Sentencing (Offender Levy) Amendment Bill

I am pleased that we now have the opportunity in the Committee stage to expand on some of the debate on the Sentencing (Offender Levy) Amendment Bill, which started last evening. I think that Part 1 sits at the core of some of the debate that was had, particularly at the Justice and Electoral Committee. Part 1 sets out the order of priority for the payment of the various types of infringements—or punishments, for want of a better word—that can be imposed on an offender at the time of sentencing.

There was quite a lengthy discussion at the select committee about what order the levy, existing fines, and reparation should go in, and also about whether judges should take into account, in the payment of each of those, the ability of an offender to pay. I want to highlight something here when I refer to the ability of an offender to pay. I am not undermining the importance of an offender being held to account for the crime that that offender has been found to have committed. Of course, that is the primary purpose of an offender being brought before our judicial system, and reparation is a very important part of that. But I do see a role for a judge in taking into account the financial circumstances of an offender—the offender’s ability to pay—when awarding reparations, fines, or, in fact a levy. That is important because if a judge awards reparations or a fine that is completely ludicrous and outside the realms of possibility of the offender’s ability to pay, that undermines the system. It not only undermines the system but also creates an expectation for a victim in an unfair way, if the reparation is unable to be paid. So I think there is a balance to be struck between accountability and keeping the viability of a scheme. I guess that in the view of the victim it is about a level of magnitude, but I wanted to make that point.

The discussion that was had at the select committee was very much around the impact of the levy on reparation. I think the select committee agreed that reparation was probably the most important payment that was awarded by a judge, because it is a direct payment from an offender to a victim. Not only does it highlight the accountability question but also it is a direct restitution of sorts to the victim, in a way that an offender levy never will be. But although the reparation will remain the first thing that must be paid, the judge also cannot take into account the awarding of a levy when reparation is awarded.

We had a big discussion at the select committee about whether it was possible to enforce that. It was a big question. I just want to highlight the way in which it has been set out in Part 1. The proposed new section 12(1A), inserted by clause 4, states: “When considering undue hardship or other special circumstances … a court must not take into account that the offender is required to pay a levy under section 105B.” How does one do that? How does one ensure that when a judge is making a decision on the size of reparation, the judge is not taking into account the payment of the levy? Some might argue that the levy is so small in size that it would not matter, but that raises the question of what the purpose of the levy is in the first place. It is something that the select committee had a significant discussion about.

Clause 6 talks about determining the amount of a fine. It states: “Section 40 is amended by adding the following subsection: ‘(5) When considering the financial capacity of the offender under subsection (1), the court must not take into account that the offender is required to pay a levy …’ ”. So we see that the primary aim of the Government is to have a broad-brush levy, and that it is not to take into account whether the majority of offenders will be able to pay the levy. I think that risks spending an inordinate amount on chasing levies—small levies—across the entire spectrum of offenders before our courts. That raises a question about the legitimacy of the scheme, because if the primary aim of the scheme is to help victims, surely we would try to set it up in an efficient enough manner that we reduce the administration costs as much as possible and we maximise the use of the levy as much as we can. Therefore, we would surmise that the best way for the Government to do that would be to do what we do with fines and reparation, and that is to take into account the offender’s ability to pay.

That leads me to believe that perhaps building a pot of money for victims is not the sole aim of this bill. In fact, I think there is a political message here. The Government is sending a political message that it is tough on crime because every single person who comes before the court will be fined a $50 levy. Perhaps I would have more sympathy for that if it were not for the facts that it will cost $7 million over 4 years to administer a political point and that we will probably get only $7 million into a fund for victim support at great expense and with a great administrative burden. Perhaps it would be better for the Government to look at different ways of ensuring that Victim Support has greater funding and support, or reparation—

💬 Paul Quinn: Obviously failed School C. maths!

That is my rough memory of the calculations made before the select committee.

💬 Paul Quinn: Well, they’re completely wrong.

I may have them slightly askew, but there were also estimates that it would take 30,000 offenders for this account to break even.

💬 Paul Quinn: You sure you’ve got those right?

I would be happy to provide Mr Quinn with those figures, because they were quoted in media reports. There are many other, greater ways in which we can ensure we support victims.

I find it slightly contradictory that we are here discussing this bill, given the changes to accident compensation, and in the light of changes to the criteria for who is eligible for counselling in relation to the victims of serious crimes. I think it is unfortunate that the Minister will not acknowledge that there is a significant difference between the rules that have previously been issued and those that are being administered now.

Sitting suspended from 6 p.m. to 7.30 p.m.

Before the dinner break we were discussing the split in cost between how much would actually be collected and returned to, presumably, the victim support scheme, and how much would go into administration fees. I will clarify some of the figures I was talking about before the dinner break. Originally, it was thought that perhaps this scheme could collect up to $5 million a year for victims, but that was scaled back to a prediction of about $13.6 million over the first 4 years. Then, of course, we need to subtract what was estimated at $1.3 million—the cost to set up the levy—and an estimated $1.5 million per year in order to run it. That was the point at which I was previously talking, in rough terms, about a halving of the amount that was collected and the amount that would flow on through. That was something I wanted to clarify for the benefit of members on the other side of the Chamber.

