Juries (Jury Service and Protection of Particulars of Jury List Information) Amendment Bill

The Juries (Jury Service and Protection of Particulars of Jury List Information) Amendment Bill is an interesting bill. Labour will support it. We have an interesting situation where there is no regulatory impact statement that has been prepared because it is expected that there will be no impacts on businesses, individuals, or not-for-profit entities—or, at least, if not no impact, then only very minor impacts. This is an unusual situation because it is usually the case that we have to consider those matters in great detail.

According to Cabinet papers last year, there was an incident where a self-represented accused corresponded with persons whose names and addresses were on the jury panel for his trial. This raised concerns about the safety of jurors, and it was decided to amend the Juries Act to restrict access to jurors’ address details. This bill is an example, in that sense, of the Government’s reactionary approach to justice issues. It would have been nice to see a proactive step taken to ensure this matter did not occur in the first place. I am sure the Government will, in response, suggest that perhaps previous Governments could also have acted on this matter. It is something that could always be claimed, but it certainly currently falls in the lap of the current Government to make amendments in this fashion. We will support it because, as I say, it is not particularly controversial that we should be amending this matter, but it would have been good to see a more proactive approach taken in the first place.

The bill, in effect, means that defence attorneys and advisers to defendants representing themselves will not be allowed to show addresses to defendants. They will still be able to see and hear the name in court, so, arguably, they could still look up the address in the White pages, perhaps, or on electoral rolls. This is a matter that will no doubt tax minds, in terms of how we adapt to that situation. But, in the very least, we have an approach that seeks in principle to restrict access to that information in a way that we would agree with. We agree that defendants having access to jury addresses is problematic. However, we do not think that this bill will make any difference, because of the example I have just cited. The defendants who want to find addresses will still be able to do so.

Currently, the Juries Act already allows people to be exempt from jury duty on the grounds of occupation or business, state of health, physical disability, family commitments, or other personal circumstances. They have to satisfy the registrar that they or some other person would be caused undue hardship or serious inconvenience if they were not excused. The registrar must excuse people if they are over 65 years of age, or if they have a religious view that is incompatible with jury service. This bill will allow for that exemption to be excused permanently, and that is another matter that is addressed by the bill.

There are other smaller matters that are picked up, which I have no doubt that other colleagues, more learned in this area, will wish to comment on. But defendants needing to be able to have certain information available to challenge the people selected as jurors is something that we know, and this will ensure that the defendant has a right to a fair trial, which is a fundamental right. So the steps taken in this bill will make sure that some of the loopholes in the Sentencing Amendment Act 2007 are tidied up.

There have been a number of wider concerns with the justice portfolio, and that is why we are concerned that this particular matter is being given attention when other bigger matters, arguably, are not being addressed. Although this incident has brought the matter of people corresponding with jurors to light, and a reaction has been sparked, it is difficult to argue that that is perhaps the most immediate thing, or the only thing, that needs to be addressed in respect of the justice portfolio. This Government has had a reactionary approach, and examples of that are the Search and Surveillance Bill, the Juries (Jury Service and Protection of Particulars of Jury List Information) Amendment Bill, and matters around provocation. It is an inappropriate use of parliamentary time, the select committee process, and urgency to pass significant justice bills that have not been sent to appropriate select committees. So when we see this bill coming, we see another example of tinkering around the edges, and we think the legislative agenda should have bills that will have an actual effect on the justice system, rather than peripheral changes that will make very little change to the overall nature and problems in our justice system.

We have in New Zealand a real problem with a growing prison population, which we all end up paying for. A lot of these people in prison are there as a consequence of poor choices they have made, but there is no doubt that other factors such as poverty contribute or are correlative factors in offending. We would like to see, from our side, those other factors also addressed. We are not happy with the growing gap between rich and poor in New Zealand, and we would like to see the big issues in the justice sector addressed, as those wider societal issues should also be addressed.

I thank you for hearing my thoughts on this matter, and wish that this bill does go through, because the little changes it makes are hard to argue against. But I wish to lay on record my concern that we are not really addressing the bigger issues in this sector, and, as I say, I am sure some of my more learned colleagues will go into greater details on those matters. Thank you.

I do want to reflect on one particular clause of the legislation, the Juries (Jury Service and Protection of Particulars of Jury List Information) Amendment Bill. Perhaps I should preface my comments by making the point that none of the current members for Labour on the Justice and Electoral Committee were on the Justice and Electoral Committee when this legislation went through, so we have not actually had the benefit of a discussion with officials over the intent of the particular part that I want to raise. I have also had a brief conversation with Denis O’Rourke, who I know is going to be taking a call on the same matter because he has an amendment to this particular clause in relation to his Supplementary Order Paper 33, which promotes omitting new section 15A(2) in clause 10.

The reason that I want to focus on new section 15A(2) is that I am not aware of the reason behind it. I think it would be incredibly useful if the Minister in the chair, the Minister of Justice, could give us a description as to why the legislation—which is being promoted for one particular purpose that has had some publicity in relation to the example that my colleague David Clark already provided—in this particular section requires that “The Registrar must excuse a person summoned to attend as a juror on an occasion from attending in any court on any occasion if satisfied, on a written application for the purpose made by or on behalf of the person, that the person is of or over the age of 65 years.” So that is a permanent excusing from serving on a jury, and the only satisfaction of the criteria that is proposed by this clause is that the person is 65 years or older.

Of course, there has been a lot of discussion about how we have dealt with a somewhat ageist society, and many changes that we have promoted in this House actually take away discrimination based on age. Having the age of 65 as a criteria on a stand-alone basis seems, to me, to offend the principles of all of the legislation that we have promoted in terms of human rights to remove age as the basis, or as a delineating point, for anything other than entitlement to, for example, superannuation, as it still is in this country at the moment.

I think that it is worthy of some further discussion, because when we had our representatives on the select committee that heard the evidence on this particular bill, they felt that there was a concern about the age of 65 being used as a means. I will just quote from the report back from the select committee: “The Labour members are concerned that extending the Registrar’s power to grant permanent excusal solely because a person is 65 or over is at odds with progressive measures advanced over recent years to eliminate ageism and stereotypes, and to promote participation.” Then it went on to say that the bill does not actually propose to reintroduce an age limit for jury service, and that is the whole select committee commenting at that point. So Labour is simply saying that it is concerned about it looking like there is a bit of ageism creeping back into the law but saying: “No, this is not a cut-off point”.

Then the select committee actually talks about the fact that it does not consider—again, this is the whole committee, not the Labour members alone—that what is proposed implies that older people are less capable of serving on a jury. “On the contrary, we consider that the life experience of older people is of significant value to society and we would encourage those who are able to do so to continue to undertake jury service.” Well, I actually think that there is a little bit of a conflict in this, and this is what I would like the Minister to debate.

I think that on our side of the Chamber we should be supporting the amendment put forward by Denis O’Rourke. On the face of it, it does look as if we are putting in place a particular provision that, if it were taken up by everyone over the age of 65, I do not know how many juries would be able to be empanelled under those circumstances. I do not spend a lot of time down at the courts, but on the odd time I have been there for a jury trial there would be more than one or two people over the age of 65 sitting on any one jury.

I think that the concept of just simply having somebody using age as the basis for a permanent excusal—and it does appear that it does not even require them to have ever served on a jury. So, as long as you get to 65 and have never been called to give service on a jury, just by notifying the fact that you are 65 and do not wish to be ever called, you would never do what I consider to be a duty to the wider community in terms of serving on a jury. It does seem to me to not be in full accord, really, with the intent of the legislation as it was originally promoted.

The original reason for promoting this legislation was the concern that had occurred in relation to a self-represented accused who had corresponded with persons on the jury panel whose names and addresses were on the jury list for his trial. I do not think anyone has got any objection to that particular part of the legislation; it is this other part that does not seem to be connected with that in any way, shape, or form. I know that it does not have to be for it to be legally within the scope of the legislation, but it does seem to me to be taking advantage of a particular piece of legislation that is established for one purpose to, in fact, provide for another.

I really cannot for the life of me understand why it is that age would be the threshold on its own, despite the fact that the person may never have provided jury service in their entire lives. They may have not been called forward; they may have had a specific reason to be excused from jury service in a particular trial, having had a conflict of interest, or whatever. That person then, just because they have become 65 years of age, is able to write for a permanent excusal. That does not seem to make much sense to me, but then, as I say, none of us actually sat on that select committee when the bill was referred to it.

