Courts and Criminal Matters Bill

I ask the Minister in the chair, Rick Barker, to look at Supplementary Order Paper 369 in the name of the Hon Rick Barker. There are proposed changes on that to the Crimes Act, which is what we have just debated in Part 1. I would be happy to entertain any changes that may be necessary there, but I think he will find that there is a Supplementary Order Paper with amendments to Part 1 and we did not vote on them.

Part 2 puts in place the information-sharing regime. There are quite considerable changes being proposed in this bill with respect to information sharing, and I have put forward a number of amendments on that. Part 2 allows the Ministry of Justice to notify other agencies that people are specified fines defaulters. Members will recall that those are the people whom the system is designed to ensnare. The Government gives the impression—as it certainly plans to give in its advertising campaign, I am sure—that people who owe fines will be stopped at the airports. In fact, the number who will be stopped is very small. It is not people who owe $5,000 worth of fines, nor is it people who owe reparation. It is people who owe $5,000 worth of fines and have an arrest warrant, and people who owe reparation of any amount and have an arrest warrant. The officials said that was about 500 people in total, according to the reports we have here.

Let me go through who will be targeted by this elaborate information-sharing regime. Originally we were advised by Ministry of Justice officials that the bill, as introduced by the Minister, would catch about 35 serious fines defaulters a year. With the changes to the bill made as a result of pressure from the Opposition, that has grown to 117 serious fines defaulters a year, and the Government expects to collect $1.5 million from them. That is one fines defaulter every 3 days. I think the Government could go a lot further than that.

The Minister has tabled Supplementary Order Paper 370 in his name, and it is quite extensive. There are very significant changes in that Supplementary Order Paper, and they have not gone before the Law and Order Committee. I want to look at the amendment to clause 7 to insert new section 280F. Those are the rules that will allow the Customs Service to supply information concerning specified fines defaulters to the Chief Executive of the Department of Labour. That, in itself, needs further explanation from the Minister. It allows the chief executive of customs to supply the Chief Executive of the Department of Labour with information about specified fines defaulters, and that information can then be passed on to the Ministry of Justice. Is that not correct? Why did the Government not put that in the original bill? It is a very obvious question. It is something new. It has not gone to the select committee, and the public has not had a chance to talk about whether customs information should be made available to the Immigration Service, which would then make it available to the Ministry of Justice.

💬 Hon Maurice Williamson: Of course it should.

We think it should, but we wonder why the public of New Zealand was not entitled to make any submissions on that provision.

We want to know why the Government would limit the amount of information about serious fines defaulters that is passed to the Chief Executive of the Department of Labour. There is no provision for any other information the Customs Service has that may identify a fines defaulter to be passed on. The Government is limiting it to a person’s name, date of birth, sex, passport number, and notice that that person is a specified fines defaulter. What if the Customs Service has any other information that may identify a person, such as an address or the name of an employer?

💬 Peter Brown: What about an IRD number?

That is dealt with later on—we will deal with that in the debate on Part 9. Why is that extra information not being allowed to be sent forward? If we are serious, as the Minister says, why do we not have a provision that all the information the Customs Service may have on a specified fines defaulter should be made available to the system, in order to locate that person? What if the Customs Service has an invoice, a packing slip, or a customs declaration that has the person’s name and address on it? Does this bill provide for the Customs Service to provide the Chief Executive of the Department of Labour with that information? No. What if the Customs Service gets some additional information at the airport that may help to identify a fines defaulter? Why will that not be passed on? We are limiting the information that can be provided to catch those people.

Thank you for the opportunity to contribute to this most important debate on the Courts and Criminal Matters Bill. Progress is slow, and understandably so, because of the turgidity and complexity of the provisions in this bill, which have so much to say and from which so much seems to be omitted that would otherwise constitute good practice.

