister made an effort to secure more than a simple majority for this legislation. I cannot envisage any Government—any responsible Government, whether it be a National-led one or a Labour-led one—endeavouring to do anything other than that. I think it would be absolutely wrong for a Government, whether it had a majority or a minority with support from others, to scrape together the numbers to get a bare majority to pass an amendment to this legislation. The New Zealand Bill of Rights Act is something that Governments should not tamper with lightly. There should be broad consensus when changes to it are brought forward and it is welcome that this has happened in this case.

I want to turn now to one other amendment that I had some concerns about, which has been addressed in the Government’s Supplementary Order Paper 281. It is to do with the case management system and the requirement for the defence to formally identify issues that are going to be in dispute. I think it is a fundamental rule of the court system that it is up to the prosecution to determine or to prove somebody’s guilt beyond reasonable doubt, and the suggestion that at the beginning of a trial it should be up to the defence to specify the issues they will be raising in their defence outright at the beginning, therefore potentially limiting the defence’s scope, seems to me to cut across that principle. One of the things the Government Supplementary Order Paper that has been introduced today ensures is that issues in dispute can be identified by the defendant only if he or she wishes to do so. So they are not necessarily going to be compelled to do that and I think that that is a reasonable amendment.

I was going to talk a little bit about the absence of the defendant, but having read the Supplementary Order Paper I am reasonably comfortable now that it has dealt with most of the concerns I had around that.

I want to turn now, finally, to another issue, which I think we need to look at further in a future Parliament—that is, the issue of name suppression. I am not going to go into too much detail at this point because the concerns I have are wider than the scope of this particular legislation. But it is apparent in my view that we are developing a two-tier justice system where those who have significant money, status, and prestige are able to obtain name suppression without too much difficulty, while those at the lower end of our society’s status ladder are subject to a different form of justice, and to me that seems fundamentally wrong. There was a case recently—and I am not going to go into the details of it, because there is suppression involved, but it was widely publicised only a few weeks ago—to do with a security breach at an airport. Most of the details have subsequently been suppressed. It was widely covered in the media. Anyone following it in the media would know all of the details. For reasons that I cannot fathom at all, the details have now been suppressed, preventing people from talking about it further. It seems to me to be totally bizarre. I think that name suppression is an issue that the next Parliament must deal with, because there are huge anomalies in the number of people receiving name suppression at the moment, and in many cases I do not think it can be justified. I think that it is something that definitely needs to be very closely looked at. So I will conclude my comments at that.

I am not a lawyer, so I take a layperson’s view of this particular legislation. I followed the debate quite closely. I am satisfied that the major concerns I would have otherwise had around the fundamental human rights have been addressed. There is a balance to be struck between ensuring individual rights and making sure that people have access to the justice system in a reasonably speedy way. Definitely, there is a problem with New Zealanders’ rights to a speedy trial being compromised at the moment, and I think it is important that that be dealt with. This legislation definitely seems to do that.

PowerHon SIMON POWER (Minister of Justice) Link to this

I want to respond very briefly to some comments that were made by Stuart Nash in respect of name suppression. The bill will see defendants be able to apply for name suppression, but only on the following grounds: to prevent extreme hardship to them and/or persons connected with them, and on the grounds that publication would cast suspicion on other people that may result in undue hardship. That is in clause 204. To address the concern that the public have, rightly in my view, about supposed well-known people being given preferential treatment, the legislation provides that there will be no presumption of extreme hardship solely on the ground that publication will identify a defendant who is well known—or, as I have referred to it more broadly, people who think they are well known.

Victims, witnesses, and others will be able to seek name suppression on grounds including that identification would result in undue hardship to that person. It is important to note that clause 205 is designed to protect victims. Automatic name suppression will continue to apply to victims of specified sexual offending, defendants in cases of incest or sexual conduct with a dependent family member, and child witnesses. It will be extended to also apply to child victims. I think that goes some way towards addressing Mr Nash’s concerns.

