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

The commentary from the Law and Order Committee contains a helpful explanation of the rationale for Part 2 of the Juries (Jury Service and Protection of Particulars of Jury List Information) Amendment Bill. I would like to quote directly from the penultimate paragraph of the commentary, because it is probably the best way to give members who are not familiar with the legislation, and those listening at home, an idea of what Part 2 is designed to do: “Concern was raised in 2010 when a self-represented defendant corresponded with people whose names and addresses were on the jury panel for his trial. The bill is intended to address this problem by amending the Juries Act 1981 to allow some information to be excluded from the jury panel. It would be called protected information, and access to it would be restricted.” The committee goes on to note one recommended amendment in respect of police employees, which probably is not material for the purposes of the discussion.

The scheme that the amendment bill would put in place is to classify jury panel information as protected particulars, and it would go on to restrict the classes of people who could get access to that information—for example, a barrister or a solicitor acting for a party to the proceedings, the Crown or other prosecutor in criminal proceedings that are due to be heard during the week of the trial, and so on. Then there are restrictions placed throughout the rest of the legislation on how those people who can get access to this protected information are at liberty to use it.

The reason that members on this side of the House have decided to support the bill is that we think that it represents a generally helpful way to strengthen some of the protections that are contained in the legislation. We are, however, concerned that there is not total protection provided for. I would be most obliged if the Minister in the chair, the Minister of Justice, would take a call. She may want to get some advice from the officials. There are clearly categories of information that remain outside the protection—[Interruption] Well, National members, by their interruptions, are merely conceding the fact that this is not legislation that they regard as a priority. They have let it languish on the Order Paper since May last year. It has not been progressed with any expedition. If they are actually serious about improving the jury system, they might want to consider what this legislation fails do to. Here is what it fails to do: a person who is determined to stalk a juror can go along to a jury trial and they can sit in the well of the court, because we hold these proceedings in public, for good reason. And there are all sorts of ways that the particulars of a juror can be obtained. These days, they can be googled, or they can be looked up in the phone book, electronically or otherwise. There are all sorts of ways that a person who is absolutely bent on making mischief in respect of a particular juror could find things like their home address or their particulars for correspondence, and then communicate with them outside the jury system. That is the very evil that this part of the bill is designed to prevent.

It seems that nobody has really given a lot of thought to the way things work in the age of Google. We might, for example, have considered in this legislation extending the protections provided for jury particulars by making it an offence to conduct your own research about a juror for purposes not connected with a particular trial—at least about that person’s home address or particulars—if we really were concerned in the House here and if the Government was really concerned about protecting jurors in a meaningful way. But nothing like that has been done. There is only limited protection on a paper-based, old-fashioned basis for that information. When members are considering this legislation, they are going to have to consider the rather slapdash way it has been advanced, and the fact that it really does advance only a partial protection along the lines I have described, rather than the fuller protections that one would expect in the information age.

I think it is relevant in this regard to reflect on the fact that the Minister, in her capacity as Minister of Justice, has before her a report from the Law Commission concerning privacy and information management in New Zealand. These are exactly the sorts of issues that the Law Commission and the Privacy Commissioner pointed out to the Minister. The Minister has accepted some of those recommendations, but by no means all of them. This is probably a very, very good example of the sort of situation where, given that we are in the age of Google, we need to think a lot more laterally about the sorts of protections that we can put in place around people who are performing a public duty like jury service, where they are, effectively, putting themselves in a situation where they can be at risk, as the evil that this bill is designed to address demonstrates. But it is no good simply providing partial protection, just as in the privacy area it is no good for the Minister to say: “I’m going to pick and choose out of the Law Commission’s recommendations. I quite like that one, but I’m not going to do what it recommended here.”

The report is a holistic approach to information management and privacy in the age of Google. It recommends giving the Privacy Commissioner powers to order compliance and powers to audit where there is a suspicion that unsatisfactory practices are occurring with information management. Yet we still do not have a commitment from the Government on those issues, because I do not think the Minister or her advisers fully understand the ramifications of that report, just as here we have an incomplete protection for jurors, who do a fine job and who do deserve much fuller protections—indeed, the fullest protections that we can give them—as we respond to technological challenges.

