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Third Readings

Tuesday 4 October 2011 (advance copy) Hansard source (external site)

PowerHon SIMON POWER (Minister of Justice) Link to this

I move, That 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 be now read a third time. The passage of this legislation is well overdue. The laws governing criminal procedure are now over 50 years old and well out of date. Criminal procedure is currently characterised by avoidable delay, excessive complexity, unnecessary cost, and a high reliance on paper-based systems that do not make sense in a modern era increasingly dominated by electronic technology. It is simply unacceptable that it takes an average of 16 months for a High Court case to proceed through the system. That is far too long for those victims, witnesses, and defendants who find themselves in the justice system through no fault of their own.

This legislation will reduce and streamline victims’ and witnesses’ exposure to the criminal justice system. There will be fewer repeat or unnecessary events, and the use of staff time and courthouse capacity will be optimised to ensure that money is spent more effectively. When the reforms are fully implemented and operational, they are expected to free up over 9,000 hours of current court capacity every year, or about 12 percent of the current total effort in the criminal jurisdiction. Over 5 years these efficiencies equate to millions of dollars in savings, which can be used to reinvest in the justice sector and address expected growth in demand for court services.

Efficiency is important, but so is the right to a fair trial. The legislation achieves a careful balance between moving criminal cases through the court system more quickly and protecting the fundamental rights and safeguards that underpin our justice system. Changes made to the legislation by the Justice and Electoral Committee and during the Committee of the whole House stage have clarified beyond doubt that this legislation maintains, and even enhances, fair trial rights and fundamental justice principles. In particular, I refer to the changes made during the Committee of the whole House stage that set the jury threshold at offences carrying a term of 2 years’ imprisonment and above; that amend the clause giving the courts the ability to proceed in the absence of a defendant, so that the court’s discretion is limited to proceeding and procedural hearings where no determination of guilt or innocence will be made; that remove the word “substantial” from the miscarriage of justice test—it is not intended that the test for the court granting leave for a second criminal appeal should differ between the High Court, the Court of Appeal, and the Supreme Court—and that amend the reference to costs orders to make it clear that costs orders against the defence or defence counsel for unreasonable and significant procedural delay are expected to be used rarely, and only for significant procedural non-compliance.

I thank parties from all sides of the House for their constructive approach to negotiations after the Criminal Procedure (Reform and Modernisation) Bill was reported back from the select committee. It is true that the negotiations had their moments, but I believe that the final version of the legislation is a good example of what we as a Parliament can achieve when we work across party lines. We as a Parliament should be proud of the legislation that we will pass today. I also thank the Ministry of Justice and the Law Commission for their extensive work on this project. As many members of the House will know, this legislation is the culmination of a decade of work by officials, the judiciary, and the legal profession. The legislation brings New Zealand’s criminal procedure into the 21st century. The changes enabled by the legislation will help to build a more resilient court system, further speed up case disposal rates, improve customer service, and enhance the justice sector’s capability to respond to future demands. I commend the bill to the House.

ChauvelCHARLES CHAUVEL (Labour) Link to this

I do not disagree—I do not think anybody disagrees—with the Minister of Justice’s contention that criminal proceedings need to be sped up. To that extent, it is appropriate to welcome the legislation arising from the Criminal Procedure (Reform and Modernisation) Bill as it is read a third time in the House, because it is true that many of its provisions will lead to an expedition of criminal proceedings.

The legislation is better, as the Minister said, for the amendments that have been made to it. In particular, the amendments I want to mention are those that flow from the minority report, which was written after the Justice and Electoral Committee process and tabled in the House on behalf of Labour. In particular, we insisted on recording our objection to the proposal to severely curtail the right to silence. We also objected greatly to the proposal in the bill that would have made it easier to try people in absentia. Both of these proposals are foreign to our tradition and our freedoms, and I am very proud to be a member of a party that stood against those proposals from the outset.

The legislation would also have been better if we had seen some of the Supplementary Order Papers that were moved in the Committee of the whole House not ignored by the Minister. For example, I put up a proposal that would have created a statutory basis for the current judicial practice of giving sentencing indications—something that, in itself, does save time but does not introduce, as far as I am aware, any great unfairness. Similarly, I put up a proposal that would have codified the practice of giving the defence 21 days to respond to disclosure on the part of the Crown. As I explained during the Committee stage, at the moment there is no such time limit, so that when the defence gets disclosure from the Crown, in order to buy time to respond to it the general practice is to enter a pro forma not guilty plea. Guess what this means? It means delay; it means more time and more expense in the court system; it means all of the things that the Minister says that this legislation is designed to prevent.

I do not think there is anybody in the House who does not like the Minister or who wishes him anything but the best in his retirement, but he has shown a closed mind on criminal law reform. He vetoed the Supplementary Order Paper I have just referred to, on the basis of its effect on the Government’s fiscal position. He agreed to the further amendments that I referred to in my speech, which were contained in the Labour Party minority report, only because of raw politics. That raw politics is that the Māori Party and the ACT Party took a long, hard look at the legislation as it came back from the Justice and Electoral Committee and, very properly, decided that the objections that had been recorded by Labour were right and that they should also join in with those objections and deprive the Minister of Justice of his numbers to pass the legislation. I should say that the Green Party, to its credit, opposed the bill from the outset because that was those members’ way of recording their objections to the matters that I have outlined.

Instead of what should have happened according to our parliamentary rules and procedures—instead of the changes that were proposed being carefully considered in the select committee and advised on by officials, and the assistance with drafting that might be required being offered through an agreed process—we saw a closed negotiation process occurring between the parties. As it happens, I think the outcome has produced better legislation, as I have said. But I do deplore the process, and the process stems from the fact that the Minister countenanced amendments to what he had decided to do on the basis of his officials’ advice only because he lost the numbers to ram through his proposal.