I think the broader points raised by Mr Hipkins lend themselves to reinforcing the reason that the Government has asked the Law Commission to look very closely at the issue of the relationship, broadly speaking, between suppression and the new media, which makes suppression a lot more difficult. I am not an expert in technology; I would not even regard myself as an amateur. Frankly, I am pretty relaxed about that. As I always said, no good ever came of Facebook. Putting that to one side, this is an issue that, eventually, future Governments will have to grapple with when the Law Commission brings its report back to whoever the Minister of Justice is at the time. It is not straightforward. On talking to colleagues in comparable jurisdictions, I was told that they have struggled with it. The way in which suppression has interacted with the new media means that there is much to do to ensure that those protections, where appropriate, are protected. Much work remains to be done in that area.

TwyfordPHIL TWYFORD (Labour) Link to this

Also as a non-lawyer, I must say I have found this debate very interesting. Like Chris Hipkins I have been following the public debate as this Criminal Procedure (Reform and Modernisation) Bill has progressed, and observed the negotiations with a great deal of interest. I really appreciated the Hon Rick Barker’s comments about the provenance of this bill, and the impassioned plea that Rick Barker made about the need to modernise the administration of justice.

I will confine my comments to Labour’s Supplementary Order Paper 286, and invite the Minister in the time remaining to get up and respond to some of the clauses proposed in it. For the benefit of people at home, let me just speak briefly about what is contained in the amendment Labour has put on the table in the name of Charles Chauvel. Included is new clause 25A, which inserts a procedure modelled on clauses in the Summary Proceedings Act, which would provide for an on-the-spot summons procedure to apply in certain limited circumstances. Clause 26 would clarify the procedure to be followed following an evidential breath test. The changes to clause 35 would ensure that the defendant is not required to plead unless the defendant has had at least 21 days to consider the material obtained under disclosure from the Crown.

There are a number of minor things in the Supplementary Order Paper, but it is worth, probably, mentioning the changes in clauses 58 to 63, which substitute the word “undertaking” for the word “indication”, which is, I think, designed to ensure consistency with other statutes. The changes to clause 105 set out to modernise the law as to when the court may be addressed on evidential issues.

Probably the most substantial part of the Supplementary Order Paper is the additions to clause 128, which have the aim of confining further the circumstances under which trial and sentencing can continue in the absence of the defendant. This is to ensure that the court may not proceed in the absence of the defendant when a reasonable excuse for that absence has been given. The court is asked to consider a number of factors when making a decision about whether to proceed in the absence of a defendant, and these things would include any information available to the court about the reasons for the defendant’s absence, any issues that the defendant has indicated that are in dispute, and the extent to which the evidence is critical to an evaluation of those issues, and the likely length of an adjournment. In spite of the fact that the court can consider and decide whether to proceed in the absence of the defendant, the court must not proceed under these provisions if it is satisfied that it would be contrary to the interests of justice to do so. So we would particularly appreciate a response from the Minister on the additions to clause 128.

The final two elements include a new clause 176A, which would prevent the prosecution from offering new evidence, or correcting deficiencies where earlier offering or correction was reasonably foreseeable, and amendments to clause 361(1) and (2), which would restrict the circumstances in which a costs order against a defendant or the defendant’s counsel may be made to cases where a failure is exceptional, intentional, and done without reasonable excuse.

Those are the elements in Charles Chauvel’s Supplementary Order Paper, and in the time remaining we would really appreciate a response from the Minister.

BeaumontCAROL BEAUMONT (Labour) Link to this

This has been a fascinating process, indeed. I was a member of the Justice and Electoral Committee, which heard many of the submissions on what is a substantial bill and a far-reaching bill. The fact is that only 2 days ago when I was speaking on the Criminal Procedure (Reform and Modernisation) Bill, we were still finalising negotiations on Labour’s position at that point, and now we are supporting this bill. I have found the process to be a very interesting one, as others have also commented.

It has been fascinating for me, as a still relatively new member of this House, to watch a number of people operating to try to deal with what were quite fundamental concerns. On Tuesday when I spoke on this bill I referred to the role of Charles Chauvel. I again acknowledge the work that Charles has done on raising the fundamental concerns that the Labour Party had about the potential for the bill, as it stood then, to fundamentally affect the human rights of New Zealand citizens. So I am pleased to see that the Minister of Justice, the Hon Simon Power, has addressed those concerns, and dealt with them in a constructive manner.