In regard to Part 1, we have already talked about the order of priority between reparations, the levy, and fines. I will touch briefly on the amount of the levy. Externally it may seem that the blanket choice of $50 as a levy is quite an arbitrary figure. I would be interested to hear the Minister’s explanation as to why $50 was chosen as the amount that we would apply across the board. I wonder whether it was thought that at $100 one would then have to switch to adding in the disclaimer regarding the ability to pay, or whether that would considerably reduce the number of people who would pay. I am interested in the explanation behind that, and I am also interested in the following questions. If we treated the levy in the same way that we treat fines and reparations by factoring in the ability to pay, would we have been able to considerably increase the amount that the levy could be, and could we have also significantly reduced collection costs?

We would carve out some of the costs if we were already taking into account whether we would spend half our time chasing people around the country, and potentially arresting them and locking them up, for not paying their levy. Perhaps we may have found ourselves in the situation where we would not be talking about such a considerable chunk being taken out for administration costs. Perhaps we could have talked about putting significantly more—more than $50; something more meaningful—into a pot of money set aside specifically for victims. Perhaps we would not be—unnecessarily, in this case—raising expectations for victims about what they might receive.

It is good to be able to take some time to address some of the matters that have been raised in the debate on the Sentencing (Offender Levy) Amendment Bill. The previous speaker, Jacinda Ardern, made a number of comments about the ability to recover the levy; why the levy has been set at $50; the ranking of reparation, fines, and the levy; community-based sentences and the levy; and the cost of administration. It is interesting to note that the way the court now looks at the recovery of moneys is that reparation sits at the top in priority. Reparation is generally ordered as well as a community-based sentence, or frequently a custodial sentence, and also where a fine has been given as a sentence. So reparation is being paid to the victim or the complainant. It has priority, so it is the first money that is obtained. And so it should be. Community-based sentences go hand in hand with reparations and do not affect their recovery, and energy is put in by the collections unit to get their mitts on the money that is reparation and to forward it to the victim or the complainant. Fines can be commuted to community-based sentences or to prison, and so they should be, but reparation never is.

We heard at the Justice and Electoral Committee—and the previous speaker was obviously there and able to hear all this, so I am surprised that she does not quite have a handle on it just now—that a lot of time would not be spent on the recovery of a levy, especially if all that was left of a sentence was the recovery of the levy, because of the size of that levy. We also heard that the reason why it was set at $50 is that when we look internationally at comparable schemes, we see that this is about the same dollar figure between currencies. That is why a $50 levy was chosen. We also took into consideration the size of the levy and the likelihood of recovery. If the levy was, say, moved to $100, it would be harder to recover. It may be more worth spending energy and resources on the recovery of a big amount.

What we are aiming for here is for all people who are convicted of an offence before the courts to have a $50 levy imposed on them. We know that the vast majority of them will have no problem in paying it, so we are expecting an initial compliance with the levy of 68 percent straight off. That will glean for the Crown, and therefore for the victims’ fund, about $13 million in the first 4 years. Initially we heard the fairly rash statement from the previous speaker that about $7 million would be obtained but that it would cost about $7 million to recover, so there would be basically a nil gain. That was the initial statement from the previous speaker, Jacinda Ardern—

💬 Jacinda Ardern: Stop splitting hairs, Chester!

She can tell I was listening. One has to wonder therefore why an astute Labour Party that now finds itself in Opposition would even vote for this legislation. I am not sure that the member even told the Committee that the Labour Party would be supporting it, but for those who were interested and those who are listening at home, I say that Labour is supporting this bill. One has to wonder why, if we take into account the scheme as outlined by the previous speaker. The reason Labour is supporting the bill is that it actually puts victims first. This is what the public want in this country, and this is where we are going.

Let us just examine the fall-back position of the previous speaker, who said the scheme would gain about $13 million over 4 years, and it would cost $6.5 million to $7 million to recover that $13 million. Well, the figures we were given at the select committee showed that the total cost of recovery moved over the 4-year period between $1.126 million and $1.344 million, but the net gain was going to be $2.932 million in the year 2009-10, up to $4.395 million in the year 2013-14. That is actually net revenue, which means it is the revenue after those administrative and recovery costs are taken out. This scheme will recover for the cause of victims of this country $13 million that is not currently able to be gleaned, to cover the costs of being a victim or a complainant. That is a very, very good thing, and I am proud to be part of a Government that has taken that stand.

I apologise to the Committee of the whole House for my absence prior to the dinner break. I would like to take up Jacinda Ardern’s question about how the amount of the levy was arrived at. When we were in Opposition we had time on our hands to look around other jurisdictions at how this levy may work. We managed to look at a number of jurisdictions—from within New Zealand, I might add; we did not have to travel overseas to do it—

💬 Hon Lianne Dalziel: What happened to the drivers of crime?

I tell Ms Dalziel to watch this space. Just so that members are aware of this, I say that other jurisdictions tend to have a split levy. A good example is New South Wales, where it is A$140 if a person is convicted on an indictment or pleads guilty, split to A$60 if a person is convicted otherwise than on an indictment or pleading guilty. In the Northern Territory the levy for an adult is somewhere in the vicinity of A$60, and A$40 for any other offence that is not one following a prosecution on an indictment. In South Australia, where Mr Cosgrove’s good friend is from, a split levy is run also—[Interruption] Indeed. I say to Mr Cosgrove that it is split three ways, somewhere in the vicinity of A$20, A$70, and A$120, depending on what the criminal offending is. I will leave Tasmania for one moment. Looking at—

💬 Grant Robertson: It doesn’t support the Minister’s argument!

Not at all; quite the contrary. I just wanted to get on to Canada. Canada has a more complicated system whereby a percentage of any fine is imposed on the offender as a levy, which is not the case here. In the absence of a fine, it is Can$50 for summary conviction offences and Can$100 for indictable offences.

