Bail Amendment Bill

Clause 3 amends the Bail Act 2000, and I am delighted that Tony Ryall is actually in the Chamber at this point, because the passing of the Bail Act in 2000 was something that Mr Ryall was pretty much opposed to. In fact, he said at that time that bail was a very, very important constitutional right, and people should not be held in prison. That was the quote from Mr Ryall at that time.

Of course, the Bail Act 2000 strengthened the bail legislation that had been previously there. I want to share with the Committee what the Ombudsman said in his report about the Bail Act 2000. He said that Act was enacted following an increase in offending while on bail and growing public, political, and media pressure for change. Well, of course, we all know 2000 was a few months after Labour became the Government after 9 long years of a National Government, which had the opportunity to strengthen the bail legislation when it was in Government, but which did not make the changes that were being sought. So the Bail Act was enacted following growing public, political, and media pressure for change. At that time two major changes were made to the legislation. It contained increases in the circumstances in which the onus was on the defendant to justify a release on bail rather than relying on the prosecution to justify a custodial remand—the reverse onus of proof. That is when that was brought in. The second change made at that point was to provide for breaches of bail conditions to be recorded and to be available subsequently when bail was an issue.

At the time the National Party said we had gone too far, we were being too tough, and people had the right to have bail. We believed that people had the right to have bail, but we were responding to the pressure at that time for there to be a tightening-up of the bail legislation. We made a substantial and significant change in 2000 in the Bail Act, and that is recognised by the Ombudsman in his report. He made this point. In March 1997 the total prison muster was 4,967, comprising 4,417 sentenced prisoners and 550 people on remand. Ten years later the total sentenced prison population was 6,053, a 37 percent increase. The remand population was 1,724, an increase of over 200 percent out of a total muster of 7,775. If the remand population had increased at the same rate as the sentenced population—that is, by 37 percent rather than by over 200 percent—the remand population would have been 753 and the total prison muster would have been approximately 6,786, which is nearly 1,000 fewer than the actual muster. So the changes that were made in the Bail Act 2000 made a significant difference to those remanded on bail. At that time a real difference was made, and it continues to be made, regarding people who are remanded on bail.

But in the Bail Amendment Bill we have a change to a small, minor change made in 2007 in order to clarify the issue of significant risk. A small change was made to the Act then, not for the purpose of putting more people into prison or out of prison but to clarify the issue, as requested by judges. That was the purpose—to make it clearer—and the impact was estimated to be around 10 more prisoners a year.

The CHAIRPERSON (Lindsay Tisch): Before we carry on, I point out that this debate is a very narrow debate. Although clause 3 refers to the provisions of the Bail Act 2000, it does not justify talking about that Act. The debate is about the impact that this legislation before us has. It is not about the overall provisions of the Act. Clause 3 is a very narrow clause.

This amendment is to the Bail Act, and I was setting out what the changes were and what this change is. I think that has to be made clear, so people understand the debate.

The CHAIRPERSON (Lindsay Tisch): I will be watching this debate very closely.

The change that the 2007 amendment made was not about putting fewer people in prison; it was about clarifying the Act. The Minister is nodding his head and agreeing with me.

In fact, it has been made clear during the debate that this amendment to the Bail Act 2000 makes very little difference at all. I think that one of the most significant things that were said during the debate was said by David Garrett of the ACT Party, which is probably the strongest campaigner on law and order—it certainly had the biggest billboards and it certainly made the most noise, in conjunction with the Sensible Sentencing Trust. David Garrett declared today that this amendment to the Act makes little difference. I can see Mr Boscawen looking at me and thinking maybe I am not quoting him correctly, but I say to Mr Boscawen that that is exactly what he said. My definition of “little” is that it is not big, so it must be tiny. It is little; he is quite right. It is a little change to the Act. It was clarified in 2007, and the change back, according to the ACT Party, is a very little change indeed.

