Criminal Justice Reform Bill

The debate on Part 1 includes schedules 1 and 2.

What a chaotic mess the Criminal Justice Reform Bill is in. We arrived in the Chamber this evening to debate Part 1 of the bill, and we find there are no fewer than four Supplementary Order Papers in the name of the Minister of Justice. On a relatively straightforward bill, I have to say that just goes to show what a mess the bill is in. More to the point, now that the Minister, Mark Burton, has joined us, he may be able to answer the crucial question that is on the minds of the nine lawyers on this side of the Chamber, who are looking forward to debating this bill for most of tonight and tomorrow. If this were the private sector, the cost would be about $10,000 an hour! [Interruption] Oh, plus Chris. The question for the Minister is: why was Supplementary Order Paper 99 in his name tabled this evening, when that Supplementary Order Paper is dated Wednesday, 21 March 2007 and most, if not all, of the matters on it were agreed to by the Justice and Electoral Committee during the hearing of submissions and consideration of the bill? So the first question to the Minister is about why a Supplementary Order Paper dated March has been tabled.

The second thing to note about the bill is how much trouble the Government is in with regard to the amendments to the Prisoners’ and Victims’ Claims Act; a subpart of Part 2 that the select committee, in its wisdom, deleted from the bill, meaning that the sunset clause on that particular piece of offensive legislation is removed. We look forward to debating that matter later tonight. There are further amendments, including one from myself, to divide this bill into two parts, dealing with the Sentencing Council and matters relating to parole, bail, and the like. There is the fine Supplementary Order Paper 126 in the name of Christopher Finlayson, dealing with the Sentencing Council, and there are other matters for us to deal with. Substantial Supplementary Order Papers are proposed. This is a substantial bill, and it is in a mess. It will take hours of Committee time to resolve the votes alone on the Supplementary Order Papers that have been put before the Committee tonight.

Turning to Part 1 in the first instance, relating to the Sentencing Council, I say that National has been opposed to this part since the first reading of this bill. We are gravely concerned, as Mr Finlayson’s Supplementary Order Paper indicates, about the way that this council is to be put together. We are concerned about the independence of the judiciary being undermined. We are concerned about the appointment process, and about those matters relating to how one gets to be on the Sentencing Council. We are worried about political influence over sentencing in the long term. But, most important, National members are worried that this particular part is designed to become the “district health board” of the justice sector.

The Sentencing Council is designed to remove responsibility for sentencing matters from the Minister of Justice and the Minister of Corrections, and to place it in the hands of an independent body that can take all the political heat and all the political blame when something goes wrong in a sentencing matter—as it does under this Government pretty regularly. National says that if members are elected to run the justice system, they should take responsibility for the decisions that the justice sector makes by way of legislation. Members should not pass that responsibility off to a Sentencing Council that is designed to act as a buffer between the Minister and sentencing and criminal matters of the day. I say to members of the other parties in this House that they should not be fooled by what their parties have been told. This is a serious departure from judicial independence in this country. Part 1 creates a quango designed to take the political heat off the Government of the day on sentencing matters.

I urge caution on the part of the members of other parties who will support this legislation. This matter will come up during the election cycle, and people will ask about how this bill dealt with a matter of such a sensitive nature.

I would not normally rush up like this but it is important that I do so before that member, Simon Power, rushes off on a tangent. He made reference to Supplementary Order Paper 99, dated 21 March, and quite rightfully so. A very careful process has been observed throughout the development of this legislation. If the member bothered to read the bill and read the explanatory note, he would see that on page 12 the Justice and Electoral Committee recommends inserting the clauses that are in the Supplementary Order Paper. I think it is important that the member is clear on that and that he accepts, after his earlier criticism, that this is very carefully thought out legislation.

I raise a point of order, Mr Chairperson. Although I thank the Minister for taking the call and giving the Committee an explanation, perhaps—

The CHAIRPERSON (H V Ross Robertson): Is this a point of order?

Yes, well, it is relating to that exact point, following on from the Minister’s comments. Perhaps the Minister could take the time now just to clarify for the Committee why it is necessary to have this Supplementary Order Paper if those matters have been incorporated into the bill by the select committee.

The CHAIRPERSON (H V Ross Robertson): It is up to the Minister whether he wants to take a call on that.

It is a great honour to be able to follow my colleague Simon Power in his very good contribution on this issue. Before I start, I commend to the Committee Supplementary Order Paper 125 in the name of Simon Power and Supplementary Order Paper 126 in the name of another of my colleagues, Christopher Finlayson, because they have put a huge effort into the Criminal Justice Reform Bill in trying to correct the problems that the Hon Mark Burton has inflicted upon this Committee.

This bill is something that we do not agree with. I do not know why we bother to have judges if we are to have a Sentencing Council that is to tell them how to do their jobs. Why do we even bother? Why do we not just have a council here to tell MPs what they have to do? Why do we even bother to have a Sentencing Council? We could just have a little computer, or a little set of boxes that judges can go through and tick to indicate whether somebody should have 5 years in prison, 8 years in prison, 2 years in prison, or community service.

The fact is that it is really hard to get great people to become judges. That is becoming harder and harder. Legislation like this bill is one of the reasons that it is becoming more and more difficult to do so. The very best lawyers who want to be judges are put off by being told that they will lose the right to look at a case—[Interruption] That is something that someone in this Chamber like Mr Ron Mark would not want to do—to listen to all of the evidence, not just the headline, and really understand what is going on, to look at the circumstances, and to make a decision on sentencing. What will be left to judges in criminal cases? Mostly criminal cases are jury trials, and the judge sits and listens to all the evidence, runs the case, is told what to do by the office of the court manager, and goes from place to place.

The Sentencing Council will be made up, no doubt, of a whole stack of Steve Maharey’s social empathy people, who could not get a job anywhere else—and there are, if Mr Mark would like to read about it, a whole lot of social empathy people. I say to Mr Mark that he should listen; it might do him good to do so. The Sentencing Council will be full of people who will not actually listen to the case—will not hear it—and who have not been involved in the area. It will become a retirement home for Labour MPs and their mates. That is why a lot of judges and people who are asked to be judges will say “No thanks—not for me.” The people whom we should be appointing to be judges are people with a lot of experience of dealing with people in difficult situations. A lot of people have heard every story in the book. It is amazing to me, from my experience in this area, to see people who are often fine criminal lawyers and who one thinks will always be pro-defence, as they have defended everybody from the most heinous crimes one can think of, become judges. So often they are the toughest judges, because, frankly, they have heard it all. One of the reasons they want to be judges is that they want to cut through the fog—they want to cut through the rubbish.

I would love to hear from the Hon Mark Burton tonight, and I do not know why he is so quiet, as to why he—what was he, a physical education instructor for Taupō council—is going to tell experienced judges, people who know which way is up, how to sentence. His bunch of mates, Steve Maharey’s mates, and so on are going to tell those judges how to sentence. Those people have not sat through the cases. They are not the people who have to take the consequences; it is not their name that is on the judgment. They are not the people who are vilified in the press because they give a judgment or a sentence that people do not like. [Interruption] Mr Mark would like those top people to be told to basically go and sit in their little corner and tick their little boxes, and if it all comes out a certain way, that is what they are allowed to do, etc.