When we looked at all of those examples from around the world, it struck us that a tiered system would only add complication to the process. Once we had looked at the range of options that were available to us, we settled on $50 as being a reasonable and payable sum within the context of those international examples.

In Part 1 of the Sentencing (Offender Levy) Amendment Bill I want to look particularly at clause 4 in respect of reparations, which states that a court must not take into account whether an offender is required to pay a levy. Chester Borrows, the chair of the Justice and Electoral Committee, will recall that I sat in for a number of sessions on this bill. There was quite an interchange with officials about how judges would act in respect of dealing with hardship. Mr Borrows himself said reparations are the top priority, and in respect of the levy the legislation says one cannot take hardship into account. In respect of fines, Mr Borrows made the very good point that a court could commute a fine into, I heard him say, a community-based sentence, and that is correct.

Without criticising our judges, I say to the Government that judges are not fools. Of course a judge would comply with the provision in clause 4, but let me put this to the Minister: if a judge was faced with a case of personal hardship, he or she would acknowledge the $50 levy. If the fine was to be $250 and there was hardship involved, it may be that, as Mr Borrows said, the judge would choose to commute the fine to a community-based sentence. Or it may be that a judge, knowing that a person cannot pay—and I am not defending the offender here; I am just looking at the practicalities of this matter—may say although he or she had the idea of fining the offender $250 at the back of his or her mind, instead the fine will be $200, plus, of course, the levy. In my view, that proves that although we are supporting this bill—and I make that very clear to Mr Borrows—this part of the bill is something of a mockery.

This bill has been very well hyped by the Government. We all believe in the principle of assisting victims, and that is why we did a number of things while we were in Government that we will touch on later, including enacting the Victims’ Rights Act, which gave victims the ability to claim against any compensation monies that criminals receive—and the list goes on. I have to say that this levy tugs at the heartstrings of victims. I will make a couple of predictions. One is that Jacinda Ardern is right and, in essence, we will find that the costs of collection will outstrip the monies that are collected through the levy. I remember asking officials what the problem would be with simply providing that when judges fine somebody, they just up the fine by $50, or, in the case of reparation, they put $50 on directly as part of the reparation and use the existing reparation system. Some answers were given about that; I was not convinced by them. This levy tugs at the heartstrings of victims.

I come back to my point that judges are not fools. They will look at the offender who is before them. They have a menu of sentencing arrangements and options before them, including prison. Mr Borrows said another option was commuting a fine to a community-based sentence, which judges can also do. There is also the offender levy. I think one reason that the Government would not support including the $50 directly in reparation or simply saying it forms part of any convicted person’s fines and arrangements, and we can use our existing collections system, is that it wants to use the levy as a political pamphlet. It wants to be able to say there is a levy of $50.

There is another issue in respect of Part 1, because the levy is $50 per offender. In the select committee we canvassed the issue of someone who walks into a pub, gets into a brawl, beats up three folks, faces three assault charges, and is fined $50. We could make the argument that $50 divided by three is too little—that it is virtually nothing and will make no difference. Where there are a multitude of offences, the levy is not per offence but per offender. I think people in the community have supported this measure because they like the notion of offenders contributing compulsorily to the well-being of victims. The community has a notion that offenders should pay something back, and I think we would all support that. However, the question is whether this bill—and I say it has the whiff of a political pamphlet about it—will do what it intends. If the Government was serious about helping victims, it could have chosen to take the money it says it will get and, without any bureaucracy, to fund Victim Support directly with $15 million or $16 million. The Government could have given the money directly to Victim Support, the eminent group that it is, and said that because it deals with victims every day and interacts with and supports them, it knows exactly how they feel. The Government could have decided to cut the bureaucracy and fund Victim Support, and to chase those who have outstanding fines.

The question is whether this levy will work. Even Judith Collins, the moderate and venerable Minister who has made modesty an absolute virtue in the police and corrections portfolios, has herself admitted that fines—and essentially this is a fine; it is called a levy, but it is a monetary imposition on an offender, and there is not a lot of difference from a fine apart from the use of another word—do not work. In the New Zealand Herald on 2 February 2009 she said “There’s no point fining people who don’t pay fines when you’ve got other action to take.” That is what the Minister of Justice’s own colleague said. It is interesting that when we look at a paper in the Ministry of Justice’s own name called Structure of Operations in the Ministry: Proposals for Consultation, we see that people who owe the offender levy will be grouped based on their “willingness and ability to pay and their attitude towards compliance”. Well, that is tough, is it not? That is the Government talking really tough! So offenders will be grouped based on their attitude towards compliance. In English that means that if the levy is all that someone owes, no one in the Government will come after him or her. If offenders know the Government is not going to come after them, I suspect their attitude will be that they will not pay. That is human nature. It shows that the Government is prepared to tolerate targeting only those offenders who are likely to pay, while the hard-core fines defaulters whistle off into the ether.

We will support this bill and let it pass through the House, and I address this point, which Mr Borrows made: why would we do that if we have problems with the bill? I believe the legislation will be ineffectual, although it is well intended—and I take the ministry’s word on that—but it will also bring a point of accountability over the next year or two. When we see that it is not working, and when victims’ heartstrings have been tugged by this Minister and the Government, then we will see whether this Minister will go to victims’ groups, such as Mr Garrett’s Sensible Sentencing Trust, speak at their conferences, and explain to victims why the Government has let them down and why this offender levy is not delivering on the promises that were made. Substantial promises have been made by this Government. I take up Jacinda Ardern’s point in respect of costs. We have some precedent regarding costs in the fines collection world. The cost of administering yet another layer of fines will be greater than the money that comes in for the victims. The Government could have used other mechanisms if it had wanted to do so.