There is no doubt that there are substantial problems with the current criminal procedure system. I will repeat what the Ministry of Justice has concluded, because I do not think this bill, despite how far-reaching and substantial it is, deals with all of the issues of concern yet. I have to say that I was not aware that there was such a thing as the judishicature Act—terrible, I cannot even say it!

BeaumontCAROL BEAUMONT Link to this

—Judicature Act—but now I know that there is that Act from 1908, which will also be part of this reform of our justice system.

There is the issue of excessive costs. There is the increasing cost of operating the court system, and the stress and inefficiency that is being placed on the court system. I think the Hon Rick Barker explained that issue with quite a deal of passion, really, as a former Minister for Courts.

There is excessive delay. I have to say that excessive delay has negative consequences both for the defendant and for the victim of crime. As Labour’s women’s affairs spokesperson, I am concerned about it from the point of view of victims of crime. We want a court system and a justice system that operate in a way that means that defendants and victims do not have to wait too long for justice. That is certainly a reason for reforming the system. This bill will assist with that issue, as the Hon Simon Power has outlined in some detail, when he explained where we will see improvements, reduced delays, and justice being served.

As for excessive complexity, certainly this bill has been a really major attempt to categorise different criminal matters and to try to simplify them. That is good, I think. It is a positive move forward, and the Judicature Act is clearly one of those outdated parts of our legislative framework. The issue, for example, of thresholds for jury trials was a fundamental part of our legal framework that we were very concerned about.

I acknowledge the Hon John Boscawen in relation to his comments on the right to silence. These are cornerstone principles in our system. Quite rightly, I think, various parties have said that they would not support the bill in its previous form.

There are a number of people who should be thanked for creating this monster bill—it is huge, is it not—and those people, first of all, are the submitters. There were 72 submissions made, and we heard 35 of those submitters. These people were submitting on very important technical matters. We had a number of members of the legal profession and the judiciary submitting, because they certainly wanted to make these reforms more robust, and to make sure that we were not threatening fundamental elements of our justice system.

Then, interestingly, there were a number of submitters who specifically submitted on matters to do with suppression orders, the internet and new media, and so on. As others have commented, we still do not have that sorted. We still do not have the fact sorted that some people who are using the internet and social media are getting around suppression orders, so that matter will need to be dealt with in a future Parliament, as others have said.

The bill is large, substantive legislation, as I have said. It goes to 650 pages and has nine parts. I have already mentioned categorising of offences. There has been a simplification, so we now go to four categories of offence, which is a major step forward. Then, in Part 2, we have the proceedings and preliminary steps. This is one of the areas where Labour’s Supplementary Order Paper would come into play. I agree with the member Phil Twyford that it would be very helpful to have the Minister in the chair, the Minister of Justice, talk through the Supplementary Order Paper in the name of Charles Chauvel.

While I was talking about the people whom I wanted to thank, I forgot to mention the people who really should be thanked for their massive amount of work, and they are, of course, the officials who have worked on this legislation of great complexity and substance. They should also be acknowledged when we are dealing with this bill.

Pre-trial procedure is covered in Part 3. We now have this issue of the jury threshold. I think it was very interesting and helpful to hear the comments made by the Hon Rick Barker about how sentences have changed, and therefore the relative significance of thresholds. That was very helpful for a number of members here.

It is worth noting that the New Zealand Bill of Rights Act is being amended as part of this legislation. We in Parliament need to be very aware of that, and take a great deal of cognisance of that, if we are looking at amending the New Zealand Bill of Rights Act. Certainly, there were quite significant matters and concerns raised by the Attorney-General in relation to this bill in its form prior to the Supplementary Order Paper that will change it. He raised many concerns.

Part 4, of course, deals with the trial provisions, and again Labour’s Supplementary Order Paper has some relevance there. As I said, it would be interesting to hear the Minister’s comments. Part 5, “General provisions”, also deals with proceedings held in the absence of the defendant. Part 6 deals with appeals, Part 7 with provisions concerning jurisdiction of District Courts, Part 8 with miscellaneous and transitional provisions, and Part 9 with amendments to other enactments.

So that is the scope of this huge bill. As I said, I have been pleased and interested to watch and see how we have almost reached the point where this substantial change to our criminal procedures will be passed by the House. Thank you very much.

RoyThe CHAIRPERSON (Eric Roy) Link to this

I shall put the questions, of which there are a number, and we will work through them chronologically. The first amendment is to clause 4.

