Criminal Procedure Legislation Bill

I move, That the Criminal Procedure Legislation Bill be now read a second time. In October 2011 Parliament passed the Criminal Procedure Act 2011 and its 14 associated amendment Acts. Those Acts represented the biggest reform and modernisation of criminal justice procedure in nearly two generations. It forms a comprehensive package that will make the criminal justice system more transparent, understandable, and efficient. Although a small number of provisions came into effect in March 2012, the majority of the legislation will commence in July this year.

Since enactment, a number of technical deficiencies have been identified in the Criminal Procedure Act and associated legislation. This bill is an omnibus bill to rectify those technical issues identified during the implementation process. These amendments ensure that the legislative intent of certain provisions is made clear so that those provisions can be interpreted and applied consistent with the policy. The amendments ensure that operational efficiency in the courts is enhanced by clarity in the legislation and that the predicted benefits of reform are realised by full implementation. I would like to thank the Justice and Electoral Committee for its thorough consideration of the bill and the amendments it has recommended. The constructive engagement from all parties on the committee enabled the bill to be reported back to the House well ahead of its due date.

I would like to focus on two issues raised by the New Zealand Law Society in its thoughtful and considered submission on the bill. The first issue relates to the provision of the bill that would have allowed for regulations to make consequential amendments to references to the word “crime”. The criminal procedure reforms abolish the summary and indictable offence distinction and repeal the definition of “crime” in the Crimes Act 1961. In some instances, references to “crime” have already been replaced to make clear the scope and effect of the provision in question. As the Law Society noted, that is necessary in some instances to make legislation intelligible.

The relevant regulation-making power was proposed to enable any such references to “crime” that may inadvertently remain on the statute book to be tidied up. However, the Law Society raised concerns about the potential for this power to be used to make substantive changes to the criminal law by extending too far the scope of existing criminal provisions, and the committee has removed this particular regulation-making power from the bill. Although the committee doubted that the power would be used inappropriately, it agreed with the Law Society that such amendments would be better made by primary legislation, and this would allow parliamentary scrutiny on a case by case basis of any such amendment.

The second issue relates to another regulation-making power, and this one relates to the jurisdiction of community magistrates. As many members may know, community magistrates are judicial officers who sit on a wide range of less serious criminal matters in several District Courts around the country. The bill clarifies and gives full effect to the intended policy that community magistrates may receive guilty pleas for those offences for which they may sentence offenders. It also amends the regulation-making power in the Act to clarify that community magistrates have jurisdiction to deal with all category 1 offences punishable by a fine of up to $40,000, except those specified by regulations. Currently, the Act requires all offences that community magistrates have jurisdiction over to be specified in regulations.

The Law Society raised concerns that this change reversed a policy decision. Although the committee understood the concern, it ultimately determined that the amendment provided the most efficient means of meeting the overall policy objective that community magistrates should have jurisdiction to act within the specified range, unless there is a compelling reason that they should not do so for any particular offences. The committee also recommended that certain powers be included in the list of matters exercisable by the community magistrates. The Chief District Court Judge raised the issue with the Ministry of Justice.

Due to a legislative oversight, certain powers properly exercisable by community magistrates had not been included in the Summary Proceedings Act. This bill provided the opportunity to make the necessary amendments. These give community magistrates the power to order that a vehicle be confiscated and destroyed after a third illegal street racing offence, and the power to issue a written caution to a person with an interest in a vehicle involved in a street racing offence. A number of Land Transport Act powers are also specified as being exercisable by community magistrates, consistent with the Chief District Court Judge’s representations as to the need to update the legislation.

These sensible amendments fall squarely within the scope of this bill and the overall objective of the criminal procedure reforms. As noted by Judge Doogue, without these amendments the valuable resource provided by community magistrates would not fully be utilised. The amendments will help to free up District Court judges’ time and will reduce delay and unnecessary churn in the courts.

The committee also recommended a number of other very sensible amendments to the bill, consistent with the technical reforms in the bill, to ensure its full implementation and effective operation. These are small amendments, but collectively they ensure that the policies contained in the Criminal Procedure Act will be efficiently and coherently implemented as intended. I commend the bill to the House.

It is a pleasure to rise and speak on the Criminal Procedure Legislation Bill and to confirm the Labour Party’s support for the bill. The project of overhauling our criminal procedure legislation started under the last Labour Government. It was overdue and it was a welcome change, and this legislation tidies up the bulk of the work done under what is now the Criminal Procedure Act, which is due to take effect on 1 July this year.

