Summary Proceedings Amendment Bill (No 2)

on behalf of the Minister of Justice: I move, That the Summary Proceedings Amendment Bill (No 2) be now read a first time. This bill addresses a misclassification of some minor property offences by adding them to schedule 1 of the Summary Proceedings Act 1957. It also validates the proceedings that have occurred without jurisdiction because of that misclassification.

The way in which a criminal case proceeds through the courts in New Zealand is largely dependent on how charges are laid. Charges can be laid either summarily, which means they are tried by a judge alone, or indictably, which means they are tried before a jury. Purely indictable offences can be tried only by a jury. There are certain limited exceptions to this rule, such as when there is a threat of juror intimidation. Purely summary offences can be heard only by a judge alone. All offences in the Crimes Act are indictable offences. The exception is if the definition of the offence explicitly states that it can be tried summarily, or if the offence is listed in schedule 1 of the Summary Proceedings Act 1957. Listing an offence in schedule 1 enables the offence to be tried summarily at the discretion of the prosecution.

An amendment to the Summary Proceedings Act that came into force in June 2008 excluded some minor property offences in the Crimes Act from being in schedule 1 of the Summary Proceedings Act. The offences are theft of property not exceeding $500, obtaining by deception when the value of the property does not exceed $500, and receiving property not exceeding $500. The intention on the part of the previous Government was to make these offences purely summary offences that would always be heard by a judge alone. These offences were intended to be purely summary, because they are all minor property crimes where the value of the property does not exceed $500, including shoplifting and theft from vehicles, and are punishable by imprisonment for a term not exceeding 3 months. Therefore, these offences fall below the current threshold for the right to a jury trial in section 24(e) of the New Zealand Bill of Rights Act 1990, and in section 66 of the Summary Proceedings Act 1957.

Unfortunately, excluding these offences from schedule 1 did not achieve the intended effect. In fact, it achieved the opposite effect: it made the offences purely indictable offences. This means that since 2008 these offences should have been tried by jury in every case. Because many of these cases have been laid summarily instead of indictably, those prosecutions have proceeded in the absence of sufficient legal jurisdiction. There have been approximately 46,000 relevant summary prosecutions for the offences from June 2008 to date. This means that 46,000 proceedings could potentially be challenged, be deemed to have proceeded without legal jurisdiction, and be nullified. This would have high cost and resource implications, both in appeals and in future proceedings. In addition, all future proceedings under these sections would have to be tried indictably, leading to a significant increase in the number of jury trials.

The misclassification is a technical error that does not undermine the fairness or appropriateness of the convictions, but it is important that this misclassification is rectified as quickly as possible to minimise the impact that this would have on our court system. Two steps are involved in rectifying this issue. Firstly, this bill will stop any more proceedings occurring without jurisdiction by adding the relevant sections of the Crimes Act to schedule 1 of the Summary Proceedings Act. Secondly, the bill will validate any proceedings that have already occurred.

This bill will also protect anyone who has already commenced proceedings, by challenging his or her convictions on the grounds that he or she should have been tried before a jury. Anyone who appeals on that basis before the legislation receives the Royal assent can continue with his or her appeal. In any such case, it will be left to the courts to decide whether the conviction was valid. This includes the case that brought this matter to the Government’s attention, which is named in the bill. The bill will preserve the rule of law and maintain the separation of powers, by allowing the judiciary to complete matters that are already before it when this legislation comes into force.

In the longer term, the proposed Criminal Procedure (Reform and Modernisation) Bill will abolish the terms “summary” and “indictable”, along with the overly complex system of offence classification. That bill is due to be introduced before the end of the year. I commend this bill to the House.

I want to associate Labour members with what the Minister Kate Wilkinson said in her first reading speech on the Summary Proceedings Amendment Bill (No 2). It is the case at the moment that the way in which a criminal charge proceeds in New Zealand depends on how information is laid. There are two choices. As we heard from the Minister, there is the summary jurisdiction, where the case is heard by a judge alone, or the indictable jurisdiction, where a jury trial is required. As the Minister said, that distinction, which has long been maintained in New Zealand law, is due to end when the Criminal Procedure (Reform and Modernisation) Bill comes before the House. In principle, the idea of ending the distinction is one that I understand has the support of a number of parties; certainly Labour supports the idea of ending what is essentially now an archaic distinction.

In respect of the mistake that Parliament will correct by passing this legislation, as we heard the Minister explain, there was an attempt to amend the Summary Proceedings Act—an attempt that came into force in June 2008—to exclude three offences from schedule 1 of the Act. The intention of Parliament was that that would result in those offences being able to be proceeded against summarily. But, in fact, it is quite apparent from a case decided by the District Court in Hamilton in June that the opposite effect was achieved to that which Parliament intended. As we have been reminded, that does not mean in respect of the 46,000 potentially ultra vires proceedings since 2008 that some unfair substantive result has occurred; it is simply an issue of having adopted the wrong procedure by which those offences had been tried.