So even though it is a relatively small bill and we are supporting the passage of the bill, it does seem to me that Denis O’Rourke has a very good motive in terms of promoting his Supplementary Order Paper. I will be interested to hear his comments, obviously, as the promoter of the particular amendment that would omit the relevant subsection.

But I would also like to hear from the Minister in terms of how this particular provision came to be. I know that it was introduced under her predecessor, the Hon Simon Power—yet another piece of legislation the Minister has had to pick up in that regard. But I am sure that she has read the background briefing papers to it, and will understand and will be able to explain to the House why this particular provision is so important. And if it is not—if it is actually not that important and if it really does not need to proceed beyond here—then perhaps the Minister may be willing to consider Denis O’Rourke’s Supplementary Order Paper, which would remove it from the legislation. I guess my last question would be what effect would that have—whether it would impact on any other elements of the legislation that are proposed, and whether it would have such an effect. Perhaps the Minister could just simply explain that. I think that that would be very useful in terms of how we would vote on the Supplementary Order Paper to which I referred.

Just in summary, I think the Labour Opposition will be supporting the bill. We have had a rethink of the position that our committee members signalled when they sat on the select committee, in light of the fact that Denis O’Rourke has put up a Supplementary Order Paper. He clearly was not a member of Parliament at the time that the bill was introduced, so he has brought some fresh eyes to the subject, as I think new members of the select committee have brought to the subject as well. I am certainly hoping that we can get to an understanding of why this particular provision was considered to be necessary by the previous Government, and whether it is still considered necessary by the current Government.

I understand that neither of the previous speakers sat on the Justice and Electoral Committee, which actually heard this matter, the Juries (Jury Service and Protection of Particulars of Jury List Information) Amendment Bill.

💬 Charles Chauvel: Law and Order Committee, Judith.

The Law and Order Committee, thank you. Thank you, Mr Chauvel, very good. However, I do presume that they have read the Juries Act, since they are commenting on it. The Juries Act currently allows people aged 65 years and over to be excused on written application each time they are summoned, on the basis of their age. They are currently able to do that, so it is difficult for me to comprehend why, in fact, we are saying to people: “If you feel that you don’t want to serve, or don’t feel that you can, then you have to write in every single time you are summonsed.”

I can tell the House that I have had a family member, now deceased, who after the age of 65—I think it was probably about 68—started to be affected by a particular motor neurone disorder. In her case it did not stop her being able to think—she could think excellently, she could do all sorts of things brilliantly—but she felt that every time she was summonsed, and she was summonsed an awful lot, she needed to get me to write in for her, to advise why she could not come in. She was never going to get better from this motor neurone disorder; she was never going to be able to be any more able to cope with that.

💬 Hon Trevor Mallard: That’s health, not age.

It is a dreadful, dreadful thing, but then again, she did not want to have to write in every single time and do it. No, she wanted to be able to say—

💬 Hon Trevor Mallard: Read the bill.

She did not want to have to talk about—I am sorry that Mr Mallard thinks it is so disgusting for me to speak about a member of my family, now deceased, but actually that is the sort of behaviour that brings this Parliament into disrepute. It is absolutely disgraceful. That is absolutely disgraceful.

This family member of mine did not want to have to tell people she did not know all about her medical situation. She wanted to be able to say: “I have done my service; I don’t want to have to keep going.”

💬 Hon Trevor Mallard: So the same condition at 64, she has to? How ridiculous.

So—Mr Mallard is just appalling, is he not. But, however, I took note of David Clendon’s comments during the second reading, when he commented that to have this permanent excusal in place all the time might be unfair to someone who felt that they could not contribute, and then found that they could, and they felt able to. So in my Supplementary Order Paper 94, which I presume that Labour Opposition members have read since they have been commenting so much on this issue, they will note that I have taken up the Greens’ suggestion of actually enabling someone to say: “I don’t feel that I need to be in that situation now; I can now cope with this, and I do want to be now back into the list.”

The fact is that the Ministry of Justice receives thousands of applications every year from people aged 65 and over who do not want to be summonsed again to be a juror. It believes, and I believe, that it is right that people who are 65 years and over who have contributed to their community, if they feel that they have done their time, should be able to say so. But do they have to do it every single time they get summonsed? I think they should be able to say that actually, it is not for them. At a later date, if they change their mind, I think they should be able to come in. I think the Greens made a very good point, and I took it up, and it is in the Supplementary Order Paper. I would like to thank David Clendon for his helpful suggestion.

So there is no ageism about this; this is about people’s ability to feel that they can contribute, but also giving them options around it. I think that is sensible, and it actually means that people are not necessarily going to feel humiliated, and that they can actually say that they do not have to keep writing in every single time they get summonsed. Because I can tell the House that there are some people who are summonsed a lot to go and do jury service. Many of those people, because they are not actually listed as having occupations like member of Parliament, police officer, lawyer, or dentist—all those many occupations that are currently excluded from having to do jury service—they get called all the time. I actually think that when you are over 65, if you think you have done your time, you should be able to say so. But I do not think that is ageism. I think that is actually accepting that some people have already contributed an awful lot to society.

I do not understand why it is that Labour Opposition members are so worried about this. They certainly were not worried about it in the select committee. I can only think that they have been influenced by some very malevolent forces.

New Zealand First supports both Part 1 and Part 2 of the Juries (Jury Service and Protection of Particulars of Jury List Information) Amendment Bill, with an exception that I will come to, which we have been debating tonight. Part 1, of course, with its reference to excusals and disqualifications, I think and we think is pretty sensible. The new provisions about disqualification—new section 36A in clause 12, relating to people on home detention for over 3 months, and new section 14D in clause 8, where there is a discretion for the judge to impose home detention of under 3 months—are very sensible. Secondly, new section 15A(1) in clause 10, providing for excusal because of the state of a person’s health, is also sensible and would be good law. Thirdly, new section 16, giving a judge discretion where there is a conflict of interest or grounds of conscience, is also good law.

However, it is new section 15A(2) that we think is not good law and should not proceed. That, of course, is the provision that provides for right of excusal on application for a person over 65 simply because of their age. I take notice of the fact that the Minister of Justice has Supplementary Order Paper 94, which would allow a person to go back on the jury list, then go back off it, and then go back on it again I do not know how many times. That does not seem to be very sensible to me. But fundamentally New Zealand First does oppose that part of the bill, which provides for an application for excusal as of right for a person over 65 years of age.

The first reason—and there are five—relates to ageism. The Minister says that it is not ageism. Well, how on earth could a provision that is entirely based on age, and on no other criteria whatsoever, be anything other than ageism? It is based only on age. That is wrong in principle, and for that reason alone it should not proceed.

Secondly, it is irrational to do that, because people 65 years or over are actually better equipped than people younger than that to take on this role, and they are better equipped because they have a lifetime of experience to rely upon. As Lianne Dalziel quoted from the report of the Law and Order Committee, “we consider that the life experience of older people is of significant value to society and we would encourage those who are able to do so to continue to undertake jury service.” The select committee thinks that 65-year-olds and over should be encouraged. So where on earth could there be a reasonable, rational reason for providing a right to exclusion for people simply because they are 65 years of age or over?

Thirdly, people may, of course, actually retire at any age. Some people retire as early as 50, 55, or 60, and some, like me—and I am 66—do not intend to retire for some time yet. So what on earth has the retirement age got to do with the ability of a person to do their duty to the community in respect of jury service? The reason just does not exist.

Fourthly, 65 years of age is the superannuation age currently, but what on earth has that got to do with this issue? That is exclusively the age that, so far, this country has adopted as the retirement age. As I have said, that is only a notional age of retirement and not, for many people, a real age, at all. So if people are not, in fact, very commonly retiring at age 65, why on earth should they have a right to excuse themselves from jury service?

In any event, fifthly, the issue that is really relevant here is the one that is already in the Act in relation to an exclusion for health purposes. That, in fact, is actually the reason that the Minister gave in respect of this provision. She did not really talk about age; she talked about somebody who for health reasons was not able to, and did not want to, contribute. Those are the real issues—the ones I read out at the beginning of my speech. It is not age itself that matters.

People aged 65 or more, like me, do not like being told that because of their age there is something different about them that means they have to be treated differently in the law, whether it be for this purpose or for any other purposes at all. Therefore, I have moved on Supplementary Order Paper 33 an amendment to delete that provision in clause 10, which I think is appropriate. I do not accept, either, that section 15A(2) would be improved by the Minister’s Supplementary Order Paper 94 amendment, allowing people to go on and come off and go on and come off this list. It just does not make sense. In fact, the whole thing about age should be removed altogether to solve the problem. That Supplementary Order Paper would only make it worse, I believe. It is misconceived and should not be inserted in the bill at all.

