Bail Amendment Bill

Because this bill is such a small bill—both small in nature and small in substance—in addressing this clause I want to pick up on something that Mr Garrett said in relation to his party’s stance on law and order that I found astounding, I must say.

I think it was Mr Goff who challenged Mr Garrett in respect of his “three strikes and you’re out” policy. He said it was the biggest electoral fraud, possibly, in New Zealand’s history. People were told that after three strikes somebody would be inside for 25 years with no parole. The ACT candidate in my electorate, Mr Aaron Keown, rattled around the electorate with great aplomb and made that point. Mr Goff pointed out that after the election Mr Garrett, who I am told—I ask the member to correct me if I am wrong—was at that time the legal adviser to the Sensible Sentencing Trust—

💬 David Garrett: A legal adviser.

—a legal adviser and a learned lawyer, by his own admission, I think.

💬 David Garrett: I didn’t say that.

Well, by Mr Hide’s admission. After the election, he unveiled what the policy really meant, which was that it would not apply or have any impact at all for 15 long years. That bowled everybody over, including, I suspect, even the Sensible Sentencing Trust. Maybe the Sensible Sentencing Trust might want to ask for Mr Garrett’s salary back as a refund, because then—

💬 David Garrett: I never got paid, Mr Cosgrove.

Oh, he never got paid—OK. He got paid to—

💬 Hon Phil Goff: They got value for money then!

Yes, they got value for money. It was pro bono all right—serious “bono”. He then went on to tell us why he had told the people of New Zealand one thing before the election and another thing after the election, and I wrote it down. It was, he said, because he had not worked it out. He had not worked out that the legislation is not retrospective. I will go through the same example he did. If somebody commits a crime and gets, say, 7 years, then comes out, commits another crime, and gets 5 years, and so on, eventually he gets 15 years. He had not worked that out, and he was a lawyer advising the Sensible Sentencing Trust! I am sorry but I do not accept the explanation. I suspect he is a bright guy. He has a law degree—I do not, so I bow to his experience, knowledge, and expertise—he was working pro bono, or otherwise, for the Sensible Sentencing Trust, and I see that its magazine that came out a couple of days ago was trumpeting this position. I do not accept his explanation. We worked it out in about 30 seconds. I think even National Party members worked it out.

I say to Mr Garrett that he will regret that attempt to hoodwink New Zealanders. New Zealanders clearly read the billboards. The position was clearly enunciated by ACT. If it took him 3 months of an election campaign to get out the calculator and go 5+5+5=15, that says a lot about him. Maybe he ought to be a little quieter in this Chamber. His integrity is intact, of course—no one would ever question that. But certainly one would now question that man’s judgment, and certainly one would question his leader’s judgment in co-opting a person who made such outrageous claims to the New Zealand people simply to get votes, who is here in this Chamber on the basis of what he had told people, and who then broke that promise knowingly—in my view—after the election. If he could not hit 5 on the calculator, then +, then 5, then +, then 5, and work it out—

💬 David Garrett: What promise are you talking about? What promise was that?

The promise on ACT’s billboards that this would happen now, that there would be an immediate impact. At every candidates meeting that I went to people stood up and asked the ACT candidate whether that would happen, and he said “Yep, we are going to make it happen asap.” I invite that member to poll New Zealanders and ask them, because that is the impression the ACT Party created.

💬 Hon Annette King: The candidates.

The candidates created it. Mr Hide created it, Mr Garrett created it, Sir Roger Douglas probably created it—every member of that party created the impression that almost the day after the election ACT would get some legislation up and, bang, it would come in and have an immediate impact. Then he says on radio and in print that actually it will not have an impact for 15 long years.

During the first and second readings of this bill, one of the common things that was said about its effect was that the community would be safer once it was passed. The bill will be passed today. No doubt the Minister in the chair, the Hon Simon Power, will have it ready for the Governor-General on Monday, and it could be signed into law as soon as that. So what I really want from the Minister is an answer that defines for this House how the community will be safer after Monday. What difference will the passage of this bill make, once the bill has the Royal assent? I ask the Minister to define for this Parliament, so we can have it on the record of the House, how the community will be safer. I think that is very important. Will we see, after the passage of this bill, fewer murders? Will there be fewer assaults? Will there be less violence? We need that definition because members in National have been programmed, from new members through to experienced members like Nathan Guy. Those members who have just concluded their speeches have said that with the passage of this bill, the community will be safer.

That is a big claim; it is a major claim, and New Zealanders will want to know how we can measure it. How can we measure the claim that when this bill is passed, the community will be safer? That is a very important question, I say to the Minister, and I would like on the record how he will define that so we can measure his performance. That is not unreasonable, because the National Party has made much of what it will do in the law and order area—how much tougher it will be, and how it will ensure that the streets of New Zealand are safer for New Zealanders. We need the measurement of such a change, because it is only by having that definition and that measurement that people will know whether what was said—and the rhetoric—on the campaign trail was right. That is the first thing.