Frankly, at the end of the day criminal cases are often 10 or 12 weeks long. There is a lot more in a criminal case than just a headline. So often people in politics and elsewhere get their ideas about criminal cases by reading a headline and the three paragraphs that are written about it, or by looking at the photo. That is where they get their sense of things from. But there is an awful lot more to criminal cases than that. Mr Mark keeps looking at me and laughing. I do not know why. Frankly, he should be thinking about the facts behind the headlines. One of the things Mr Mark should understand is that it is no good just to play politics with people’s lives like this. We are talking about people being sentenced, we are talking about people being convicted, and we are talking about this Government making a major constitutional change without members on this side of the Chamber agreeing to it.

This is a major constitutional debate tonight. It is not simply a question of looking at the criminal law. It raises fundamental questions about the importance of judicial independence. I go back to what Alexander Hamilton, who was one of the framers of the US constitution, had to say.

💬 Ron Mark: I raise a point of order, Mr Chairperson. I offer sincere apologies to the honourable member—I do not mean to interrupt his speech needlessly—but Mr Chairman I have noticed from sitting here that you have given three calls in a row to National. Each time, Charles Chauvel has stood to take the call and you have ignored him. I thought the convention was that the call went from side to side or around the Chamber in some sort of order. It is highly unusual for any chairperson to give three straight calls to one party, one after another, in this Chamber. I ask you to consider the wider vision that you may not have tonight.

The CHAIRPERSON (H V Ross Robertson): I thank the honourable member for that, but National actually had two calls in a row. I did not notice Mr Chauvel rise to his feet, but if he does so next time, he will certainly get the call.

💬 Charles Chauvel: I am grateful for Mr Mark’s intervention but, in fact, I did fail to take the call. It is my omission. I will certainly be trying for the next one.

I appreciate Mr Chauvel’s sentiments. It is a shame that on a major debate like this there are stupid, pettifogging points of order like that from Mr Mark.

This is an important debate. I was going to tell the Committee what Alexander Hamilton said: “there is no liberty, if the power of judging be not separated from the legislative and executive powers … liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments;”.

Bearing those fundamental principles in mind, let us look at Part 1, and at the purposes of the council as expressed in clause 9. Paragraph (a) contains a perfectly legitimate purpose of a Sentencing Council, which is to set out guidelines to “(i) promote consistency in sentencing practice between different courts and Judges:”. Subparagraphs (ii) and (iii), likewise, are perfectly acceptable. But when we look at the other paragraphs, we see in them functions that are properly the preserve of the executive. It is not for judges to enable the development of sentencing and parole policy to be based on a broad range of experience and expertise. It is not for judges to inform members of Parliament and policymakers about reform options, or to inform and educate the public. Judges are there to judge, and the Ministry of Justice, as part of the executive, is there to undertake the executive responsibility set out in those paragraphs. So it is when one looks at the functions of the council, in clause 10. Paragraphs (a) and (b) in subclause (1) are legitimate, but the rest are totally illegitimate, because those functions are properly the responsibility of the executive.

What we propose in Supplementary Order Paper 126 in my name is to recognise that a Sentencing Council does serve a purpose, but that it should be independent of the executive and indeed should be part of the judiciary, as indeed the High Court Rules Committee is. I propose to examine these clauses to set out the National Party’s thinking in that regard.

Clause 6 is the primary clause. We propose that clause 9 be omitted, along with clauses 6 and 7, which set up the status of the council. My proposed clause 6 sets out very clearly how this Sentencing Council is to be constructed. It is to comprise a judge of the Court of Appeal, one judge of the High Court, two District Court judges, the chairperson of the Parole Board, and, in order to ensure there is layperson representation on this council, subclause (1)(e) proposes that five laypersons—people who are not judges—be members for a special purpose. Instead of being appointed by this Labour Government, those persons would be appointed by the Chief Justice, who would be required to take into account certain skills before they could be appointed. I have picked up the qualifications that are set out in the schedule so that the laypersons who are appointed to the council represent a group of laypeople—

National has made it very clear through the speeches we have just heard and in the second reading debate that it will vote against this bill. As a member of the Justice and Electoral Committee, what I find strange about this decision is the basis of its opposition, so far articulated in the debates tonight by Mr Finlayson and, to a lesser extent, by Mr Power and Ms Collins.

The problem with the position they are taking is that it is both incoherent and internally inconsistent. National members are saying to the Committee that the bill is unconstitutional because it gives judges inappropriate tasks. They say it breaches the principle of the separation of powers. Well, this argument is not only nonsense; it is, as Jeremy Bentham would have said, “nonsense on stilts”.

The first point to make is that the doctrine of the separation of powers is not seen to any degree in New Zealand’s constitution. [Interruption] I am sorry to have to read the member a lecture, but here it is. New Zealand, like all Westminster systems, is an affront to the separation of powers, because, in order to be a Minister, a person has to be an MP. There is no separation there.

It is true that the principle is important in terms of the judiciary being separated from both the executive and the legislature. This is a principle that the bill observes strongly. The important point here is that the executive will have virtually nothing to do with the council. Indeed, the bill goes to great pains to ensure that no executive power is available to direct or influence the council.

As to the involvement of Parliament, clearly it is the responsibility of Parliament to control overall sentence severity levels. Parliament has to retain ultimate authority. Parliamentary sovereignty is the bedrock principle of the New Zealand constitution, not the separation of powers. This is an important point for members to understand.

Mr Finlayson says that the body that sets guidelines—and he supports the idea of guidelines, unlike Ms Collins—should do so in the manner of the High Court Rules, devised by the Rules Committee established under the Judicature Act 1908. What he does not say is that the Rules Committee is essentially a legislative body responsible for making subordinate legislation. How does he explain that it is permissible for judges to control a legislative function? On his argument, the Rules Committee does not conform with the separation of powers. What is worse, there are representatives from the executive—the likes of the Solicitor-General and the Secretary for Justice—on the Rules Committee. How in Mr Finlayson’s universe can it be proper for the judges to consort with them? And why can judges meet with the executive in the Courts Executive Council, and a whole range of other committees, like the Criminal Practice Committee, on a regular basis? All of this makes a mess of Mr Finlayson’s arguments about inappropriate functions in clause 9.

I just want to tell members present who were not at the select committee that judges came to the committee. They discussed the idea of a Sentencing Council and were in favour of it by a big majority. They made it clear they did not favour a Rules Committee structure and preferred that the council be constituted as proposed in the bill. They saw no advantage in Mr Finlayson’s proposal, at all. So if the judges see no merit in Mr Finlayson’s position, who or what is he trying to protect? Is it possible that he understands neither judicial independence nor the New Zealand constitution?

