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

In the debate tonight, we first of all dealt with the questions around Part 1, and, as members on this side of the Chamber explained at the time, there are good things in Part 1 of this bill, the Juries (Jury Service and Protection of Particulars of Jury List Information) Amendment Bill. It is appropriate that somebody seeking to become part of a jury panel who in the preceding 5 years has been sentenced to home detention for more than 3 months should probably not be part of a jury. Somebody who has other restrictions that are dealt with in the part that I am speaking to now should not be able to be part of a jury, and because that is a sensible reform Labour members have decided that that part of the bill should have their support.

What we cannot support, though, is the arbitrary extension of the discriminatory standard relating to jurors that has been traversed exhaustively in the debate, about which Denis O’Rourke has put forward a Supplementary Order Paper, whose history my colleague Lianne Dalziel traversed. She showed, I think, through a forensic examination of the various statutory provisions that that anachronistic provision dates back to the time that the House, back in 1993, decided that the Human Rights Act should provide a general standard for our laws, and that it should not just be the case that somebody should be deemed to be likely to be incompetent or less competent simply because they reach a certain age.

I think a big disappointment for members on this side of the Chamber is that this was not an opportunity that was taken by the Government to bring the Juries Act into line with the rest of our laws, which do not contain arbitrary standards around age. We had a very good contribution from my colleague David Parker, who talked about the importance of keeping the jury pool representative, because the purpose of jury trials is so that we can be assured that accused persons will be tried by a jury of their peers. He reminded the Committee that by 2027 there will be a million people in New Zealand over the age of 65.

My father’s old law firm held the Crown warrant in Gisborne for years. I remember the Crown solicitor telling me how hard it was to get people to serve on a jury. We are abetting a public policy faux pas here by extending that entitlement or extending that problem by really saying that anybody over the age of 65—a million of our fellow New Zealanders by 2027—simply has a right not to participate, to opt out of the jury system in situations where it is incredibly hard to fill a jury pool. Not only is that patronising to people over the age of 65; it is just stupid public policy. We do regret that the Committee did not see those arguments with favour. We do not think an arbitrary entitlement to exclude oneself from a jury just because one reaches a certain age is sensible public policy. In fact, it deprives the court system of wisdom that it would, I think, well be able to use.

We have our criticisms of Part 2 as well. I tried to set some of those out in my speech on that part. I am sorry if the Minister of Justice found any of it patronising; that was absolutely not my intention. I was glad that she did seek the advice of her officials and did respond. I think the problem is that the response was lacking. First of all, she said there was no need to make the misuse of jury information an offence because a Law Commission report back in 2001 had said that there was not really any case for great reforms to the law relating to the information that could be discovered about jurors.

Well, of course, the problem with that argument is that that was in 2001. The abuse of the system that occurred in the particular case that lead to this particular bill, the Juries (Jury Service and Protection of Particulars of Jury List Information) Amendment Bill, occurred 9 years later in 2010 and was the reason that this bill was put forward. So it is not an answer to say: “Oh, there was a Law Commission report 10 years ago that said there was not a case for change because there was no evidence of abuse of the jury system. Therefore, the suggestion that it ought to be an offence to misuse jury information does not have any merit.” There is just no logic in that argument.

I think that the other problem was with what the Minister said when she was on her feet before, which was that some of these people are murderers so they would not really pay any attention to criminal sanctions around the misuse of jury information. That is a sad argument. It is basically telling the Committee: “Well, we give up when it comes to particularly violent people. We will not try to subject them to the rule of law or to any particular sanction or penalty, because we are just a bit scared that they might not pay any attention.” I actually thought better of the Minister, and expected better from her. I never thought I would hear the argument that “Oh well, they are murderers, so they are too tough for the law under my supervision to deal with.” That was effectively what she told the Committee.

The other problem with this legislation was again set out by my colleague Lianne Dalziel, and that is the leisurely progress that the bill has had. We heard that the Law and Order Committee dealt with the issue with expedition between April and June in 2010. That was immediately following the misuse of the juror information by the litigant in person. The Minister of Justice at the time sprang into action and referred legislation to the select committee. The select committee processed it quickly, heard evidence, and reported back to the House. Then the legislation languished for 10 months, or 12 months—however long it was—and nothing was done. And I am afraid that gives the lie to any claim that the Minister might make to be concerned at all about the safety of one of the most precious elements of our court system—that is, the safety of jurors.