Apart from that, New Zealand First has the greatest pleasure in supporting this bill, because it makes some very sensible provisions, and some of those I have mentioned. In addition to that, of course, it does provide for privacy of information regarding jurors, and that is something that has been needed for quite some time and is a very good move. I think one of the reasons why there has been a bit of a bad reputation about being on juries is that that privacy is not there currently. Some people resist jury service not for the reasons that the Minister gave relating to age, or maybe that they are getting a bit past it—which I do not accept, and neither do they, by the way—but for other reasons altogether. The Baker case, of course, demonstrated what those reasons can be. In that case, a person who represented themself obtained a jurors list and sent a letter to a woman juror, making romantic overtures. I mean, that should never have been possible.

Records show that four out of five people called for jury service seek to avoid it. It has nothing to do with age—nothing whatsoever to do with age. In 2009, 67,938 people failed to attend for the purpose. So anyone who tells me that age has got anything to do with any of that, I think, is dreaming. The reasons are more about privacy and about the need to protect details of jurors than about anything else. Part 2 of the bill, for those reasons, is very, very important, and those are the main reasons why New Zealand First believes this bill should be enacted. If anything, however, we would prefer to see tougher measures and tougher penalties to ensure the protection of jurors from being contacted by an accused person, and especially by a convicted person—and that happens as well. So I do not think the bill goes far enough in those respects—

The CHAIRPERSON (Lindsay Tisch): Part 1.

—but it goes too far in Part 1 in respect of the age issue. Thank you.

Yet again I am rising to speak about what is already in the Juries Act, which, in fact, allows people aged 65 years and over to ask to be excused from jury service every time they are summonsed. That is already the law. So what we have in the Ministry of Justice is we get thousands and thousands of requests each year from people to be permanently excused. This provision is not an insult to people aged 65; this is not ageism. This is actually recognising that people are asking for this. This is a privilege that is currently in the law now, in the Juries Act—

💬 Denis O’Rourke: It shouldn’t be.

—which Mr O’Rourke will have read, which says that if you are 65 years and over you can write in and ask to be excused.

Mr O’Rourke says that it should not be. Well, it is in the law now and we do not propose to change it. What we do propose is that people can, in fact, say: “Look, I don’t want to have to write in every single time. You’ve got me on record as not wanting to do service any more, under the current Juries Act.”, and we want to be able to say: “Fine, you don’t have to keep writing in every time.” This is a privilege that is being granted for people aged 65 years and over. The bill provides just another benefit to people in this sector of New Zealand society.

It is all very well for Mr O’Rourke and the Labour Opposition to speak about ageism. Well, actually, the SuperGold card and transport discounts are all based on age, and I do not think that is ageism. This is just another privilege that is being given to people who are 65 years and over. Frankly, they do not have to take it up. They do not have to have it. With the Supplementary Order Paper amendment I am putting in, after the very good idea from Mr Clendon, actually they can change their mind. I do not think many will take up the option to change their mind, but I do think there will be some people, some hundreds of people, who will wish to take up the permanent recusal because, at the end of the day, it is their decision; they know themselves.

I do not think that is being ageist. I think that is giving yet another privilege, as we do with New Zealand superannuation, as we do with the SuperGold card, and as we do quite a lot to people aged 65 years and older who have contributed to their country and wish to contribute in other ways sometimes.

Tēnā koe, Mr Chairperson. Tēnā koutou e te Whare. I am very pleased to take a call to discuss the Juries (Jury Service and Protection of Particulars of Jury List Information) Amendment Bill, which the Green Party will be supporting. Like the Hon Lianne Dalziel, Denis O’Rourke, and other Labour colleagues of mine on the Justice and Electoral Committee, I was not on the select committee when this legislation was first introduced. I believe this is my first opportunity to speak on this bill, so if I could just make a broader statement, then hone in on the provisions in Part 2, and in particular this interesting debate on Supplementary Order Paper 94, which relates to those who are 65 years of age and over.

I think that jury service represents an essential element of participation in civil society. It is really important to have a cross-section of our community come together to ascertain matters of fact in a trial, and, really, we are to aspire to the spirit of inclusiveness and diversity within democracy at every turn. The core provisions of this bill, especially in Part 1, are predominantly positive and reasonable. They seek to enhance the jury system’s integrity, to improve the administration of the jury system, and to reduce stress on people with chronic ill health, permanent disability, and those who are over the age of 65. The first two elements regarding integrity and administration are dealt with in the first part of the bill.

Clause 3 amends the principal Act, and clause 4 includes the purpose of the disqualification from jury service for a person who at any time within the preceding 5 years had been sentenced to a period of home detention of 3 months or longer. Clause 8 follows this up by inserting new section 14D, which grants the registrar discretion to defer the appearance of a juror who is serving a sentence of home detention of less than 3 months until after that person has ceased to be subject to that sentence. That seems like a sensible idea. Although it is really not conducive to democratic principles to exclude people from institutions arbitrarily when they can participate in society—such as the exclusion of prisoners from voting, which we find very troubling—neither does it do us any good to ignore the fact that the appearance of people serving a sentence for criminal behaviour does not positively contribute to the integrity of the jury system.

I will get to the subject of the debate, which I listened to with quite a good deal of interest this afternoon. Although I have quite a bit of sympathy for Denis O’Rourke and, indeed, the members of the Law and Order Committee who submitted a minority report about any appearance of ageism or any appearance of the State to be saying to people over the age of 65 that they are not welcome to serve on juries, I also have a great deal of sympathy for what the Minister of Justice has said here today. I think it makes a good deal of sense.

It is really hard for me to understand how it is ageism to allow people over the age of 65, which is the age of national superannuation and, as the Minister pointed out, the SuperGold card, the opportunity to decline just once as opposed to having to decline every time if they feel themselves not up to the task of attending—and probably not for mental health reasons.

I guess I will bring in some personal experience. I have three living grandparents. Two of them are 88 years old and one is 90. They all live at home, alone. They are all fully independent and they are all very bright people whom I love talking to and talking politics with. They are wonderful people, and I have a great deal of respect for them. I have no doubt that at this point in their lives they would find it physically very onerous to have to serve on a jury. I do not think that they would want to take up that request if it was sent to them now. Given that it has now been, let us see, a good deal of time that they would have been receiving requests to serve on a jury, I think it is perfectly sensible and reasonable to allow them that choice if they do not feel themselves physically up to it.

I do not think it is ageist to recognise that there are different stages of life, and, although it is true that there might be somebody with ill health or a disability or other reasons who may not be physically up to serving on a jury at the age of 50, the chances that someone will not be up to it significantly increase as time goes by. We have to have an age at some point.

The critical thing is that this bill, particularly with the addition of Supplementary Order Paper 94, which was introduced by the Minister today, will allow these people to have the choice. No one is saying if you are over 65 you should not take up jury service; it is just that if you feel that you are not up to it, you have the option to decline. Thanks to Supplementary Order Paper 94, which the Green Party will be supporting—and I thank the Minister for her kind comments and for taking up the points made by my colleague David Clendon in the second reading of the bill—people will have the choice to revisit that decision that they made at some point to decline the invitation to serve on a jury. They could change their mind if they were finding themselves in different circumstances later.

Although I completely hear the comments of the Hon Lianne Dalziel and Denis O’Rourke that we do not want to be ageist and we do not want to exclude people over the age of 65 from participating in this incredibly important democratic institution, I just cannot see the harm in allowing people the choice to decline once, as opposed to having to decline multiple times. Ultimately, the cut-off is always going to be somewhat arbitrary, and I think linking it to the age of—well, if there is not this provision, then that means that people in the state that my grandparents are in might not find it as easy as they would other wise to decline an invitation to serve on a jury. I just do not see what the big drama is, to be honest. Giving people choice, acknowledging there are different stages of life, and respecting our elders—I think this is totally in line with all of those principles. I really do not see what the problem is. The Green Party is quite happy to support the Minister’s Supplementary Order Papers. Thank you.

In speaking to the Juries (Jury Service and Protection of Particulars of Jury List Information) Amendment Bill I want to go to the purpose, in talking about Part 1 of the bill, which is to improve the administration of the jury system and to make life easier for those who are called to sit on a jury. As the chair of the Law and Order Committee, we indeed heard a number of submissions on this provision. It seems to have caused some consternation amongst some members of this House, but, thankfully, there has been some good thinking on behalf of the Green Party. I want to, in particular, congratulate David Clendon, who has provided a thoughtful addition to the Law and Order Committee’s consideration.