Another issue was raised before the select committee, and I do not raise this issue lightly. It is that somebody who commits a heinous offence—and every offence, even burglary, is heinous—is fined $50 for murder, $50 for shoplifting, $50 for rape, and $50 for burglary. I acknowledge the point made by the Minister in the chair, Simon Power, about tiered levies and tiered fines, but I say he is sending a pretty awful signal to victims. A rape victim will not get a cheque for $50 sent to him or her, but there is, sadly, some symbolism around the lack of value that is attributed to the grief, tragedy, and trauma that the person has gone through. I will give the Minister this point of respect: I know that that is not his intention. But I think that when this legislation passes, that will be its practical effect, unless the Minister changes his mind about that. If the offence is murder, the levy will be $50. If it is burglary, it will be $50. If it is shoplifting, it will be $50. If it is common assault, it will be $50. If it is rape, it will be $50. If one person commits multiple crimes on a particular occasion—multiple murders, possibly—the levy will be $50.

There are some good intentions in relation to this bill, and we will support it because it will bring in and fine-tune a piece of accountability that we can render home to this Government in a couple of years’ time. I will wait for the Minister to front up to the Sensible Sentencing Trust and other victims’ rights groups when this legislation does not work. Expectations have been raised, and I will expect him to take responsibility for the inaction in relation to this levy.

It is good to take a call on Part 1 of the Sentencing (Offender Levy) Amendment Bill. I will make two or three very brief points in response to some of the things that the Hon Clayton Cosgrove said.

I absolutely agree with him that there was quite a discussion at the Law and Order Committee about the issue of whether judges would take into account the $50 levy and try to add it on to other fines or reparation, but I say to members that I simply cannot see that. I agree with him that judges are not fools—they certainly are not. I also think they take their jobs pretty seriously; they want to be true to their oath. His point would have a lot more power if we were talking about a levy that was at the level of, say, $200. But at $50 I think judges will take clause 6(5) very seriously.

💬 Hon Clayton Cosgrove: So they are serious at $50 but not serious at $200?

I think that is right, and they will take that amount into account when they decide that.

Because I do not want to take all my time, I will make another very brief point in response to Clayton Cosgrove’s other point—and these are not his words—that it is a slap in the face for the victim of a rape conviction that the levy is only $50. This bill is quite clear about amending section 105B(3), inserted under clause 7, which states: “The levy is not a sentence and is in addition to any sentence.” We are not dealing with something that is trying to punish; the purpose is quite different. It is not about punishing the offender; it is about making a contribution to the victim’s costs. So I do not think it would be proper to see it as somehow commensurate with the kind of offence that the conviction is for.

I think it is a bit rich for the Government to be introducing the Sentencing (Offender Levy) Amendment Bill at a time when it is undercutting accident compensation for the victims of sexual violence. It is absolutely outrageous that it has come to this House and said it will take $50 off people who are convicted of any crime, no matter what level that crime is at, and said to the victims of sexual violence that they have to tell their story to three different people before it will approve them to have the counselling sessions they previously had access to. The reason why that is relevant to this particular bill is that when we go back to the regulatory impact statement—of course, it has not been mentioned in the debate thus far, probably because it contains a reminder of what this legislation was designed to fill the gaps of—we see that “Victims of crime often face significant costs associated with the crimes committed against them that are not covered by the ACC, other state help, or by court ordered reparation.”

The Government gives with one hand while it takes away with the other. It has taken away the easy access to the counselling services for people who suffered the most horrific sexual violence crimes in this country, by requiring them to meet a new standard. I do not care how often Nick Smith stands in this Chamber and says otherwise, but the new rules are being applied now. Those new rules say that no longer will the word of the counsellor who has assessed those people be accepted. The rules now require victims to prove they have a mental injury in terms of the diagnostic manual—I think it is the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition. I am not sure of the particular phrase that is used in the new requirements. On the one hand the Government is saying that this legislation will fill the gap of costs associated with crimes committed against a person that are not covered by the accident compensation scheme, but on the other hand all of a sudden accident compensation is being cut to the extent that people are no longer able to access the support they need.

I do not know what the net result will be, because there has to be recognition that the cost of collecting this $50 will indeed be significant. The Government does not know how much it will be, and the regulatory impact statement certainly would not have got past me if I had been the Minister on that side of the House, but it must have got past those Ministers. They now have a Minister for Regulatory Reform, the Hon Rodney Hide, but unfortunately the quality of regulatory impact statements has gone down since he has had that role. The point I am making is that nowhere in the regulatory impact statement does the Government indicate what the cost of recovering that amount will be compared with the amount it will be paying out. Who will the money be paid out to? It certainly will not be paid out to counsellors who are supporting people who are partially supported by the accident compensation scheme where they had not been before.

The way it will be paid out—the distribution—will be that the secretary may from time to time pay to an approved agency an amount of money from money that is held in the account. Before approving an organisation as an approved agency, the Secretary for Justice has to be satisfied that the organisation has as one of it roles the provision of services to the victims of crime. But there are so many agencies providing services to the victims of crime that counsellors who work independently will not fall within the category. Therefore, it will mean that the gap that has been left by this change in accident compensation legislation will not be met by this bill, at all. That makes it even more frustrating. We see the Government on the one hand trying to look as if it is doing something for the victims of crime—

💬 Carmel Sepuloni: Window dressing!