It is important to point out that there are two parts to the bill. First of all, Parliament intends to remedy the problem and stop any more ultra vires proceedings occurring. Obviously that is appropriate, given the error that has been identified here. Secondly, all proceedings that have already occurred will be validated. There is an important aspect to that. If there has been a challenge to the way in which a prosecution has been brought, then this bill will also preserve the right of a person to continue to bring that challenge. So no rule-of-law principles are offended. This is a classic example of how Parliament ought to rectify a mistake. It will have the support of members on this side of the House, and I commend the amending legislation to the House.

I rise in support of this administrative procedure to undo a mistake that was made just a few years ago. It is the sort of thing that can happen in any parliamentary system where we as parliamentarians receive advice and act accordingly in wanting to simplify processes, and sometimes the reverse occurs. So we are here today in urgency to put that matter right with the Summary Proceedings Amendment Bill (No 2). When that occurs in other contexts, in respect of other bills that may have been brought to the House by esteemed members like Mr Paul Quinn, legislation can get bashed around by members on the other side of the House, but it is good to be here on an occasion when both sides of the House are able to understand that mistakes happen, even in the most perfect of systems under the most ideal of Governments—little glitches and things occur that sometimes have to be fixed up.

💬 Hon Darren Hughes: How can a perfect system throw up that, though?

Let us face it. It threw up a number of unusual beings on the other side of the House, so we will be—

💬 Hon Member: Steady on!

Slap for slap. We are all here of one accord today. I am sure those listening and those watching from the gallery will be very pleased to see it happen. Thank you.

The Summary Proceedings Amendment Bill (No 2)—we can put it bluntly, I think—is the result of a cock-up. Although the previous Labour Government made it, National voted for it, so let us all accept that and not sugar-coat it.

I will not go through what the bill does; it has been very well explained by Minister Wilkinson and Charles Chauvel. Effectively, I want to make the point that in correcting something that has happened we are acting retrospectively to take away the right, I suppose we can say, to have a jury trial. No injustice at all has been done in that act, because common sense would suggest that the persons involved have done minor offences—theft and the like at a very minor level. They are summary offences and they should be summary offences, but through the mistake we made they were indictable offences under the old law, which we are amending.

We are acting, as I said, retrospectively. A number of academic lawyers would take issue with that. There will be some hand-wringing about it. But in this very short call I suggest that the hand-wringing over retrospective legislation by academic lawyers is sometimes overdone. Some might say—and I do not necessarily say this—that it is because they see it as a problem with parliamentary sovereignty. They say it should be rule by lawyers—not necessarily rule by law—rather than, as we are in this Parliament because we are democratically elected, ruled by the people.

I say to this House that we are sovereign. Parliament is able to, in appropriate circumstances, retrospectively enact law that corrects things. Sometimes in a technical sense, at least, it does away with rights, although with this bill it is a common-sense thing to do. We should not shy away from that. We should, of course, take care and we should not do it unnecessarily, but there are appropriate instances—and this is such an instance—when we need to act retrospectively. We should not, and academic lawyers should not, conflate the “never act retrospectively” with the “take care when acting retrospectively” in this Parliament. It is a right that we have that we should jealously guard.

As I said, the changes we are making with this bill are the right thing to do morally, politically, and legally. We are talking about minor crimes that never should have come with a right to jury trial. We fix that cock-up today.

Tēnā koe, Mr Assistant Speaker. The Green Party did not support the 2008 Summary Proceedings Amendment Bill, the flaws of which this current bill, the Summary Proceedings Amendment Bill (No 2) is intended to rectify. We believe in taking care. The relevant Summary Proceedings Amendment Bill was part of the omnibus Criminal Procedure Bill, which the Green Party opposed as deeply problematic and flawed legislation. As we opposed the primary legislation that this bill amends, the Green Party will be abstaining from voting on the current bill.

I rise to speak to the first reading of the Summary Proceedings Amendment Bill (No 2). The ACT Party will be supporting this bill, as I think most other parties are, except for the Greens, who have just announced their abstention. It makes good sense, of course, to proceed with this rectification of a mistake that was made. Without wanting to apportion blame, I think the best thing we can do is learn a lesson from this. The ACT Party puts a lot of store on regulatory responsibility. In fact, we have measures in the confidence and supply agreement with National in that regard. Regulatory responsibility is something that each and every one of us in this House should take very seriously. There are some very basic questions that we should always ask ourselves, I believe, when we write legislation. They are questions such as what the intent is of this legislation, what exactly it is set to achieve; what the costs will be, both financial costs and societal costs; and, most important, some thought should certainly be given to what the unintended consequences could be, looking forward. There are some lessons for us, particularly in light of this legislation. We should be mindful of that when we put things forward in this House, when we do our work at select committees, and when we debate in this Chamber. We are happy to pass this bill under urgency today. It certainly is an issue that I think warrants urgency. It is not often that we in the ACT Party say that.

The previous National speaker, Simon Bridges, also talked about the rights and wrongs of retrospective legislation. As a rule, we in the ACT Party are opposed to retrospective legislation. Since I have been in this House, since 2002, there have been a number of occasions when we have very vigorously opposed retrospective legislation. But in this case I agree with Simon Bridges when he says that occasionally there is an issue that warrants retrospective legislation being put in place. I agree with him that this is one such case. With those things in mind, the ACT Party supports this legislation, but we remind each and every one of our colleagues sitting in this House that regulatory responsibility certainly is something we should take very seriously. Thank you.