We will be supporting this part, because there is no doubt that the protections it provides will be greater than they are now. They respond, in part, to the case back in 2010 that is referred to in the commentary. But they by no means provide protection for jurors as full as we might be providing them, and I fear we will be back here doing this job again in a couple of years because, for whatever reason, there was not enough thought given to the sorts of protections that we ought to provide jurors for doing the fine work that they do.

The member who just resumed his seat, Charles Chauvel, raised an interesting issue: how do we properly protect jurors’ information? That member cited the age of Google, so let us have a look at that. If I wanted to, and if I was allowed to, I could google that member right now on my iPhone. I would venture to say that many people in New Zealand now—it does not matter where they are—have this kind of device that these days will give one instant information on just about anything, should they care to look. So the question is how do we stop that? Of course, that very question is the subject of a lot of debate. There are conferences held on how—

💬 Chris Hipkins: Say something useful.

—do we protect information. Of course, that little member over there, Chris Hipkins, said “Say something useful.” What I am saying—and I will say it a bit more carefully, perhaps, so that the member can understand it, because the issue here is quite important—if we go to this bill, it is called the Juries (Jury Service and Protection of Particulars of Jury List Information) Amendment Bill. It is about an incident where a female juror’s information was given to a person who was accused of a crime. That person—and this is not the only time this has happened—then used that information against that juror, to stalk that juror and to make that juror’s life miserable. So that member across the other side of the House can chip away—chip away, get it? But actually this is quite an important issue. Part 2 of the bill, I believe, makes a very serious and good attempt to protect the particulars of jurors, particularly female, women jurors, who up until now and the passage of this bill have been, in a way, victimised and vulnerable to those people against whom they are sitting, who have been accused of a crime.

Currently, a jury list has to contain things like the name, the occupation, the date of birth, and the full address of its potential jurors. That is an awful lot of information that right now is available to those people who are defending themselves, in particular. They can be in receipt of that information, can memorise it, can take it back to the jail, and can then use it against that person. If that member across the Chamber and his colleagues think that that is matter of some delight, then I venture to disagree with them. I would also venture to say that the provisions in this bill in Part 2 deal with this in a proper way.

I would also like to remind that member that section 14A(6) of the Juries Act makes it clear that misconduct in relation to jury lists may now be treated as contempt of court. That was quite a serious and new offence to bring into the Juries Act. I believe—and, of course, I sat on the select committee that considered this bill—that the provisions in Part 2 do provide that protection that our jurors need. I would argue that that is the most important provision in this bill—these good protections for jurors who hitherto have been subject to some harassment and victimisation. Thank you.

I think the member who has just resumed her seat, Jacqui Dean, was telling us about how urgent it was that this House address this particular matter. I think she said things about members on this side of the Chamber, who have said very clearly that we support the passage of the bill, the Juries (Jury Service and Protection of Jury List Information) Amendment Bill, in respect of this particular matter because it is an important issue. But when she describes it as an urgent issue, she is describing a bill that was introduced on 5 April 2011. I think that was before the last general election.

💬 Hon Clayton Cosgrove: Say that again. When?

It was introduced on 5 April 2011. To be true to its word, the Government did treat it urgently. It had its first reading on 12 April 2011, which is pretty smart. Who was the Minister back then? I think it might have been a different Minister. But he was in charge back then and he said it was urgent and it needed to go straight to a select committee. We had had a problem arise where a particular juror had been followed up by somebody who was defending themselves. They had access to information that would normally go through their lawyer. It had raised a genuine issue, so he introduced the bill on 5 April and it had its first reading on 12 April.