I could compare that approach with other approaches that have been taken in the Minister’s portfolio area. I recall the evidence given by the New Zealand Law Society at the select committee about the best way to deal with criminal procedure reform. The Law Society reminded us that the right place to start was with the drivers of crime. We have just lost a major opportunity to deal with a big driver of crime—alcohol—by failing to take a comprehensive approach to reform in that area. We have a drivers of crime project going on, apparently, but it is a closed process. Not many parties in this House and not many of the general public would know much about it. It is not the sort of process that one would expect to be occurring if we were serious about taking a long, hard look at what causes crime in our society.

Then, the Law Society said, one should look at the substantive statutes. The Crimes Act dates from 1961 and the Summary Proceedings Act dates from 1957. They need to be overhauled. Only then, once one has dealt with the fundamental drivers and then the substantive law, might one turn to the issues of evidence and procedure that this legislation tinkers with.

That is my criticism of what we are doing today and of what the Minister has achieved in his time in the role of Minister of Justice. He has been distracted. He has not followed a coherent and attractive reform agenda. He has allowed us to be diverted on to questions like the three-strikes legislation, boot camps, and depriving inmates of the right to vote, which are all things that will not make a jot of difference to the public safety of our fellow New Zealanders, while the most important statute on the Order Paper—the one that gives the police powers and controls over how they deal with surveillance warrants—was allowed to languish for more than a year, despite the fact that my colleague David Parker wrote to the Minister and offered him support, with a couple of tweaks, to pass that bill.

I do commend the legislation to the House, as I said. It is better than it could have been, it is not as good as it might be, and it is not comprehensive reform. We must not kid ourselves about what we are doing here. We will be back in this House in the next term trying to deal with inefficiencies in the criminal justice system because of the failure of the Minister to follow the Law Society’s advice and to start at the beginning with root and branch reform, rather than in the middle by looking at procedure. We could have had a great Minister of Justice in Simon Power, despite his short tenure in the role, if he had just listened and put together a comprehensive reform agenda, rather than a piecemeal one such as the one that we have seen over the past 3 years. That is the great regret I have about the Minister’s term in the job.

BorrowsCHESTER BORROWS (National—Whanganui) Link to this

I am pleased to be able to take a short call in the third readings of the legislation from the Criminal Procedure (Reform and Modernisation) Bill. It is legislation has been a long time in coming to the House and has been 10 years in its construction. For 7 of those 10 years it was under the guidance of the governing party of the previous speaker, Charles Chauvel. I think it is pertinent to point that out, because in the tenor of what he said there seemed to be some residual thoughts that those 7 years were wasted, and I would tend to think that that is not the case. The previous speaker indicated that we will be back in the House tweaking the criminal law over the next few years—that has always been the case, rightly or wrongly—but I do not believe for a moment that the Minister of Justice, Simon Power, has been sitting on his hands or is responding with knee-jerk reactions to matters that have only recently come to the notice of Parliament.

This particular legislation seeks to right four situations that have needed some dealing to for some time. Excessive delay: for example, the median time to dispose of a High Court jury trial is about 16 months, which is an increase of approximately 5 months in the last 5 years. Anybody who has been working within the justice sector and who has been awake will have seen that this has become progressively worse over that time and has been entirely foreseeable. Although some steps have been taken, it is time to do something to speed up that process.

Excessive complexity: for example, the main laws for criminal procedure—the Summary Proceedings Act 1957 and Parts 12 and 13 of the Crimes Act 1961—have been amended numerous times over 50 years, resulting in what has been described as an impenetrable maze for most non-lawyers. That impenetrable maze has existed over a long period of time, a period of time when the previous speaker was in Government and was not without some influence within that Government.

The outdated legislative framework: for example, the current provisions were drafted on the assumption of a paper-based system, creating barriers to the use of modern technology. It has been a sad thing to sit and see that the use of modern technology, as far as filing procedures and the monitoring of proceedings go, has been lagging behind significantly over the past years, bearing in mind the extent to which parties bringing proceedings to court rely on information technology in the preparation of those cases and those matters.

Finally, the legislation seeks to deal with excessive cost. For example, it is estimated there are approximately 43,000 unnecessary court appearances a year in the criminal jurisdiction and that more than two-thirds of cases that reach a defended hearing fail to proceed on the day. I agree with the previous speaker that a number of things need fixing within the system and that there are some things that need fixing within the judicial system but are not accounted for within this legislation. I certainly agree that the wider concerns of the criminal justice system in this country extend beyond criminal procedure and into areas that are considered the drivers of crime, but I note that this Minister was the only one who even attempted to address the drivers of crime as an issue and as a cross-portfolio response to what brings people before the court, and what fails in the areas of health, welfare, education, and law and order.

I am pleased to support this legislation and I commend it to the House, noting the broad support that the legislation has across the House. I look forward to its passage into our law in the very near future. Thank you.

BeaumontCAROL BEAUMONT (Labour) Link to this

I rise to speak on the third readings of the 15 bills that were divided from the Criminal Procedure (Reform and Modernisation) Bill in the Committee of the whole House. I will follow on from the comments of my colleague Charles Chauvel, who played a very important role in getting this legislation to the point it is at now, where it has the ability to pass through the House with reasonably broad support. I will also comment on the wider implications.

But before I get into that matter, I say that the legislation was an attempt to overhaul criminal procedure in New Zealand, and it is the legislative result of the Criminal Procedure (Simplification) Project, which was established in October 2007 by Labour to review criminal procedure in New Zealand, and was undertaken by the Ministry of Justice in collaboration with the Law Commission. I make that point to a couple of members opposite who said that Labour had not done anything about this issue. We actually set in place a process to do precisely this.

The Labour Opposition voted for the referral of the Criminal Procedure (Reform and Modernisation) Bill to the Justice and Electoral Committee. I was a member of that select committee. We gave careful consideration to this very large bill of 526 pages. The select committee received 72 submissions and heard 35. Many of those submissions were very technical and detailed, and were made by practitioners who were very, very concerned about some of the human rights implications and about some of the changes that would have denied those defending themselves the right to justice. So we heard some very serious submissions in the course of hearings on this bill.