I know, from getting around members of the profession over the last couple of months, that there is a combined sense of anxiety and also a palpable sense of thrill that the profession has about the coming into force of this legislation, because there were problems—major problems—with the administration of criminal justice in this country. Foremost amongst those were the delays being experienced, certainly at the District Court, and also at the High Court level in many registries around the country, and the profession was very keen to see changes made that would enable cases to be brought on and justice to be administered in a timely fashion, as indeed it should be. As we all know, justice delayed is justice denied, or, as it was quoted at one point last year in this House, sometimes justice denied is justice delayed. The logic of that proposition, of course, needs no further explanation, and will get none from me. So we welcome the legislation; it was the right thing to do.

Now this Government has discovered there are tidy-ups required. That might call into question, however, the speed with which—even a piece of legislation that went through a very deliberate process can sometimes lead to flaws that have to be corrected. It was good that there was a considerable lapse of time before the implementation date for the legislation. It was 1 July this year—

💬 Hon Lianne Dalziel: Do you think they should do that to the family law?

—so there was time to review it. I can think of other laws where it would be entirely appropriate. In fact, some legislation that had its first reading in the House only this afternoon could well do with a much more considered and deliberate time frame to make sure the Government gets it right. I can think of the Family Court Proceedings Reform Bill, which is currently working its way through. It should have been given more ample time to have it properly considered, rather than having it pushed through and becoming a great cause of anxiety to the profession. A submission period that encompassed 4 or 5 or 6 weeks of a Christmas break caused major problems for those who were offering their professional expertise and skill to assist the Justice and Electoral Committee and this House—but that is beside the point. So we welcome, naturally, any changes that will improve the administration of criminal justice.

There is another important principle in all this, which is a point that the Law Society made in its submission on this amending bill, this tidy-up bill. It is that to the best extent possible, criminal justice legislation—if not, indeed, all justice legislation—should be done in this House on a bipartisan or multipartisan basis. When we are talking about the administration of justice, when we are talking about potentially imposing criminal sanctions on people, depriving them of their liberty, that is a matter that the House should reach agreement on, for the benefit of all our citizens. It is good that this legislation has, as indeed the Criminal Procedure Act had as it was being processed through the House, the support by and large of the whole House. That is the way it should be. The criminal justice system needs to be robust, and it requires the robust support of all parties in this House. It was good to see.

Of course, I speak on this bill not having had the benefit of sitting on the Justice and Electoral Committee at the time it was going through, but the Government is entitled to credit for listening to the submitters and the other parties on the select committee when processing this bill. Changes were made. Although it is largely a technical bill, changes were able to be negotiated and were indeed made. A principal change, which the Hon Chester Borrows adverted to in his presentation just now, was the “Henry VIII” clause that would have allowed changes to primary legislation and references to the term “crime” in that legislation to be amended through Order in Council. That has gone, under this bill. That is the correct thing to do. The term “crime”, whether it is in the Crimes Act or in any other piece of legislation, is a sensitive term, a term of art in many respects, and if that term is to be changed in any legislation, then it should have the proper oversight and scrutiny of this House. That will be the case with this bill as reported back to the House from the committee.

There were other amendments made. The clarification of charging documents—we are no longer having informations laid in the criminal justice system. We are to have charging documents. The procedures and rules around the waiving of fees to access documents to clarify are improved, and that is a good thing.

The administration of criminal justice is a crucial aspect to the principle of the rule of law, and it is our adherence to the rule of law as a principle and in practice that makes us a developed, modern, civilised nation. That must underpin what we do in criminal justice, and indeed in any justice legislation that we pass. But I think it is timely to point out in this regard that in too many other cases we have a Government at the moment that is showing a willingness to ride roughshod over basic rights and principles, and that runs counter to adherence to the principle of the rule of law. We have seen tonight in other debates exactly that risk being taken, that threat being imposed, in the debating and passage of other legislation.

The rule of law is absolutely crucial. That is why the World Justice Project, sponsored by the American Bar Association, now has a rule of law index for every country in the world. New Zealand presently rates reasonably well in that rule of law index, but it is the actions of this House and of Government agencies that will determine whether we maintain our high ranking in that register. We do not want to compromise our position. Having a good standing and a good rating on the rule of law puts us in good stead internationally not only as good international citizens of the world but also for our commercial and trading partners to know that this is a place where they can reliably do business. They must also know that when citizens of other States come here and they are subject to a criminal regime, that criminal regime will also be subject to the basic principles of the rule of law.