The provision that provides for excusals from jury service came about, we were told, and I believe, from people over the age of 65, who, as the Minister has reminded the House, already have protection under the Juries Act. They can apply to the registrar for an excusal on a case by case basis. They already have that privilege. They already have that ability. But we were told that a number of complaints are made on a regular basis—and, again, the Minister told us it amounts to thousands in a year—to the Minister of Justice herself and also to the Ministry of Justice from members of the public who are periodically summonsed to undertake jury service. And that is despite previous excusals from jury service on one or maybe multiple occasions. That might be because they are over 65 but also, and I think critically here in the Committee’s consideration of this part, it might be because they have another reason. It might be because of a chronic health problem. That person might have mobility problems. They might find it extremely difficult to get to the court for perhaps a couple of days’ jury service, or more. Indeed, it might be a permanent disability.

To me, the consideration of this clause in the select committee process was about extending that privilege to those people. It might be because they were over 65 and they felt they had done their bit—well, why not; maybe they had done their bit—or, more important perhaps, it might be because it was physically difficult for that person to attend jury service. Indeed, they might be suffering from some other chronic illness. So I am a little mystified at the attitude of some members of this House who, for some reason, regard this as ageism. It is not ageism. What it does is extend that courtesy, if you like, and privilege, as it has been referred to, to those members of the public who have previously served, and who have previously been excused from jury service, the ability to have a permanent excusal. So what that means is that when they get a letter in the post that says they have been called to jury service, they do not need to go down to the courthouse, they do not need to write a letter in return, or make the phone call, yet again, to the registrar of the court to explain their circumstances, yet again, and to ask for an excusal from jury service—yet again.

So to me this is a clause in Part 1 of this bill that conforms to the purpose of the bill very neatly, and that is to improve the jury system’s administration. The benefits, of course, are to those people who want to have permanent excusal, and I have just gone over those, but, of course, there are benefits to the court registrar, as well. We are in the 21st century now. The courts are modernising. There are a number of pieces of legislation, including this one, that are enhancing the operation of our courts. To me, this is quite apart from the human element, where if somebody is over 65 and for whatever reason, and it can be a very personal reason, that person over 65 wishes to have an excusal.

I would not want to be in that situation, if I were over 65 and I had a medical condition. I do not want to have to tell a court registrar, time and time and time again, about my personal circumstances. I think it is a much more humane process, and it is a privilege. The Minister has said that, and I agree with her. It is a privilege that we can extend to people in those circumstances. If we can do that for people, that is good.

So that is just one part of Part 1 of this bill. It does not propose to reintroduce an age limit for jury service. We had some interesting submissions on that, and quite frankly I think that the clause has been misunderstood. So with that, thank you.

I would like to start by thanking the member who has resumed her seat, Jacqui Dean, for that contribution. Having had a look at the list of members of the Law and Order Committee who actually heard submissions on this Juries (Jury Service and Protection of Particulars of Jury List Information) Amendment Bill, I think she is the only member in the Chamber who was on the committee at the time, and obviously it helps that she chaired it. I think what this shows us, independently of expressing any view about the merits of what Jacqui Dean has just said or the argument she made, is that it really does not do to leave these bills languishing on the Order Paper.

The legislation was referred to the committee back on 12 April 2011. The closing date for submissions was 26 May. Looking at the membership list, two of the committee are not even in the House any more. They did not survive the November election, which intervened between the committee’s report and today, and I do not think, apart from Jacqui Dean, there is any member of the committee otherwise who served at the time and who is still on that committee. So, by way of general observation, I am not going to speculate as to why this bill has taken so long to progress, although if it were of such burning importance, you might think the Minister of Justice would have given it higher priority. Perhaps the most charitable thing that can be said is that she is still cleaning up after her predecessor, and that this bill—

💬 Hon Trevor Mallard: No, no, no, she’s been diverted by other matters.

Well, my colleague observes that maybe the truth is that she has been diverted by other matters. I am sure he will have more to say about that later in the debate. But, whatever the case, let us hope that the House has seen the back of this sort of bill, which is only really arguably needed and is certainly not a burning priority—just like the next item of business that, I apprehend, we are going to get to.

The other thing that is worth saying, by way of a general observation, also relates to priorities. We have had legislation relating to perhaps the major driver of crime in New Zealand—alcohol—on the Order Paper for some time, and we still have not got to it. I do hope the Chair will indulge me, because I have got the Minister of Justice in the chair here and I can express this view directly to her. I do hope we are going to see that bill progressed with priority and expedition, rather than legislation like this, which, at least, very arguably deals with matters that are adequately provided for in legislation already.

On the question of Mr O’Rourke’s Supplementary Order Paper, I accept what the Government has said, to an extent. The Government has decided not to remove, on an ongoing basis, the exemption for persons over the age of 65 to serve on a jury, and it is calling it a benefit. Well, frankly, I think that is patronising. The Juries Act dates back to 1981. It dates back to an era when we had compulsory retirement at the age of 65. People did not have the choice. That was when they were deemed by the law to be old, deemed by the law to start becoming past it, and required to retire. That has not been the case for many a year, and it would have been open to the Government to have said: “Well, we are updating the law here. We should actually dispense with the arbitrary requirement that somebody at the age of 65 can be excused from jury service, simply by reason that they reach a certain age.” We just do not make those arbitrary assumptions in our law and practice in New Zealand any more.

I am, like the rest of the House, sympathetic to the type of situation the Minister recounted. She talked about a family member who was infirm, had motor neurone disease, and did not want to go through the process of having to seek an exclusion every time she was called for jury service. People at any age can get motor neurone disease. People at any age can be afflicted by an infirmity that makes them either uncomfortable or right-out incapable of serving on a jury or performing some other sort of civic service. The way they ought to be dealt with is by a straight-out exemption on the basis of disability. It ought to be the case that if somebody cannot serve, then clearly they should be able to be excused on the basis of that infirmity. It has nothing to do with age. People in New Zealand now who are over the age of 65—many people—will find this entire debate and this sort of arbitrary provision completely patronising. If we think about what was argued for by Julie Anne Genter, there is actually no need for an arbitrary age in this area, just as we do not have arbitrary ages across most other areas of our law. As I said earlier, it simply is not the way we do things. So it is a little disappointing that we have heard the contributions that we have had on the age issue. Like my colleague Lianne Dalziel, and like the other members of the Labour Opposition, we will be—if we have the opportunity—voting in support of Denis O’Rourke’s amendment, which would do away with this patronising anachronism around the age of 65 in respect of jury service.

I want to take another quick call on this provision—excusal from jury service—in Part 1 of the Juries (Jury Service and Protection of Particulars of Jury List Information) Amendment Bill, and I have to apologise to my colleagues who are also keen to take a call on this. I was just reflecting on the departmental report. The advice that we on the Law and Order Committee had after listening to submissions on this was that the amendment that provides for older people to apply for permanent excusal is not discriminatory and does not provide any disadvantage for them. If it did provide a disadvantage for people over the age of 65 due to their age, or a medical condition, or a permanent disability—if that were the purpose of it and they were disadvantaged—then that would be something completely different.

The advice of the Attorney-General stated that the proposed amendment is not a breach of the New Zealand Bill of Rights Act. I think that is pretty germane and critical to this argument. There is no disadvantage to people over the age of 65 who, for whatever reason, wish to have a permanent excusal—far from it. It is the flip of that, I would argue. It is not contrary to the New Zealand Bill of Rights Act, and that is the advice the select committee received from the Attorney-General. In fact, what it is is a—well, I believe that it is a kindness. I believe that it is a kindness to somebody who has a medical condition or has a permanent disability, so that they do not have to ring up the registrar time after time, or go in, or write a letter, and explain their medical condition yet again. I do not know, maybe they have got to get a medical certificate to verify their medical condition time after time. There is a cost associated with that.

So far from this amendment being discriminatory against people over the age of 65, this is not ageism at all. What this is is providing for smoother administration of the court system. Surely that has got to underpin all our work here in this Parliament. The Attorney-General has given us the advice that this provision is not contrary to the New Zealand Bill of Rights Act.

I also want to reiterate, because I think it is important to remember, that far from being motivated by reasons that, as was suggested by the Human Rights Commission in its submission, older people are less capable and more subject to stress, this amendment was actually prompted by members of the public—older people—who contact the Minister of Justice and the Ministry of Justice seeking a permanent excusal. So this is not an amendment that was dreamt up by advisers from the Ministry of Justice; this is an amendment that is in response to a demand and a wish from the community. I wanted to stand up and make another comment on that, because I think it is very germane to this argument. Thank you.