The bill then was stalled, really, because a number of parties in the House—Labour, Māori, ACT, and the Greens—were all concerned about features of the bill, and those real threats to people’s rights to justice and a fair trial. I have to put all of that on the record, but just before I move off the process we went through I acknowledge, as I have done earlier, the work of officials, my fellow select committee members, and, indeed, the chair and the Minister of Justice. We have reached this point because the Minister finally listened to those concerns. As my colleague Charles Chauvel said, that was probably a political reality for the Minister: he had to listen because there were such significant concerns. But at least he has done that—he has considered those objections—and we now are in a situation of being able to support this legislation. They were serious objections around issues like jury thresholds and proceeding in the absence of the defendant, which were changed during the Committee stage of the legislation.

The Minister talks about a careful balance, and that of course is very, very important in anything to do with criminal procedure. We are balancing the quality of justice and the right to justice for defendants with the rights of victims. None of us benefits from undue delay in the process. None of us benefits if the system is outdated, unwieldy, or overly costly. It is important to get the balance right; certainly, the legislation is more balanced than it was. That is a positive thing.

It is disappointing that the Supplementary Order Papers put up in the name of my colleague Charles Chauvel were not picked up by the Government. I think that is a real mistake. Some of those amendments were very, very sensible provisions, codifying or formalising the processes around sentencing indications, for example. Why would we not do that? I do not understand why not.

The reality is that there is more to do, and there is no doubt that this House, probably sooner rather than later, will be doing more work around the criminal justice system. There are a number of reasons for that, because there still remains outdated legislation. There will always be the need for amendments that result from changes in society or changes in technology. One of the things we grappled with in the select committee and really did not get sorted was the whole issue of name suppression and the internet, and who was accountable and liable for that issue. We have not nailed that. If we are honest, we will have to deal with that issue in the future.

More important, the reasons that Charles Chauvel gave are the reasons that we will be dealing with this matter again sooner rather than later. The issue of crime is complex and has a number of dimensions to it, and we must deal with the whole issue. A number of submitters made that point. We have to look at these things in context, and clearly looking at the drivers or causes of crime is a fundamental part of criminal justice reform. We need somebody with a real reforming zeal in this area, and I hope that in the future that person will be my colleague Charles Chauvel. It is really important that we address these issues.

Recently, I had the experience of visiting Arohata Women’s Prison with Charles Chauvel, and it was very, very informative. I had not been to a prison before. We were able to speak with a number of the women in the prison, and the issues of the context in which crime happens and what we need to do were very clear to me. Many of the women there talked about the violence that they had suffered. Many of the women there have alcohol and other addictions. Fortunately, they can deal with them at Arohata Women’s Prison, unlike the other two women’s prisons in New Zealand. There are no drug and alcohol treatment facilities in Auckland and Christchurch, but at Arohata Women’s Prison there are, and many of the prisoners were dealing with those addictions.

When we talked with them about what would make a difference when they had served their sentences, we found it was things like being able to get a job, lift their skill levels, see a future for themselves, and get on a different course. Those are things that this Government is performing very, very badly on. This Government has not focused on jobs, has not focused on an economic plan that delivers jobs for New Zealanders, and has not addressed the issues of skills and lifelong learning opportunities—the sorts of things that would make a difference to those women in Arohata Women’s Prison.

We need to look at the criminal justice system from one end to the other. I absolutely concur with Charles Chauvel on that point. This bill, of course, will make some positive changes, will save money and time, and will therefore have benefits for all of those involved in the criminal justice system. But it is one piece, and it is probably the wrong piece to have started on. I leave my comments there.

GrahamDr KENNEDY GRAHAM (Green) Link to this

We have come to the end of a long road with the third reading of this legislation. Both in the second reading and in the Committee stage I paid tribute to the Minister of Justice, the Hon Simon Power, for his achievement with this legislation, and I shall not repeat myself here. Suffice it to note that the impending adoption of this legislation is generally recognised as a seminal moment in New Zealand’s judicial legislation, the kind that occurs every half-century or so.

The legislation has ploughed a tortuous path, and no greater convulsions have occurred than those in the last 2 weeks. The changes made recently have resulted in new-found support from three parties—Labour, the Māori Party, and ACT—and the legislation is about to pass. The only question now is whether it passes unanimously or by majority. Unanimity on important legislation is desirable, and in the Committee stage the hope was expressed that the Green Party would support it, a hope expressed not only by the Minister but also by the Green Party.

In the Committee stage we moved amendments on three issues. The first two addressed the absence of a defendant in court, and procedural non-compliance. These were narrowly defeated, but neither was a sticking point for us. That left the jury trial threshold, where we proposed an amendment that would retain the 3-month threshold for the right to trial by jury, rather than the proposed change to 2 years. We had indicated that the Green Party would not compromise on that, yet our proposed amendment was also narrowly defeated.

The Minister appealed to us to drop our insistence on this issue and join the other parties in supporting the bill. Should we do so at this late stage? Those favouring the change include not only the Government but also the principal legal bodies in this land, the Law Commission, the District Court judges, and the Law Society, yet those against it include the Criminal Bar Association, the community law centres, and the Human Rights Commission, so I trust that the Minister will concede that the issue is neither simple nor straightforward, but complex and finely balanced.

The central argument for raising the threshold is judicial efficiency. The low threshold, it is contended, causes three problems in particular. The sheer number of jury trials causes unjustifiable delays, is expensive, and inconveniences jurors. The Government believes the 3-month threshold is so low as to have had a profoundly negative effect on the conduct of criminal litigation in this country, causing serious delays in the criminal justice system. Such delays may in themselves raise concerns about access to justice. The Minister argued in the Committee last week that justice delayed was justice denied. So the issue revolves round the tension between efficiency and fairness. Is the right to elect trial by jury a matter of constitutionality or of convention, and if it is purely convention, should it none the less still be retained?

Trial by jury is not a universal right. New Zealand will not be breaching its international obligations under the International Covenant on Civil and Political Rights by raising the threshold, because the right to a jury trial itself is not recognised. The universal right is to a fair trial, not the mechanism by which that goal is attained. The civil law system, for example, does not provide for trial by jury, and it represents perhaps half of the judicial system of the world. The British Human Rights Act has no express provision for the right to a jury trial because the European Convention on Human Rights makes no mention of jury trials. In the common law system, of which New Zealand is a part, the precise threshold varies from 3 months in New Zealand to 5 years in Canada. The issue is not one of non-derogable human right or of constitutionality in New Zealand, but rather one of national judgment.