I wonder whether the Minister will also tell us how this bill will stop murders in the family environment. You see, we heard from people today that this will stop murders on the street. Melissa Lee believes that this will stop murders in dairies and on the street, and it will stop street violence. We have already asked for that definition, but I would like to know how it will stop murders that happen in the family environment. Almost half of our murders now happen in a family situation, and most of those people who commit murder have not murdered before. In fact, about 16 women are murdered every year by a partner, and about six men and 10 children are murdered in a family environment. So about 32 of the murders we have each year are committed in that family environment. The rest we would consider to be committed in a street or public violence situation. We have about 60 murders a year, and have had for the last decade. There has been very little change in that time in the number of murders in New Zealand. So how will this change make a difference to that situation? One of the worst situations we have in New Zealand is family violence. How will the change in the bail law affect that?

The next thing I want to know from the Minister is whether he believes that the streets of Auckland are less safe than the streets of London, as Nikki Kaye said in her speech. She said that in London, where she lived, it was safer than it is in Auckland. I presume we could compare K Road with Soho, for example. Well, I do not know whether Nikki Kaye ever met the police in London, but I certainly did. I went to Soho and I watched their video recordings of what happens on the streets of Soho, and I can tell members that every few seconds there is a robbery, an assault, or a stabbing. That is not the profile of New Zealand, so when extravagant statements like that are made, they need to be backed up by evidence. So I want to know from the Minister whether he agrees with his member, and whether he believes that the new bail law amendment will make K Rd safer than Soho.

I take this opportunity to thank Opposition members for recognising me. My name is indeed Melissa Lee. I thank them for the lessons they have decided to bestow upon me in respect of my inexperience in this Chamber. However, I remind those members that I have the right to comment on the issue, and I was neither delusional nor arrogant in pointing out that we have a problem with criminals in this country.

💬 Hon Clayton Cosgrove: You didn’t say that.

If members listened very carefully, they would know that I did not say the bill would stop murderers. I said I would support the bill if it stopped another senseless killing—like the killing of Navtej Singh, Joanne Wang, and Madam Yang. Madam Yang was an 80-year-old woman who was murdered in her home.

I also talked about my experience of home invasion. Yes, Chester Borrows was right: I became rather emotional. This is the first day I have spoken in the Chamber since my maiden speech, and I became rather flustered by members opposite—great! I thank members for making me nervous—I have subsequently been shoulder-tapped. I was the victim of a home invasion. When I spoke earlier, I was not arrogant enough to think that I represented everybody in New Zealand; I was speaking from my experience. Two guys wearing black balaclavas came to my house and followed me into my garage. Those people were on bail when they committed that crime. If this bill can stop them from committing another crime, then I will support it.

There are a number of questions I would like to put to the Minister in the chair, the Hon Simon Power. The Minister ought to be quite well informed in this area; he shadowed it for 9 years, or something close to that. So I presume that, unlike his predecessor in the chair, the Hon Kate Wilkinson, he will actually take calls.

My first question to the Minister is whether anything in this bill would have had any prospect at all of influencing the outcome of any of the cases raised by Melissa Lee. Were any of the cases raised by Melissa Lee ones that involved people on serious charges who were out in the community on bail, where the marginal impact of this bill would have made a difference? I think that question is important, because we are talking about this bill. I do appreciate the need for any New Zealander to feel safe in his or her home. A home invasion is a terrifying thing, and I have sympathy for anyone who has gone through that experience. I am not knocking the previous speaker’s experience; I am just pointing out that her saying none of us knows what it feels like to be a victim is presumptuous, arrogant, and patronising. All of those things are fair criticisms.

Secondly, can the Minister explain why this bill is a priority? Yes, New Zealanders are concerned about law and order, but why does this bill need to be rushed through without a select committee hearing? Is the bill a priority because it will have an immediate and important influence on making the community safer? If that is the Minister’s argument, can he explain to the Committee and the country how this will happen, when the advice given to my colleague Annette King just a matter of months ago—by the same Ministry of Justice officials who are sitting at the front of the Chamber now—was that this might involve about 10 remand beds over the next year. Will this be really significant, if, as the law states at the moment, the people whose cases might be influenced are those that involve less clear and significant risk than nebulous and insignificant risk? So is the nature of the people whom we are talking about—those who may be remanded into custody—such that a reasonably clear risk would be presented to New Zealanders, and, if he believes that, can he provide the House with some evidence to sustain that argument?

Does the Minister accept that the impact of this bill will be to take the law on bail back to where it was before the 2007 amendment? If so, the case law that applied under the previous law will apply now. Does he therefore accept that that case law is set out clearly in R v Hines in the Court of Appeal? That judgment says that the risk that the defendant may interfere with the witness should be “more than nebulous and insignificant and should be a real and significant risk.” If that is the case, how will the law now change in its interpretation from what it was before, given that this bill will take us back to exactly the same law that we had, and presumably the same case law?

Were the Ministry of Justice people actually being really generous when they suggested that this change might involve the need for another 10 remand beds? And are 10 remand beds very significant when the number of people remanded into custody at any one time is over 1,800? We are talking about well over 15,000 people each year being circulated through the system and remanded into custody.

Given that the bill states that the Law Society said the changes have made it easier for defendants to get bail, can the Minister explain why this remark is not qualified by what the Law Society actually said. I think it was on the Close Up programme that Jonathan Krebs, who is the convener of the Law Society’s criminal matters committee, said: “the threshold of the bail test has been reduced a little bit.”—a little bit.

💬 Hon Simon Power: So it has been reduced.