I will take just one more very short call on the Juries (Jury Service and Protection of Particulars of Jury List Information) Amendment Bill. I feel compelled to point out that if we did not think there was any need to have arbitrary ages for things, that would raise a question about all these other things we have like the age of consent, the driving age, and the age when we vote. I just find that a bit—I just do not—

💬 Charles Chauvel: They don’t exclude old people.

Well, I do not see how this excludes old people, because it does not—

💬 Charles Chauvel: They don’t assume that after a certain age, you’re past it.

I just do not see anything in the legislation that says that after the age of 65, citizens are no longer welcome on juries. But I just have to point out that the actual effect of Supplementary Order Paper 33, based on the Juries Act, would not be to change anything about the fact that people over the age of 65 would now have the ability to apply for excusal from or permission not to attend jury service when they were summoned. It would not enable them to do it just once; they would have to do it time and time again, every time they were summoned.

Although I think there is a case to be made that 65 is too young for a lot of things, now that our health is increasing, and perhaps the age for many things should be put up above 65, as long as that is the age at which we are considering superannuation and the SuperGold card, I do not see what the problem is, because it is certainly not compelling anyone over the age of 65 to not participate in jury service should they want to. The practical effect of voting for Supplementary Order Paper 33 would simply be that people over the age of 65 who would like to permanently excuse themselves from jury service would have to apply every single time they were summoned, and that just seems to me to be imposing a sort of annoyance on people who maybe have decided that they have made their contribution. So I really do struggle to see the point of view of the Labour members and New Zealand First on this particular issue. That is all I would like to say. Thank you.

I am pleased to make a contribution on this part. I am sensing a bit of tension between the Greens and Labour—the potential coalition for the future there. Once again they are fighting each other. They are having difficulties and I do wonder whether they will be able to, you know, ever form a Government together.

I think it is worthwhile having some further discussion around this whole age issue, because it is very important to remember that this is not compulsory. The Juries (Jury Service and Protection of Particulars of Jury List Information) Amendment Bill is not reintroducing an age limit; it is completely voluntary. If a person over the age of 65—after the next election, if Mr O’Rourke wishes to serve on a jury, he will be able to. He will be able to if he chooses to, and he can choose to, because we are not reintroducing an age limit.

Let us just look at a bit of history around the age 65, because I think it is important to have a look at the history around it. The age 65 in the juries legislation was actually reintroduced by a previous piece of legislation in the year 2000. In the year 2000 the Labour Party was in Government. In the year 2000 the Labour Government put in place legislation that specifically referred to the age of 65, whereby those over the age of 65, for the very reason that they were over the age of 65, could apply to the registrar asking to be excused. The only problem with that legislation is that every time they wish to be excused, they have to keep going backwards and forwards, asking to be re-excused.

Essentially all that we are doing through this piece of legislation, on this particular aspect, is giving those people over the age of 65 the option to be permanently excused. We are even going further than that and giving them a further option. If they did decide that they wanted to be permanently excused but then changed their mind, they can then come back and say: “No, actually, I would like to serve on a jury.” So I see this as actually giving those over the age of 65 greater flexibility, greater freedom, and a greater ability to determine what they wish to do for their own lives, and that is a good thing.

You have to say that if one is standing in this House arguing that having the age of 65 as the age at which people can make a choice for themselves is ageism, then those same people must also believe that superannuation is ageism—the age around superannuation is ageism.

💬 Denis O’Rourke: Ridiculous!

No, it is not.

💬 Hon Jo Goodhew: The school age.

The Minister for Senior Citizens herself suggests that perhaps the school age is ageism, because that is an age in a piece of legislation. Well, it is not, and it is quite a poor argument.

But you also have to ask yourself whether this is such a big issue out there. Older people out there are outraged, supposedly, as we hear from the other side that an age flexibility is being reintroduced and applied in this way in this legislation. Perhaps older people are making submissions in huge numbers. Guess how many submissions there were on this bill. Three. Did Age Concern submit on this bill in the first instance? No, it did not. It had to be asked to submit before it provided any information. Did Grey Power submit on this issue? Grey Power is very vocal whenever it comes to an issue around older people. Grey Power did not submit in the first instance. It did not submit when it was asked to provide some information, as well.

But when Age Concern came back after being asked to submit, it gave some interesting perspectives, because Age Concern actually asked older people what they thought. Here are some of the comments from older people. “Life is easy for some and not for others. Giving people a choice makes sense.” We believe in choice. “Since the proposal gives people a choice, I think it a good idea”, said another older person. “Good on those … who feel ready and able to appear for jury service, but let’s show some respect for those who don’t.” I say to those people who are opposing having this particular aspect in the legislation, show some respect for those who do not feel they are in a position to be able to serve on a jury and who wish to exercise the rights that we want to give them to permanently excuse themselves from a jury.

It is very simple. It is not that controversial. It is easy to understand. I think it deserves the Committee’s support.

I want to say that Lee-Ross Jami’s approach continues the patronising approach that we have seen from National members time and time again.

The CHAIRPERSON (Lindsay Tisch): The member needs to refer to another member by their correct name. It is Jami-Lee Ross.

I apologise. I just get confused by the member having three first names.

💬 Jami-Lee Ross: I raise a point of order, Mr Chairperson. I do not take offence. I realise the member has onset dementia.

Are you going to deal with that?

The CHAIRPERSON (Lindsay Tisch): No.

I raise a point of order, Mr Chairperson. [Interruption]

The CHAIRPERSON (Lindsay Tisch): Sit. I am on my feet. The member did not need to get up, and I said to sit down. I am giving the member the call.

I raise a point of order, Mr Chairperson. I am offended by that comment. It is yet another attack on older people, and we are sick of it from this Government.

The CHAIRPERSON (Lindsay Tisch): That is not a point of order. I am inviting the member to take a call.

That offensive idiot Jami-Lee Ross has made yet another comment in this Chamber of the sort that those members make about anyone who is above 55. That is the sort of offensive nonsense that we expect from National, and we have it time and time again. I am surprised that you, Mr Chair, who I think is of the same generation, would not rule in a way that is appropriate. I am very surprised that you do not do that.

I see the Green Party members laughing. I see the Green Party members laughing, because they take the same offensive approach to older people. “Anyone over 55 must have dementia.” says Jami-Lee Ross—Jami-Ross Lee, which one is it—Jami-Lee Ross says that. He has three first names. If his mother had given him a surname rather than three first names, it would have been a lot simpler for him later in his life.

The point I am making is that this provision of the Juries (Jury Service and Protection of Particulars of Jury List Information) Amendment Bill is something that is ageist. It is clearly ageist, and members opposite who do not realise that are people who clearly have not had a decent discussion with older people about rights and responsibilities. What is absolutely clear in the current legislation is that people who are ill, people who do have good reasons for not serving, and people who are older can get an exemption. The question is whether that exemption is something that should last for ever.

I do accept that some older people have memory loss. There is no doubt about that at all. John Banks, the very close friend of Jami-Lee Ross, is someone who clearly suffers from memory loss. He cannot remember when he gets cheques. He cannot remember when he asks to get cheques. He cannot remember getting brown paper bags with money in them. He cannot remember getting envelopes from Skycity with cheques in them that are worth at least $15,000. I can accept that there are some people who should not be Ministers and who should not serve on juries, but to say it is only a matter of age is something that is wrong, and that is what this Government is doing in its approach. I must say that this legislation is something that is, frankly, pretty badly drafted. I do not know—I understand it is something that came from a previous Minister, but if one sees the repetition between clauses 4 and 12, where the purpose clause is repeated—absolutely, absolutely unnecessary. It is not high quality drafting and the Minister here, the Minister of Justice, is someone who is responsible for that.

The other point that I would like to make in relation to this goes to the question around evidence. My understanding, in relation to new section 15A in clause 10, relating to the registrar’s discretion and duty to exclude people permanently, and looking at section 15A(3), is that in fact, as far as the age question is concerned, that evidence is already available. Why should the registrar have the right to demand further evidence in this area, when the registrar is already in possession of that evidence, because of the way the jury is drawn? It is already available. I think also it is worth looking, in clause 10, section 16(4), at whether the Minister has looked carefully at the interplay between section 15, as opposed to section 15A, and section 16(4) and whether that is well enough drafted.

I think there is a question about whether people should be allowed to have a conscientious objection—whether or not based on religious grounds—to serving on a jury. We have got to work out whether there is a civil duty and a civil responsibility to serve on a jury, and whether that duty should be exempt because of some view that someone has a conscience that says they should not serve.