In a ruling just last year a New Zealand judge observed that there seemed to be nothing particularly sacrosanct about 3 months. So why should we not raise the threshold? It is a question of whom we have in mind when we make that decision—the stronger elements in society, or the weaker. It is where law and morality intersect. Justice delayed may, as the Minister points out, be justice denied, but justice unduly sped up may, as the select committee chairman points out, be no justice at all. It was the moral philosopher John Rawls, who, in his seminal work, A Theory of Justice, argued that social arrangements are to be evaluated from the standpoint of the worst-off in a society. In the case of criminal justice that is the defendant, along with the victim, and a balance must be struck between those two. If a legal perspective promotes efficiency, a human rights perspective protects the vulnerable.

This is a matter that the Green Party takes to be of fundamental moral concern—the relationship, perhaps, between jurisprudence and natural justice. The English jurist Lord Devlin once observed that 12 commonplace minds may reach a sounder solution than two or three brilliant ones. Juries bring a plurality of ethnic, gender, and socio-economic composition into the judicial system. In New Zealand the lack of such diversity within the judiciary makes a jury more important than elsewhere. It was Denning who, separately, observed that trial by jury has been the bulwark of English liberties for too long for anyone to seek to alter it. “Whenever a person is on trial for serious crime …”, he concluded, “trial by jury has no equal.” The right to trial by jury is seen as providing a safeguard against the arbitrary or oppressive enforcement of the law by Government. It is commonplace that when jurors perceive a prosecution to have oppressive characteristics, they are likely to acquit. The jury is seen as standing between the accused and the State, in a way that judges, who are sworn to apply the law, are not always seen to do.

Although it is not a universal human right, the idea of trial by jury in New Zealand is, unlike in the UK, explicit in our New Zealand Bill of Rights Act. In other words, we judged it 21 years ago to be a national human right. That Act is as close as this country gets to enshrining a constitutional right. It is only our fabled No. 8 fencing wire preference to trust ourselves rather than entrenched principle that keeps such rights in the vulnerable realm of parliamentary legislation. How easy is it for the executive in a unicameral Westminster system that has no codified constitution to enter the arena and trample upon those rights? Raising the threshold to 2 years will require altering the Act. This has been done once before, but this new amendment would limit a citizen’s right for the first time.

Are we sure that we wish to do this, simply to speed up trials and cut costs? We have examined the crimes within the 3-month to 2-year bracket. They include serious offences where the right to a jury trial should be available. Charges within that bracket can include those with some political colouration. We need only cite Waihopai and Urewera on the one hand, and the foreshore and seabed on the other, to see the extent to which politics can invade the judicial terrain. Judges, by their nature, temperament, and training, are less likely to empathise with or even comprehend the political-moral basis of civil protest than the plain folk who compose a jury. The bracket can also include defendants on a second or third charge, for whom a jury trial may prove more critical in terms of natural justice than a summary proceeding.

So if, as the Government argues, the matter of raising the jury trial threshold is not one of universal human rights but rather one of national political judgment, the Green Party contends that such judgment should favour natural justice rather than State efficiency. It should sanction the rights of the defence rather than strengthen those of the prosecution. It should respect the conscience call to civil disobedience rather than promote the power of the State. It should protect the weak rather than empower the powerful.

This legislation that is about to be adopted will amend the New Zealand Bill of Rights Act and diminish the current right of a New Zealander to elect trial by jury. For that reason, and that reason alone, the Green Party will vote against it.

BoscawenHon JOHN BOSCAWEN (Leader—ACT) Link to this

It is a privilege to stand up and take a call on the 15 bills that have come out of the Criminal Procedure (Reform and Modernisation) Bill. It is particularly a privilege for me because I suspect that this week will be my last week in this debating chamber as a member of Parliament, and there are probably few examples of my being so proud of legislation as this one.

The ACT Party plays a vital role in this House. Above all else, we have contributed to stable Government over the last 3 years. We have supported National in all of its major legislative initiatives in its legislative programme, but where necessary we have held National to account. There can be no better examples of that than both the Criminal Procedure (Reform and Modernisation) Bill and the video surveillance bill. Both bills have been before members particularly over the last 2 or 3 weeks, and of course the surveillance legislation is coming up in the House later this week under urgency.

The criminal procedure legislation comes before the House with major changes, and those changes would not have occurred without ACT’s involvement. In fact, it is the actions of the five ACT MPs in unison that have driven those changes. I will come back later to the comments of Mr Chauvel, which I want to respond to, but the public of New Zealand should be in no doubt whatsoever that the changes to this legislation are due to the actions of the five ACT MPs, who universally stood against this legislation in the form in which it came back from the select committee. Without doubt, had we agreed to those changes, this legislation would have been passed in the format agreed to by the select committee and by the National majority, but in a format that was substantially different in substance from the legislation before this House today.

Without doubt, the most significant of those changes is the change that truly upholds the right to silence.

BridgesSimon Bridges Link to this

You’ve got the right to silence, John.

BoscawenHon JOHN BOSCAWEN Link to this

That is right—upholding the right to silence. It is interesting to hear the comments or the interjections of Mr Simon Bridges, and I will come back to his comments in earlier readings of this legislation. Without doubt, the bill as originally reported back would have severely curtailed that right to silence—

BridgesSimon Bridges Link to this

No, it wouldn’t; you know that’s not true.