I start by dealing with an issue that the Hon Tony Ryall dealt with touching on Supplementary Order Paper 370. I believe that the comments made by Mr Ryall warrant some reinforcement. The first comment he made was that the Supplementary Order Paper has come late in the day. That is assuredly so against the background of a bill that was introduced on 14 May 2003. It had its first reading on 19 June 2003, and then went off to the Law and Order Committee and there languished for several years. It is a wholly unsatisfactory circumstance that with all the time for mature reflection and consideration of this bill, this Supplementary Order Paper from the Government has come so late and, as Mr Ryall said, with no opportunity at all for public input on what are clearly critical matters. They are critical matters because the whole question of information and data matching is sensitive. Although a robust attitude should be taken toward such issues when we are talking about the evasion of the criminal law, nevertheless care is also required.

The Supplementary Order Paper, as it deals with this part, makes some changes of particular relevance. The explanatory note to the Supplementary Order Paper states: “The amendments to clause 7 relate to a sub-category of serious fines defaulters (referred to as “specified fines defaulters”) who are likely to be intercepted at an airport or a seaport in relation to their unpaid fines. These are persons who owe $5,000 or more in unpaid fines (not including infringement fines) or any amount of reparation, and for whom there is a warrant to arrest. There is provision for the amount of $5,000 to be changed by Order in Council.” I argue that that threshold of $5,000 has been set too high, and that there is an immediate justification for a lower threshold than that fixed here.

Second, the Supplementary Order Paper proposes to add new section 280F to the Customs and Excise Act. That section provides that the Chief Executive of the Customs Service may supply information concerning specified fines defaulters to the Chief Executive of the Department of Labour. There are associated amendments to clause 15 that insert new section 141AG into the Immigration Act, which members of this Parliament are all too familiar with. Those amendments authorise the Customs Service and the Immigration Service to give airlines and other carriers information about the identity of specified fines defaulters.

In the course of this Committee stage the Minister in the chair, Rick Barker, has sought—and I give him credit for this—vainly and in vain to respond to particular issues as they have arisen. One of the most interesting responses that he gave was to acknowledge in his candid and frank way that there are significant gaps in this legislation. He identified the fact that there are real issues around the administration of the infringement notices regime and that those issues would be visited in the life of this present Government. I doubt that that is so, because this is a dying Government that has only weeks to run. The chance of this Government ever tackling those significant issues is, I am sure, a forlorn and futile one.

But they are important issues, and it is in this particular part that one might have seen, given the readiness of the Government to advance at very late notice Supplementary Order Paper changes, the sort of changes that the Minister has said are clearly required. I say that it is simply unsatisfactory, when a bill has been so long in its gestation, for the Minister to say to us and to listeners that the reality is that this legislation is in some respects both incomplete and imperfect. If I may, I would like to deal with the interpretation provisions in the part, and seek that the Minister comment on certain aspects of those interpretation provisions.

It is a pleasure to follow on from my learned colleague, who has given me quite a bit of new material to use in this debate. I start by saying that in an earlier debate today on an issue that is similar, in some ways, to what is happening here—the whole issue of trying to protect New Zealand’s integrity and defence, and, now, its financial base, as it were, in terms of trying to get back the fines that people are failing to pay—a member of New Zealand First, Jim Peters, raised an interesting point. He said that a National Party member had just spoken about a red Green member, and had used the terms “hard left” and “red” in a way that is no longer relevant today, given that we are trying to enhance our trade with China and other such places that would otherwise, in a time gone by, have been described as very red. I accept that the honourable member, who is a former headmaster—a very good one, I hasten to add, and one who would, if he were to go back to that profession, earn a lot more money under National Party policy than he did in the past under the Government—is partly right. I accept that Jim Peters’ assertion is partly right. But in my comments I was trying to demonstrate the historic meaning of “red”—that is, those hard left, Russian kind of Stalinists that we seem to be debating more and more in this Parliament as we move closer and closer to the election.