Submissions to the Law and Order Committee were due on 26 May. The then chair of the Law and Order Committee, Jacqui Dean, who has just resumed her seat, was obviously working under instruction that this was an urgent bill and had to be dealt with quickly. We needed quick submissions and we needed to get it back to the House so it could be dealt with as a matter of urgency, as we have heard from her just now. So it was dealt with, and the submissions were due on 26 May. That is a very quick turn-round for submissions to be called for. When did the select committee report back to the House? Well, actually, it did a very, very good job. It did it on 11 July 2011. That is extraordinary. It absolutely did its job; it got this bill back.

When did the bill have its second reading? The 22nd of May this year.

💬 Chris Hipkins: Nearly a year later.

Nearly a year later the Government managed to actually prioritise something that it told this House was such an urgent priority that had to be addressed. We have heard it repeated tonight from Jacqui Dean, criticising this side of the Chamber for daring to raise the actual substance of the issues in the debate and for actually seeing exactly what it is that the Government has done. The reality is that when it suits the Government to choose something as a particular issue for the—

💬 Hon Clayton Cosgrove: SOEs.

Well, State-owned enterprises—it managed to get that legislation through a heck of a lot more quickly, and why did it get that through so quickly? Do you think the Government might be nervous about a certain number of signatures that are being added to the petition day by day by day? Of course, that takes priority. This issue, which we have just had a lecture about from the former chair of the Law and Order Committee—

💬 Charles Chauvel: She’s still the chair.

Oh, she is still the chair. Well, I have not had the pleasure of actually serving on that committee at any stage; that just reminds me that I am very busy tomorrow morning, because I know that the whips are looking for somebody to serve on that committee tomorrow.

But the truth is that there is no question of urgency when one is dealing with these matters unless it is a matter that the Government wants to bring to the attention of the House at a particular time. Yes, it was urgent back then, because there had been, I think, a fundamental flaw in the system that allowed access to information that would not normally be available to somebody. Nobody had thought about that being an issue before. It did come up as an issue, and it was dealt with in an appropriate way. But for my colleague Charles Chauvel to then to get a lecture in the Chamber from the chair of the select committee for daring to debate the substance of the issue—and my colleague Charles Chauvel actually does understand these issues extremely well—on the basis that the time frame for dealing with these issues still meets that urgency, when we find ourselves 11 months or 10 months down the track from when the bill was reported back from the select committee, is absolutely extraordinary. In fact, it is 12 months later now that we are debating it in its Committee stage. We have made it absolutely clear that we agree with the substance of this part.

I take the opportunity to address some of the issues that have been raised tonight—some of the issues that Mr Chauvel mentioned and raised in, I have to say, a pretty patronising way, frankly. Having said that, it was significantly better than the contribution from Mr Andrew Little, which, I have to say, resembled a plea in mitigation more than anything else.

One of the issues that Mr Chauvel has referred to is that it is apparently now the age of Google. Well, it has been like that for a wee while. But we also have a situation where the Law Commission has considered the issue of jury anonymity in its 2001 report Juries in Criminal Trials, which I am sure he has read—and if not, will. The comment was made that some international jurisdictions have implemented laws allowing or in some cases ensuring anonymity, using unique identifiers rather than names. That would be something that would help in terms of identification, obviously, for jurors and their protection. However, the commission did not recommend any such provision in New Zealand, on the basis that it could be justified only if there was a genuine threat to juror safety in terms of that particular issue.

But the Law Commission also noted—and I think this is very important because, of course, juries have to look at the facts, they have to be fairly dealt with, and they have to be able to deal fairly with the issues before them—that there is some evidence that juror anonymity may affect jury verdicts, with anonymous jurors far more likely to convict. I think that is something that we should take seriously, that, in fact, jurors—and I think that is the experience of most people who have had anything to do with them—take their job extremely seriously and do their very best. Sometimes when we only see media reports about cases we might wonder as to how they came to those decisions, but actually they have heard all the evidence. They and the judges are the only people apart from defendants and the lawyers who have heard all the evidence, and they have come to their decisions having considered it very fully.