BoscawenHon JOHN BOSCAWEN Link to this

—which is a breach of a major constitutional provision. If Mr Bridges does not accept that, it shows, sadly, that he did not actually understand what was in the bill when it was originally reported back. The bill as reported back required defendants, persons charged with a criminal offence, to identify which part of the Crown’s case against them they did not agree with. Defendants would have been required to tell the police and the Crown counsel what parts of the evidence against them they did not agree with. If a defendant had failed to do that, the court would have been able to draw an adverse inference. A judge could have found a person guilty when he or she might not otherwise have found that person guilty. The fact is that by requiring a defendant to identify the so-called issues in dispute, the prosecution would have been allowed to fashion the evidence, to train witnesses, to tell witnesses where the cross-examination questions would come from, and to train witnesses in how better to answer the questions put to them by the counsel for the defendant.

As the Green Party speaker Kennedy Graham has just acknowledged, we need to be very careful to protect the weak, because we need to acknowledge the substantial difference between the resources and power of someone charged with a criminal offence and the resources and power of the State to bring charges against them. The ACT Party was asked to support the bill as was originally reported back, which would have required a defendant to indentify to the police the issues in the police case that they disagreed with. That would then have allowed the police to train witnesses on how better to fashion their evidence. We insisted that that provision be taken out, and the legislation comes back into the House this afternoon with that provision taken out. So the right of ordinary people to stand up to defend themselves and to be proved guilty beyond all reasonable doubt—that major constitutional principle—remains.

The Minister identified some additional changes that the ACT Party was also instrumental in achieving, and I acknowledge Mr Chauvel and his minority report. It is a fact that when the bill originally came back it would have enabled the Crown to deny a person a jury trial if that person had been charged with a criminal offence that carried a sentence in prison of 3 years or less. The ACT Party insisted that that term be dropped back from 3 years to 2 years. In this particular instance I refer to the submission of Family First. One of the things I have been able to do in my 3 years in Parliament has been to present a member’s bill that tried to implement a compromise on the so-called smacking legislation that this House looked at in its previous term. Family First and I have been absolutely unrelenting in our determination that that legislation be repealed, or certainly amended. Family First said in its submission on the criminal procedure legislation that certain charges—for example, a charge of a man assaulting a female or a parent assaulting a child—would carry a maximum prison sentence of 2 years in prison. Under the bill as it was originally reported back by the select committee, a parent charged with smacking his or her child—charged with assault—would not have been entitled to elect a jury trial. One of the benefits of the changes that we have made is to allow a parent charged with smacking his or her child to be tried by their peers.

I think that this Parliament and the people of New Zealand owe a huge debt to organisations such as Family First and to the various other lobby groups that stand up for the rights of New Zealanders and take an interest in civil society. Those different lobby groups represent all sides of the political spectrum, from the left to the right. Although individual members of this House may not particularly agree with the submission of one particular organisation or another, we should acknowledge the work those organisations do, and Family First is an example of one of those organisations.

This legislation has also received submissions from a number of other organisations—particularly, as we would expect, from organisations associated with the legal fraternity. We have had multiple and additional submissions from the New Zealand Law Society, the Criminal Bar Association—certainly its Wellington branch—and various barristers, and no less a person than the Chief Justice made a submission on this legislation. But I would like to acknowledge three barristers who I think have done more than anyone else in this country to bring to politicians’ attention the issues associated with this bill. I again acknowledge Patrick Winkler and his assistant, Samira Taghavi, and Roderick Mulgan.

BoscawenHon JOHN BOSCAWEN Link to this

I would like to record in Hansard that Mr Chauvel is agreeing with me. We have been lobbied by those people. We have been lobbied to do the right thing, and that has been at big personal cost in terms of money and time.

Mr Chauvel commented on the fact that the ACT Party was late in coming to the argument, that the Minister of Justice did not have the numbers, or that the Minister lost the numbers. Well, the blunt reality is that the Minister never had the numbers. The ACT Party supported this legislation at the first reading so that it could go to the select committee, as we do with most legislation, because we wanted the people of New Zealand to have the right to submit on this legislation. We do not actually have a representative on the Justice and Electoral Committee. When we saw the implications of this legislation to a person, our ACT caucus was absolutely united against it.

We are very pleased that this legislation comes back before this House with major changes not just to the jury provision, in respect of having to identify issues in dispute, but also to the imposing of court orders and to clause 376, which would have increased the threshold for getting a new trial from previously a “miscarriage of justice” to a “substantial miscarriage of justice”. The ACT Party is proud of the legislation in its current form. This legislation really highlights the vital role we play. Thank you.

KateneRAHUI KATENE (Māori Party—Te Tai Tonga) Link to this

I am very pleased to be standing in the third reading debate on Criminal Procedure Bill, one of the bills arising from the Criminal Procedure (Reform and Modernisation) Bill. It is such great timing to be considering the concept of reform and modernisation of the criminal justice system. Just last weekend, my colleague Dr Pita Sharples gave a ground-breaking speech on this subject. He brought the attention of the nation to the fact that the justice system, including the police, courts, and corrections, systematically discriminates against Māori.

Although that is an undisputed fact made by authorities no less than the Ombudsman Mel Smith, former Police Commissioner Peter Doone, veteran Māori legal authority Moana Jackson, or the head of Rethinking Crime and Punishment, Kim Workman of Ngāti Kahungunu, I do want to reassert the context from which we would hope any review of criminal procedures might benefit, and this is the situation by which Māori offenders are more likely to have police contact, to be charged, to lack legal representation, to not be granted bail, to plead guilty, to be convicted, to be sentenced to non-monetary penalties, or to be denied release to home detention.

For the same crimes, Māori are arrested at three times the rate of non-Māori. Māori are four to five times more likely to be apprehended, prosecuted, and convicted than their non-Māori counterparts. In the case of Māori aged 10 to 13, this is six times more likely. Māori are seven times more likely to be given a custodial sentence, and 11 times more likely to be remanded in custody awaiting trial. It is hardly breaking news that for most Māori justice in New Zealand is not positive; it is a system that is unfair, biased, and flawed with ongoing and consistent prejudice.

What we need, therefore, as indeed the police admitted yesterday, is a focus on crime prevention and innovative approaches to policing. New Zealand needs fresh approaches to reducing the impacts of offending on our communities, and we hope that this bill can help to reduce the stress upon families who find themselves presented in the justice system. Our review of the criminal justice system will investigate and analyse the facts as the basis for better policy.