The bill is entirely appropriate as far as our constitutional arrangements are concerned. The Sentencing Council will be an excellent innovation as far as the fairness and overall uniformity of justice is concerned, and I commend it to the Committee of the Whole House.

I listened carefully to Mr Chauvel’s reasoning on the previous speech, and I have to say that one wonders whether he has turned his mind to clauses 17 and 18, because in both clauses there is a statement of a point. Firstly, under clause 17 the council must present the guidelines to the Minister, and, secondly, under clause 18 those guidelines have to be scrutinised by the House of Representatives. I draw the Committee’s attention to that, because it demonstrates Mr Chauvel’s confusion about the separation of powers. Quite clearly in this instance that is blurred, because we have, allegedly, a judicial function being delivered straight back to the Minister and, indeed, being offered for parliamentary scrutiny. A greater integration of the three branches of Government would actually be hard to imagine.

I want to make it quite clear here that National is fundamentally opposed to the Sentencing Council. It is certainly true that my colleague Mr Finlayson has sought to ameliorate the very worst effects by his amendments, but those are intended, really, to try to cause the Government to at least think twice—that is, if the Government is absolutely insistent on having a Sentencing Council, then at least Mr Finlayson’s proposals would moderate the serious constitutional harm that would be wrought by the Government’s proposal as it stands now. The purpose of Mr Finlayson’s amendments are essentially to keep the Sentencing Council entirely within the judicial role.

I draw Mr Chauvel’s attention to another point. He said that it was a bit like the Rules Committee, and that the Rules Committee, after all, has appointments made to it by the Minister, reports to the Minister, and so forth. What he fails to understand is that the purpose of the Rules Committee, essentially, is procedural. It does not set out the substantive powers of the court but rather how the court operates in its procedural format. So in that sense it is simply not comparable with a Sentencing Council, which is actually intended to set guidelines for the extent of sentencing.

But when we think about it, we recognise that it is the duty of Parliament to set out sentences and, as my colleagues Simon Power and Judith Collins have both observed, it is the duty of judges to undertake sentencing, based on the information they have at hand. The Court of Appeal regularly issues guidelines and tariffs, which involve judicial conferences and discussions as to appropriate sentencing. That is proper, because it keeps the sentencing function within the judicial role. In short, it observes the separation of powers. This bill blurs that distinction. No matter what the Minister in the chair, Mr Burton, or Mr Chauvel might say about that, they cannot deny that reality.

I would go further and say that the Sentencing Council proposal is really a fundamental admission of failure by the Government. Would it even be proposing this legislation if the Sentencing Act 2002 had worked? The answer is no, it would not. Surely the lesson, then, is that the Government should fix up the Sentencing Act, deal with the range of sentencing, and give instructions to judges through the legislative provisions of the Sentencing Act itself. That would be the proper course to ensure consistency, and so forth. We should not have this intermediate body that is neither in the realm of the judiciary nor in the realm of the legislature or the executive. As I say, it effectively fuses elements of all three branches of Government, and we are treading in dangerous territory to do that.

I can only assume, to be charitable to Government members, that maybe they do not really understand what the problem is. Maybe those members have never really turned their minds to the issue of why the Sentencing Act itself has failed, and why it did not have a specific enough direction within it for the judiciary to be able to provide consistent sentences. That is what they should have turned their attention to, not this half-arsed attempt at this Sentencing Council.

I raise a point of order, Mr Chairperson. One of the most conservative members of the New Zealand Parliament just made a reference. I may have misheard Dr Mapp, but I think that he actually used a swearword, which seems quite radical for him. In a sense, I congratulate him, but I am not sure whether it was parliamentary.

If I have caused offence to anyone, I withdraw and apologise.

The CHAIRPERSON (H V Ross Robertson): Thank you very much, Dr Mapp.

I guess it is very unusual that my colleague Dr Mapp should use such a phrase, but in reality that was a very good description of what the Government is doing here, quite frankly. The Minister in the chair, Mark Burton, has come into the Chamber since we started this debate. I for one, as I was not on the Justice and Electoral Committee and have not had the benefit of the discussions that Charles Chauvel referred us to, would be extremely grateful if the Minister would take a call and explain to National members why this legislation, which sets up a Sentencing Council, is necessary. On the face of it and on my reading through the detail of it, there is no logical reason why we should remove from the legislature, from Parliament, the responsibility for setting a sentencing framework and placing it with the judiciary, which has the responsibility for applying that framework and setting the sentences. There is no logical reason why that should be changed.

I do agree with colleagues of mine who have described this part of the Criminal Justice Reform Bill as a threat to judicial independence. National stands by our judiciary. We stand by the judiciary. The cornerstones that make New Zealand’s judicial system a very good system ought not to be removed or changed in the way that this Government is doing. As I say, I would very much appreciate the Minister’s taking a call, to explain not just to us but also to New Zealanders out there who may be listening to this debate why the Government sees fit to set up what, on the face of it, is another bureaucracy. This Government is great at doing that; it is just not necessary in this context. The Government is setting up a quango, or setting up what Simon Power described as the district health board of the justice system. That is how it looks to National. We oppose this part vehemently. Any legislation that could get my mild-mannered colleague Dr Mapp to describe it in the way that he did is bad legislation.

When the Government member spoke, it all sounded very good and very academic, but I am frankly surprised that he, with his legal background, would support a change of this description. I have not heard from a New Zealand First speaker yet, but it seemed to me when I listened to the interjections that Ron Mark was making on a couple of my colleagues that the New Zealand First members possibly support this legislation as well. It would be great if New Zealand First’s MP with a legal background, the Rt Hon Winston Peters, could come to the Chamber and explain to members why he thinks New Zealand First should support such a change. In his time he has been a strong supporter of the judicial system and the cornerstones that make up the integrity of that system. I would be very, very surprised if New Zealand First members were now to put that kind of positioning behind them and support this bill.

This bill is an outrage. In terms of the Sentencing Council, it is an outrage. We the Parliament, and we the legislature have the responsibility for setting the framework. Members of the judiciary, who, after all, are the people who are most acquainted with the matters that come before them, are the ones who, for a long time now in our system, have applied the sentencing rules. As I say, we cannot stress enough our opposition to this measure. I commend my colleague Christopher Finlayson for trying to make this part of the bill more palatable. He recognises entirely and totally the role that the judiciary plays in sentencing, which is a hugely important activity in our system. In trying to make this part palatable, he has at least endeavoured to keep that role fairly and squarely within the judiciary.

National supports the current system. National stands by our judiciary. We cannot see the reason for this part of the bill. I see the Minister is looking at me and smiling, I think, so I can only take that to mean he may stand and take a call.

First, can I say that it is pleasing to hear the member who has just resumed her seat repeat and repeat—so I will take it seriously—that National supports our judiciary. She will be pleased to know that the best way to do that is to support the Sentencing Council, which the vast majority of members of the judiciary support. [Interruption] As I have listened to the members and I have taken a summary of what they have said prior to my arrival, clearly these facts, like any of the other facts, have little to do with the position that members opposite want to take.

