Courts (Remote Participation) Bill

on behalf of the Minister of Justice: I move, That the Courts (Remote Participation) Bill be now read a first time. At the appropriate time I intend to move that the bill be referred to the Justice and Electoral Committee for consideration, that the committee report finally to the House on or before 31 May 2010, and that the committee have the authority to meet at any time while the House is sitting, except during oral questions, during any evening on a day on which there has been a sitting of the House, and on a Friday in a week in which there has been a sitting of the House, despite Standing Orders 187 and 190(1)(b) and (c).

This is a very important bill, and it will enable the courts to make greater use of videoconferencing technology in both civil and criminal proceedings. It is the first piece of legislation introduced by this Government to reform criminal procedure. Currently, witnesses can appear in court by video link in some circumstances, but usually defendants cannot. New Zealand law currently requires defendants physically to attend court, even for many minor procedural hearings.

The use of video links in the courtroom is commonplace in many types of court proceeding in other countries, including the United Kingdom, Australia, Canada, and the United States of America. The Australian jurisdictions in particular are internationally recognised for the effective use of videoconferencing in legal proceedings. The bill before the House today provides a legal framework for any participant in a proceeding to appear by video link in any judicial proceeding, provided that certain criteria are met. Clauses 5 and 6 set out the decision-making criteria to be referred to by any registrar or judicial officer making decisions about the use of video links. Those criteria include the nature of the proceeding, the availability and quality of the technology to be used, and the potential impact of the use of the technology on the effective maintenance of the rights of other parties to the proceeding. The criteria are designed to protect defendants’ right to a fair trial, and to ensure that the rights and interests of other participants, as well as the interests of the court itself, are taken into account.

In civil matters, video links can be used where both parties consent. To prevent one party from putting the other to unnecessary expense by unreasonably withholding consent, a judicial officer can order that a video link be used. In criminal procedural matters there is a presumption in favour of the use of video links. That means that where no evidence is being presented, a registrar or judicial officer may require that a person appear by video link. A person may object to appearing by video link, and then the judicial officer will have to decide on the objection, based on the relevant criteria. For appearances where evidence is being presented, any party can apply to the judicial officer to use video links and the judicial officer will determine applications by reference to the criteria.

There are a number of benefits from increased use of video links, and these include improved efficiency, increased safety and security, increased access to justice, and improvements in the quality of the evidence being heard.

For routine appearances like pre-trial matters in which no evidence is to be presented, a defendant on remand could appear by video link from a prison instead of having to be transported from prison to court and then back again. This will not only help speed up the trial and hearing processes but also reduce the need for transporting prisoners, with the potential to save quite significant sums of money.

This bill and the technology it enables holds much promise for the modernisation of the court system. The Government is committed to a more efficient system delivering justice to victims, witnesses, defendants, and to the community. So this bill is one of the first steps in a package of reforms that aims to do just that. I commend the bill to the House.

I rise to support the first reading of the Courts (Remote Participation) Bill and to advise the House that the Opposition will be supporting its referral to select committee.

I want to make a significant point about this legislation: it has a regulatory impact statement. I do not understand why the Government, which says that it is interested in regulatory reform, has decided not to have regulatory impact statements in its bills from here on in. It has decided, as a Government, to make sure that the regulatory impact statements are available online but not where we need to see them at the time we are debating the bill. I want to commend the Government on this bill, and I ask it to rethink its position on regulatory impact statements because I find those parts of the bill the most important when we are having debates such as this.

💬 Paul Quinn: Be quiet.

Now I know that the individual who is interjecting on me knows more about this than anyone else but the problem is that unless he has actually read the regulatory impact statement, what he will not understand is whether the analysis stands up. I think that it is quite interesting that on this particular one it certainly stacks up in my view.

I thought that members of the Government would be quite pleased to find out that when we look at the benefit-cost ratio, we see that this one stacks up very well.

💬 Simon Bridges: Excellent.

What I think is very interesting, and I will be interested in hearing the member who just interjected on me—members can obviously tell that I cannot remember any of those members’ names—

💬 Simon Bridges: New Zealand can’t remember your name.

Oh no, that is right; I do remember his name. The point I was going to make was that when we look at the benefit-cost ratio on this particular legislation, we see that the Government has accepted a benefit-cost ratio that looks at future benefit. which I have never seen in any benefit-cost ratio that has been signed off by Treasury. That is because this one has not been signed off by Treasury; it has been signed off by the Ministry of Justice, but it is a good step in the right direction. I will give credit where it is due. I think it ought to be given.

This particular benefit-cost ratio talks about a monetary value assigned to the future, reductions in costs for participants in the court process, improved efficiency for justice-sector agencies, improved safety and security, increased access to justice, and improved quality of evidence. I say that that is a very good signal in terms of the monetary value, which cannot be assigned specifically but is obviously relevant. That is why I think that this legislation has a lot going for it.