💬 Hon Dr Jonathan Coleman: They’ll be queuing up for your trial.

I tell you what. We are looking forward to calling the jury in this trial. In fact, we have just been working our way through the list of witnesses who are going to come to the trial. The only question is whether the High Court in Auckland is going to be big enough for that particular trial. We are going to work our way through the jury, and on that particular area I understand that there is a very silly litigant who would prefer to have the trial in front of a judge alone. Well, tell her she has not got a chance. She has not got a chance. Under New Zealand law litigants have the right to have a jury, and why, whether for this jury or any other jury, do the particular individuals want to exclude old people or, in her case, why does she want to exclude all New Zealanders from a particular jury trial? I tell her that she has not got a chance of doing that. [Interruption] Sorry—Louise Upston, your comment? Oh no, she is too scared to say it again. That is right. All the courage in Taupō, but she is a lamb when she comes down here. She is a lamb—

💬 Louise Upston: Not at all.

That member is a shocker on occasions. Let us go now to the question of—[Interruption] Banks? I think we will get back to Mr Banks, and I want to thank those people in the National Government for their comments after question time today and their encouragement to the Labour Party not to ask questions of Mr Banks but to ask questions of the Prime Minister.

💬 Jacqui Dean: I raise a point of order, Mr Chairperson. The member seems to have strayed quite a way outside Part 1 of this very important bill and I would ask you to call him to order.

The CHAIRPERSON (Lindsay Tisch): I am listening very carefully.

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

I am very pleased to take a call on the Juries (Jury Service and Protection of Particulars of Jury List Information) Amendment Bill. I am sure my colleagues Charles Chauvel, Lianne Dalziel, David Clark, and Clayton Cosgrove are on their way to the House momentarily and will be here any moment now, very keen as they are, I know, to take their calls on this particular piece of legislation.

I am very interested that there is no regulatory impact analysis and regulatory impact statement on this bill because the proposals set out are expected to have no impact, or minor impacts, on businesses, individuals, and not-for-profit entities. I am somewhat surprised by that, and I would like to hear further from the Minister in the chair, the Minister of Justice, as to exactly why there has been no regulatory impact statement set out. That is not particularly good practice by the Government, and I am sure we will hear more from the Minister.

According to Cabinet papers last year, there was an incident where a self-represented accused corresponded with persons whose names and addresses were on the jury panel for his trial. This raised concern about the safety of jurors, and it was decided to amend the Juries Act to restrict access to jurors’ address details. This bill is an example of how, I think, the Government takes a somewhat reactionary approach to dealing with privacy issues, rather than something that is more systematic. Of course, it is interesting that the Minister in charge of this bill, the Hon Judith Collins, the Minister of Justice, is not known necessarily for her stellar track record when it comes to privacy issues, and I am not entirely sure—

💬 Hon Judith Collins: Actually, that’s insulting.

It is insulting? Goodness me! It speaks. I am interested to see that she is in charge of this particular piece of legislation, given that her track record on privacy issues is not particularly flash. Labour members will be supporting this bill, because we do think it is appropriate that the extra protections this bill puts in place are passed into law. Defence attorneys and advisers to defendants representing themselves will not be allowed to show addresses to defendants, and I think that is something we will—

💬 Jacqui Dean: I raise a point of order, Mr Chairperson. This is Part 1 of the bill, and that member is straying into Part 2 of the bill.

The CHAIRPERSON (Eric Roy): Well, I had not had enough time to see where he was going to be going, but shall we just say that we are on Part 1, Mr Hipkins. Continue on Part 1, please.

Absolutely. No problem, Mr Chair, but this is, of course, the introductory part of the debate. I have been listening in on the debate back in my office. It has been a relatively wide-ranging debate so far, and I certainly look forward to hearing that member’s contribution to the debate. When the big hand hits 12 and the little hand hits 8, maybe she might finally rouse herself into action and decide to make a contribution to this debate that is a little bit more useful than the one she just contributed.

Now that some more of my colleagues—who, I am sure, are very keen to get into this debate some more—have arrived, I will just conclude my comments by saying that, overall, I think there are some useful provisions in this bill. I am looking forward to hearing what colleagues around the Chamber have to say on the debate, and I am looking forward to seeing how it unfolds. I am sure I will have more to say as we go through it.

I have listened to the last hour of this extraordinary debate on this bill, the Juries (Jury Service and Protection of Particulars of Jury List Information) Amendment Bill, with interest, and I note with some pleasure that we have got a new member of this side of the Chamber whom I had never heard of before. But not only that, I was really interested in the, I guess, vehement defence of the over-65-year-olds that we have heard from the other side of the Chamber tonight. I am intrigued by that, but at the same time I think that when you get to 65 you have got a certain right to be exempted from some things, and I frankly think that we should be exempt from all sorts of things when we get to 65. Particularly, I think there is a very good reason to—

💬 Denis O’Rourke: Politics.

Certainly from politics, Denis O’Rourke—certainly from politics. I think that there is a very good reason for our over 65s to be exempt from jury duty, and I do not think there is any reason to think that that is a criticism of the over 65s.

I note that even the Human Rights Commission, which is usually pretty vehement in its defence of what it thinks is right, is pretty mild in its wording about the approach to the over 65s in this bill.

💬 Hon Lianne Dalziel: What did they say?

They say that they are uncomfortable with it, but they are comfortable with it, if you know I mean, and that is typical of the Human Rights Commission.

💬 Chris Hipkins: You’ve just made that up!

Well, I had to make something up! I really have got to go back to the Supplementary Order Paper introduced by Denis O’Rourke. I think that whilst I can understand his concern about the over 65s, I think it is an ideal situation for us to be in—for us to allow someone who is 65 to opt in or out of something like jury service.

I, interestingly, am one of those people, whom Lianne Dalziel was talking about before the dinner break, who have never served on a jury. The reason I have never served on a jury is not because I am over 65; I am far from it. The reason I have never served on a jury is that I live outside, or did live outside—before this amendment bill—the distance required to serve on a jury. I think we have also heard a lot tonight about the number of people who get excused from jury service, and, frankly, it is very difficult for somebody who lives out of town to take time off work to serve on juries. I think we will see a lot of those sorts of people, who have difficulty getting to jury service, who have difficulty taking time off work, making those excuses. That is the reason for the large number of people who are exempted from jury service.

I think it is a bit of a privilege to get to 65, and I think it is a privilege for those people to be then given the opportunity to opt either in or out of jury service. I have not noticed tonight during all the criticism, or the apparent attack on the 65-year-olds, anyone wanting to exempt the 65-year-olds from being able to apply for superannuation or, frankly, the SuperGold card. I think it is a very similar situation. So I think that we are in a very good place on this bill. I think that it should sit where it is, and I think that the Supplementary Order Paper introduced by Denis O’Rourke is unnecessary. Thank you; that is my lot.

I am grateful to have another opportunity to contribute to the debate on Part 1 of the Jury (Jury Service and Protection of Particulars of Jury List Information) Amendment Bill. The reason why is that I have listened to the discussion, the debate, go on beyond my original contribution, which was one where I was totally upfront with the Committee. I said I was not on the Law and Order Committee, which had considered this bill, and I had not read the background material. Of course, I have spent my dinner break going back and printing out all of the documents from the select committee, from the departmental report, and all the additional advice that was received on this particular matter, because I think the issue is actually very important.

When Denis O’Rourke put forward his amendment, his Supplementary Order Paper 33, I do not know that he realised that he would spark off such a significant inquiry in the Committee, but it is because so few members of that original select committee who heard all of the advice and heard all of the evidence are actually in this House. I think Jacqui Dean is the only member who has contributed to the entire debate who actually sat on that select committee and heard that advice firsthand.

So I went away and, as I say, I have printed out the advice. It is very interesting to follow on from the member who has just resumed his seat, Ian McKelvie, because what Ian McKelvie just told this Committee was that the Human Rights Commission was kind of for it and against it. I think he said it was a little bit for and a little bit against. I cannot recall exactly how he described it. Let me quote what the Human Rights Commission actually said: “The Commission believes that permanent excusals will discriminate against older people. It also takes issue with the advice of the Attorney-General that this amendment is not a breach of the New Zealand Bill of Rights Act (the Bill of Rights). The Commission considers the amendment to be discriminatory and not justifiable under the Bill of Rights.” I wonder whether the member has actually got the quote. I think he has got the quote with him and he is looking very embarrassed, I think, right at this moment, that he said that the Human Rights Commission did not really give a strong view on this matter. I think that is a pretty strong view.