Well, if this amendment is a little change indeed, then one has to ask why we are debating it now. Why are we debating it under urgency? It is a little change, a minor change—

💬 Hon Clayton Cosgrove: Insignificant.

It is an insignificant change, in fact, and it is being seen as so important that we are rushing it through under urgency. We are bemused by that. We are bemused by the fact that we have not been given the evidence for making this little change, as the ACT Party has described it. We have not been provided with the evidence—and I have asked the Minister to provide it—as to why this amendment is so important that it has to be made now. And we have not been provided with evidence anyway—it is hearsay, I believe, and it is newspaper clippings.

It is unheard-of for a Government to amend legislation of such significance as the bail legislation, with this little change, based on a few newspaper clippings. I cannot recall that happening before. I cannot recall the Ministry of Justice putting that forward as the evidence as to why we should make this change today under urgency. I do not believe that the professionals within the ministry would give the Minister a collection of press statements on which to base his decision to make this amendment to the Act. I do not believe that they said: “Here, Minister, is something from the Sunday News and Truth. This is what you can use for your evidence. We’ll put that into the bill and say it is the evidence in the explanatory note.” I do not believe that is the case.

I believe it is important that the Minister provides the evidence for this amendment to the Act today. It has to happen, so that we can see why it was so important to make this little change now. We have heard that the National Party believes this little change will solve crime, stop violence on our streets, and make our communities safer. Simon Bridges should not be shaking his head. If he had been listening to the debate, he would have heard his colleagues say that is exactly what will happen once the bill receives the Royal assent. They said this bill will make our communities safer on Tuesday.

💬 Simon Bridges: Reduce crime.

No. I say to the member that one of the things about this House is that everything a member says goes into Hansard, and we all get to look at it eventually. So I say to the member that he should look at what his colleagues were saying. They said the bill would make the community safer once it was passed.

💬 Hon Dr Richard Worth: Quite right.

Oh, “Quite right.”, says “Professor Worth”. I will hold him to that. If communities are not safer on Monday after the bill gets the Royal assent, I can only assume that the member was hoodwinking the public of New Zealand with that comment.

Everyone knows this bill is nonsense. Everybody knows it is rubbish. Everyone knows it is flimflam and part of a political agenda. It has nothing at all to do with the safety of the community.

I move, That the question be now put.

Clause 3, “Principal Act amended”, as my colleague Annette King just noted, states that the bill amends the Bail Act 2000. In doing so there is a consequential impact.

As my colleague and others have said, the Bail Act 2000, its history and its content, flowed from the loose arrangements that the Labour Government inherited in 1999. Serious measures were put in place. There was the provision to change the onus. Then came the addition of the words “real and significant”, which were put in place in a revision of the Bail Act in 2007. They were intended to clarify the law, to promote a very solemn, common-sense thing called consistency in decision making in respect of the judiciary, and to respond to a number of judicial decisions, rather than to make any significant changes. That is why the amendment was made, and that last point is completely germane. As my colleague said and as Mr Garrett and other members have pointed out, the change that is now proposed to—as clause 3 states—the Bail Act 2000 in itself does little. That is what Mr Garrett said. When the Labour Government made that change it was attempting, as I have said, to provide some consistency.

It is interesting that others share Mr Garrett’s view. Let us look at what Justice Heath said. He said that the change that Labour made to the Bail Act when we placed the words “real and significant” in it “does not seem to me to put the test any higher than it was under the previous legislation, but rather to emphasise the need for a proper inference to be drawn from proven facts; as opposed to the Court engaging in speculation or guesswork about the possibility of risk.” The purpose of the amendment that the Labour Government made to the principal Act was to avoid, as Justice Heath said, speculation or guesswork, and to provide guidance to the judiciary so that there was not speculation or guesswork. I am sure Mr Finlayson, a learned lawyer, would be able to talk to us in the Chamber for hours about his experience. I am sure he would share the view that we as a Parliament should provide our judicial officials with guidance so that there is, where possible, consistency of decisions, and to ensure that judges are not put in a situation where they have to speculate and have to guess what Parliament meant. That is why Labour, when in Government, placed those words in the legislation.