I asked members opposite what was so terrible about the notion that other community viewpoints might have some bearing and input into the sentencing policy creation process. I would ask where the harm and the evil is in that.

💬 Christopher Finlayson: You haven’t even read the Supplementary Order Paper.

Oh, for goodness’ sake, I say to Mr Finlayson. He should not be silly. I have read the member’s Supplementary Order Paper. The member’s Supplementary Order Paper inflicts—

💬 Christopher Finlayson: Well then, that answers your question.

The member should take a call if he wants to speak. If the member is so keen on the intent and interests of the judiciary, I wonder why it would be that he would introduce something, by vehicle of a Supplementary Order Paper, that the judiciary have not asked for.

I am confident that members of the judiciary would not welcome this House imposing on them the appointment of lay members to a Sentencing Council. This is not something that the member raised at the Justice and Electoral Committee. This is not something that the committee raised with the judiciary.

💬 Christopher Finlayson: I certainly did raise it.

I have had a full report. This was not raised with the judiciary. Is the member going to stand up on his back feet and tell this Committee that the judiciary said it wanted the appointment of the lay members of this council? Indeed, they did not say it because it is not true. I am confident that the judiciary would not want that burden of responsibility.

I suggest to members that they look at the facts of what is contained in the bill, and not listen to the nonsense that we have heard repeated by three or four members opposite, which bears no resemblance to the facts.

The Minister simply does not get it. He does not understand some basic propositions that have been put up, and the answer he has just offered is no answer to the issues that have been raised. He is also quite wrong to say that the judiciary is supportive of this legislation. It is not. It is not about to come out and say it is opposed to this legislation. But there are those of us—and there are members on this side of the Chamber who are active in their relationships with the judiciary—who know only too well what the degree of misgiving is in connection with this particular part of the bill.

We have come to have great faith in the Law Commission, but on this occasion we have been sadly let down, because this is an initiative that comes from that commission. The Government has been sucked into legislation that it has not had sufficient time to consider. I say that because this bill is titled the Criminal Justice Reform Bill, and I just underscore that word “Reform”. Reform hints at a measurable gain; it hints at an advance; and it hints at an improvement in the human condition. That simply is not what has occurred here. Because what lies behind this part of the bill, and the Minister knows this and he should acknowledge it, is a shameless exercise in cynicism. Why do I say that? Because it is writ large on the face of the bill in clause 15.

Clause 15 states in connection with these guidelines, which the Sentencing Council is required to produce: “A draft guideline or group of guidelines that is available for inspection must be accompanied by a statement of the guidelines’ likely effect on the prison population.” What, in fact, this is all about is an exercise to control the number of people who are imprisoned in any particular period in the context of the constraints set by the current prison facilities, and also the resources that the Government is prepared to spend in housing the prison muster, as it was called, and, as it is now called by the Justice and Electoral Committee, the prison population.

Consistency in sentencing is obviously an appropriate broad-based aspirational guideline. But I doubt that the Minister truly understands what is implicit in this legislation if it is enacted. For example, for an offence such as excess blood alcohol, there will be very strict parameters that will limit the ability of the judges to take particular circumstances into account in imposing the appropriate sentence. I think we tend often to forget also what the role of the judges is, certainly in those cases that involve jury trials. For it is the juries that are the ultimate determiners of the fact, and it is for the judges to fix the appropriate sentence. That is all to be cut away by this legislation.

In fact, as Chris Finlayson, Georgina te Heuheu, and other colleagues of mine have said, this legislation is, in constitutional terms, an outrage. That is because it blurs three clearly understood and defined elements that constitute the constitutional doctrine of separation of powers. I suppose one might be forgiven for not realising that if it were not explicit on the face of the bill, but it is. There is the role of the executive, given that one of the objectives of this legislation is to limit or influence the prison population. Now that is a role of the executive. It is a role that is implicit in clause 15. It is the executive function. Then there is the judicial function—the judicial function in setting these guidelines. Then there is the legislative function, which is the signing off of the guidelines. Even the Minister must realise that it is very odd, indeed, for the legislature to approve guidelines. I plan in later calls on this topic to come back to that.

It is my pleasure to speak in relation to Part 1 of the Criminal Justice Reform Bill. We have heard tonight several very, very real concerns about the Sentencing Council, and very, very real concerns about the whole of Part 1 of this bill. If those concerns were taken with any seriousness then the sensible thing would have been to do as Mr Power’s amendment suggests—to split and divide the two parts so that we can actually have a decent debate on each and every separate part.

We have heard concerns about the independence of the judiciary—how vital and crucial it is that we maintain that separation of powers, and that we protect and maintain the independence of the judiciary. We have heard very, very serious concerns about the appointment of the members of this Sentencing Council. Half of them can be politically appointed cronies—politically appointed by the Government of the day at the whim of the Government of the day—and that is not good for our political process. I draw the Committee’s attention to the provision in Mr Finlayson’s amendment in relation to the composition of the Sentencing Council, which, at least, states that five members of the Sentencing Council who are not judges are to be appointed by the Chief Justice, and not at the political whim of the Government of the day.

We have heard concerns that the Sentencing Council—the scapegoat council—runs the risk of becoming the district health board of the justice sector, to take the political heat off the Government of the day, and to take the blame for the Government’s lack of policies in relation to the reduction of crime. The priority must be the safety of our citizens. It must be to prevent crime in the first place and not to put in place some bureaucratic politically appointed council to act as a scapegoat, to act as a political tool, and to hide the failure of this Government’s policies that are not addressing the problem of the increasing rate of crime.

It is my pleasure to continue this major constitutional debate—it is major, and it is important. It raises very, very fundamental issues of judicial independence and I will just take a minute to refer to what the Minister said. He stated that the best way to support the judiciary is through this Sentencing Council. Well, to me that is not logical. The judiciary does not want it; that is absolute rubbish. Why we need the Sentencing Council has not even been established and there is no link to show how it bests supports the judiciary.

We have no problem with the need to have greater consistency in sentencing. We have no problem even with sentencing guidelines, and we have fewer problems with a guidelines panel, but the Sentencing Council model created by this bill is not the right model. At least the compromise suggested and proposed by Mr Finlayson may actually do some good if it were listened to by this Government of the day, which is highly unlikely in the circumstances. We do not need a politically appointed Sentencing Council, and we do not need another district health board model related to the justice sector. We do need to protect the fundamental principle of the separation of powers.

Judges are there to interpret the law. They are not there to create the law; nor should they be. If judges interpret the law in a way that Parliament thinks does not reflect the intention of Parliament, then Parliament can change the law. It is not up to the judges to do so. This is a direct fetter on judges’ discretion to decide, within the parameters set by Parliament, what is in the best interests of justice in the circumstances. The model of this Sentencing Council is not the way to do it. Half of the members of the Sentencing Council are politically appointed at the whim of the Government; half can be mere political cronies. Mr Finlayson’s Supplementary Order Paper deserves some merit. He does at least keep the Sentencing Council as a judicial role. He does have the same members in the composition of that council, maybe, but the five members who are not judges are appointed by a Chief Justice, not by the political system of our country.