In the course of our consultations with Minister Power about the legislation, we came to the realisation that should we successfully achieve the amendments we sought, there could be much in this bill that might assist our review. We support the concept of promoting discussions between parties to reduce adjournments and have shorter hearings. We endorse also the proposal that guilty pleas be entered as early as possible to help avoid delay.

I want to bring to this debate an example that was sent into us following our comments about the need for a review of the criminal justice system. We received an email reflecting on the comments of a retiring judge interviewed on Radio New Zealand National about 2 or 3 years ago. One of the questions the judge was asked was whether he had any regrets. His reply was that he did. He was sad about one thing. He said that Māori coming before him were usually very honest and always admitted to what they had done. When somebody admits to breaking the law, they are not entitled to a defence; they just turn up to be sentenced.

On the other hand, when a person states that they are not guilty, they are then entitled to defend themselves, and with a good lawyer they may well get off. The correspondent put it very simply and I quote from her email: “But, isn’t lying fraudulent? So, you commit a crime, go to Court, swear an oath on the Bible to tell the truth etc etc and when asked ‘How do you plead?’ you reply ‘Not guilty.’! So after swearing to tell the truth, you lie and get entitled to a defense! Something is not right here!”. It is a very interesting question and, unfortunately, I am not convinced that this bill provides us with an answer other than whatever process is followed, it will be more efficient.

That said, I do want to acknowledge the Minister for his commitment to working alongside us in order to achieve our support for this bill. It does most certainly not provide all the answers—hence our call to conduct a systematic review of ethnic bias in the criminal justice system—but it does provide some immediate responses to improve the system, and for that we are happy to provide our support.

We are particularly pleased with the decision to limit the discretion of the court to proceed to only procedural hearings in the absence of the defendant—that is, hearings where determinations of guilt or innocence will not be made. As the Attorney-General himself admitted, this clause was formerly inconsistent with the rights affirmed by section 25(e) in the New Zealand Bill of Rights Act—that is, that everyone charged with an offence has the right to be present at the trial and to present a defence.

We were very pleased with the compromise position of the Minister on the reduction in the threshold for the right of a jury trial from 3 years to 2 years. We fully accept that there will be some people who feel that justice has not been served and may feel vulnerable having a sole judge grant the power of a prison sentence. David Mathias, in his submission to the Justice and Electoral Committee, specifically referred to this provision, noting: “the right to jury trial is important for reasons based in fundamental community values and the bill should reflect public views.” Accordingly the Minister agreed to set the jury trial threshold at 2 years and to remove the exceptional circumstances put forward earlier.

Another issue of concern for the Māori Party was the clause described as the loss of the right to silence. This was the court requirement that the defence disclose, before trial, issues in dispute. We welcome the decision by the Minister to remove those provisions from the bill.

I return to the context in which this bill is located. No one can ignore that there are real issues that need to be addressed when we look at Māori overrepresentation, particularly in our prisons. Ninety percent of prisoners have significant literacy issues, and 90 percent have drug and alcohol issues. The Māori Party review is not an attack on the justice system; it is a search for a better way to achieve justice. We believe that a constructive platform has been established by this new, reformed, Criminal Procedure Bill, and we are looking for a brave Government to go even further and investigate the long-held concerns around ethnic profiling and institutional racism across all levels of the justice system.

I want to finish with one simple statement that every member of the Māori Party immediately could relate to, because it is simply one of those accepted realities of the everyday life of being Māori. Kim Workman, director of Rethinking Crime and Punishment, has said that this is not a new issue. In fact, he referred to a 2009 study by the Ministry of Justice that showed that Māori overrepresentation had reached an alarming level not only with police apprehensions but elsewhere in the system. He shared an example, which was: “when the Pakeha passengers of a Maori youth won’t let him drive his own car, because they keep getting stopped by the police, there is something seriously wrong.”

Believe it or not, this is an ongoing reality in our lives, in the lives of our children and our mokopuna`, and it reflects a criminal justice system in which decisions are made on factors other than evidence of a crime being committed. A truly reformed and modernised criminal procedure bill would look seriously at situations such as those and devise solutions to achieve a system of justice that is fair to all.

BridgesSIMON BRIDGES (National—Tauranga) Link to this

It has been good to listen to speeches in the House on this legislation. I particularly enjoyed listening to my friend Kennedy Graham from the Green Party, who gave us a learned exposition of many—

Hon Member

Dissertation.

BridgesSIMON BRIDGES Link to this

—a dissertation of many theories of law. In particular, he treated us to a view on John Rawls, one of the 20th century’s greatest jurists and political philosophers, and his theory of justice. But given that Kennedy Graham will be voting against this legislation, I wonder whether he is, none the less, under what we would call a Rawlsian veil of ignorance.

Be that as it may, it is good to speak on this legislation. It is the result, really, of a consensus on criminal procedure from the Law Commission, from the justice department, and from various other bodies that the status quo could not stand. There have been for some time—and it has been getting worse—excessive delays, costs, and complexities within our justice system, and particularly our jury trial system, that need to be remedied.

One point I want to make at the outset is that no one particular change in the legislation—although not all the changes are equal; some are much more significant than others—makes the difference. Really, it is the total package viewed holistically, I suppose, that makes the difference and that will, I am confident, make great reductions to the delays, the costs, and the complexities that courts, the victims of crime, and the accused currently labour under.

I talked in the second reading debate about the issues around the jury threshold and about this so-called—I think wrongly called—attack on the right to silence, which is not in this legislation. I want to just—

BoscawenHon John Boscawen Link to this

It’s been taken out, Simon.

BridgesSIMON BRIDGES Link to this

That is what I said. That is why I said it is not in this legislation, I say to Mr Boscawen.

Today I want to talk about just a couple of other provisions that I think are pretty significant. Sentence indication hearings are contained within clauses 58 to 63 of the Criminal Procedure Bill. Effectively, what we see in the bill, which I hope will soon be law, is a codification of existing practice. An accused—a defendant—can come to court and can ask for, if you like, a mock sentencing to see where they would be if they pleaded guilty. Some in the legal profession have been squeamish about this, because in a sense it is having one’s cake and eating it too. It is saying to the outside world: “I am innocent of this; I am not guilty.”, but on the inside, because of the fact that the sentencing indication hearing is suppressed, it is saying: “But I would like to just see, because I am not very confident.”