I will just deal with a couple of the comments made this evening. In fact, the best commentary that I have heard from Labour on this bill, the Juries (Jury Service and Protection of Particulars of Jury List Information) Amendment Bill, has not actually been made tonight; it was made by the Hon Phil Goff in the second reading. Mr Goff dealt with the issue of those aged over 65 and those who may wish to be excused from jury service. Mr Goff said: “The bill also allows people to seek exclusion from jury service on the basis of their disability, or their ill health, or if they are over the age of 65. The important point here is that those who seek such an exclusion are excluded permanently from service.” He said that he felt it was an important point that this “does not introduce an age limit for jury service.” Mr Goff then goes on to say: “I think on that basis”—that is, that people can choose to exclude themselves—“the permanent exclusion provision is acceptable.” That was the Hon Phil Goff during the second reading of this bill, and what has changed since then?

💬 Hon Lianne Dalziel: When was that?

That was the second reading of this bill, which was, in fact, on 22 May this year. Mr Goff said that. He was a Minister of Justice in the Labour Government, and what we have heard tonight from the Labour Party is that this is a dreadful provision and that we were, somehow, penalising people aged over 65—or words to that effect—that we were patronising them, and that we were discriminating against them. We have heard that comment from those members tonight. Just a few months ago the Hon Phil Goff had read the bill and had understood the bill. He was not taking a point just to be silly about it. The fact is that he did, in fact, look at it and he felt that, actually, it was a fair provision.

Since then we have consulted with the Green Party, which suggested we should look at a situation where some people who wanted to permanently excuse themselves from jury service on the basis that they were over the age 65 might want to come back into jury service. We allowed that. We said that that was a sensible amendment to make, because somebody might feel at some stage that they just could not cope with doing a 3-week trial. They may be 75, 80, or something like that, and then they might get better, or they might decide that, actually, they can do it. They can put themselves forward, and then it is up to the people who choose the jury to decide whether or not they are selected.

Actually, I thought that was a sensible contribution from the Hon Phil Goff. I am surprised that the Labour members did not read the words of their former leader and former Minister of Justice. Mind you, they never listened much to him when he was the leader, but I thought his contribution was good. I thought it was sensible. It was not particularly political. He was looking at it, having looked at all of the ramifications. He was looking at how people can be fair in this, and I actually think it was a jolly good contribution. Sadly, it was not made tonight, except through me, repeating him.

Mr Chauvel has commented about how—what was it he said that I had said? Oh—that we could not do anything about these nasty murderers. Well, that is not actually what I said. I pointed out that it could be a very dangerous thing for a person who is a self-represented defendant in a criminal trail to get access to jurors’ particulars, including addresses, and that is the evil that we are trying to remedy. However, even that person—the accused—has still got the right to a fair trial.

So the provision in the bill is that, in fact, a lawyer will be appointed for the purpose of enabling that defendant to be able to know who is on the jury, but the defendant is not to take that information away. If the lawyer, Mr Chauvel—not the defendant; the lawyer—breaches the trust that the court has placed in them, then that lawyer would be up for contempt of court. That is a serious offence for a lawyer, as Mr Chauvel knows. However, the defendant who is up on a charge of murder, for instance, is hardly going to be concerned about that.

So I think it is important to understand that we need a provision in there to enable the defendant to get a fair trial and to know who is on that jury. It could be someone who has a longstanding angst against the defendant—a longstanding angst against them. But the defendant is enabled—there is a provision—to get the information they need but not information that they do not need. I think this is a very sensible provision. I am very pleased that the Committee has been supportive of it in general.

That was not particularly instructive as a response to the issue that my colleague Charles Chauvel has raised. I mean, if we are going to, again, traverse the history of this matter, the original legislation was, in fact, dealt with by the Hon Phil Goff when he was the Minister of Justice, and that was the amendment to the Juries Act. The amendment to the Juries Act did provide for addressing a discrimination that did exist in the law prior to 2000, despite the fact that the National Party had been in Government at the time that it passed the human rights amendment that said it could no longer discriminate on the basis of age. In 1993 that law was passed, and the National Government did nothing around the fact that nobody could serve on a jury beyond the age of 65 years. That was actually something that the Hon Phil Goff, rightly pointed out by the current Minister of Justice, commented on, on this matter more recently. He was the Minister of Justice who removed the discrimination that said persons aged 65 years and over were not, in fact, qualified to serve on a jury, which they were not able to up until that point.