A little bit. I am happy to take my seat if Mr Power indicates a willingness to answer all or even any of those questions. That would make a change from the other Minister who was in the chair.

On the bill the Minister says that High Court judges have said these changes made it easier, but he actually quoted very selectively. Justice Priestley—hardly a Labour-oriented judge, given his background as an office holder in the National Party, as the Minister in the chair will be aware—said it is clear that the threshold criteria, when considering section 8(1), have not changed significantly. However, of course, Justice Heath said it “does not seem to me to put the test any higher than was under the previous legislation,”. So there we go. A couple of High Court judges say there is not much change, and those who say there is change say that there has been a little bit.

Will the Minister acknowledge to the Committee that he is into window dressing rather than reality, as he has been accused of by a professor at Otago University? Given that this legislation is patently window dressing, will he acknowledge that it really does not change things? The Minister knows that in his heart; he will probably not admit it in the Chamber today, but he knows that is the case. Why did he choose this legislation—as he said in the New Zealand Herald—as his top priority?

I ask the Minister to explain something to the Committee—and to Melissa Lee, because she will want to know this. The Minister has the immediate power through Order in Council to bring in legislation that has already been passed—after having gone through a select committee process—and that makes the minimum period before parole can be considered for any serious sentence at least two-thirds of that sentence. That means that people serving short sentences will have to serve the whole time, so if he was going to be tough and really make a difference—actually, this is a question that Mr Garrett should be asking him, and maybe he will—why has he not chosen that as his priority? I say to Mr Power that it is sitting on the statute book now, waiting to come into effect. Mr Power has said that this is really important, and that the law is too lenient. I ask him why he has not done that as his priority. Secondly, if that is not his priority, I ask when he is considering doing that, and what the reason is for his delay.

I think members would agree those are all legitimate questions. I am happy to resume my seat and listen to the Minister’s answers on those questions.

I emphasise that as this bill is not going to a select committee, the only accountability the Committee actually has is what the Minister answers in the Chamber to questions legitimately put. I think members would agree that none of the questions I have asked are frivolous, that all are pertinent to the impact of this legislation on the country and on community safety, and that the Minister should be able to justify how this will make a difference to community safety. He has said that publicly, but we know from his briefings that it will have a very marginal impact, and a marginal impact on cases that were themselves very marginal. So if there was any real risk, that would already be covered by the legislation. So we are talking about perhaps nebulous and insignificant risk, as set out by Justice Heath.

Why is this legislation the priority? Is the Minister misleading the country in suggesting that it will make the community safer? Were any of the cases raised by Melissa Lee relevant to the legislation passing through the House right now? I would really appreciate the Minister having the conviction to stand up and answer those questions. I give him now the opportunity to take the call.

The Opposition is actually largely right: this measure will not reduce homicide by 50 percent, or even 10 percent.

💬 Hon Phil Goff: Or even 1 percent.

Or even, perhaps, 1 percent—that is right. I think I could even agree that the test was made a little bit more liberal; I can even accept that.

I would like to give the Committee a few figures. Twenty-five percent of violent offenders reoffend while on bail. They do not necessarily kill anyone; probably almost none of them do. The reoffending rate for those whose previous major offence was rape, unlawful sexual connection, or attempted sexual violation is even higher: 27.4 percent, 30.4 percent, and 31.2 percent respectively. I am not a great numbers man—I do not have to be—but that means that out of every 100 people released on bail, 20 to 30 reoffend, depending on their offence or their past. If we can prevent even one of those who is released—who would otherwise not have been released, as a result of the stricter risk test rather than the “real and significant risk” test—from killing someone, or even raping someone, is that not worth doing?

Members should look at the case of Dean Wickliffe. He was a long-time loser. He was locked up in 1972 for murder. Later, on retrial, the crime was found to be manslaughter, but, significantly, the court never let him out—the life sentence remained. Life sentences are available for manslaughter but are almost never used. Wickliffe finally got out in 1987, but within a very short time he was back again: a year later he was convicted of murder. He spent years and years arguing that he had been wrongfully convicted of murder in 1972. Finally the parole board said that he was right. One year later he killed someone. Sorry, I should say that he was retried and acquitted. But, as the Hon Phil Goff said quite correctly, no one gets found innocent in this country. Acquittal is quite a different thing.

Now Wickliffe is out again. He is out again “to care for his terminally-ill partner”. He is certainly not a nurse. He is not a hospice worker. Even his people in Maketū in the Bay of Plenty are “ambivalent about Wickliffe’s pending return. One said the community had done a lot to help Wickliffe settle into life outside prison, but he had turned his back on them. ‘He likes to be a big hot-shot.’ ” I believe he is known as the “Big man”, although he is about 5 feet tall. I hope I am wrong—I absolutely hope I am wrong. But Wickliffe is out there now, and that frightens me. He is out there now on bail. If this proposed tightening of the test meant that some judge somewhere said “Well, no—there’s a slight risk there; you’ve got to stay there.”, I would feel a lot happier. So even if this measure reduced violent offending by a little bit—even by 1 or 2 percent—it would be a change worth making.

But the Opposition is correct: in itself this measure will not reduce violent offending by a huge amount. It is very difficult to measure how much this will reduce it, at all. A negative cannot be measured—it is very hard. But I would be much happier if Mr Dean Wickliffe was behind bars rather than in the community, and if this change achieves that for others like him, then it will have done something positive.