Today clause 3 states that that Act, the Bail Act 2000, is to be amended again. As I said at the start of my contribution, certain actions and impacts will flow from that. What we have attempted to do—the ACT Party, ourselves, and others—is to analyse what the consequential impacts will be, once clause 3 has been dealt with and once the Royal assent has been given. We are told by the Minister in charge of the bill, Simon Power, and by members of his party—we have been told all day—that the impacts will be huge. I am sorry: we were originally told—I should be more precise—by the Minister in the chair and his colleagues that the impacts will be huge; that once this Act has been amended, once those three words have been removed, there will be no more murders, nirvana will appear, crime will end, and bail breaches will end. And it is not about, of course—so he said—the prison population. That was the original proposition that was put earlier in the day. Later on, after I think Mr Garrett, in addressing the actual impact of clause 3, noted that in itself this change will do little, it was incumbent upon the Minister to come clean. He then, I think in response to some very detailed, deep, and penetrating questions from my colleague Annette King, stated to the House that what this change, once the principal Act was amended, was really about was—to quote him—sending a message.

Sending a message to whom? Well, I think the message needs to be sent to the criminals, but I am assuming that the message that the Minister was attempting to send was to the general public. What he will be doing after the principal Act is amended, as stated in clause 3, is sending a message to the community that claims that the National Government, in its first 100 days, has been really tough on crime and has made a huge impact with this legislation. That is what his message, I suspect, will be as he pumps out the letters and the press releases.

I move, That the question be now put.

As with my contribution to the commencement debate, I will refer to the costs of this amendment to the Bail Act 2000. I want to read briefly from the regulatory impact statement, which sets out what the costs will be once this amendment has been made: “If reversing the changes”—that is, making the amendment—“has an equal and opposite effect, increasing the number of remand beds by 75, this will cost an estimated $7 million per year in additional operating expenditure and a total of $38 million in capital expenditure (the actual costs will depend on wider factors and other policies).” Then it goes on to state: “However, it is likely that the effect will be greater.” The statement later goes on: “It is difficult to estimate the impact that reversing the 2007 changes”—so, making this amendment—“will have on the number of people remanded in custody, because the impact of the 2007 amendments is itself uncertain.”

So we simply have no information at all as to whether the pre-2007 provisions of the Bail Act 2000 had an effect, and whether the changes in 2007 increased any risk to the community by having that apparently high threshold for bail applications. Since that original amendment was made in 2007, we have no information whatsoever as to whether those changes have increased the risk to the community by apparently lowering slightly the threshold for bail applications. And now this legislation is to amend the Act again, and there is no assessment, there is no evidence—there is nothing—that suggests that this amendment will make any changes or increase the risks to the community.

So we are passing an amendment with absolutely no concept at all, no information at all, about whether any changes will be made to anything, and in the process we are spending $45 million a year on a legislative change, despite the fact that we have no knowledge at all as to whether it will have any effect. That is nuts, and the public would be appalled, if they were listening to this debate, to discover that nearly $45 million per year will be spent on a minor and, arguably, very small technical change to the bail laws, with no evidence whatsoever—

💬 Hon Dr Wayne Mapp: To keep people safe!

—I say to Dr Mapp, as to whether it will make the community safer.

The issues around law and order, of course, are far more important than money. Of that there is no doubt. This is a Government that likes to pride itself on frugality—at least, that is what it says—and on being careful with the public’s money. But at the same time, with the third piece of legislation it passes in its first week, it proposes to spend $45 million a year on provisions, even though it has no concept whatsoever as to whether they will be effective. That is $45 million a year down the drain.

I am sure there are alternative amendments to the Bail Act that could be much more effective and cost a great deal less money. I do not know whether, in the past, discussions around amendments to the Bail Act, whether this one or previous ones, have really addressed the opportunities for alternatives—not radical alternatives, but community alternatives where people who are put out on bail are given some support. In the UK people talk about bail hostels, for example, which are an alternative to prison and help people to deal with the issues.