But that is not what we have seen in other situations. Only today and yesterday we have seen the Minister of Justice talking about, as a knee-jerk reaction, introducing a new register of deported offenders—New Zealand citizens, deported back to New Zealand after committing offences in other countries—as a permanent record of their offending, and with no scope for them to put their evil past behind them and embark on a good future. We have seen that the Family Court reforms launched on this House have now had to be changed because of some of the failures to observe basic principles of the rule of law—denial of the rights of counsel, particularly to children, which we know is a breach of our international obligations under international conventions. The rule of law remains important and that is why this bill is one of those bills where we see that when the House gets it right, our standing and our place, when it comes to measures of the rule of law, are good and sit at a high level; it is the right thing to do. On that basis, we are thankful for the Government taking the time and effort to listen on this criminal justice legislation, and we support this legislation.

As chairman of the Justice and Electoral Committee it is a great pleasure to stand and speak in support of the second reading of this Criminal Procedure Legislation Bill. The bill, as other speakers have indicated, contains a number of technical amendments required to ensure that the legislative intent of the Criminal Procedure Act 2011 is made clear and can be applied as intended. As Mr Little just mentioned in his presentation previously, the support for this piece of legislation at the select committee was unanimous and I am delighted to report that the committee worked very well on its deliberations in regard to the bill.

💬 Tim Macindoe: Good committee.

It is a good committee, Mr Macindoe—a very good committee. I think it was a good example of how the select committee process can work to make for better legislation, and I want to thank members for their cooperation and support during the discussions that we had. The bill contains these technical amendments to make for better operational efficiencies within our court system. We heard, as others have mentioned, a very compelling submission from the New Zealand Law Society in relation to its concerns about the so-called “Henry VIII” clause. It was a good result that that was removed from the draft of the bill, and I think we have got now a position on this piece of legislation that is going to be acceptable across the House.

The Government believes that justice delayed is justice denied. This bill will ensure that timely justice is delivered for victims, witnesses, defendants, and our entire community. Currently our system is clogged and needs to be fixed, and these amendments in this piece of legislation will remedy that. I commend the bill to the House. It is a good piece of legislation, and I support it.

When the Associate Minister of Justice commented on this piece of legislation, the Criminal Procedure Legislation Bill, he did not mention that clause 15 was a “Henry VIII” clause. I think it is important to put on the record of the House why there is an objection in principle to “Henry VIII” clauses being enacted. The reason is simply this: that when an enactment needs to be amended, it should be done by Parliament—it should not be done by the executive. When one has a “Henry VIII” clause in play, it actually enables the executive to make an amendment to the work of Parliament, which in itself, of course, is something that should not be taken lightly.

A number of people have mentioned the Law Society’s submission on this particular piece of legislation. The society commented on the use of the “Henry VIII” clause, and said that in this particular instance it did not have an objection to it, because it was the power to make technical amendments to the enactments that the legislation amends to ensure consistency across the statute book. Generally speaking, that was acceptable to the Law Society and, I think, acceptable right across the House in terms of those minor amendments that would need to be made in order to ensure consistency. When one is talking about the extent of reform that the criminal procedure legislation was designed to address, it was entirely appropriate that some mechanism for those tidy-ups outside the statutes amendment process could be allowed.

So, generally speaking, the principle was accepted that as long as it was within that category there was not a problem, but the Law Society pointed out that it could be problematic. I want to particularly congratulate Graeme Edgeler, who appeared on behalf of the Law Society, because, obviously, he personally had put a lot of effort into this particular submission, and I believe that he represented the Law Society’s position exceptionally well. What he said when he appeared before the Justice and Electoral Committee—and I have the submission in front of me—was that he was concerned about the insertion of a paragraph that would allow references to the word “crime” in other enactments to be amended by the executive.

Again, where that was a technical issue he did not have a problem. But what the Law Society in fact identified was that what could happen was that there could be, by regulation, a vast expansion of the scope of certain offences, in fact resulting in the criminalising of conduct that would have been entirely lawful but for that amendment. Of course, he made the point—quite rightly so—that these sorts of policy decisions are questions that Parliament itself should consider. When select committee members heard the submission we did question him about this, and I think what he really persuaded the select committee of was that we had to rethink what the essence of the amendment was all about. What he was concerned about and the Law Society was concerned about was that: “Under the law applying before the principal Act enters into force, the concept of a ‘crime’ for the purposes of the criminal law is essentially a subset of imprisonable offences: it includes all offences where the prosecution has the option of laying a charge indictably. There are a substantial number of imprisonable offences that do not meet the definition of ‘crime’, as the prosecution is not permitted to lay them indictably.” So this is a natural consequence of the change to the legislation itself.