However, we do know that there has been this problem of how we provide the lawyer for the defendant with information that can help them decide whether or not a juror might have a conflict of interest or some prejudged comment that they have made—all those sorts of things—and at the same time do what we can to protect the juror. A comment was made by Mr Chauvel, a suggestion, around the fact that we could make it an offence to google or to try to contact someone or get their information without lawful excuse—that is pretty much what you were saying, was it not, Mr Chauvel? Well, actually, the people we are talking about who could be so dangerous to jurors are sometimes murderers. I really do not think they will worry too much about a fine for contacting someone or trying to get information on Google. I do not think that will work, but I think the solution that we have come up with is a very sensible solution. In fact, the Law and Order Committee felt so, too—that it is balanced, it does consider the right to a fair trial, and, at the same time, it enables the jury list information that has particular information around the jurors’ address information to be designated as protected particulars so that it can be dealt with by way of a self-represented defendant who would actually not get to see all those particulars. A lawyer would be appointed to look at those for that defendant. The lawyer would be able to certify to the judge that they did not give them the copy of it, that they brought them back and they in fact enabled a defendant to be able to say “That person there is someone who used to go out with that witness, who is going to say this about me.” That is the sort of thing that they should be able to do.

So it is actually a balance. It does not solve every situation that might occur. It does not futureproof everything because, actually, that is not how the law works. The law is not so certain. It is a balance between the right to a fair trial and also for jurors to be able to feel that they are safe, that they can be protected, and that they will, in fact, want to serve their service as jurors.

The Minister of Justice did not really respond to the question that I raised, because we have had a lecture from the chair of the Law and Order Committee about the particular priority that the Government is putting on this particular piece of legislation, the Juries (Jury Service and Protection of Particulars of Jury List Information) Amendment Bill.

What I had not appreciated, and I have kind of been googling away here, which is an extremely useful facility on one’s iPhone, and what I have identified, what I have found, is the actual Cabinet paper that allowed for this particular provision to be brought to the House in the first place. What I discovered was that this particular issue that we have had so much focus on now related to an incident that occurred, I believe, in 2010, if I am reading this correctly. As a result, the Government actually immediately moved into action. It took immediate action and it decided that what it would do is it would make provision for restricting access to jurors’ addresses, which is the topic for the debate but which was actually approved to be legislated for in 2010. In 2011 the Government actually reviewed its position, because what it had discovered was that it could not put this amendment into the legislation that it wanted it put it into because that particular legislation did not allow for this particular amendment to be included.

As I understand it—and perhaps the Minister could actually deal with this matter, because I think it is worthwhile having it on the record—it originally states: “The amendments to restrict access to jurors’ addresses, which aim to further protect jurors’ privacy, safety and security, were to be included in a Supplementary Order Paper to the Courts and Criminal Matters Bill. However, the Office of the Clerk of the House advised the amendments were ‘foreign to the objects’ of that Bill.” So “foreign to the objects” of that bill, which is unusual language—

💬 Charles Chauvel: The office thinks them out of scope.

Yes, it was out of scope. So they were not able to include it as a Supplementary Order Paper to the Courts and Criminal Matters Bill. Therefore, the Minister of the day, back in 2011, before the election, decided the most appropriate course of action was to introduce stand-alone juries amendment legislation, which is the one we have before us now, that would contain a small package of non-contentious amendments. But, of course, that is when it made the decision to include the elements that we have dealt with under the Part 1 debate. The Part 2 debate, though, relates to this question of the Juries Act amendment, and basically says that this was a matter that had been brought to its attention the year before. I just wonder why the reference has been made to how urgent it is to have this matter addressed.

I will just refer to the particular decision that was made in the Cabinet paper. Basically, it identified that there was an incident where a self-represented accused corresponded with persons whose names and addresses were on the panel for his trial, which raised concern about the safety of jurors, and it was decided to amend the Act to restrict access to jurors’ address details. It was agreed that all address information should be deleted from the jury panel. Access to the address information would be available to the prosecution and to the counsel for the accused, which I think my colleague has dealt with, in order to assist with jury challenges. Where an accused is self-represented, the registrar would be empowered to appoint a lawyer to represent the accused during the jury formation process, and that lawyer would be entitled to the jurors’ address information. It would be prohibited, for those who are entitled to access the address information, to show it to the accused or any other unauthorised person.