This is a window dressing bill. I thank the member for that interjection, because I was trying to think of a word to describe legislation that is designed to create—[Interruption]. No, we are not going to use that word. We can say the word “hypocritical” as long as we do not assign it to an individual member of the Committee. If I were to assign it to a member of the Committee, I would be ruled out of order, so I will not do that.

I will carry on from where the Hon Lianne Dalziel was, with regard to the amount of money that will be collected through this levy, and the fact that the National Government itself seems a little bit confused over how much the scheme will cost to run.

Just looking at Part 1, we can see that this whole Sentencing (Offender Levy) Amendment Bill is tied up in some major bureaucracy. The fact is that its provisions will cost a lot of money to run, and, at the end of the day, the amount of money collected will be minimal. At one point Mr Simon Power was claiming that the scheme would collect about $5 million a year for victims, but it is interesting that he was then forced to scale back that prediction to $13.6 million over the first 4 years. I would not be surprised if we were to see a lot more scaling back as time goes on, as the Government realises that the cost of collecting this money will be a lot more than the amount actually collected. When we subtract the estimated $1.3 million it will cost to set up the levy, and the estimated $1.5 million a year it will cost to run, suddenly we have basically halved the amount the victims will gain.

So we on this side are a little bit disappointed. It is another situation where this Government introduces legislation and all it is is window dressing. At the end of the day, it will achieve very little for the victims the Government is purporting to support. We will not oppose the bill but, as I said, it is another example of legislation that does not hurt much but does not do much. We are kind of on the fence about whether we should support it, because it is not going to hurt anyone but it is also not going to do much. So, yes, it is a very difficult situation to be in.

It is a shame that this National Government is attempting to raise unrealistic expectations among the public about what the Government will be able to deliver through this bill. Victims of crime are going to be disappointed. It is quite sad, because they would have seen the publicity about the bill, they would have heard what the National Government is saying with regard to the perception it is trying to create, and they would have felt hopeful that something would be there for them, but there will be nothing.

As the Hon Lianne Dalziel has said, it is completely contradictory for this Government to pretend that it is setting up this levy because it cares about victims of crime, and at the same time to talk about making cuts to the accident compensation entitlements of victims of crime. As Lianne Dalziel was saying, on the one hand the Government takes away and on the other hand it gives. But at the end of the day what it is giving does not make up for what it has taken away. If this Government really cared about victims, it would not be attempting to make sexual abuse victims go to the media or an MP to have the Accident Compensation Corporation (ACC) reverse its decisions to limit their counselling. We heard today an example of this. A Taranaki grandmother of two young boys who have been raped, sodomised, and beaten was forced to go to the media and to her local MP to beg for counselling for the children. The ACC-approved counsellor said that they needed counselling, the police said that they needed counselling, but ACC turned them down. It seems that a new step in the procedure could be trial by media or MP; that seems to be what this Government is attempting to do. In terms of the $50 levy, we on this side of the Chamber do not think that it really makes up for what the Government has just taken away with regard to the ACC entitlements that victims of sexual abuse will no longer be entitled to. If this Government really cared about victims, it would not be cutting the entitlements that families of suicide victims currently receive.

This offender levy scheme will require a bureaucracy to administer it. The collection costs are likely to outweigh the returns. Since this Government has come into office all we have heard about is the need to cut back on bureaucracy, and here it is creating more bureaucracy—bureaucracy that will not be effective. It would be more effective if this Government decided to give the money it will take to set up this bureaucracy to Victim Support. It is already difficult enough to collect reparation from criminals, so what makes National think it will be easier to collect this levy? It is going to be very difficult to collect $50 off prisoners to add towards the fund that the Government is creating. It is unfair for victims of crime—

I want to touch on an issue that Simon Bridges raised when he spoke as a learned lawyer and, I am told, a former prosecutor in his own home town—

💬 Chester Borrows: I think he was.

Well, yes. We were having a discussion about how judges would deal with the issue of hardship and whether—let us be blunt about it—they would try to find a way around the imposition of a levy through, say, downgrading fines or commuting fines to community service. I found Mr Bridges’ comments quite astounding because of course we know that judges get around laws—I say bluntly—that are put forward in this Parliament. I will use the analogy of the law I passed a few years ago about boy racers. Judges took away cars permanently from offenders in only 2 percent of cases or fewer. I had advice from the police and learned folk all over the show that this would not happen—that judges would be tough and use the mechanisms within the law we passed—but they did not.

Then Mr Bridges made a very interesting statement, which I was quite astounded at since it came from a learned Perry Mason - like lawyer and prosecutor.

💬 Hon Member: No, no. Perry Mason was a defender.

He was a defence lawyer, was he? OK. Essentially Mr Bridges said that judges would do their job and adhere to the principles of this law because the levy was $50, but that if the Government had set the levy at $200 then they probably would not adhere to the law; they would get around it. I do not think judges normally act that way and I am very surprised that Mr Bridges, a learned prosecutor, would make such a claim. In essence, he substantiates the point I make: judges will have flexibility through the fine mechanism. Mr Borrows, the chairman of the Justice and Electoral Committee, said in a very valid point right at the start of his speech that fines can be commuted to community service, prison, or whatever.

I come back to the point that this is, in my view, quite unworkable legislation. It will be interesting to see how judges will interpret this law, because no one can guarantee how a judge will implement it. I make this claim again: I am not defending the offender, but if an offender comes before the court and makes a so-called legitimate plea of hardship—and there is a combination of perhaps reparation, fines, and the compulsory levy—then a judge quite legally and quite rightly, from the judge’s point of view, has the ability to alter the fine mechanism, if the judge so chooses, to commute a fine to community service. That would be an easy way to do it and still adhere to the law. There would be the 250 bucks. The judge would say: “Johnny cannot pay that. I will make him do community service, but I have to put on the $50 levy, which I will do.”