In looking around the Chamber, and not wanting to be too presumptuous, I make the assessment that maybe over about 28 years I have sat and listened to more sentences handed out than most of the people sitting here. I have to say that I have a lot of confidence in the ability of judges to be able to make good decisions around those whom they are sentencing. I guess it is fair to say, too, that at times I have been frustrated at the sentences because they have been too light, or frustrated because I have felt they have been too heavy.

In any event, it is obvious, from listening to the words of the judge meting out the sentence, that a lot of local judges target their sentencing towards local offending and local conditions. Members may recall one particular regime that is operating in Taranaki at the moment, where local judges have begun what they call a “remand contract”. Young people in particular who have been offending, and are looking at going to jail on their next sentence, are given the opportunity to sign a contract on remand whereby they will, for instance, by way of a sentence, attend Burnham Military Camp, enter the New Zealand Army and undertake its basic training, and come back with a positive certificate as to their participation. They may well then be convicted and discharged, and not have to serve a further sentence, bearing in mind that the basic training they have done is far more rigorous than anything they would be likely to get in prison.

As a relatively new MP—I have been here only about 18 months—one of the things that has struck me is the light-hearted manner in which members of Parliament go about creating the law, with very little understanding of how it will be applied at street level. I think the debate around section 59 of the Crimes Act was a classic example of that. People who had philosophical points of view approached the writing of the law in a particular way, without any real understanding of how it might be implemented. They were taking a party line on how the law would affect the people who were going to find themselves on charges, or those who would be called on to implement it.

It does not surprise me that the Minister has said that the judges he canvassed tended to be in favour of a Sentencing Council. What else would they say when speaking to the Minister of Justice? Looking around, I have to say too that some of the recent appointments to the bench have been people who have not been to court for a number of years, who have not practised law for some time in some cases, or who have not appeared, for instance, in the Māori Land Court yet have been appointed as Māori Land Court judges. It does not surprise me at all that the people he has spoken to are quite happy with the situation as it is and, he says, are calling for a Sentencing Council. However, when we speak to judges on a one-to-one basis and we do not hold a warrant as a Minister, and judges can feel free to say what they like, we find that they consider the creation of a Sentencing Council to be an enormous affront to their ability as judges to be able to enforce the law or to work the law as Parliament writes it.

In all effects, Parliament itself is the Sentencing Council, and Parliament needs to understand that its members are sent here to make the law. That is our role as members of Parliament. If we do not like the job, then we should not seek re-election next time round. The fact is that that is why we are sent here, and we should not delegate to anyone else the responsibility for creating the law and enabling the law to provide sensible maximum sentences. That is why we are put here.

I quite agree with my colleague Mr Power’s analogy in respect of a district health board. I believe that the whole area of sentencing, corrections, and parole, for instance, and the way that the law works, has been an embarrassment for this Government. It wants to create something that stands between it and the way the law works by way of public accountability, so it has created, as Mr Power has said, a “district health board” that it can hide behind. I cannot help thinking, too, that in doing so it can encourage those people who may contravene the law from time to time to become part of its constituency. I am absolutely convinced that if criminals ever do vote, they vote for members on that side of the Chamber, not ours.

It has been apparent from the contributions from Opposition members who were not present at the select committee that they are under a misapprehension about what the judges think. I want to describe what the judges said to the committee.

The Chief Justice wrote to the committee on 24 April 2007. She recorded—[Interruption] If members want to know what the judges said, they will listen. If they do not want to know, they will keep squawking. They recorded the outcome of the deliberations of senior judges, members of the Supreme Court, the Court of Appeal, and the High Court at a conference on 24 and 25 March 2007.

A substantial majority of those judges—30 out of 41—said that they would support a Sentencing Council provided that—

💬 Simon Power: The judges’ evidence was heard in private. It’s not tidy.

There can be no objection to repeating their evidence, after the evidence has been given and the report has been made. The member must know that. The conditions upon which the judges said they would support a Sentencing Council were that it not be amenable to directions from the executive; that the Government make it clear that it was responsible for managing penal resources, not the judges; that there be some discretion for departing from the guidelines, where the interests of the case required it; that a judge should chair the Sentencing Council, and have a power of veto; and that a majority of senior judges should comprise the council. The Chief Justice also recorded that 11 of the 41 senior judges—a minority—were opposed to the concept. So 11 out of 41 were opposed to it, and 30 out of 41 supported it.

The Government accepted the majority of the changes requested by the Chief Justice, in particular that there be no directions from the executive; that it be made clear that the Government should manage penal resources; that there should be some discretion in individual cases to depart from the guidelines; that a judge should chair the committee; and that there should be a judicial majority on the committee.

On the basis of those changes to the bill, Acting Chief Justice Blanchard, President Young of the Court of Appeal, and Chief High Court Judge, Justice Randerson came before the committee, in the absence of the Chief Justice overseas. They were accompanied by Chief District Court Judge Johnson, on 10 May. On the basis of the changes that had been proposed they supported the introduction of the proposal. [Interruption] I am sorry to set out the facts for members, but it will not do for them to misrepresent what the judges said. That was their evidence before the select committee. Let us be clear about that, and let us have it on the record.

Indeed, Chief District Court Judge Johnson went further. Members opposite may not know, but the District Courts are responsible for 90 percent of all sentencing. That judge told us that when he was first appointed he and a colleague at Waitakere Court used to go into chambers at the end of the day and look at a thing they called “Norm”, which was a book of guidelines on sentences that they had compiled for cases where the Court of Appeal had never had the chance—as with most offences that come before the District Courts—to provide such guidelines. They tried to do justice in the individual case based on those sentencing norms that they themselves had derived and made up.

That, if anything, in my view shows the need for a Sentencing Council. It is absolutely disgraceful that people should be subject to different levels of sentencing in different parts of the country, simply because District Court judges do not have guidelines to allow them to deliver justice on a uniform basis. They will have that uniform basis in these guidelines, and it is very important that they have them. It is tragic that a party in this House would want to deprive judges of the tool they have asked for in their evidence.

I note that the Waikato Times on 26 August 2006 reported that if a person steals a car in Hamilton, that person is more likely to go to prison than if he or she commits that same crime in other regions. What can be fair about that? What can be a problem with uniform justice delivered across the nation in a manner that the judges themselves have welcomed?

I seek leave to table the letter of the Chief Justice to the Chair of the Justice and Electoral Committee, dated 24 April 2007, setting out the matters to which I have referred.

Document, by leave, laid on the Table of the House.