I thank the member who has just resumed his seat, David Garrett. I think he has put his finger on the nub of the issue, which is that in itself the Bail Amendment Bill will not do a lot. In fact, the very case he outlined—the kind of situation he outlined—is the exact reason why the last Labour Government changed the bail laws as soon as we became the Government and is the very reason we changed the Sentencing Act and parole laws the moment we became the Government: because we recognised the inherent unfairness and the danger to the community of existing legislation. But, as I said, none of us likes presiding over rising prison populations. It is a waste, but at the end of the day the safety of the community and the safety of the public have to be upheld. It is important that when people come up for bail, their previous history can be considered as an indication of the kinds of risks they might pose to the community if they were to be released. So, strangely enough, there is not a lot there that we disagree on, and I think that the Hon Phil Goff, who passed those amendments into law, had that in mind when he passed them.

But I say to members again that we cannot forget the other side of the equation, which is that if we are constantly—to use a very overused cliché—the ambulance at the bottom of the cliff rather than the fence at the top, then parliaments in 20, 30, 40, 50, or 60 years’ time will still be having these debates. There will still be far too many victims of violent crimes, and nothing will change.

I appreciate that this is not a large bill: it is fewer than 50 words, I think, if we take out headings and the contents page. It did not really need the contents page, but that is all right—it is standard. I ask the Minister in the chair, the Hon Simon Power, which clause in this particularly short bill will prevent crime. I ask the Minister which clauses in this legislation will prevent family violence. I reiterate that this is the first law and order legislation we are seeing in National’s 100 days of action; it is the top priority for the new Government in terms of law and order legislation in its first 100 days of action. It is significant: as a Parliament and as a country we can look at the first bill that comes up as an indication of the way that we will go forward. This is the bill that has come up first. I ask the minister which clause in this bill will prevent family violence and will encourage people to report family violence. I ask him how many crimes this bill will prevent. If this bill, as he says, will result in a large number of people being held in remand, how much has he budgeted for that increase? How many extra beds has he budgeted for?

I ask how he reconciles this legislation with the legislation his Government passed yesterday and today, which increased taxes on the most vulnerable families, and which took away the rights of workers in their first 90 days of employment to appeal against being sacked, even if they were sacked simply because their boss did not like them or their partners. How does he reconcile that legislation with this? Does he agree with his colleague Tony Ryall, who said in 2000 when Labour passed the Bail Act to toughen bail provisions that bail is a very important constitutional right and people should not have to be held in prison? The rhetoric that I heard on the election campaign certainly did not support that point of view. I think it is only right that as an Opposition party we come into this Parliament as a minority, hold the Government to account for the rhetoric its members gave us during the election campaign, and compare it with the reality of the legislation before us—the first law and order legislation of this new National - ACT - Māori Party Government.

After going through an election campaign of fire and brimstone, of hell to pay for criminals, and of hell to pay for offenders, this is the first piece of legislation we get. It really does not do much, at all. It will not make a single person safer; a number of people have said that. We can play tit for tat over which justice said what and which academic said what, but the fact is that this bill will not make anyone safer, it will not live up to the rhetoric we heard during the election campaign, and it is the role of the Opposition to hold the Government to account.

I want to address some of the questions that have been raised. I appreciate that although the Bail Amendment Bill is a short bill, it is appropriate for the Minister to have a say on one or two things. I also appreciate the fact that my predecessor in this job often made the effort to respond to questions that were put to her when she was sitting in this chair, so I am happy to do that.

First of all, I say it is our hope that Parliament will realise that it is its job to clarify the matter in respect of the interpretation of bail laws. It is important that this Parliament sends a message about any ambiguities that could be interpreted by different members at different levels of different courts. That is why I am pleased that the Labour Party has decided today to support this legislation: because, if nothing else, some of the issues of different interpretation that have been outlined by some of the Opposition members will hopefully receive some sorting out. In the end, the matter of whether or not changes to bail contribute to the reduction in crime, even in a modest way, would have to be helped by clarification of, and an end to confusion about, the test that is to be applied in this area.

The Hon Phil Goff made some comments in respect of the New Zealand Law Society’s criminal law committee spokesperson, Jonathan Krebs, who told the Press on 20 November 2007 that changes to the Bail Act in that year had made it easier for people to get bail—

💬 Hon Phil Goff: A little bit.

No. Actually, the quote I have here is “made it easier” for people to get bail; I tell Mr Goff that is the version I have in front of me. Yes, the bar had been lowered a little bit, he said, but the safety of the community was still paramount and if a judge was concerned that an applicant might present a risk, bail could be refused. That is why clarification is needed in that area.

On the issue of the number of remand beds, I say yes, I have seen the advice that members are referring to around the figure of 10 or so beds. In fact, I think I may have raised it in the House during the last Parliament. And just so that Mr Goff knows this, I tell him I have been National’s spokesperson in the law and order area for only 3 years, not 9 years. I know it feels like 9 years to members opposite, but I have been there for only 3 years. But those members may be interested to know the latest figures I have available. As I said in the first reading, initial Ministry of Justice figures talked about an extra 50 to 100 beds—maybe more. So we are talking about a reasonably significant change—well, a change that is significantly more than the numbers that were indicated—

💬 Hon Phil Goff: What percentage would that be of all bail remands?