I ask the Minister in the chair, Simon Power, who I am told is also a learned lawyer, whether he will rise to tell us how he can guarantee that judges would not use that mechanism, which is in adherence with this law, does not break this law, at all—

💬 Hon Simon Power: Contravene.

—it does not contravene this law. I knew he was a good lawyer; he knows the big words. How can he guarantee that that will not occur? I am quite happy to ask him now; in fact, I will ask him now. I will yield to the Minister if he would like to tell us how he can guarantee that a judge will not get around this levy by simply doing what I have said. It happens every day in respect of fines and reparations if a judge feels that the reparation is going to be too tough. Sometimes it is for very practical reasons, perhaps a lack of ability to pay, which is noted in this law. I would love the Minister to get up. I am happy to yield to him through you, Mr Chairman. I am happy to give him 10, 15, 20 minutes, or half an hour tonight—as long as he likes—to convince this Committee that this bill will be absolutely operational in the fashion that he has committed to, both in his pre-election policy and tonight. He cannot give that guarantee. He is a learned lawyer and a bright chap, I am told, and he knows that it is impossible because he is not a judge. Judges interpret nearly every law, and often interpret them differently.

I recall, as Minister for Building and Construction, after we passed the second generation of the weathertightness legislation on compensatory damages, the learned judge Justice Lynton Stevens, I think, decided to interpret the law quite differently. I thank Mr Chairman for the further call, but I am happy to yield to the Minister if he has changed his mind and wants to answer the question. In that case in respect of damages the judge had interpreted the law and, from memory, struck them out or made certain classes of people ineligible for them, which was, in my view, directly contrary to Parliament’s intentions. I recall that we did a very, very rare thing: we actually suspended the Standing Orders, which is very rare for this House, and literally punched through a bill with a couple of clauses in it to effectively reverse it and clean it up. We had been advised by the officials that the judges would interpret the law in the way Parliament intended. Well, they did not. I make another prediction. I suspect that the Minister will be faced with a choice where he has to come back to this Chamber and tighten up this law. We will see from the figures—and it will be quite easy to analyse—where judges are at in terms of commuting fines as a basis of lessening the overall cost to the offender based on a hardship plea.

This bill’s intent is injecting money from offender to victim—from court, if you will, to victims’ groups. We do not need the Secretary for Justice to set up bank accounts, as in new section 105G, or to make decisions about distribution. We have an organisation, just one of many organisations, called Victim Support. The Minister could go to the Minister of Finance tonight—he might be at his house cleaning it, perhaps—and ask for 60 million bucks a year. The Minister of Finance might tell him to hang on as he does not have that money. Mr Power could then tell him to take half the money he was going to give to private schools, and dish it out to victims. There we go. Done! Just like that. Tonight. If we take $16 million off the $35 million to private schools, we still can give a bit of money to private schools, and we could directly inject the rest into Victim Support and the other agencies that, unlike that member over there, are highly skilled in terms of dealing directly with the needs of victims. There would be no bureaucracy. [Interruption] As the member for Coromandel bleats on, I say that there would be no bureaucracy and no need for this legislation, and we could use the courts to go and chase the fines defaulters and others. We could do things like Labour did when in Government, such as stop people at the border and say that they are not going overseas until they have paid their fines. We could do that directly, tonight, with no bureaucracy. This Minister and this Government railed against red tape and railed against bureaucracy. But if we were really serious, we could make an appropriation of $16 million—or however much the Minister claims the revenue would be; I suspect it would be a lot lower—and inject it directly and contract directly with Victim Support and other non-governmental agencies that help victims today and are skilled in that area.

I say to this Minister, because it is a very important question, that I invite him to stand up and give a guarantee that judges will not contravene this law. If he cannot give that guarantee, then the game is over. Somebody asked what the point is of being here tonight. The game is over, and it is over for victims because this is a sham. Using the words of the former Prime Minister of Australia, Paul Keating, I say to Mr Borrows and the other members who interjected on Labour speakers asking why we are supporting this that it is because in accountability terms we will do this legislation and this Government slowly. It will be debated here again next year and the year after, as we prove to victims that Simon Power and his Government tugged at the heartstrings and raised expectations, and then the member for Coromandel and her ilk let them down.

If the Minister is prepared to rise tonight and give that guarantee as a lawyer, then we will have another look at it. Labour will support this bill.

💬 Sandra Goudie: People had their chance.

The people had their chance and had their say, and rendered their verdict on this legislation. Every victim who is let down by this legislation will render a verdict on that member, on the Minister, and on their Government. I do not believe, whatever one’s political colour, that we should tug at the heartstrings of the most vulnerable—we have heard about accident compensation—and then try to pull a fast one with this legislation.

Labour will support the bill to use it as a point of accountability with this Government. The truth is that the Government cannot live up to the pledge it has made unless, as I have said, it does the honest thing and makes an appropriation.

I move, That the question be now put.

I was impressed by the elegance of the argument put forward by Lianne Dalziel. She said, more or less, that tonight we are looking at legislation that will increase our ability to offer assistance to victims of crime, only because the Minister for ACC cannot get the numbers in the House to put in legislation that will reduce the assistance given to victims of accidents. I think that is a really nice little conundrum. The Government has found itself at war again, for the second time this week, but this time it is over accident compensation legislation. The climate change legislation is unravelling in a room in this building as we speak.