I will take a brief call to indicate that New Zealand First has listened to this debate. We were aware that there would be some contention between the National and Government members who were on the Justice and Electoral Committee and considered the issue of the establishment of the Sentencing Council. I have to say that there are some members in this Chamber whose debate content is such that one always listens to them, looks for the gems of fact, and weighs up the differences between the arguments that are put up. But some of the other members tend to stand up and accuse others of taking grandstanding moments, and of seeking headlines and photo opportunities—and one would swear to God that Judith Collins was looking in the mirror while she was giving that speech. It had no content whatsoever, did it? I say to Ms Collins that it had absolutely no content. God forbid, I say to her, that anyone in this House should campaign on political issues and seek a headline and a photo opportunity! I think she would acknowledge, with a wry smile, that she has done her fair lick of that.

In this debate New Zealand First was looking for an an intellectual and a professional challenge. We expected to see that come from Chris Finlayson and Simon Power, and it is good to see that Charles Chauvel has answered those debating points. I was hoping that we would hear from Russell Fairbrother, but he is obviously not in a position to comment tonight on this matter. But I have to say, from New Zealand First’s perspective, that for years we have listened to people express their concerns about the inconsistency of sentencing. That inconsistency is a well-known fact, and Mr Chauvel pointed out that in Hamilton one is more likely to be imprisoned for stealing a car than in some other part of the country.

Let me tell the Committee, and let me tell the National Party lawyers who are here in their droves tonight, that in Christchurch people look forward to reading Judge Erber’s summations. Judge Erber in Christchurch is known as a pretty hard-core judge who suffers no nonsense. He does not listen to the pathetic whining of criminals, but that is just the opinion of some New Zealanders who read about him in the paper. They like Judge Erber, but they certainly have on their lips the names of a couple of other judges in Christchurch whose judgments make them shudder when they read about them. People do not believe those judges are in contact at all with the public’s view of the crimes they hear about and deliberate on when they issue sentences. So a lot of police officers, I say to Mr Borrows, a lot of lawyers, and a lot of Joe Blow ordinary citizens and businessmen in Christchurch—people who do not tramp the hallowed halls of the Law Society and discuss the things of which he speaks tonight—certainly know what they like and what they do not like, and they do not like there to be inconsistency in sentencing.

What do we have here? An appointed body of lackeys put together by a Government? Well, which Government are we talking about? Today we are talking about a Labour-led Government. Tomorrow, if I am to believe what Simon Power has told me—he looks forward to being the Minister of Justice in 18 months; he tells me quite clearly that is what he will be—it will be a Government he belongs to that appoints these lackeys. Will we see that Government suddenly repeal this legislation? Will we see that Government suddenly look for Labour lackeys to appoint? Like heck it will! National members will be true to the form they showed the last time they were in Government: they will appoint all their own people. It might well be that Mr Worth has finally taken the nod from the president of the National Party and retired gracefully, and he might find that Mr Power, the new Attorney-General, appoints Mr Worth to the Sentencing Council. Simon has just shaken his head and said: “No way.” I am sorry, Richard; I tried to get a plug in for you, but Simon has just vetoed it.

The CHAIRPERSON (H V Ross Robertson): Order!

That is the point. To say that this sentencing board will be made up of lackeys—well, I am reading Part 1 of the bill. I am reading clause 11(1)—paragraphs (a) and (b). What does that clause say to me? It states: “(a) 1 Judge of the Court of Appeal appointed by the President of the Court of Appeal . . . ”. Is someone in the National Party now telling me that the President of the Court of Appeal is a Labour Party lackey and a card-carrying member of the Labour Party? There are people out there who would say he is actually a card-carrying member of the National Party, but I would not be so churlish or rude as to suggest that. Are the National Party MPs seriously telling the Committee that: “1 Judge of the High Court appointed by the President of the Court of Appeal in consultation with the Chief Justice:” will result in a card-carrying member of the Labour Party being appointed—some lackey? If that is what the National Party members and Judith Collins are saying, then I dare Judith Collins to go outside and tell the judiciary in the street that that is what she thinks of them. She should put her conviction on the front page of the Dominion Post tomorrow, instead of—

💬 Judith Collins: I raise a point of order, Mr Chairperson. The member who has just resumed his seat has absolutely misrepresented what I said, and I take offence at that comment.

The CHAIRPERSON (H V Ross Robertson): I thank the member. If the member is claiming misrepresentation she can do that only at the end of the speech, and in doing so she must refer only to what the member said and then what she said. Otherwise it is not a point of order.

💬 Simon Power: I raise a point of order, Mr Chairperson. I think you will find, if you look at the Hansard, that Ms Collins realised that part-way through her point of order, and she indicated to you that she had taken offence at the comment made about her. That does, under the Standing Orders, as I understand them, require the member to withdraw the comment.

The CHAIRPERSON (H V Ross Robertson): If it is a personal reflection under Standing Order 116—

💬 Judith Collins: I did take personal offence. I consider that the inference from Mr Mark was extremely damaging personally, and I did take offence at it.

The CHAIRPERSON (H V Ross Robertson): I ask the member to withdraw.

Mr Chairman, I ask you to consider—

The CHAIRPERSON (H V Ross Robertson): Order!

Mr Chairman—

The CHAIRPERSON (H V Ross Robertson): I ask the member to withdraw.

I have no idea whatsoever what I am being asked to withdraw, because I do not connect that claim with what I have just said. Perhaps it would be helpful if we had the Hansard read back to us now.

The CHAIRPERSON (H V Ross Robertson): I cannot read the Hansard back. It is one member’s word against another’s. Both members here are honourable members; a member’s word is unreservedly accepted unless it is proven otherwise. The member has taken the comment as a personal reflection. I am asking the member to withdraw.

I withdraw.

The CHAIRPERSON (H V Ross Robertson): Thank you.

The little smile and the snicker that just came from Judith Collins is interesting to note, when one considers the content of her speech earlier. [Interruption] There it goes again. I heard a National Party member, unkindly challenged, say to a Labour Party member in the House this afternoon: “Get on your broom.” I guess it fits again.

Let us get back to the claims of members who have spoken—and lawyers have been speaking for the National Party team. Qualified lawyers are saying that the people appointed to the Sentencing Council—

💬 Anne Tolley: Has the member read the bill?

There goes Anne Tolley, interjecting again. Perhaps she would like to spend some time in her electorate dealing with her electorate members, who do not have the time of day for her. I say to Anne Tolley that I am speaking to clause 11 of the bill. I am speaking about the membership of the council. Would Anne Tolley please clean out her ears. I am specifically talking to clause 11(1)(a), (b), (c), (d), and (e), and if Anne Tolley had taken the time to listen to me with both ears, and with her mouth closed, she would understand what I am saying.

I say to Anne Tolley that the point New Zealand First is making is that National has claimed that a bunch of Labour lackeys will be appointed. Let me read out clause 11(1)(a) to her: “1 Judge of the Court of Appeal appointed by the President of the Court of Appeal in consultation with the Chief Justice:”. I say again to Anne Tolley that the clause states: “1 Judge of the Court of Appeal appointed by the President of the Court of Appeal in consultation with the Chief Justice:”.