Well, I tell Mr Goff that he wanted me to answer questions, and I am doing that in respect of matters around the number of beds. I hope that clarifies that issue.

The other thing that I am concerned about is the practicality of the situation for individuals like members of the police and the Police Prosecution Service, who on a day-to-day basis deal with the upfront implications of previous laws in this area. We know that it is the view of the police that in fact the law change did make life more difficult for them when it came to bail applications. We know, for example, from the New Zealand Herald of 21 October 2007, where this matter was written about, that police prosecutors were shown a slide by Kelvin Campbell, the legal adviser to the Police Prosecution Service. It stated that the Bail Act and Sentencing Act amendments were to ease concerns over prison numbers, create new sentences short of imprisonment, and make it harder for the police to oppose bail as a result of that.

Frankly, this is a time for us to tidy this issue up. That is why I am pleased that just about every party in Parliament has decided to support this legislation. It will make for a clarification of the issue. I think Dr Cullen’s contribution to the second reading debate was a helpful one. These are big issues and they are difficult issues; no one is saying they are easy. But, at the end of the day, if we can keep people off the streets who would otherwise have got bail, by clarifying that test—thereby hopefully enhancing public safety—that cannot be a bad thing.

The Green Party is not in the business of being in Parliament to make law that makes David Garrett feel better.

💬 Hon Clayton Cosgrove: That has got to be a shock to him.

Ha, ha! That is not our sole reason for being in Parliament.

💬 Moana Mackey: That’s not what you campaigned on.

It is not what we campaigned on. Nor is it our business to be making law to make anybody feel better; we are here to make law that makes real change. There is an argument here, as the debate goes on, as to whether this legislation will do anything, whatsoever. We are hearing from one side of the Chamber that it will do nothing, and we are hearing from the other side that it might do a little bit. Either way, it is an appalling way to approach legislation. We should not be wasting an extra day of taxpayers’ money on a Friday afternoon in having the whole House here to debate legislation for which there is no evidence of any description that it will actually do anything to keep people safer, to make significant changes to the prison muster, to keep dangerous offenders in prison as opposed to out, to reduce crime under any circumstances, or to impact at all on recidivism and reoffending. On that basis, this is an absolute and utter waste of taxpayers’ time and money. Through this debate absolutely nothing will change, and nobody knows—not even the Minister—whether this legislation will make any change anytime in the future.

This is disgraceful behaviour, and a disgraceful reason to be using the kinds of precious resources that our community needs, when the community does need to be kept safer, and the community does have real fears. Much of that fear has been driven up by political fearmongering during the election campaign. Law and order has been used for that purpose for quite a number of years, but there are real concerns in the community, and they should be addressed.

So how will we deal with those concerns about reoffending, reducing the amount of crime in our community, and trying to keep people out of prisons? In many ways, prisons are holding cells for the potential capacity of enormous development in this country, particularly from a Māori point of view. Too many of our Māori people are in prisons, for all the structural racist reasons that I set out earlier in my first reading speech and that Rahui Katene set out in hers. It is a huge waste of potential to have people trapped in our prisons, but the law and order debate that is being held at this high level in Parliament, and therefore filtered out into the community, is one of doing the same things over and over again and expecting different results. Of course, as we all know, that is the definition of insanity, not rational, evidence-based legislation and lawmaking.

We need to change the debate and we need to change what we do to make this community safer. We know that if we keep people away from prison, they are less likely to reoffend. We know that for a fact, so surely there is room here for a serious discussion and serious debate, and for legislation that looks at ways of keeping people away from jail, because we know that if they stay away from jail they are less likely to reoffend. That is a means by which we can reduce the recidivism rate; it is a means by which we can keep our communities safer. But instead of dealing with legislation to keep people away from prisons, we are debating legislation that will put more people in prison, and we are somehow expecting, despite the evidence to the contrary, that this will keep our communities safer.

It is of some interest—at least to me, I guess—that this issue is not faced by New Zealand alone. New Zealand suffers from the problem of a failure both of the imagination and of rational, evidence-based legislation in terms of finding the real solutions, and of enacting and putting in place the real solutions to reducing offending and reducing reoffending. Australia is dealing with the same issues. It has recently had a number of law changes that have made it much harder to get bail over there and, as a result, its prisons are absolutely bursting at the seams. It is a particular issue in New South Wales. They are talking about having to build a new prison in New South Wales every 2 years, just to keep the growing population of prisoners in jail.

I move, That the question be now put.

I am glad that the Minister took a call, but I urge him to take another call and give a more comprehensive explanation to the questions he was asked. I acknowledge Metiria Turei’s speech, because she made some extremely valid points in terms of the politicising of this really important issue, the knee-jerk reaction, and the going for the populist line on things. National has claimed that it would be tough, and that this bill would be a really, really important tool in terms of its commitment to dealing with crime. I actually think that National has almost committed itself to stopping crime in New Zealand—is that right—but by its very presence this bill implies that Labour’s 2007 amendment legislation had a detrimental effect on remand. By its very presence, that has to be the case the Minister and the National Government are putting up.