If we were going to ask questions about what people said they were going to do and what they actually did, then maybe we could ask the National members why they sat on legislation for 6 years after it was passed and did nothing about overt discrimination on serving on juries. When National was last in Government, if you were at age 65, you could not serve on a jury at all, despite the fact that National was perfectly happy to take credit for the human rights amendment that saw discrimination based on age removed from our statute book pretty well, we thought, thereafter, but actually many years after, because in fact the Government had to keep extending the period beyond which the Government was not capable of being challenged for having discrimination in its laws over and over again. I think there were two amendments that extended the sunset provision that was written into the original Human Rights Act. I have actually been here long enough to remember its passage through the House and I know that the honourable member on the other side of the Chamber, John Banks, does too, but for slightly different reasons than, probably, I do.

The point that I want to make is this: the Minister went on about how we had not previously considered whether this matter should have been addressed by the Law and Order Committee. As I quoted from the select committee report, we raised it in the select committee. We did not think it was sufficient to warrant moving an amendment in this Chamber, but since then a new member of Parliament from a party that was not represented in the last Parliament has moved a Supplementary Order Paper that has caused us to reflect on the issue. It is not a question of whether we took a particular stance on a particular issue in a particular year in a particular Parliament. It is actually a question of whether the grounds are made out for sustaining a particular position we may have adopted in the past. I mean, sometimes it is OK to say we have reflected on new evidence, and we have decided that on the balance of what we have heard, we are prepared to consider that maybe there is another option. To be fair, I think that Denis O’Rourke—

💬 John Hayes: Most people would call that inconsistency.

Well, you know, it is all very well to say it is being inconsistent. I was not aware that this had been put up as a serious issue until I was involved in this particular debate and until I knew that one of my colleagues had moved an amendment. I had not even contemplated whether our side of the Chamber should be moving such an amendment, but I have heard him make a case for removing the discrimination that exists in the legislation. Let me just quote from the Cabinet paper that I referred to before, because I think it answers the question that the Minister raised: “Giving registrars the power to grant permanent excusals in certain circumstances would provide a solution to this problem. Because it is important to retain a wide jury pool from which jurors can be drawn it is recommended that the permanent excusal power be confined to the grounds of age and permanent disability or health problems. Other matters such as religious objections to jury service may change over time and the person may become available to serve in the future.” Does that not actually really address the issue that the Green Party has raised? The Green Party asked as to what happens if somebody who has asked for permanent excusal suddenly wakes up one day and thinks: “Gosh, I wish I hadn’t done that. I’m actually perfectly willing to serve on a jury. I don’t want to have a permanent excusal any more. I think I’ll just write back in and ask for them to overturn it.” That is why the Minister has written the significant amendment to the bill as introduced that she has done. She has taken on board the comments that my colleague David Clendon had raised in the second reading of the debate, as I understand it.

David Clendon raised the very good point, but what he may not have realised is that actually the Government looked at this issue and felt that that issue was best addressed by not allowing permanent excusal, and I think that that is right. I think that if somebody has a reason for permanent excusal, then they should put the reason for permanent excusal, not simply to say they are of a particular age. I do not know about other people in this Chamber, but 65 does not seem as old to me now as it used to, and I think that there are many people—

💬 John Hayes: You look every year of it, dear.

Yes, I get closer to it every single day—

💬 Hon Ruth Dyson: At the same rate as he does.

—at exactly the same rate. We all feel the same way. But the point I am making is that just because that is the way that the legislation has been drafted does not actually mean that we have dealt with the fundamental underlying problem, and that is that the Government decided that there were a number of people who applied for permanent excusal. A significant number of those did so on the basis of age, but that was on the basis that they could apply each individual time on the basis of age. Why should age of itself be the reason for excusal? I have no problem with people saying: “I’m applying for excusal on this case, but for these reasons I want to be permanently excused from ever having to serve on a jury.” I have got no problems with that.