Nevertheless, pragmatically speaking, economically speaking, and in terms of saving time, I think we have a very good set of provisions here. Judges, under clause 58, will be able to say the type of sentence; it may be home detention or imprisonment. They can go further than the existing practice by saying that they also think the sentence will be, say, 2 to 2½ years—giving the length and so on. Only defendants can request the sentence indication hearing, which of course makes sense because it is for their benefit.

I think another important provision is the fact that a court will need to have before it a minimum of information: the summary of facts, previous convictions, and victim impact statements. As has been the previous practice, there will not necessarily be probation service reports and psychological and psychiatric reports. That may mean that a sentence indicated at a hearing may change somewhat at the real sentencing because on certain occasions those reports can make a difference. Nevertheless, that is a very worthy part of this legislation. It is just a small part, but it gives a flavour of what this legislation does.

The other aspect of this legislation I wanted to highlight very briefly is the trial call-over memorandum that is now to be handed in by both prosecuting and defence counsel. That, again, is a codification of a practice that has been happening around much of the country. It also will save a lot of time. It makes it clear to both sides from the get-go what their positions are, what witnesses they are calling, what pre-trial applications they will be making, and the like. That brings a lot of certainty and it will reduce the costs, the complexities, and the delays we have seen in criminal courts. That gives just a flavour of two small parts of very hefty legislation that Minister Power and the Justice and Electoral Committee should be rightly proud of.

ChadwickHon STEVE CHADWICK (Labour) Link to this

I am not an expert on criminal justice, but it is quite good to get a perspective from across the House. The procedure began—and I have heard members attributing this legislation before the House today to Minister Simon Power, but I will take members back—with the Law Commission report in 2004 about delivering justice for all. That was the instigator for this change to a very complex legal construct. It was Labour, actually, and the previous Minister of Justice in 2007, that began this process of agreeing on the one hand that there was a need to reform criminal justice procedure and went about the drafting of this legislation. Sadly, this resulted in a huge bill, the Criminal Procedure (Reform and Modernisation) Bill, which, as members alluded to, was 526 pages. It was very complex. It was considered by the Justice and Electoral Committee. I understand that that was a very diligent process, which was led by Chester Borrows.

I have heard different individuals in the House today talk about who attributes the success and the outcome of this legislation to whom. I do not think that that is the issue; I think that the issue is one for all New Zealanders to have faith in the system and to believe that the system will work for them; that it is transparent and that it is fair as they go through the criminal justice procedure. Most non-lawyers would agree with the Law Commission. It said that the court system is an impenetrable maze for most non-lawyers. It is perplexing to us all.

I acknowledge today in the House that I enjoyed hearing John Boscawen. It was probably his last speech in the House. He is a man of principle. We do not always agree, but, boy, does he fight for his principles. That is something we as lawmakers like to see in the House.

It is sad to hear that this legislation got a bit bogged down. It got bogged down because of the minor parties, and this is the strength of an MMP Parliament. The minor parties actually said that there were aspects to this legislation that they found simply unacceptable. They held out on that. I acknowledge Charles Chauvel. He held out and said that we needed to look at changing the threshold for jury trials, defence disclosures, proceeding in a defendant’s absence, and compliance cost orders. So, well done to the minor parties that took on a reformist Minister who is being seen as rather overzealous by members of the legal profession, who have really got the ta-tas about the pace of reform they have had to face. I congratulate the minor parties on taking on the Minister.

Also we are really pleased that after the select committee process the Minister did listen to Labour’s concerns. We wanted to see one aspect of this legislation changed that was not changed, which was greater certainty for sentencing provisions. What a pity that the Minister chose to ignore a member like Charles Chauvel who has a deeply critical analytical legal brain. We could have made a much more enduring piece of legislation. I noticed that Jonathan Temm, who resides in Rotorua and is doing a wonderful job, has said that we will be back in the House very soon to relook at this.

I think that is because it has not been done in a cross-party, considered approach. Even though Chester Borrows talked about the drivers of crime, and Minister Power has attempted to look at the drivers of crime, I remember the Hon Lianne Dalziel having to ask whether she could participate in that process. We in Labour felt, just as we had felt about domestic violence, family violence, and sexual abuse against women, that the legislation would be much more enduring if all parties agreed. We had to invite ourselves into that workshop on the drivers of crime. They have had a good relationship ever since.

We are supporting this legislation now in the third reading debate because of the process that was followed at our and the minor parties’ request. I hope we will see here that this restores confidence to a very complex and often perplexing issue of access to criminal justice in a fair way for all New Zealanders. Thank you.

AdamsAMY ADAMS (National—Selwyn) Link to this

I am very happy to take a brief call this afternoon on the legislation arising from the Criminal Procedure (Reform and Modernisation) Bill. It has been interesting to listen to the debate this afternoon in the House, as it was interesting to come in at the tail end of the select committee process when I joined the Justice and Electoral Committee.

Across the House this afternoon there has been a little bit of a battle about who is responsible for what. Everyone is now trying to claim ownership, but I think the thing that matters to the people who use the justice system is that we are now taking steps to make it easier for people who find themselves in the justice system through no fault of their own. The Minister of Police made it quite clear this afternoon that her priority with legislation, as it is for the Minister of Justice and for all of this Government, is, first and foremost, to look after the victims of crime.

I did not practise in the area of criminal law, other than some brief forays, but I can tell members that from my experience with clients who have had experience in that field, one of the most horrific aspects of the justice system for the victims involved in it is the sheer delays and the fact that the crime lives in their head and owns their life for month after month after month. It is not enough that whatever wrong it is that they are dealing with was done to them, but to have such delays consequently in their heads without being able to get closure for such a long period of time is, quite simply, unacceptable.