The question was put that the following amendment in the name of Dr Kennedy Graham to the amendment set out on Supplementary Order Paper 281 in the name of the Hon Simon Power to clause 4 be agreed to:

to omit “of less than 2 years” and substitute “of less than 3 months”.

A party vote was called for on the question,

That the amendment to the amendment be agreed to.

Ayes 54

Noes 67

Amendment to the amendment not agreed to.

The question was put that the amendment set out on Supplementary Order Paper 284 in the name of Dr Kennedy Graham to the amendment set out on Supplementary Order Paper 281 in the name of the Hon Simon Power to clause 128 be agreed to.

A party vote was called for on the question,

That the amendment to the amendment be agreed to.

Ayes 54

Noes 67

Amendment to the amendment not agreed to.

The question was put that the following amendment in the name of the Hon Simon Power to the amendment set out on Supplementary Order Paper 283 in his name to clause 435 be agreed to:

to omit the item relating to new section 23(3)(b)(iii) and substitute the following item:

23(2)(b)(iii)to omit “are outstanding” and substitute “have been issued”.

Amendment to the amendment agreed to.

RoyThe CHAIRPERSON (Eric Roy) Link to this

The next question is to the Minister’s amendments set on Supplementary Order Paper 281, and his amendments set out on Supplementary Order Paper 283, as amended, except for new subsection 277(10) in schedule 3, which has been withdrawn.

The question was put that the amendments set out on Supplementary Order Paper 281, and the amendments as amended set out on Supplementary Order Paper 283, except that to new section 277(10) in schedule 3, in the name of the Hon Simon Power be agreed to.

Amendments as amended agreed to.

RoyThe CHAIRPERSON (Eric Roy) Link to this

The amendments set out on Supplementary Order Paper 286 in the name of Charles Chauvel have been ruled out of order as the Government has indicated that the proposals have a fiscal impact to the aggregates. Standing Order 320 requires a 24-hour threshold of notice, and that was not done.

The question was put that the following amendments in the name of Dr Kennedy Graham to clause 4 be agreed to:

to omit from subclause (1)(j) “if the matter proceeds to trial, the trial will be a Judge-alone trial” and substitute “a defendant charged with a category 2 offence has a choice about whether or not to elect a trial by jury (see section 48):”; and

to insert the following paragraph after paragraph (j):

“(ja)if the defendant elects trial by jury, and the matter proceeds to trial, the trial will be a jury trial (unless a Judge-alone trial is ordered under section 102 or 103):.

A party vote was called for on the question,

That the amendments be agreed to.

Ayes 54

Noes 67

Amendments not agreed to.

The question was put that the following amendment in the name of Dr Kennedy Graham to clause 429 be agreed to:

to omit this clause.

A party vote was called for on the question,

That the amendment be agreed to.

Ayes 54

Noes 67

Amendment not agreed to.

The question was put that the amendment set out on Supplementary Order Paper 285 in the name of Dr Kennedy Graham to clause 431 be agreed to.

A party vote was called for on the question,

That the amendment be agreed to.

Ayes 54

Noes 67

Amendment not agreed to.

Link to this

A party vote was called for on the question,

That clauses 1 and 2, Parts 1 to 9, and schedules 1 to 6 as amended be agreed to.

Ayes 110

Noes 11

Clauses 1 and 2, Parts 1 to 9, and schedules 1 to 6 as amended agreed to.

The Committee divided the bill into the Criminal Procedure Bill, the Bail Amendment Bill (No 3), the Children, Young Persons, and Their Families Amendment Bill (No 3), the Corrections Amendment Bill, the Crimes Amendment Bill (No 5), the Criminal Disclosure Amendment Bill, the Criminal Procedure (Mentally Impaired Persons) Amendment Bill, the District Courts Amendment Bill (No 2), the Evidence Amendment Bill, the Juries Amendment Bill, the Justices of the Peace Amendment Bill, the New Zealand Bill of Rights Amendment Bill, the Sentencing Amendment Bill (No 6), the Summary Proceedings Amendment Bill (No 4), and the Victims’ Rights Amendment Bill,pursuant to Supplementary Order Paper282.

Bill reported with amendment.

Report adopted.