The other thing is that in a regulatory impact analysis it is important to look at whether there are alternative options. The Government has looked at alternative options. Again, I think that this is a very positive document, and it is very useful in looking at what the alternatives were. In this particular case, the Government looked at whether there were non-legislative options. I think that is a good thing to do. I think one should look at whether there are issues that could be dealt with by way of, for example, guidelines, and that was precisely what it looked at. However, it said that non-legislative options were not an option in this case because guidelines cannot override or adequately clarify the legal status of the video links in all proceedings. Guidance on the use of audiovisual links has already been promulgated and it is appropriate that guidance such as this clarifies operational procedures for the use of audiovisual links. The preferred legislative approach is outlined in the explanatory note.

I think that the point the Government is trying to make—in fact, it is very much like the debate we have just had—is that when one is dealing with such matters that relate to our court processes, it is absolutely vital that we have a strong legislative framework to back it up. This legislation has created the option of specifying when audiovisual links can be used, but it also specifies when they cannot be used. I am looking as to whether there is a preferred outcome. If there are a particular set of circumstances, it will to lead to the use of audiovisual links. It will be automatic. It is kind of like having a default provision to audiovisual links but in other circumstances not having that applied, so it will depend on the particular circumstances of the case. I guess that the legislation has been designed to be future-looking, and that means that there may be advances in the quality of the audiovisual links options available in the future. That may mean that rather than looking just at the procedural matters, they will look at other matters as well. I think that the legislation itself has been designed pretty well. It has been looked at in terms of its obligations to match the requirements of the New Zealand Bill of Rights Act, and it is important to ensure that those options are there.

There are enormous costs involved in having participants physically present at every single element of the process, and obviously this proposal will reduce those costs over time. It is not just in relation to the costs of witnesses when they are required to appear in court; it is also in relation to the costs of transporting prisoners, housing them at court, providing security, and the average unit cost to transport and escort a prisoner. All of those features of the current system are able to be addressed with respect to this particular proposition. When we look at the number of prisoners on remand and the expected growth, we see that there is a flow-on demand for court appearances and associated prisoner transports. At the same time, we then have pressure on defence counsel arising from the increased numbers of people entering the system, which has the potential to have an impact on consultation and preparation times. All of these things add to the costs of the criminal process. Therefore, this audiovisual system will create significant benefit over the long term.

In Australia, a couple of approaches have been taken to the legislation in this area. The preferred option that was chosen for New Zealand was to have an overarching statute to apply across New Zealand legislation. The alternative option was to amend existing legislation. The reason the alternative option was not chosen was that varying terminology concerning participants in proceedings is used in a range of statutes, and all of them would have to be amended to clarify whether participants could appear by audiovisual link. When we looked at the range of legislation, the numbers of statutes that would have to be amended, the number of regulations and then the number of rules as well, we saw that it simply did not stack up as an option. I think that is why the Government has quite rightly chosen the option of an overarching statute to apply across all New Zealand legislation, thus creating this presumption around the appropriate use of an audiovisual link that will apply to every part of the New Zealand law.

I am very pleased that the Government is taking these steps. I think it is appropriate that we look at the overarching costs and whether there are presumptions that could apply around the use of an audiovisual link to the benefit of all those involved. I commend the Government for undertaking this particular work, but I make this point: representatives of the judiciary, in their consultation, expressed support for the proposals, but they have emphasised that they see the audiovisual link being used predominantly in the procedural elements of courtroom proceedings and less so for the substantive components of proceedings where evidence is being physically presented. I think it is important that we stay in touch with the judiciary on this important matter. I commend the bill to the House.

I relish the opportunity to speak on the Courts (Remote Participation) Bill. To translate what the previous speaker, Lianne Dalziel, said, this measure is a really good idea, because it is cheap and it fits the criteria for safety. People like Liam Ashley will not be beaten up and killed when being transported to court. If the prisoner who killed Liam Ashley had been able to stay at the prison, if evidence had been able to be given by way of an audiovisual link, then lives would not have been put at risk; the safety of prison officers and other prisoners would not have been put at risk.

Lianne Dalziel also said that it is pretty important to check that no laws are broken when we do this sort of stuff. We need to check whether any regulations need to be changed to allow this much simpler, really good idea to be implemented. I think everyone across the House will support the legislation, because it is a good idea. It will save time and money, and it will have benefits in terms of expediting justice. I commend the bill to the House.

The Courts (Remote Participation) Bill does a number of significant things. It sets out the framework by which decisions on whether to use an audiovisual link in court proceedings can be made. It stipulates a default position—and I am speaking further to a point made by Lianne Dalziel—that a decision should be made in favour of using an audiovisual link in any criminal procedural matter unless the judicial officer feels that there is sufficient reason not to or there is an objection from another party. In a criminal substantive matter, an audiovisual link is allowed by application, as long as the judicial officer is satisfied that the criteria for the use of an audiovisual link would be met. And an audiovisual link can be used in civil matters; in those cases, it can be used even if a party objects, as long as the judicial officer considers that the criteria can be met so that an audiovisual link is appropriate under the circumstances.