💬 Simon Power: I raise a point of order, Mr Chairperson. That member is not known for his quiet voice, but the fact remains that the noise from all sides of the Chamber prevents those of us who are taking this bill seriously from hearing the member. I would ask, Mr Chairman, that those on all sides of the Chamber, including the officials who were milling around the Chairperson’s table prior to this point of order, allow the man to have his say.

💬 Hon Mark Burton: Although I have some sympathy for the issue the member has just raised, I think his comment about the officials is completely unfounded. There are no officials milling around, there have not been any officials milling around, and at most there has been one official somewhat behind me.

The CHAIRPERSON (Hon Clem Simich): Thank you, Minister.

I appreciate Simon Power’s attempt to ensure that I am heard, but let us look at clause 11(1)(c), which states: “2 District Court Judges appointed by the Chief District Court Judge in consultation …”. Now I say to Anne Tolley that such a person is not a Labour Party lackey.

Anne Tolley is most concerned that I have not been referring to the bill, but I say to her that clause 11(1)(d) states: “the chairperson of the Parole Board:” and I ask her who the chairman of the Parole Board is. It is Judge David Carruthers. He is a judge whom a lot of people have a lot of respect for. Mr Power and I, I think, are in agreement in one area here—and it would be helpful if he could brief Anne Tolley—which is that the Parole Board does not actually have a fantastic reputation right now. If there is one board that needs guidance—I ask Mr Power to talk to Anne Tolley, who does not seem to understand the bill—it is the Parole Board, so maybe that is one appointment that could rightfully be objected to on the basis of past performance. But Mr Power has just said that no, he is happy with David Carruthers, and so am I. If nothing else, he is a good boy from Pahiatua and we all support good men from Pahiatua, which is where I am from. Judge Carruthers has proven to be an eminent judge.

Not one of the people selected and designated as being appointed to the Sentencing Council by clause 11 could in any way, I say to Judith Collins, be described by anyone as being a card-carrying member of the Labour Party. I ask members to please stand and take a call if they know something that we do not know about them, or if they have evidence and proof that would help New Zealand First to change its vote and support the amendment. I ask them to please put on the Table proof that David Carruthers is a card-carrying member of the Labour Party, because I have not seen any.

💬 Hon Member: But he’s not.

Then why are we sitting here and listening to the member say that those people are Labour Party lackeys? New Zealand First has confidence in those members of the judiciary. New Zealand First has confidence, and I personally have a lot of confidence, in David Carruthers. New Zealand First members believe that the Parole Board, of any board right now, needs guidance. If members go and talk to the Kuchenbecker family, or go and have words with Mr Burton in prison, they must come to that conclusion. If we listen to the words of people in Christchurch, we would hear that there are clearly inconsistencies in the sentencing judgements that are being handed out.

New Zealand First members look forward to some rationalisation of sentencing, and we would only feel confident if members of the judiciary were involved in that process. And so it is in this bill. Clause 11(1)(e) states: “5 members who are not Judges, appointed by the Governor-General on the recommendation”—[Interruption]—maybe members have some suspicions, but let us ask ourselves whether the situation is any different from that when Mr Mapp was in Government. Is it any different from the circumstances when the Parole Board members were being selected by National Governments? I do not think it.

I move, That the question be now put.

I really look forward to the day when the House goes back to clause by clause analysis of bills in Committee, because at least it would force members to focus on the legislation. Tonight we have had addresses that were as shallow as a bird bath from Mr Chauvel on two occasions that did not descend into the detail of the legislation. The first point he made, which was wrong, concerned the Rules Committee of the High Court. He said that the Rules Committee comprises certain members of the executive, such as people like the Solicitor-General and a representative of the Ministry of Justice. It is well known, and has been from time immemorial, that the role of the Rules Committee, as a part of the judiciary, is to govern the practice and procedure of the courts of New Zealand—something that is well within the purview of judges. Certainly the case has always been that when the High Court Rules are reformed, they are given a parliamentary imprimatur through statute. So the argument about the Rules Committee is totally misplaced.

What I have tried to do in coming back to deal with this matter in a principled way, through my Supplementary Order Paper 126, is to look at the establishment of the Sentencing Council. The National Party, which was very concerned about the very existence of a sentencing council at the time of the first reading, has taken a good hard look at the proposal and is prepared to live with a sentencing council, provided that it is not a mishmash of the executive and the judiciary but is properly placed within the judiciary, and provided that appointments to it are made under the supervision of the Chief Justice, because that provides the protection needed. That is why we address key points about the establishment and the status of the council in my Supplementary Order Paper.

The second key point emphasised in my Supplementary Order Paper concerns the purposes and the functions of the Sentencing Council, whose primary purpose should be to promote consistency in sentencing practice between different courts and judges. As all members on both sides of the Chamber have said, that is a legitimate cause for concern from time to time. The functions of the council are pared down. Rather than being set out in clause 10 of the bill, they are focused on clause 10(1).

The next aspect of the Supplementary Order Paper that we address concerns the membership of the council. Again, I am not interested in whether people are Labour Party hacks, but I am interested to ensure that we have a proper mix of lay people and the judiciary. If Mr Mark had read my Supplementary Order Paper, he would see that I refer to judicial members of the Sentencing Council and, in my proposed clause 6(1)(e), I also refer to: “Five members who are not Judges to be members for a special purpose appointed by the Chief Justice.” There, I set out in clause 6(3) what those people should be qualified in, in order for them to serve a special purpose. The criteria is picked up from schedule 1 to the legislation.

If the body is structured in this way, then I believe we can have a legitimate sentencing council that can actually do some good for the judiciary of New Zealand in providing guidelines that are sometimes necessary—and I come back to the purpose of the legislation—to promote consistency in sentencing practice. But with the way this body is structured at present, it is unsatisfactory.

The nub of it, as was pointed out by Dr Worth, is when one refers to clause 15. The statement to accompany draft guidelines “that is available for inspection must be accompanied by a statement of the guidelines’ likely effect on the prison population.” That is illegitimate; it is quite improper to have judges being parties to that particular matter.

The very conflict that judges can get into, as I said in the second reading debate, is hinted at in schedule 1. I refer honourable members to clause 3(2) of that schedule, because there is a way out for the judiciary. It states: “A judicial member may, at any time, decline to participate in, or withdraw form participation … if the Judge considers it”—and members should listen to these words—“incompatible with his or her judicial office.” Many of the functions and the purposes set out in this legislation—

I move, That the motion now be put. [Interruption] I move, That the question now be put.

The CHAIRPERSON (Hon Clem Simich): I think that after the persuasive arguments we have heard in the contributions, members would like to test the amendments. [Interruption] I am just thinking aloud, Mr Power.