As the Minister of Justice pointed out in his opening remarks, it has been over 50 years now since a Government has sat down and had a ground-up review of how our criminal justice system works. It is long overdue, and the answer has never been to keep throwing money at a broken system, to build more courthouses, and to try to pump the cases through faster.

There needs to be a comprehensive look—and there now has been—at how the system works and where we can get that delay, complexity, and cost to all parties out of the system; at what parts of the procedure are fundamentally important to the proper carriage of justice; and at what parts can be rethought. That is what this legislation does. It is a comprehensive piece of work and it sits alongside our other key initiatives in the area, looking at things like the drivers of crime. They are things that I think we can all be proud and have resulted in the reduction of crime across the country in the last year by more than 7 percent, and in my own region of Canterbury a reduction of nearly 15 percent. That is a significant improvement, which means that all New Zealanders can feel safer in their homes and safer in their communities. That is, in large part, due to the work of our police, due to the fact that we have given them the tools that they need to get on with their work, and due to the fact that this House has supported them and put in place a framework that makes it quite clear that we have no time for criminals and those who seek to destroy our lives, but we will do whatever we can to support victims.

Similarly, the offender levy, which was put in place by this Government, has required criminals to pay to help victims in their process through the courts. That has been staggeringly successful. It was derided by the Opposition as being meaningless when it was put before this House. The reality is that it has far outstripped expectations. With the passage of this legislation we are taking another step in making our justice system fairer for the victims, fairer for those who are involved through no fault of their own, and fairer for the taxpayer. I am very happy to commend it to the House.

BarkerHon RICK BARKER (Labour) Link to this

I rise to speak on the third reading of the legislation arising from the Criminal Procedure (Reform and Modernisation) Bill in the name of the Hon Simon Power, and to note to the House that the list of legislation arising from this one bill covers the length of a whole page of the Order Paper. That is one indication of the complexity of this legislation. The second thing is that some of the Acts being amended are from as long ago as 1947. These are old statutes, and this legislation is all-encompassing to help improve the administration of justice.

I am happy to claim some responsibility for this legislation. As a former Minister for Courts I could see that the lines of people going through the court system were getting longer and longer. Despite the fact that we were appointing more judges and building more courts, the lines were not diminishing at all. The reason for this was that our criminal justice procedure, the administration of justice, was out of date. It was unnecessarily complicated and difficult. What should happen is that a person should be charged, they should appear before the court the day after or 2 days after they have been charged, and they should know what the charges are. The only other time they should go back to court is when the trial begins. That was not the case. There were all sorts of hearings, sub-hearings, call-overs, and other procedures that had to be undertaken. It was a paper-based system that was unnecessarily complex and unnecessarily bureaucratic.

If we are to improve the administration of justice, the statutes that underpin the administration of justice need to be updated. It is a substantial task, and anybody who cares to look down the list of bills that are being amended will see that it is a very complex task. It had been started before on a number of occasions, the Law Commission had written reports on it, and when I came across it when I was Minister for Courts it had simply fallen into abeyance because it was too difficult. But with the pressure on our courts system I gave it a nudge, and I am very pleased to see that the Hon Simon Power has completed the work.

Yes, people have made comments about the need for cross-party support in this, and I agree with them, but this Parliament needs to get its head around the fact that it cannot afford to allow statutes to sit for 60 years virtually unamended and then expect that the systems that are administered by 60-year-old legislation will keep pace with the changes in expectations within our society. This Parliament will have to be seized with the notion that it has a responsibility to constantly update the administration of justice and the legislation that underpins it, even if it is difficult, complex, and hard. If we continue to allow the administration of justice to languish unattended and unamended for a long time, it will fall into disrepute in the public’s mind, as the system of justice did because of the way this Parliament had ignored its responsibilities.

There are many controversial things in this legislation that others have canvassed, and I do not intend to do that, but I want to leave on the record a simple point that it is Parliament’s responsibility to update the administration of justice. Yes, it is legislation that is initiated by the executive, but select committees can do their work in this area, and the Justice and Electoral Committee and the Law and Order Committee can put pressure on administrations now and in the future to have these pieces of legislation updated. It is as much Parliament’s responsibility as it is the executive’s. It is a role that should include the judges, the judiciary, and people who are expert in the administration of justice such as court registrars, people who are at the Bar, and lawyers who use it. It should include all groups, including parliamentarians, so that we get a general consensus on what needs to be done to improve the administration of justice, because if justice is not administered properly, fairly, and efficiently, it will fall into disrepute, and the decisions that are therefore administered from that will be in disrepute as well. This is Parliament’s responsibility, and I am pleased to see that it has taken it seriously on this occasion. I commend this legislation to the House.

BakshiKANWALJIT SINGH BAKSHI (National) Link to this

I stand to support the third reading of the legislation arising from Criminal Procedure (Reform and Modernisation) Bill. This legislation will be a big step in reforming criminal procedure, thus reducing unnecessary delays and inefficiencies in court processes, thereby avoiding unnecessary stress to the victims and those who find themselves there through no fault of their own. I congratulate the Minister of Justice, the Hon Simon Power, on his achievements on this longstanding issue.

This legislation also has approval to permit the courts to proceed in the absence of the defendant if the court is not satisfied that the defendant has a reasonable excuse for his or her absence. Another important change to the issue of name suppression is the replacement of the current broad discretion for granting name suppression with more clarity and defined grounds on which evidence and name can be suppressed.

Justice delayed is justice denied. There are presently excessive delays in the court system. Making time to dispose of a High Court jury trial may take up to 16 months. This legislation will allocate cases between the High Court and District Courts more effectively and streamline pre-trial procedures.

The legislation also addresses the excessive outlay of the cost incurred. It has been estimated that there are approximately 43,000 unnecessary court appearances a year. In excess of two-thirds of these cases do not reach their hearing and fail to proceed on the first date.

We cannot continue to mask delay and inefficiencies in criminal procedures by simply building more courthouses and appointing more judges. National is committed to improving the criminal justice system and fair trials. We are confident that this legislation will achieve both of those aims. I commend the legislation to the House.