The reason that the Human Rights Commission gave this view was that it had done a little bit of background homework into why we ended up in this situation in the first place. I think we have to go back in time to when we did not have a law that did not allow for discrimination based on age. When National was in Government, back in 1993—perhaps my colleagues can assist in that regard; I was actually here at the time—the human rights amendment legislation went through, and that provided for the removal of the discrimination of age being a ground for discrimination. So what happened was that there was an obligation set upon Governments thereafter to bring their laws up to date so that they in fact complied with the requirement not to discriminate on the variety of grounds that were passed in 1993. I see the Chairman is nodding because he, like me, was there at the time—I am not allowed to mention that!

But the point I am making is that with the question of age having been put in place, it was up to each subsequent Government to go back through the books and to look where there was discrimination based on age. And there was discrimination in the Juries Act. That discrimination was there in the legislation, on the basis that at age 65 you were no longer competent to serve on a jury. So the law was changed. The law was changed to allow people to continue to serve on juries beyond the age of 65, which of course was the right and proper thing to do. Parliament at the time decided that since we were changing the law, perhaps what we should do is allow people the ability to opt out of a particular trial simply on the ground of age. They have always had the right to opt out on the ground of age, so let us just allow them to opt out, on the ground of age, of a particular trial. So that is what the law allowed. Instead of fixing the real problem in the law, which is this ongoing discriminatory provision, Parliament has decided on this occasion to actually entrench the provision that says that not only could they opt out of an individual case but they can actually opt out on a permanent basis, simply for the sake of being 65 years of age.

When I read the Ministry of Justice’s advice to the Law and Order Committee, what I discovered was that the real reason that the select committee did not consider the underlying issue was that this was not an issue referred to it. It was never asked to look at the question of whether 65 was an appropriate age to be put in place as an essentially discriminatory basis for claiming the right never to serve on a jury. Even if people have never served on a jury in their entire life, at the one age where perhaps people have the time to commit to a trial and, of course, the wisdom to apply their experience to a particular set of facts that they are given, these people have a right to absent themselves from trials for ever after, simply on the ground of age. There is no basis for that, and, in fact, the select committee never really considered the real issue, which was whether the underlying principle of the legislation is worthy of continuing in this day and age.

The number of examples that we have had given to us in the House tonight actually refer to those cases where people have a reason other than age not to want to ever serve on a jury again, and not to want to have to continue to reapply. In fact, this legislation, if it were to stand without subsection (2) of new section 15A in the offending clause 10, if it were to continue, then most of the people who apply to have permanent exemptions would continue to have permanent exemptions under subsection (1), which reads: “The Registrar may excuse a person summoned to attend as a juror on an occasion from attending in any court on any occasion if satisfied, on a written application for the purpose made by or on behalf of the person, that, because of the person’s disability or state of health, the person would not, if required to attend as a juror in any court on any occasion, be able to perform a juror’s duties satisfactorily.” That is enough in itself to actually deal with the vast majority of those who apply for an exemption.

If you look at subsection (2), it says: “The Registrar must excuse a person summoned to attend as a juror on an occasion from attending in any court on any occasion if satisfied, … that the person is of or over the age of 65 years.” Why do they have to be satisfied? The truth is that all the Government has done is take the language of the first subsection, which has “able to perform a juror’s duties satisfactorily”, and apply the same language—if they are “satisfied” that they have turned the age of 65. Well, what if you are not satisfied with being 65? I do not think I will ever be satisfied if I am 65. And I may not get there. If I continue giving addresses like this, I may. But the point that I am making is that the language of subsection (2) is actually framed on subsection (1), which has as a basis the language to be “satisfied”.

The question whether somebody is 65 years or over is a question of discrimination; it is simply that. That is what the Human Rights Commission said when it made its submission to the select committee. The select committee unfortunately did not take that into account, and unfortunately the previous speaker for the Government did not actually read the Human Rights Commission’s submission to the select committee, nor report it accurately from the report to the select committee from the Ministry of Justice—the departmental report. I think that is really the issue we have in front of us tonight. The select committee did not deal with the underlying issue. I believe that this Committee has an obligation to do so, and that it should support the amendment moved by my colleague Denis O’Rourke.

I will take just a short call on the Juries (Jury Service and Protection of Particulars of Jury List Information) Amendment Bill to deal with some of the issues raised by the Hon Lianne Dalziel, and I thank her for her contribution. One of the issues I think I heard her raise is that once someone is excused from jury service, they can continue to be excused. She rightly also, I think later on, said that that is in relation to disability or health issues, and that it does not relate to age. I will give the Committee a bit of an example of the number of people aged 65 and over who have asked to be excused based on their age, since this provision was first brought in in 2000. So in the last 11 years there have been 4,066,053 total jury excusals and that includes those under 65, as well. Of those, the total number of recorded excusals or reasons for people aged 65 and over is 615,202, and the total number of recorded excusals where the sole reason given by the person who has been summoned to be a juror is that they are aged 65 years or over is 247,371. I cannot tell the Committee how many of those are the same people having to ask to be excused time and time again.

I just refer the Committee to the contribution from Miss Genter, who referred to her own elderly grandparents, who sounded, from what she said, like they are very able to do things but who would not feel able to sit through a jury trial. It is all very well for members to perhaps say that they should go and do their day’s jury service. Well, actually, these days sometimes jury trials can go on for weeks and weeks; it could be 3 or 4 weeks, day in, day out, listening to matters and having to come to a decision. Many people over 65 will feel fine about doing that and welcome the opportunity to contribute, but not everybody aged over 65 does feel able. In fact, I can say that in the last decade and 1 year 247,371 such requests for excusal were actually given for people on the sole basis that they said they were over 65 and they wanted to take a break or a rest from this.

Quite frankly, I have no idea why Labour and New Zealand First are arguing about this. We have a very good solution provided by Mr Clendon and the Greens, which is if they decide they do not want to continue to be permanently excused, then they can come back into the system. Well, is that not marvellous? A bit of choice is being offered.

The other point is that no one is discriminating. It is a privilege that they do not need to come back and say that they are disabled or there is a health issue; they can simply say they are over a certain age, they have done their bit for the community, and they would like to take a break. And why should they not be able to say that, if that is what they want to do? Quite frankly, it is appalling to think that Labour and New Zealand First think we should say to those 247,371 people—the number of excusals in the last decade and 1 year, or 11 years—that they have to go and do their jury service. Those members would be turning around, I am sure, should they get some of the complaints that we have had about having to constantly ask to be excused. They would then say that that was discriminatory and we were being mean to those people. Quite frankly, this nonsense about discrimination is no more accurate than it is to say it is discriminatory to give people a SuperGold Card. That is not discrimination. This is a right that we are extending to those people aged over 65, if they want it, and, actually, only for as long as they want it. How is that discriminatory? The Human Rights Commission may well have made a submission along the lines of what Ms Dalziel said, but, actually, I do not agree with it. It is wrong. The answer is to give people a choice. They are 65. If they want to do it, good on them; if they do not, why should they?

By 2027, 1 million New Zealanders will be over the age of 65.

💬 Jacqui Dean: You’re not going to advance that argument.

Yes, I am. Actually, just as Jacqui Dean and everyone else in the National Party seems to be in denial as to the need to be fiscally responsible in terms of the number of people who have to be paid superannuation, that number of people is also relevant to this debate. The Minister in the chair, the Minister of Justice, has not addressed the issue as to what is the principle that lies under our jury laws.

The principle of jury trials is that an accused has the right to be judged by a panel of their peers, a representative group of society. The Crown, when prosecuting someone in a jury trial, has the right to have that trial determined by a jury made up of peers out of the community who are representative of members of the community. As the population ages, a greater proportion of those people are aged over 65. Those people ought to be part of the pool of people who are conducting jury trials.

The arguments in favour of giving people a one-off exemption are already well traversed, and they are already covered in the law. If you have got a disability, if you have got some work commitment—or it might be a childcare commitment, such as looking after your grandchildren—if you are over the age of 65, you can already write in to the court and seek to delay your obligation to serve on a jury, to be on a panel and be in the ballot, until a later period. If that case is made out to the registrar, or to the judge if the registrar does not agree, then you will not be on the jury.

💬 Andrew Little: A pretty low threshold.

It is a pretty good threshold already. But what this amendment does is say that someone from that age cohort can withdraw themselves from the pool for ever, despite the fact that they may be very competent, that they might have more spare time in their lives—

💬 Jacqui Dean: It’s their choice. It’s about choice.