Labour knows that the figures show that that is simply not the case—that the remand prison population has continued to grow at a rate greater than the sentenced population, despite the 2007 amendment to the Bail Act. In July 2007 remands, which included prisoners held in police stations, totalled 1,733 and comprised 21 percent of the total prison muster. By July 2008 remands had increased by almost 6 percent and constituted 23 percent of the total prison muster. I agree with Metiria Turei that the measure of our effectiveness in crime prevention in New Zealand should not be in terms of the numbers of people on remand. But the Government’s argument is that this bill is so important—and this is what I still want the Minister to explain—that it has to be pushed through in urgency.

I would very much like Sandra Goudie to take a call. As chair of the Law and Order Committee, I believe that it would be very appropriate—

💬 Hon Darren Hughes: The law and order “tsar”!

Sorry, the member was not listening; I will say it again: I would like Sandra Goudie to take a call on this bill. I am sure that she, as chair of the Law and Order Committee—and I have sat very occasionally with Sandra Goudie on committees—like all other members, values the input of submissions and the select committee process. I think everyone in this House would acknowledge that that process is a very good idea. We see that it is a very effective process. We see bills go to that committee that are at the very most thrown out, that do not go forward. They may be unchanged, but often, and more appropriately, they are changed because we get constructive ideas coming through. Those are not always criticisms; they are often technical points. Yes, I hope Sandra Goudie is speaking to the Minister, and I am hoping she can take a call.

💬 Hon Darren Hughes: Where is she going?

I am not allowed to say what is happening now, but I do hope she will take a call.

I do not think the Minister has answered the question. In fact, I made a note of one of his responses, which was that part of the reason for the bill was to tidy up this issue. But I take Metiria Turei’s point. If we are tidying an issue up, why are we in urgency, depriving the public of a say, and pushing through a bill that National and ACT, it seems to me, have acknowledged will really not have very much effect.

I have not heard the Māori Party take a call on this.

💬 Hon Member: They did!

Sorry, it did earlier. But if that is the case, I am still completely perplexed as to why the Bail Amendment Bill is being pushed through in urgency. Given Labour’s 2007 amendment, which was to clarify the law, promote consistency in decision making and respond to judicial decision, I would like to hear the Minister again explain how this bill will achieve that, or improve on that. I think those are very important points. The Minister has talked about ambiguity, and surely that scrutiny should have been made at a select committee.

I thank the Minister of Justice for taking one of what will be quite a number of calls, I hope, to answer questions put to him by members on this side of the Chamber, and by the Green Party. I hope that David Garrett takes a call; I am quite enjoying his contribution here today. I believe that he is probably his own man, but he might have some questions he would like to put to the Minister. He may even have some luck in getting some answers to them.

I say to the Minister that he is certainly being a better role model than his colleague Kate Wilkinson, who failed to get out of her chair, hour after hour, to answer questions. I think it is probably because the Minister knows that when a bill is taken through the House under urgency, where there is no scrutiny, then it is important that the members of this House have the opportunity to question the Minister, and to get answers.

One of the answers the Minister gave was I think partially in response to the question I asked: would he please define for Parliament, and for New Zealanders, how the community’s safety would be measured? The Minister said that the bill sends a message. But I say to the Minister that I do not think it is good enough for the bill just to send a message. I remember Clem Simich, whom I am very, very fond of, say in 1993 that he would take a message to Parliament, and 15 years later we still had not had the message, even by the time he left. So, for the Minister to say that the bill is sending a message is not a strong enough reason to have brought in this bill under urgency. I ask the Minister to tell us how we will measure the success of this bill, because his members have been programmed to say that when it passes, the community “will be safer”, not “may be safer”. Examples have been given of how it will be safer; most of them did not relate, at all, to the bail Act changes. But National members have put those reasons up, so I have to assume that the Minister or the research unit gave them the information, or that it is what they said on the campaign trail. I believe that the Minister needs to tell this House and New Zealanders how we will be able to measure whether the community is safer because this bill will be passed by Monday.

I also ask the Minister to table for us the advice he got from the Law Society, the judges, the Police Prosecution Service, and the Police Association, saying that the changes to the Bail Act in 2007 “have made it easier for defendants to get bail.” I have not seen the advice but it is quoted in the explanatory note on the bill. What I have seen, and what I do have are the comments made by Jonathan Krebs on Close Up on 19 November 2007. I do have that, verbatim. He said: “The threshold of the bail test has been reduced a little bit.” That is different from what the Minister said that Jonathan Krebs had said, so I would like the Minister to table that information. We will not be able to question the Law Society, the Police Prosecution Service, the judges, or the Police Association, because there is no select committee ability to do that. Therefore, to back up what is written in the bill, I think it is important that that advice to the Minister is tabled in this Parliament. I have only what is in front of me, but the Minister obviously has more.

I am not at all surprised at the Police Association. I understand the police. The police in most cases oppose bail; that is part of their job. They have gone out and done the hard graft. They have found somebody whom they believe is responsible for the crime, and they are very determined to get that person into court. So I understand where the Police Association comes from, but I have not seen that advice provided. I ask the Minister whether it is possible for him to table that information today, or is it a collection of things sent to him that are hear say, and not actually fact? I think that is important, because in effect this will become our submission. The basis of the change that the Minister is making today, according to the explanatory note, is because of those comments made by those people.