But what I object to is that the starting point and the end point is the age—that just because I am of a particular age, I have a right to apply for a permanent excusal. It is almost sounding as if people believe that this is something that we should be able to give people in the twilight of their lives—that somehow at age 65 you can be exempt from serving on juries, as if that is somehow onerous, when we all know that in fact we rely on people committing to what is a civic duty to perform their jury service. I know that there are people, because of their occupations, who have automatic exemptions, and often those exemptions are either based on the urgency of their location within the community—the doctors, the dentists, those who are required to serve the community in other ways—but they are also people who because of their particular circumstances would never be chosen to serve on a jury anyway. A member of Parliament or a lawyer, for example, would never be chosen to serve on a jury, and the same goes for a police officer. There is a conflict that sits with certain professions. But to say that that sits with somebody simply because they have reached a magic age does not actually make sense, and I am not ashamed ever to stand in this Parliament and say that I did not consider this issue when the bill was originally introduced, and I did not consider the issue when it had its second reading. But I want to thank Denis O’Rourke for having the courage to bring an issue to the floor of this Chamber and to have it debated intelligently and reasonably, which I believe members have done on both sides of the Chamber. There is an element of disagreement, and that is OK, but I think it would be much better if Parliament itself could say: “Well, actually, maybe this isn’t the position that we should have adopted. Maybe we have heard the argument and maybe it’s time to reflect on why we made the original decision, and why we should make a change now.”

I have been listening to this debate very carefully over the evening, and I have got to say that I have some sympathy for the propositions being put up from members opposite. But, on balance, I think the Minister of Justice has probably got this about right. I think deep in the hearts of the Opposition members they know that.

I have never been able to work out why someone would be excluded from jury service at age 65. Some of our best, hardest-working, most productive citizens and role model leaders in the community are working at 65—and some even in this Parliament. The point I am making—and an observation—is from experience when I served this Parliament in a small rural provincial town in Northland, in Whangarei. One of the great problems with running jury trials in that city at that time was the pool of people available for jury service—the pool of people available for jury service. It was an eye-opening exercise to go to the local District Court or the High Court in Whangarei any day of the week, and witness the people who were herded to the court for jury service. As an observation, I can conclude only that most of them would have far preferred to be somewhere else. The problem with wanting to be somewhere else, if a person on a jury wants to be somewhere else, I put it to you, Mr Chairman, and to the Minister, is that they are not going to serve the interest of the court system at all well.

Listening to the debate tonight from both sides of the Chamber—and I respect the opposition to some of the provisions in the Juries (Jury Service and Protection of Particulars of Jury List Information) Amendment Bill—I have this view that the jury service in this country will work only if there is a good chance that those who step up for jury service or who are called upon for jury service are interested in exercising their public duty in the way that the jury service has worked for so long. Because, as I said, if you have a look at some of the people on the jury—I do not take away from them as being good human persons—some of them are unqualified for jury service in a perfect world, and many of them certainly do not want to be involved in jury service in a perfect world. Indeed, I witnessed firsthand in rural, provincial Whangarei that some of them who were rocking up to the court for jury service should have been in some part of the court but not on the jury benches. I put that to you as an observation.

I heard from the learned lawyers opposite that a lawyer cannot be available for jury service, or a member of Parliament, or, I presume, a Minister of Police. I presume that a former Minister of Police like the Minister in the chair could not be available for jury service—by the way, the best Minister of Police we have had since the former member for Whangarei. If a lawyer retires at aged 65, 66, 67, or 68—and we know some particularly sharp-brained lawyers in the community who are at a loose end because they have retired early, because 65 is early these days—I put it to you that they would make excellent jurors, and they would be well qualified to do very good jury service. I have no doubt that, like most lawyers, when the member opposite, who is Labour’s spokesman on justice, is 65 he would discharge his obligation to jury service with distinction.

I think we should be careful about some of these exemptions. There is no doubt about it. For people listening—for the 360 people watching on television tonight, for instance; it might be 361 now and going south—I put it to you that some of the provisions we have got here by way of negotiation are sound and sensible. The provision that you can opt out at 65 and the provision that you can come back in at 75, as long as you seek to do jury service, make sense to me. I do agree with the question from the other side of the Chamber as to why we have not done this previously.

Can I conclude by saying this to the Minister: this bill is well overdue. For the purposes of the courts to work effectively, the jury service process must be robust, must be accountable, and must be transparent. And we must get the pool as big as we can, and this bill will do that.

Clause 1 agreed to.

Clause 2 agreed to.

Clause 3 agreed to.

House resumed.

The Chairperson reported the Biosecurity Law Reform Bill with amendment, the Commerce (International Co-operation, and Fees) Amendment Bill with amendment, and that the Committee had divided it into four bills, and the Juries (Jury Service and Protection of Particulars of Jury List Information) Amendment Bill with amendment.

Report adopted.