In respect of the Sentencing (Offender Levy) Amendment Bill, we are looking to improve the lot of victims of crime. I am interested in the money. I did not hear Chester Borrows when he spoke, and I wonder whether he would be kind enough to indicate whether the expected 4-year revenue stream would be $13 million or $30 million.

💬 Chester Borrows: $13 million.

So it is $13 million, and presumably the amount will increase each year, because there will be an implementation period and then there will be a backlog, and the backlog will slowly clear—well, it will never clear, but the payments will increase.

I think, if I heard Chester Borrows correctly, the costs of the collection were thought to be something like $1.1 million or $1.2 million. I have a few things to say about that. Earlier today we passed money-laundering legislation, and when that bill was put into the House the Ministry of Justice attempted to put some figures in the regulatory impact statement, but failed. So we had legislation that had no dollar figure in it. We came to the Foreign Affairs, Defence and Trade Committee and found that the dollar figure was, first of all, large, and, secondly, highly contested by the banking industry and the finance sector—highly contested because the regulatory impact statement had been put together around an earlier draft of the legislation. By the time the officials had decided to become prescriptive, the regulatory impact statement was out of date, and the regulatory impact was going to be large. So two things happened. There was no regulatory impact statement at the time of introduction, and, secondly, when the select committee got it, it was wrong.

In this case, the regulatory impact statement, signed off by the Ministry of Justice as being a complete, total, accurate, and full impact statement, does not have a dollar figure anywhere near it. But if we take Chester Borrows as being the man who has the correct figures—let us pretend for the moment that his figures are accurate, and I am sure he has given them accurately, but they will have been derived from the Ministry of Justice, in whom I have little faith in these matters—then we will see that the cost of collection appears to be somewhere in the order of a quarter of the revenue. No inland revenue system in the world would operate with that level of inefficiency. The question is, given that this Government wants to improve productivity, wants to improve efficiency, and wants to reduce back-office bureaucracy, how could one possibly deal with it? Clayton Cosgrove had a pretty interesting argument, which he put forward, which was that the much more efficient way to do it would be to take money from private schools and give it to victims.

💬 Hon Clayton Cosgrove: Only need half of it.

We would need only half of it. I think the Minister of Justice would agree that even if we receive up to $4 million a year for Victim Support, that amount does not meet the needs of the Victim Support service. I think people would agree with that. I do not think anyone thinks that we can provide decent victim support for four million bucks. If we have too little money being collected too inefficiently, and the Government does not want to take money from private schools, then maybe 50 bucks is too low. That is a possibility. Maybe 50 bucks is too low.

Then we come to the argument of whether it will be paid. A colleague of mine who spoke earlier, and I think it was Clayton Cosgrove, said that he thought the fact that something would not be struck because it might not be paid went to the heart of decent justice. We would fine someone according to what the fine should be, not according to whether we think it would be paid.

I move, That the question be now put.

I stand in support of the Sentencing (Offender Levy) Amendment Bill, and I want to refer to the explanatory note. This bill primarily amends the Sentencing Act 2002. As we know, it proposes to impose a $50 levy on all convicted offenders—not for offences—when they are sentenced or otherwise dealt with by either the District Court or the High Court.

I did not know much about this bill until I started reading about it. If I had listened to the Minister who proposed this bill, or to anyone on the other side of the Chamber, I would be none the wiser whatsoever. I have not heard anyone on that side of the Chamber propose any reason why this is good legislation. I have heard my colleague Clayton Cosgrove talk a whole lot of sense, for 20 minutes, about why this bill is just window dressing. It will not make much difference, whatsoever.

Let us face the facts. Crime is a disease. It is a plague. It is a scourge on our society and on our country. We all agree that the victims of crime need to be supported—without a question of doubt. There are agencies in place at the moment that support victims. They do a fantastic job. But society has a right to defend victims, and it has a right to make sure that victims are transitioned back to being productive members of society as painlessly as is absolutely possible. But I am unsure how this bill will help.

I would like to pick up on a theme that the Hon Clayton Cosgrove and the Hon Pete Hodgson just talked about. National talked about bureaucracy, and how we are wrapped up in red tape.

It is dreadful. What are we going to do about it? We are drowning in it. The courts will love it. And what do we have here? We have another piece of bureaucracy. It astounds me that we have agencies in place at the moment that are prepared to collect this and that are prepared to help victims. Victim Support is a classic one. It is just amazing. But Labour does support this, because—well, I do not know why. What is the point in not supporting it?

I would like to hear from the Minister what this bill is about. I have been sitting here for an hour, and I have heard the Minister stand up and run through a couple of schedules that are done in some states, or a couple of other countries. He should tell us what this bill is about. He should tell us how it is really going to change the lives of victims. He should tell us how it is going to reduce crime. That is what that Government campaigned upon. It said that it was going to come in and reduce crime, and it was there for the victims of crime. The Minister should tell us how the bill is really going to do that, how it will transform society like the Government promised to do. I have not heard a word on that, I say to Mr Power. I would love him to tell me, and the people of New Zealand, how that will actually happen.

As all of my colleagues have mentioned, there is $35 million going to private schools. The Government should take $13 million back and give it to Victim Support. In fact, why do we not give it to adult and community education? It needs it more. If more people had the ability to seek an adult education, then they would not be in front of the courts. They would be in the classrooms learning productive skills, out there earning in jobs, and they would not need to be in front of the courts.