I am just following on from my previous discussions. I was talking about the fact that in New Zealand the debate about law and order is stuck on retribution and punishment, as opposed to dealing with the real consequences, in terms of safety for the community, and the real need, which is to reduce reoffending and the recidivism rate. What we know, of course, is that what we are doing now—which we continue to do in this House—does not reduce the recidivism rate; it increases it, and there is no debate in this Chamber or amongst the broader community to look at the alternatives, the changes, that we need to make to reduce reoffending and to keep our communities safer.

In Australia, and in New South Wales in particular, they suffer from exactly the same problem—a massive increase in the number of prisoners due to toughened bail laws. Thousands of people are being held on remand as they await trial, and that is blowing out the costs of the prisons. Over there they talk about holding a prisoner at a cost of about $200 a day. There is nothing in the prison process, particularly for those who are held in remand, to help them to deal with their reoffending, whether it is in terms of rehabilitation or drug and alcohol treatments, particularly in terms of treatment support.

As is the case here, very little is spent on rehabilitation or support for those who are on remand, or even those who get bail. This is where there is a huge hole, and others with more experience in the portfolio may want to make a contribution about that—that there is no real support for those who are bailed. A young person with a first offence may get into some trouble and run with people who are more dangerous, older and more involved in crime, then get caught for some kind of offence, and get bailed to that same community of people—the same family, the same home, and exactly the same circumstances that brought him or her into that criminal activity in the first place. There is no provision for them to get any kind of support to deal with the issues that brought them there.

For many prisoners, drug and alcohol treatment is absolutely essential. Vast quantities of our prison muster have drug and alcohol addiction problems. Very few, especially those who have sentences of 6 months, get access to any kind of rehabilitation programme whatsoever. Then they are let back out into the community. And what do we expect, as we do the same thing over and over and do nothing to provide any assistance? We expect that they will magically decide to change everything about their experience and their lives and find a whole new way of living.

There is not only that. As some of my Labour colleagues have mentioned, they may then go into an environment where they may well get a job, which is often a life-saver, particularly for these young guys, to help keep them out of trouble. But what happens after 90 days? They will be fired and they will find themselves on a benefit, and on a 13 week stand-down because, as we have discovered, the Minister of Labour has not been able to fix that problem because she does not understand benefit law. [Interruption] National did not support the amendment to get rid of that stand-down. Young guys in particular end up on a merry-go-round of jail for further offending, trying to get work, finding themselves unemployed, going on a benefit again, getting back into crime, and going to jail—round and round it goes. Where is the intervention? Where are the resources that would stop that roundabout? There are none.

We have to bear in mind that for all the really nice words that Minister Power has said in the past about trying to put more money into drug rehabilitation programmes both in prison and out of prison, the Minister of Finance and the Prime Minister have told their Ministers that there is no new money. There in no money for any of these kinds of programmes, so how will the Minister fulfil that promise? I have a great deal of faith in Simon Power. I have spent some time with him in the last 6 years in this House, and I know that he is a genuine person. I believe that he believes those things, but he has no money to put into rehabilitation programmes, restorative programmes, and programmes like the Sycamore Tree programme.

There is a real and very significant risk that by passing this bill, this House will penalise hundreds of people on the off chance that we may—I stress may—stop one, or even two, people who stand accused but are not yet found guilty of the crime of which they are accused. It is important that we as members of Parliament remember, as the Hon Dr Michael Cullen said, that a fundamental tenet of our criminal justice system is that a person is presumed innocent until proven guilty. The rationale is that it is better to let one guilty person go than to imprison any who are not guilty. So it is important that we keep that in mind when we are remanding a person into custody—they have not yet been found guilty of any crime. They are still presumed innocent of any crime they have been charged with. To remand them into custody, which is what this is about, is a very heavy penalty. It is a penalty that should be used only rarely, in very limited circumstances, where the police have sufficient evidence to convince the court that the defendant is highly likely to be convicted of the crime for which he or she stands charged, is on a serious charge, or is a danger to the public by either interfering with a witness, absconding or reoffending while on bail. There is a very real and significant risk that we could be causing injustice.

The Māori Party is convinced that this bill is a knee-jerk reaction, as the member Metiria Turei has said. It is not a well-thought-out response to what everyone agrees is a problem. This bill does nothing to fix the problem. As a House, I presume of intelligent people, we should be sitting down and thinking this through properly. We should be putting it to a select committee, so that people who have more experience in this area than us can give it well-considered thought, come to talk to us about it, and give us some solutions that are well-thought-through.

If this bill is passed our wallets will be hit, because Vote Corrections, no matter what the Minister has told anyone, will have to increase in size to pay for the huge increase in remand prisoners—that is, people who are still presumed innocent. They have not been found guilty; they are still presumed innocent of any crime.

The Māori Party agrees that the bill should not be pushed through under urgency. We should give the public a chance to have their say and to put up their ideas for dealing with this problem. And it is essential that Parliament does its job of making laws, and does not pass that duty on to the courts. There is a real danger here that if we do not do that, then the courts will. It is not the court’s duty to make laws; it is the court’s duty to interpret laws. Parliament should be telling courts what the law is, not the other way around. There is a danger there when we let the courts make laws.