Oh, it is about choice, Jacqui Dean says. It is choice for the person over 65, not choice for the Crown, not choice for the accused, and not the same level of service or obligation required of people who are under the age of 65, despite the fact that the only difference between a person under the age of 65 and one over the age of 65, in some cases, will be not capability or time availability but age.

There is no logic that lies behind this. It is not only discriminatory from the point of view of the Human Rights Commission but also actually wrong in principle, because the principle is that, in respect of a jury, a jury should be collected from the population, from people who are representative of the community. As our population ages, as people live longer, a higher proportion of our population are aged over 65, and the effect of this amendment, if it proceeds, is that, by 2027, 1 million people will be able to permanently exclude themselves from being available for jury duty. And that, to me, is a very strong argument as to why this piece of legislation is flawed in that regard.

I want juries in my country to be representative of New Zealand. If people have a disability or if they cannot attend because they have got some other obligation, yes, they should be allowed to be excused. If they have got a permanent disability or they are permanently incapable because they are aged or infirm, they would have a level of disability that would entitle them to permanent excusal anyway. But if they are capable, if they have got their full capacity still, if they have the time to be on the jury, and if they have not even got a work commitment that lets them off, the person should be available for jury service. That is one of our duties as people in society. We might not like doing it, we might have to confront some pretty unpleasant facts on juries at times, but it is part of the civic duty that we all have, and have all had for centuries in the English tradition of law, which we should strive to uphold in New Zealand.

I thank Denis O’Rourke for his amendment. I think he is right that there should be no automatic extension. Indeed, I suggest that the existing right of repeatedly applying for an exemption without grounds is wrong, and that that should, in turn, be tightened so that it is on similar grounds to those people who can be excused because they have got other commitments or suffer a disability. Not only is there something in the Human Rights Commission advice that this is discriminatory; it also strikes against the fundamental principle that underlies juries, which is that they should be representative of the community.

If I was an accused and I was charged with a particular crime, I actually might want to have a jury that had a number of people who were over the age of 65. At the very least, I would want a number of the people who were empanelled, who came before the lawyer acting for me—and I have got a right to challenge a certain number—in some cases to be mature and to have seen life. They might have a slightly different viewpoint from a younger cohort of people that I think might be more relevant to the issues that were at large, if I was being charged with a crime. I think my rights as a New Zealander to have a fair trial include the right to have a jury made up of people who are representative of the age cohort, including people aged over 65. Similarly, if I was the prosecution, I can see cases where as a prosecutor I would have a similar view.

My greatest concern about this bill is that it infringes the underlying basic principle of juries, which is that everyone who is competent and available and does not have a good reason to be excused should be available for jury service, and being over the age of 65 is not a sufficient reason for being excused, of itself. If it is associated with a disability that is long term, you can already get out of it. I think I have probably said enough.

I move, That the question be now put.

I begin my contribution to this important part of the Committee stage of the Juries (Jury Service and Protection of Particulars of Jury List Information) Amendment Bill by declaring an interest that I may well be before a jury before too long. I will not be the only member of this House before a jury if that happens; my colleague Mr Mallard, and, of course, the Minister in the chair, the Minister of Justice, will be before the same jury. We forget that the Juries Act applies not just to criminal trials but also to the remaining civil trial that can include a jury—that is, a trial for defamation. We should not make light of that. I declare that interest.

It does raise the interesting issue, of course, that we have a Minister who has a personal stake now in the progress of this legislation and in the conduct of the subject matter to which this legislation applies.

💬 Charles Chauvel: Ms Barry would say you’ve got an additional interest; you’ll be 65 one day.

Well, I meet the “Maggie Barry Standing Order” here that I am entitled to talk about this because of my interest in it, having been drawn before the jurisdiction of this legislation thanks to the Minister in the chair. But I do say that there is an issue about a Minister, who has a personal stake, playing the role that the Minister in the chair has. I have made this comment before the House before—that I think that it is appropriate for a Minister of Justice who is taking legal action in the courts, in the system for which she is responsible, to step aside until such time as the proceedings are disposed of. But the comments I wanted to make relate to the excusal provision in relation to 65-year-olds.

As my colleague Mr Parker has said, the role of the jury in civilised society is not only historical but also fundamentally important—it is fundamentally important to our system of justice. When those who are facing the prosecutorial power of the State, where the Crown brings an action against a citizen, or where a powerful citizen brings a defamation proceeding against another citizen, we have in our justice system the ability for the community to pass judgment, to weigh the facts, and to assess the conduct, whether it is of the Crown or of police or of the powerful citizen taking the defamation proceedings. The community is represented in that system of justice to pass judgment, to weigh the facts, to weigh the respective power imbalance, you might say, and to be satisfied that those who have brought the allegation have made out their case and that it is not an abuse of that power and of that position. In performing that role, it is important that we have access to those with maturity and those with a sense of judgment.

I think it was the great US jurist Oliver Wendell Holmes who said “The life of the law has not been logic; it has been experience …”. Experience is absolutely crucial to the conduct of justice, to the management of justice. So why would we have a piece of legislation that would allow those who have the most experience in life—those who have the ability to bring the greatest wisdom to bear on matters before our justice system—to exclude themselves as of right? It simply does not make sense. So we support Supplementary Order Paper 33, brought in by Denis O’Rourke, because, I think, as a matter of community, as a matter of civic duty, and as a matter of citizens’ duties, it is not right that one portion of the community should be able to exempt itself from this very important civic duty, this very important civic role. We need those 65-year-olds. In fact, it is somewhat patronising and condescending to those who are 65 years and older, many of whom continue to work and many of whom continue to lead and conduct a full life, to say that they should be given this provision to exclude themselves.

There is no question that some people find jury service inconvenient. They would rather not do it. We have a pretty low threshold for excusal at the moment, but that is no reason to extend that further and allow a whole chunk of our population to remove themselves from the ability to serve on a jury. In fact, it is a community expectation that those people will be available, and will conduct themselves and equip themselves, for jury trials. That is very important. So this legislation goes to the heart of a very important principle of our form of public justice. For that reason we strongly urge the Committee to not support the bill as it is currently drafted, but to instead support Mr O’Rourke’s provision, which would make for a level playing field for the whole community—for everybody, for anybody who may be called upon to perform the very serious, very grave role of passing judgment on their peers.

That is very important, of course, and not just in the criminal field. In the criminal jurisdiction it is about deciding whether the Crown, with all its resources and the power that it has, has done its job properly to prove serious allegations against another citizen. In civil proceedings it is about passing judgment on another citizen. In fact, it is in those circumstances that it is even more important that we have access in our justice system, in our jury system, to the widest possible cohort of people who can participate in that. We should not have a situation where the very wealthy and the very powerful—those who sometimes occupy positions where they hold ministerial warrants—can use their economic power to drag other citizens—sometimes innocent; most times innocent—before the courts and require them to be subject to the judgment and the assessment of others in the community when they may not be as well resourced and as well equipped as the more powerful—

The CHAIRPERSON (Eric Roy): Order! I have been listening very carefully to the member. I think he has gone outside the scope of Part 1 and I ask him to return to that.

I am advised, Mr Chairman. The point I am making is that the jury process having access to the maximum possible wisdom of people is very important—

💬 Hon Tau Henare: Preparing for your case?

—which is why the bill, as it is currently drafted, should not be supported. It allows an entire chunk of the community, those who may have more respect than others—for example, our comrade Tau Henare across the way there—and who may be able to bring with them their life’s experiences and the wisdom that that gives to all manner of issues that go before juries in both the criminal and the civil jurisdictions, to be excused. For that reason, although we are supportive of the general thrust and tenor of the bill, that provision does not make sense. It is not good. It is contrary to good civic responsibility and community duties. We are opposed to that aspect, and we will be supporting Mr O’Rourke’s amendment.

I move, That the question be now put.

The question is that the question be now put.

💬 Andrew Williams: I raise a point of order, Mr Chairperson. We have our member here from New Zealand First who was the first in this Chamber at 7.30 p.m. tonight, whose Supplementary Order Paper is before us, which has been discussed.

The CHAIRPERSON (Eric Roy): Order! Please sit. If the member is challenging the fact that I have put the question to the Committee for closure he is out of order.

A party vote was called for on the question that the question be now put.

Order! The member will leave the Chamber if he does that again. When a member votes he is to vote only yes or no and his number. I require him to do it again.

Having passed those amendments, Supplementary Order Paper 94 makes Denis O’Rourke’s amendment on Supplementary Order Paper 33 out of order because it is inconsistent with the decision we have just made.

Part 1 as amended agreed to.

Part 2 Protection of particulars of jury list information