Here is another example of that kind of approach. We have before us a bill that is, on the surface, quite a good idea: to get those who are not paying their fines to do so. I am led to believe that there is somewhere in the order of $600 million or more in outstanding, unpaid fines. The Government is introducing various clauses to deal with that. In particular, Part 2 gives the Customs and Excise Act 1996 a bit of a revamp, so that customs officials at the airport can catch those crooks on the way through. We are playing with that, and maybe we will toughen it up. Then, when I look at some of the figures that have come out of the various official papers and at some of the comments my colleagues have made, I find that if we are totally successful in this measure, we will catch 117 people. That estimate was put forward during the development of the bill.

Who are those people? They are the people who have convictions. As the ACT member the Hon Richard Prebble said, they are crooks—it is the crooks whom we are going to hold on to. We are losing 650 or 700 New Zealanders a week to Australia. We will keep back 117 of them per year, and those will be the crooks. We want to keep them here. It is a classic example of the sort of red policy that we talked about when we discussed the Terrorism Suppression Amendment Bill (No 2).

I am told that if we do manage to catch those crooks at the border, that will gain the Government $1.5 million out of the $600-plus million that is already being lost through unpaid fines that the courts are writing off—at the rate, I am told, of about $40 million a year—because they decide that it is a lost cause and they will not follow it up. How does that compare with the treatment of poor old “Joe Hard-worker” out there, who may, though some mistake or other, fill in his tax return form slightly incorrectly? What kinds of penalties would be imposed on him, and what kinds of assets would be seized from him, if he were to make such a mistake? The only conclusion I can come to is that once again our very left Government, which is moving further and further left and into the red, has decided that the way to get back at that limited number of people is to keep the crooks in New Zealand, and to allow the good, hard-working, decent citizens of New Zealand to be driven offshore because of the punitive policies the Government adopts towards them.

I also ask the Minister, who is in the House and looking after this bill, why he has put in place—

I am not a member of the Law and Order Committee, which analysed this bill, and although I am familiar with the broad thrust of its provisions, I am not over-familiar with the detail. I have been sitting listening to the speakers in this debate, and I have heard some interesting comments. The commentary on the bill states that as at 21 May 2004 unpaid fines totalled $572.97 million, of which $326.2 million was overdue. My colleagues tell me that the $572 million has gone up to $650 million, so one can conclude that the $326 million has gone up to something like $400 million in overdue fines whilst this bill has been before the select committee.

What is the Government doing? We are told that this bill will be administered in such a way as to pick up 117 defaulters per year at various airports. On top of that, if I have understood members correctly—and I ask them to please tell me if I am wrong—the judiciary is writing off $40 million a year. I take the Hon Richard Prebble’s point about this $40 million a year. Would it not be more cost-effective to pay those people to leave the country—to pay their way?

I have been trying to keep abreast of the documents used by the select committee, and I have in front of me one from the Ministry of Justice about police resources for fines enforcement at airports, which states: “The police also estimate an additional 150 intercepts per annum could be absorbed into existing functions.” I conclude that if the 117 goes up to 150, the police at their current staffing level will be at maximum capacity. Am I wrong? In other words, if the 117 rises to 151, we will need more police. So the taxpayer will pay more to keep in the country 151 people who are not paying millions of dollars in fines.

There must be a simpler way of addressing this issue. I hope the Minister is taking note. I do understand why there is nervousness about data matching and about telling Government organisations details about someone’s personal background, but it would be very simple to make data matching part of the punishment, so that if one does not pay a fine by a stipulated date, all one’s personal details will be forwarded on to all Government agencies. In other words, we could put it in the hands of the individual. If the individual does not want to have his personal information forwarded from the Customs Service to the Immigration Service, to the Ministry of Justice, to the Inland Revenue Department, to Work and Income New Zealand, and to wherever, then he pays his fine.

💬 Brian Connell: Why would we protect somebody who doesn’t pay his fines?

Exactly. That is the point I am making. The member is quick on the uptake. I admire him. There has to be a simpler way. We are, as the member has just alluded to, giving more protection to people who do not pay their fines than we give to the normal, law-abiding New Zealand citizen who complies very largely with the totality of the laws of this land.