I read from Moana Jackson’s paper The Maori and the Criminal Justice System: a new perspective—he whaipainga hou, Part 2, where he says that “The judge occupies a position in the eyes of the Māori community which is somewhat paradoxical. On the one hand, judges are held to be worthy of respect because of their learning and wisdom; on the other, they are responsible for injustice because of their service to an often prejudiced and unjust law.” As parliamentarians, do we want to be remembered as the Parliament that passed unjust and prejudiced laws? We want to be making laws that will benefit all people, and at this stage this law does not benefit Māori. It does not benefit anyone, because it is a knee-jerk reaction. It is not doing what it is supposedly designed to do, and we need to be able to say to our people and to everyone out there that we have thought this decision through—that we have done what the people say is the best thing to do.

I continue from Moana Jackson’s paper: “Many Māori are aware of, and continue to respect, the frequent questioning of colonial policy by the first Chief Justice, Sir Charles Martin. There is also continued anger and grievance at Chief Justice Prendergast’s dismissal of the Treaty.”

I want to pick up on a couple of points that were made. Firstly, I think that the fabric of the Bail Amendment Bill has started to unravel. Even the coalition partner—or whatever it is called—the ACT Party’s Mr Garrett made quite a valuable contribution. We finally teased it slowly out of him when he said that basically, the changes proposed by Mr Power and the National Party do nothing—they do little.

💬 David Garrett: I didn’t say that.

Yes, the member did; I wrote it down. He said that in itself, this change will do “little.” That is what the member said.

💬 David Garrett: I said “little”. That is different from “nothing”.

I invite the member to whip out his Hansard and have a look at it. That is what the Opposition has been saying for the last few hours. This is political puffery. This is propaganda.

In response, the Minister said to Annette King, as the fabric of the legislation unravels and frays, that this legislation is designed to send a message. We have an admission from Mr Garrett—he is a lawyer; I am not—that this legislation will do virtually nothing. We have been saying that. Mr Power says it is designed to send a message. Well, by that admission we can see it is not designed to have any practical effect. At the start of this debate I said that the day after the enactment of this bill, no one in New Zealand will be any safer because of it. This is what we have now come down to. This is political puffery.

The Minister did get up and do what the Minister last night failed to do: he answered some questions. One key question that was put to him again was about his position on the parole legislation. His policy is the sentencing, parole, and bail policy of the National Party. Nowhere in there can I read of Mr Power sending a message. Under the heading “Our Principles”, National’s policy states “Tough on crime.” Being tough on crime was the principle, not the sending of a message. We now know, not only because of what the Opposition said but also because of Mr Garrett’s admission, that this bill does virtually nothing—very little.

💬 David Garrett: No, I said “little”, not “virtually nothing”.

“Little”, or virtually nothing. I do not have a dictionary in front of me, but I am sure that we could get the Collins English Dictionary out and have a debate about “little, “very little”, or whatever. There is another, more colloquial way of putting it, but I will not do that because it would be unparliamentary. Nowhere in the policy that the Minister sent to people before the election did it say National was going to send a message, and that was all it was going to do.

The question that Mr Goff, Mrs King, and I put to the Minister was about a practical solution. A practical effect that would make people safer would be to trigger the parole legislation. He was asked by me, Mr Goff, and Mrs King when he would do that. I tell the Minister to feel free to interject and answer that question. When will he ring the Governor-General and sign off the Order in Council? Today? Tomorrow? Next week? He could turbo-boost it if he liked. He could ring now; there is a phone in front of him. When will he actually do that? There is no answer.

The other question that Mrs King put to the Minister was very interesting, because he had rattled off that he had evidence from the Police Association, the Police Prosecution Service, and the New Zealand Law Society that our change had weakened the test for granting bail. She asked him was whether he could table the evidence of that. I am reliably informed that when he was asked in a side-bar conversation what the evidence of that was and whether he would table it, the answer was that it consisted of news clippings, and that he had never tabled news clippings in his life. So now we know there is no evidence.

The hem is starting to fray on this bill, because we have heard Mr Garrett say it is useless and does very little, judges have said there is no change with this legislation, and we know that it will not make one New Zealander safer the day after its enactment. I invite the Minister to change his mind, get up in Parliament, say “taihoa”, go out to the phone booth behind him, ring the Governor-General, and do something that will be tough on crime. He could text him. I am told the Governor-General is well up on technology; the Minister could text him. He could do something that would be, to quote his policy, “tough on crime”, and enact the parole legislation through an Order in Council. I wonder whether he will get up after this and answer that question. If not today, then when will he do that?

💬 Hon Ruth Dyson: Better than Kate Wilkinson.

He is better than Kate Wilkinson; I agree. He has actually got up and made a contribution. I know he is itching to make another, but the whips have probably told him he is not allowed.

💬 Hon Ruth Dyson: No, they’re not allowed to do that.

Oh, they are not allowed to do that. But when will he bring into force the parole legislation?

That is a fair and serious question, I say to the Minister. It is a fair and serious question. The Minister knows—and all members, from both sides of the Chamber, who have made contributions and who have a view that we wish to help victims and to make New Zealanders and our communities safer know—that we cannot compare this piece of political propaganda with a phone call from the Minister to the Governor-General that would actually make a real difference to New Zealanders.

I move, That the question be now put.