I move that the question now be put.

The CHAIRPERSON (Lindsay Tisch): I will give Dr Cullen the call in a second, but can I refer those who are moving closure motions to Standing Order 132. It is spelt out there what the words are. It is very clear what actually has to be said for the Chair to accept a closure motion.

I am prepared to run sessions on closure motions if Government MPs would like to have them. As you have rightly pointed out, Mr Chairman, clause 3, Principal Act amended”, is a narrow clause and simply states: “This Act amends the Bail Act 2000.”—for those who might have had any doubt about what the bill is doing. Of course, that immediately raises the question of why we have a clause to amend the Bail Act 2000—why do we have that bill at all in that form? Presumably there are a number of reasons why one has a clause that states: “This Act amends the Bail Act 2000.” Presumably there was an assumption that something was wrong with the Bail Act 2000, in some way or another. That argument has not been made, so the primary reason for including this clause has not been given in this debate at all so far.

Nobody has been able to point to any significant issue with the current Bail Act that will be remedied by the amendment before the Committee. It is not a question of whether there have been difficulties with bail—clearly there have been. Clearly, people on bail have committed serious offences. Does that necessarily point to problems with the law? Not necessarily so. Does it point to problems with judgments made by judges? One has always to be very careful about that. By the very nature of things, judges are being asked to make extraordinarily difficult decisions, and sometimes they will make mistakes in making those decisions. Nobody is going to not make a mistake. Anybody who has ever studied science or social sciences knows that there are two types of mistake: the mistake of rejecting a correct hypothesis, and the mistake of accepting a false hypothesis. In fact, life is a balance between those two, and nobody ever gets each of them 100 percent right.

There are two hypotheses here: should somebody who is a danger be kept inside, and should somebody who is not a danger be let out? Given the fact that there are those two hypotheses and the judge has to judge between them, that judge is going to make a mistake sometimes. The consequences of the judge making the error of letting out a dangerous person who then commits a murder are clearly much more serious, in almost every case, than the error of keeping somebody in jail who should not be there, and, indeed, who may subsequently be found to be innocent. Nevertheless, the right of the assumption of innocence must be there right from the beginning; otherwise, our system would make no sense at all—we would simply change the whole nature of our justice system in that regard. So I do not think that case has been made.

Is there a case that judges are lacking sufficient guidance? On this issue very significant statements have been made by judges. They have gone carefully into the differences between what is actually in this bill, because it was the previous Act, and what is in the current Act. They have simply said, quite clearly, that what is now in the legislation provides clarification of what was previously there, but that this does not change the essential meaning of what was there. So there is no need to clarify the essential meaning; the judges have determined that they are clear about the essential meaning of what Parliament intends. I do not believe that anybody could make a case, as one can sometimes make cases—and I have never argued this, either when I was Attorney-General or now, when I am not—that judges do not sometimes interpret what Parliament means in a very strange way indeed, and require, perhaps, some correction in that regard.

So in that respect I think this clause should not be in this bill. Quite simply, because the bill does not need to be there, there is no need to amend the Bail Act. I am quite happy now to hand over to Hekia Parata, as I see her preparing herself with the Standing Orders in front of her. I think she is going to say: “I move, That the question be now put.”, and if she does, that is the correct wording.

I move, That the question be now put.

I raise a point of order, Mr Chairperson. Having miscalculated how many votes the Green Party is entitled to overall, I seek leave to change the votes made this afternoon where they are recorded as “2” votes to “3” votes.

The CHAIRPERSON (Lindsay Tisch): The member needs to be more specific. Does this mean all votes cast since 2 o’clock?

Yes.

The CHAIRPERSON (Lindsay Tisch): Leave is sought for that purpose. Is there any objection to that course of action being taken? There being no objection, we will correct that.

Clause 4 Consideration of just cause for continued detention