I think the point we have made is that we accept that that is an appropriate step for the legislation to take. We support it, but to have a member of the Government stand in this House and say that this matter is an urgent matter, and anyone who wants to debate it is actually standing in the way of the urgency that it has to be given, has to accept that these words were written last year and that the case that they were referring to was the result of a decision made the previous year to that.

It is a great pleasure that I get to rise and speak in support of the Juries (Jury Service and Protection of Particulars of Jury List Information) Amendment Bill, and, in particular, Part 1.

💬 Hon Lianne Dalziel: Part 2.

Sorry, Part 2—thank you. As a new member of Parliament, I feel strongly that when we have the opportunity to be able to give New Zealanders more choice and to make legislation that is going to offer more protections to them, then we should take those opportunities. I have listened very closely to the debate tonight, and I have to say that—and I will be getting to Part 2; this is leading to Part 2—when a New Zealander does reach the age of 65, they probably have made in that time a major contribution to the country. They have made a major contribution to the country and they probably have given a lot of community service. When they get to the age of 65 and they are presented with an option in terms of whether or not they will be a juror, I have to say that jury service can be very daunting to some people—for the people in this House perhaps not so much, but for someone to actually go in and have to sit in a court and confront a defendant in a murder trial or a rape trial—

The CHAIRPERSON (Eric Roy): Can I assist the member? We are on Part 2. I think what the member is referring to is actually in Part 1. I ask the member to come to Part 2.

I am coming to it. I have actually moved into Part 2, and that is that when someone does come—and this particularly does relate to someone who is probably over 65—and it becomes a bit more daunting for them, it is nice for them to have a choice. When they do come to court, I am sure that if they were asked before becoming a juror whether their decision would be influenced based around whether their details were going to be provided to and available to the defendant, that would have a profound effect on their decision. That is why, in actual fact, this piece of legislation is not only very good in relation to providing those protections for them, and actually encouraging them and providing them with more incentive to want to come along and be a good juror, but also very good in providing more incentive for those people over 65, because it does provide more protection to those older people.

I have an electorate myself with a lot of retired people in it and older people, and a lot of them are going to want to become jurors. A lot of them are going to want to continue to provide a service to their community. But what is going to make them a lot more motivated to do that is knowing that they have some strong protection wrapped around them in terms of knowing that a defendant will not have their details. That is what this legislation is providing. I am very happy to stand in support of this legislation. Thank you.

I have some vague recollections of this Juries (Jury Service and Protection of Particulars of Jury List Information) Amendment Bill, having served on the Law and Order Committee at the time that it was put through, and, like other members, I find it a little bit strange, the attitude of the Government, which says that a great deal of urgent pressure—quite rightly so, given the circumstances—was put about to get this legislation through. Then, as my colleague Lianne Dalziel has pointed out, like a number of other bills it languished on the Order Paper for a year. This Minister of Justice has decided to bring it to the House and push it along. To then be criticised as an Opposition because we dare—we dare—to actually challenge the authority of this Minister and perhaps put up cogent questions and raise issues, and we dare to put up—

💬 Hon Ruth Dyson: Ideas above your station.

I am sorry?

💬 Hon Ruth Dyson: Ideas above your station.

Indeed. My colleague says I put up ideas above my station—absolutely! That would be considered patronising, of course, but what the Minister forgets is that this is a Parliament and this is a democracy, unlike her little world. It may be that people are not allowed to ask questions, are not allowed to put hypotheses up, and are not allowed to criticise in her little world that she orbits from time to time—and I was not being patronising; I was being factual. But in this place, an Opposition is charged with the responsibility of challenging a Minister. This Minister and this Government gave this bill such priority—and we have in the House the sort of political cadaver in the front row there, Mr Banks—this Government gave this legislation so much priority—

💬 Hon John Banks: Get on to Part 2.