This is a very weak provision. It might be a step forward, but it is nowhere near as big a step as it should be. I think the Minister said—I listened to him earlier—that it was Labour’s intention—provided it continues in Government—to strengthen this provision in the not too distant future. I ask the Minister why he does not do it now. Why do we have to do things in more than one bite? Why does the Government not strengthen the whole thing the first time the matter comes up? Why are we pussyfooting around initially? [Interruption] The Minister of Finance is making some comment. He will get an opportunity to take a call and explain. I tell him that if Joe Public knew there were overdue fines to the extent of $400 million, he would be aghast.

I move, That the question be now put.

ACT does not have anyone on the Law and Order Committee, so I have been sitting here listening to the debate, and before I came down to the House I listened to it from my office. I think this is a good piece of legislation. I think it is needed. Like a number of the other speakers, I do not think it is tough enough or goes far enough. I think Parliament could consider extending this sort of legislation into other situations where New Zealanders go overseas and default on money they owe. For instance, student loans are treated as a tax, which means that they cannot be recovered from people who move overseas. We should treat them as a debt, and when people move overseas and default on their student loans, there is no reason why we should not sell those debts to a private collection agency and have them collected. That would be a deterrent to students who think they can rack up loans here and then go away and welsh on them.

I am horrified by the amount of money that is owed in fines by defaulters, how difficult it is to recover those fines, and how hamstrung the agencies are by having to rely on just a simple address when they try to recover those fines. Even when defaulters remain in New Zealand, it must still be a nightmare for those agencies. But a couple of things concern me. One is that when we have legislation that allows the sharing of information, we have to be very careful that that information is not abused or misused. I have had experience of this in drafting the Sex Offenders Registry Bill, which causes, obviously, a much more emotive reaction than this sort of legislation does, although one could argue that the harm done by those people is worse than the harm done by these people. However, we have been very careful when copying legislation from Canada and the UK—where information is shared between agencies and passed on between people—that the information is correct and is correctly used. Everybody knows that there are times when fines—especially fines for less serious things—are disputed. If people do not have a system in place for paying them off, they are liable for arrest.

The New Zealand Customs Service has enormous powers. I remember writing a story about information being passed to it in a malicious way. This information accused two individuals of importing class A drugs and selling them in Parnell nightclubs. One of the people who came back into the country was detained by customs for 6 hours and searched, and suffered enormous humiliation and distress, because that person was innocent of all of those things. It was very difficult for that information to be removed from the records of the Customs Service. The service finally conceded that the information had been passed to it maliciously, and it said it had to act on any information it was given But for the innocent parties it took a long time—over a year—for that information to be corrected on their records, and for them to be able to travel between countries, and to and from New Zealand, able to breathe easy in the knowledge that they were not likely to be pulled aside, questioned, and have all their stuff searched.

It concerns me that section 280E, which is inserted by clause 7, states that there is no Crown liability for third parties unless it has not acted in good faith, or has been grossly negligent. It seems to me that that would not include the fact that information had been passed to the Crown maliciously, that the information had been used in good faith, and that the Crown had not been grossly negligent. That does not offer any protection to someone who has, none the less, taken months to clear his or her name and get the issue cleared up. There is no liability on the Crown to address that.

I move, That the question be now put.

I raise a point of order, Madam Chairperson . I waited until all the votes had been put because I did not want to be seen to be either churlish or in any way questioning your judgment. I came down to the Chamber some time ago, very interested in Part 2 because of the information-sharing stuff in it. I am probably one of the few people in the House with a degree in computer science and information technology. I tried on two occasions to take a call, because information sharing is a very important part of the bill, and will be a major issue that the House will deal with across the whole of government as time goes by. Yet I notice that you very quickly took a closure motion, even though I was trying to take a call. Maybe I have quite a quiet voice and I am quite hard to spot in a crowd, but I did try to call as loud as I could. I wonder whether you could give us some guidelines: is it just futile for members who are interested in a bill to come down to the Chamber to try to take part in the debate if you are going to take closure motions as quickly as that?

The CHAIRPERSON (Ann Hartley): No. National had three calls on that part. I think that was covered. There were two clauses in that part.

Part 3 District Courts Act 1947