I raise a point of order, Mr Chairperson. My point of order, just to assist you with that thinking aloud, Mr Chairperson, is that the honourable member Maryan Street, in putting the closure motion, actually got the wording of that motion wrong. As you know, Mr Chairperson, under the Standing Orders the way that the motion is put has to be exactly as it is stated in the Standing Orders. On that basis, I would ask you to consider allowing Dr Mapp to take a call.

Although the member is correct in his first assertion, he will know, of course, that under the same Standing Orders the decision on when the debate is concluded is entirely in the hands of the Chairperson.

The CHAIRPERSON (Hon Clem Simich): Thank you. I do not need any more assistance; I am persuaded that we should hear Dr Wayne Mapp.

I think the debate tonight has been particularly interesting. I draw the attention of the Committee to the different quality of the debate that has occurred between speeches of Government members and of Opposition members, and, indeed, I might add, of those members—in particular, Mr Mark—in support of the Government. Members on this side of the Chamber have been at pains to point out the constitutional defects of this legislation. From the other side of the Chamber we have been greeted—in particular, I might note, by Mr Mark—with a certain level of invective that, frankly, is unwarranted in this kind of legislation. I find that disappointing, particularly from a member of whom I normally expect better.

The other issue that did surprise me—[Interruption]

The CHAIRPERSON (Hon Clem Simich): Please show the speaker the courtesy he deserves.

The other point I was surprised at was the reference to the letter by the Chief Justice to the Law and Order Committee. I was disappointed not because it was private—I understand that private communications can be referred to the House—but because of the way that it was essentially misinterpreted by the speaker. If he had any deep understanding of constitutional conventions, he would know full well that it is simply not possible for the judiciary, and in particular the Chief Justice, to come out and oppose a Government measure. That, frankly, would be highly inappropriate, so the judiciary never gets into the situation of commenting on whether legislation is desirable. That is not its role, and in my experience in this Parliament I have never heard judges do that.

What they do, however, is say: “Given that the Government is putting this legislation forward, may we suggest some improvements and changes?”, and so forth. Of course, that was what the judiciary did. It suggested various improvements and recommended in particular ways how the legislation could be improved.

So for the letter to be tabled, in order to give an opposite impression, does two things. It brings the judiciary into the debate in this House; I say that is wrong, and I have not seen it happen before, frankly. I guess that says something, does it not, about a Government that is getting towards the end of its tether, and getting towards the end of its term in office where it is using all forms of desperate measures to bolster what is an inherently weak position.

💬 Charles Chauvel: I raise a point of order, Mr Chairperson. I take grave exception to statements that have just been made by the speaker on his feet. It was not I who first brought into the debate the issue of the judges’ views; I was simply responding.

The CHAIRPERSON (Hon Clem Simich): That is a debating matter.

I found that the way the matter was referred to, by the person who just took the point of order, was disappointing.

I want to be very clear on this point: National is fundamentally opposed to the Sentencing Council. The reason we are fundamentally opposed is that it undermines the role of the judiciary in its sentencing role. The judiciary has the duty to apply the sentencing legislation of this House. The only reason why this Government is proposing a Sentencing Council is that that legislation—the primary legislation, which sets out the range of sentences for the types of offences and, indeed, has some level of direction as to how those sentences are to be applied, depending on the severity of the offence, the effect on the victim, the deterrent issues for the community, and so on, and so forth—is where this Parliament is supposed to provide the guidance to judges. One simply would not need this legislation if that particular legislation were properly giving direction and instruction to the judiciary in terms of how it should be sentencing. This legislation, in short, is a makeshift effort at repairing the fundamental deficiencies of that legislation, and on this side of the Chamber we have spoken at length about why that legislation is so defective—as, indeed, is this legislation.

It is nice to have some debate for once that produces speakers who actually know their field and who are professionals.

New Zealand First has read Christopher Finlayson’s Supplementary Order Paper 126 and listened intently to his speech. We thought for a moment about his recommendation that the five members of the Sentencing Council who are not judges be members for a special purpose appointed by the Chief Justice. I have to say to Mr Finlayson that for a moment there he had us thinking about why those people should be appointed by the Governor-General. I have just spent a little bit of time thinking and pondering why we would want the Chief Justice, as per Mr Finlayson’s Supplementary Order Paper, to make those five appointments, as opposed to the Governor-General, as per the Government’s bill.

I have listened to Dr Mapp. I say to Dr Mapp that I guess from New Zealand First’s point of view we do not have the fundamental problem he spoke of. We respectfully disagree with him and suggest that many sentences have been handed out in this country that have left the public angered and annoyed because of their inconsistency. I agree with Dr Mapp that if legislation were more prescriptive—I am not sure whether those were his words, and I may be wrong—tighter, and more defined, then the guidance would be there for the judiciary. I understand and accept that, except I have a problem and a question for Dr Mapp. We did not just invent the courts yesterday. We did not just invent our justice system yesterday. We have prospered as a nation for 200-odd years, and if we are saying now that after 200 years we are unable to produce legislation that gives the judiciary the guidance it needs, then maybe we have to accept defeat and say that a Sentencing Council is necessary for the very simple reason that over a period of 200 years we have not—whether through a Government led by National, Labour, the Liberals, or a Coalition—produced the situation of which he is now speaking, lamenting, and saying we need. So my question to National, before we get to a vote, is what it will do and how it will it do it. We have not heard that explanation from that party.

I come back to Mr Finlayson’s point, and I tell that member that his point has caught me and caused me to think. Why should the Chief Justice make those five appointments as opposed to the Governor-General? I guess New Zealand First will vote for the Governor-General, because the Governor-General will look after the interests of the people. He will appoint the people’s representatives to that board, and he will appoint the people who may not necessarily come from the environment that is known only to top-performing lawyers and members of the judiciary. The people do not all live in Merivale. They do not all live in St Heliers and the other high-class suburbs of Auckland. The people live in Aranui, they live in west Auckland, they live in—[Interruption] It is that view that we need to have within the Sentencing Council.

I guess New Zealand First will put its faith, its trust, and its confidence in the next, incoming Government in order to ensure that those five people who are appointed by the Governor-General are not political lackeys of any flavour or description, and that they truly are the people’s choice as chosen and confirmed by the Governor-General. Should that prove not to be the case, I say to Mr Finlayson, then we may end up talking about that in a future arrangement. But for right now, although we acknowledge that we have five members of the judiciary on this Sentencing Council and that the casting vote will lie with the judiciary in an event where the decision is tied, we will sit comfortably knowing that the Governor-General will look after the people’s interests by appointing five members of the public who—and I am taking Mr Finlayson’s point—we trust will be suitably qualified.

But this is not new. We do this every day with justices of the peace. National MPs and constituency MPs consistently put up citizens for appointment as JPs, who then go on to sit in court, to deliberate, to visit prisons, and to hear charges. I take it that the National Party does not simply put up appointees for justices of the peace who are card-carrying National Party members—

💬 Simon Power: No.

It does not, and I know it does not. So why should this be any different? I think New Zealand First will go with the bill as it currently stands.

I move, That the question be now put.