I am coming to you. I am coming to you, do not worry. Do not worry, I am coming. Hold on, help is on the way. It gave it so much priority that—

💬 Hon John Banks: I can smell roast duck.

—I can smell pork—that Mr Banks’ bill, the Regulatory Reform Bill, had a higher priority, and you will recall this, I am sure, than this urgent piece of legislation.

💬 Hon John Banks: I raise a point of order, Mr Chairperson. [Interruption] I do not know the name of the member, but the member speaking is not addressing the part in the bill quite specifically. It is more like a third reading address, and he has just about completed half of his speech. Can I put it to you that you need to haul him into line under the Standing Orders.

The CHAIRPERSON (Eric Roy): I will ask the member to speak on Part 2.

I am very happy to speak on Part 2, especially, as other members have, and maybe Mr Banks was not listening, as you never ruled out other members who talked about the priorities and the delays in getting Part 2 through. So where I left off. I am glad to see the member is alive and kicking. He is out of the crypt; he is ready to roll. As I said, this Government gave this bill such a priority that Mr Banks’ Regulatory Reform Bill, which I will not go into—

💬 Hon John Banks: Point of order, Mr Chairperson.

The CHAIRPERSON (Eric Roy): The member does not need to raise it. I have asked the member to speak to Part 2.

Unlike Part 2, which deals with some substantive issues—what was the clause? It expunged 31 Acts that do not exist. I will not go into that bill any more because we are here to talk about Part 2, but such was the priority this Government placed on this jury protection measure that another piece of legislation that expunged 31 Acts that do not exist was put up ahead of it. Mr Banks may not like it, but that is a fact. The Minister, I am sure, may not like it, but after all her posturing and patronising attitude in questioning us and saying how outrageous it is that we even ask questions and raise issues about such a serious matter, her priority list, led by Mr Banks’ legislation, took a bigger priority than this jury protection legislation—a far bigger priority.

So she can sit there and smile away, as she does, but in this Parliament, Minister, we get to ask the questions and we get to raise the issues. That Minister will go down on record as a person who puffs and blows and talks about urgency and talks about priorities. Then, of course, we have the reality of this piece of legislation coming out of the select committee. It was a select committee, I have got to say, that was chaired well by Ms Dean—well, I think, from memory. It was efficient; it went through. The problem for Ms Collins is it sat around for a year. It sat around for a year—

💬 Hon John Banks: I raise a point of order, Mr Chairperson. I have been here a lot longer than the member. I know the Standing Orders. You know the Standing Orders. He has got to address the part in the bill. He has rambled on. He said he wants to ask questions and get verification. He has not asked one question or asked for verification. He must address his propositions to the part in the bill being addressed in this Committee stage. It is quite a narrow debate. I put it to you, Mr Chairman.

The CHAIRPERSON (Eric Roy): Relevancy is really the role of the Chair to determine. I have listened very carefully to the member and I have mechanisms available to me. Mr Cosgrove—Part 2.

Indeed, and I am sure you will exercise those mechanisms.

The CHAIRPERSON (Eric Roy): I will.

Absolutely. I have great faith in you.

The question I want to ask, to satisfy Mr Banks’ penchant for ideas, is about the relevant section inserted by clause 17, new section 14AB(7): “A breach of subsection (4) or (5) may be dealt with as contempt of court.” So in the Minister’s little world, if you make a breach, you are subject—if you are a murderer, for instance—to a contempt of court. That is the only offence mechanism, I am advised by learned counsel on our side, that is contained within this part. There is no big deterrent. She is not going to go out there and crush their cars or dance on them or anything like that. It is simply a contempt of court, which is a penalty that is at the discretion of a judge.

The question was put that the amendments set out on Supplementary Order Paper 92 in the name of the Hon Judith Collins to Part 2 be agreed to.

Amendments agreed to.

Part 2 as amended agreed to.

Clauses 1 to 3