There are five clear benefits, which other speakers have mentioned, in the use of an audiovisual link. First is reduced costs through not needing to pay for transport for participants from one location to another, improving court efficiency by not having to wait for the transportation of the parties. Anyone who has sat through a criminal call-over in the District Court will know how inefficient that process is in terms of judge or judicial officer time, lawyer time, and the time of potential witnesses as well as the parties. As Chester Borrows indicated, there could be, if this system is administered properly, increased safety and security. There ought to be the facility for increased access to justice. It is wrong that people who live in centres where there are many courtrooms and many judges have the expectation of speedier justice than those who, for example, live in rural areas and rely on circuit judges or have to travel to larger centres for the administration of justice, and it ought to be able to improve the quality of evidence heard in courtrooms, assuming we get the technology right.

The main concerns with extending the facility for an audiovisual link will be the difficulty of participants to truly interact with a judge, with counsel, and with witnesses. Any lawyer in the House, and many other members, will know that in cross-examination, in the giving of evidence-in-chief, and in re-examination, the reactions and the emotions expressed by a witness or any other participant in civil proceedings, let alone criminal proceedings, are vital to a judicial officer or a jury making decisions or assessments of fact. It will be essential to make sure that the technology that is deployed in this area does not compromise that facility.

It has been said that similar steps have been taken in Australia, particularly, I think, in New South Wales. Clearly, this is an idea whose time has come. As Lianne Dalziel said, the Labour Party supports the legislation to select committee but we will be looking very closely at the question of how this system will be rolled out, what sort of technology will be made available, and those practical deployment issues so we do not lose the essential fairness that we need in the justice system when we are making assessments about whether a witness, in particular, is telling the truth.

It is good to speak on the Courts (Remote Participation) Bill. It will result in greater efficiencies, cost savings, and safety in our court system. I know that it is something a lot of people are interested in. I know that the Eaves family in Tauranga, for example, are watching and will be interested in what I am about to say.

The process for this video link started some time ago. In my time as a lawyer I was involved in a couple of cases. In one, a police officer had moved overseas and was, from memory, in the outback of Australia, and we had him give evidence by video link for a voir dire. In the second case, an attempted murder, one of the witnesses to a gang brawl in Ōpōtiki had cancer and only a matter of weeks to live, so her evidence was taken by this method. But the process was far from certain. There certainly were not any presumptions, and it was hard work and fraught to get evidence—and it still is, I imagine—into court by video link.

So this measure is a real procedural step forward. I think it is excellent. As I said, it will result in efficiencies, cost reductions, and increased safety. I agree with what Charles Chauvel said, which was that any lawyer who has been involved in a criminal call-over in a District Court or a High Court will be aware of the hassle of getting prisoners, particularly, but also witnesses and so on, into court. There will be many savings and efficiencies as a result of doing this, not to mention, as I said, greater safety. Certainly, a colleague of mine in the Tauranga District Court was—it made the news, I recall—assaulted at a call-over by a prisoner who had decided that he did not want to be in custody any more. These things do happen, and by going to video link we cut all of that down and, hopefully, should speed things up.

I want to finish with what is perhaps a radical thought. We see in the bill that video links will be used by default for procedural hearings but not for substantive hearings. I personally question whether that will necessarily be the end of the story. I take Charles Chauvel’s point that we see the body language of witnesses and the whites of their eyes when they are at close quarters. However, all the research tends to suggest that twitchy witnesses are often honest and dishonest witnesses often come across as far from twitchy.

So I question whether there are any real advantages to having a witness in court physically, rather than remotely by video link. It may be that in time—and I know it is a radical thought—video links could be extended to all witnesses, whether in procedural or substantive hearings. But perhaps that is for another bill in another year.

The Green Party simply endorses what has been said tonight with regard to the Courts (Remote Participation) Bill. Technology has allowed us to consider this now. It “is an idea whose time has come.”, to quote a colleague. There are clearly some implications to the bill that we will need to explore further in the select committee. We look forward to doing so constructively with the Government. Thank you.

I stand to support the Courts (Remote Participation) Bill 2009. The purpose of the bill is to introduce the criteria aimed at using audiovisual links in court. It covers the link of a person to a courtroom or a conference room from a remote location for the purpose of giving evidence or attending a hearing or conference. This bill’s intention is to provide a presumption in favour of audiovisual links for use in criminal procedural matters, primarily to use in the reform of the criminal process. The audiovisual system will be installed in court and used to its full capacity. It will be applied in civil matters where the parties consent or where there is disagreement on that.

There is a real need to enhance the efficiency of the court system. There has been a 10 percent increase in the number of crimes that our courts have to deal with. Although our police force has undoubtedly made a marked improvement in bringing offenders to justice and increasing the number of prosecutions, that increase has also been a real burden on the courts to deal with. With our ever-advancing technology, the audiovisual system will be seen as a real advantage in streamlining the efficiency of the justice system.

Debate interrupted.

The House adjourned at 10 p.m.