My first question is—[Interruption] This is quite interesting, my colleagues. That is the most I have heard the members on that side of the House talk about the bill. That is the most I have heard them say, and they are not talking about it at all. They should stand up and tell us about what they will do. Chester Borrows should stand up and tell us how this bill is going to protect us. I want to know why all the policemen in Whanganui voted against that man, and he stands up for victims. It is unbelievable. Does this sound like a message from a Government that cares for victims? I will give members a quote: “if my doctor told me I was terminally ill and I had 30 days to live, with the ACC rules as they are, I’d find myself a train to throw myself under on the 29th day because my family would be treated so much more generously … under the current law.” That was said by the Minister for ACC, Nick Smith. It is unbelievable!

I ask members whether that is a Government that cares about victims’ rights—I do not think so at all. My colleague Carmel Sepuloni said it right when she said this is just window dressing. It is just playing to the public. Well, the public are sick and tired of it. They want real measures that will make real differences.

💬 Sandra Goudie: Ha, ha!

There is someone over there laughing about it. She is laughing about what the people of New Zealand want. The people of New Zealand want real measures that will make real differences. My colleagues will remember hearing National members say that crime would cease when the National Government came in. Well, it has not, at all. It is unbelievable.

I move, That the question be now put.

It is important that I follow on from my colleague Stuart Nash, because I think that one of the serious issues that the Government has failed to stand up and address tonight—

💬 Hon Steve Chadwick: In urgency, don’t forget.

Yes. I think the Opposition, no, the Government, sorry—it will be the Opposition—is being totally unfair and unreasonable about this particular bill, the Sentencing (Offender Levy) Amendment Bill. It is introducing it at the same time as it is reducing entitlements for victims in other areas. So it is ironic indeed that we are debating a bill that takes a $50 levy from offenders.

Let us look at who will actually pay it. I think it is extraordinary that the tariff is an equal tariff—it applies right across the board. The level of offending committed does not matter; $50 is the amount paid. When we think about how that $50 tariff is going to play out, we realise that the bottom line is this: people who go to jail and have no income at all will be the ones who do not pay the levy; the ones who do not go to jail, because their offending is at the lower end of the scale, and continue to work, or who get home detention and continue to work, will pay the levy. How is that sending a message that makes any sense to anyone at all?

The bottom line is that the Government has decided that it would like to meet one of the commitments that it made during the election campaign by creating a hugely expensive and bureaucratic system to transfer some money within the system in order to provide additional funding to certain victims’ groups. I am deeply concerned about this, because from the way that the legislation has been framed the levy has to go to victims’ organisations that provide services, and they have to be signed off by the Secretary for Justice. Would it not be more efficient and more cost-effective to provide the money directly, to do a vote line transfer to Victim Support and give it the capacity to assess where the need might lie?

💬 Hon Steve Chadwick: Because they struggle.

Because it does struggle with the work that it does. I know that the work that it does is incredibly valuable. I want to highlight that in respect of a particular crime that occurred in my electorate. Two bodies were discovered in an Aranui house. What happened was that Victim Support was tremendous with the family of Tisha Lowry. It went to them, it supported them, and it offered them the assistance that they needed. The family could not speak highly enough of the work that it did. But there is another set of victims when there is a serious crime, and that is the neighbourhood. I know that the Minister of Justice knows that. The immediate neighbours of that particular criminal offending lived in the other half of that house. A wall separated the two homes, but the floorboards covered the same bit of dirt. There is no way that that family is ever going to be able to live in that house ever again. In fact, I am sure that the house will be removed from the property at some point. The point I am making is that nobody said the immediate neighbours were an obvious victim of the crime, yet immediate neighbours always are. In this case, that was probably more obvious than it would be in many other cases. I have talked to Victim Support about whether, in a situation like that, it might be a good idea for Victim Support to sit down with the police and make some assessments about what support could be given very early on. The neighbours found out from the media that bodies had been dug up from under their floorboards, essentially, the night before—that that was the digging sound and the lifting sound that they could hear from their home.

I feel great sympathy for the individuals caught out in this particular case. I do not agree with some of the statements that they made publicly about the level of support that they got, and I have told them that. But I have also made the point that it is really important to think about these things across the board. I think that is what this sort of funding, if it were given to an organisation like Victim Support, should do.

I move, That the question be now put.

The ASSISTANT SPEAKER (Hon Rick Barker): The question is—[Interruption]—that the question be put.

I raise a point of order, Mr Chairperson. You are right to proceed as you do. The only plea I would make in mitigation is that my colleague Lianne Dalziel called for her second call immediately the bell went—

💬 Hon Member: Third call.

—for her third call, and there are other colleagues on this side who wanted to have a call. Secondly, Mr Borrows has already spoken. I do not know whether that member has the ability—I am not sure what the count is—to move that the question be put.

The CHAIRPERSON (Hon Rick Barker): I will draw this to a quick conclusion. There is some conjecture on the Opposition side as to whether a member who has already spoken can move a closure motion. My advice from the Clerk is that, yes, that member can. That is point No. 1. The second point is whether I am entitled to put the question to the House. I say that that is without dispute. I make the point that in this debate there seems to be no contest about whether to be for or against. The last two speeches were not Committee stage speeches; they were second reading speeches of a very general nature. So I thought the Committee had come to the end of its wind on this part.

Motion agreed to.

The question was put that the amendment set out on Supplementary Order Paper 67 in the name of the Hon Simon Power to Part 1 be agreed to.

Amendment agreed to.

Part 1 as amended agreed to.

Part 2 Consequential amendments to other enactments