Then he went on to say that “This Bill itself makes a number of amendments to the term ‘crime’, and provides good examples of the type of amendment that are technical, compared with those that involve important policy questions.” Then he says: “Schedule 2 lists a number of amendments to uses of the word ‘crime’ in the Crimes Act 1961. The amendments … are simple amendments that enable the law to be intelligible now that the definition of ‘crime’ has been repealed and the distinction between summary and indictable matters removed. The amendments to the other sections are different: while they may be the right course, they involve a policy choice that extends the scope of criminal offences beyond that which applies today. The choice of what replaces ‘crime’ in these situations determines how much the reach of these offences is extended.”

Then he goes on to talk about how, for example, “The offences in the sections listed above tend to criminalise innocuous or not-very-serious-behaviour when it is committed with intent to commit a crime. Section 251(2) of the Crimes Act, for example, criminalises possession of computer software that is capable of enabling unauthorised access to a computer … however, this possession is only illegal if done with the intent to commit a crime.”

So he was making the point that the situation of removing the reference to the word “crime” would in fact potentially create a criminal offence that was not the original intention because it was not done with the intent to commit a crime. Then he used a number of other examples, but the best example he used was burglary: “Burglary involves an unauthorised entry to a building … with intent to commit a crime. Unauthorised entry by itself is illegal, but is not considered to be particularly serious … However, if the entry is done with the intention of committing a crime, it becomes a burglary,”.

So even though he went through all of the technical details in the way that he did, the point that he made was absolutely correct. What we were actually going to be doing was creating the potential for offences that would not of themselves be regarded as serious crimes to become serious crimes by the removal of the word “crime” in the legislation. We had a good, robust conversation with officials about this, and I have to say that the officials who were serving our select committee were very, very helpful. They actually came back to us with a very simple solution to the problem, and that was to remove the reference to clause 15(3)(h) altogether. That, I think, was incredibly helpful, because what it enabled us to do was address a very serious issue that may never have become a problem. But given the fact that it could have, and that our select committee had been given the benefit of that advice, I think we actually did the right thing. So I do agree with the chair of the select committee that we were incredibly well served by our officials and we were able to make the change that we did.

I just want to agree with what my colleague Andrew Little said before, and that is that when you are faced with legislation at a select committee, even if it looks pretty straightforward on the face of it, sometimes it takes just one submission—there were only two submissions that we received on this entire bill—and somebody to come to the select committee and make the case, and you can end up making quite a substantial change to the legislation, which means that you do not get into problems down the track. I think what Andrew Little was saying was that actually we do have to allow time for bills to go to select committees so that those who are going to make submissions can take the time to consider all of the elements of the legislation, and to enable them to make constructive comments, as the Law Society did in this particular case, and to enable that to be considered by officials and for a select committee to report back.

Sometimes I think that we actually do a disservice to the very robust process that we have of referring out to the public for that wider reach and consideration on legislation. We do the people of New Zealand a great disservice if we do not allow sufficient time for that. I think that what we have seen here tonight in the House with other bills that are not being allowed sufficient time at a select committee is that we will pay a price for that in the long term. This is a very simple piece of legislation, but it just shows what a difference one submission can make.

The other example that my colleague Andrew Little used was the Family Court proceedings legislation, where we have not had sufficient time, and with the looming deadline of the legislation coming into force in part on 1 October this year, I just despair of the reality of people who have to operate within a time frame that does not allow for sufficient time. So in this particular instance I would really like to place on record my sincere thanks to the New Zealand Law Society. It has done this House proud.

Tēnā koe. I am pleased to speak to this bill, the Criminal Procedure Legislation Bill, and to confirm the Greens’ continued support for this legislation. It is a necessary piece of legislation. It is practical. It seeks to ensure the integrity and, indeed, the utility of the primary legislation—the legislation as passed in 2011, or was 2012 the final passing? As highlighted by the Minister introducing the bill, the Associate Minister of Justice, the 2011 legislation intended to make the criminal justice system more transparent, more understandable, and more efficient. Those are clearly admirable goals and appropriate goals, and it would be perverse not to support them. It is worth recalling that at the time the legislation was being put through the House in 2011, there were elements of the original drafting that were not admirable and did not win the support of this House, particularly in the proposals to change the practice of trial by jury and to change the practice and policy around the presumption of innocence. In the event, of course, the Minister at the time lost the majority in the House due to those two critical elements of the original drafting. It required him to recant and indeed to redraft the bill into a form that was acceptable, and it ultimately did get passed through the House.

I think the necessity to ensure that our criminal justice system does move speedily and smoothly, and that it is streamlined and efficient, has been highlighted recently in the context of conversations around the bail laws and the perceived necessity of amendment to those. We are seeing reports of increased offending by people on bail, and clearly one of the drivers of that is simply that people are on bail for much longer than is desirable. In part, that is due to the fact that the courts are not able to put cases through. Hearings are taking too long and the process is slower than it ought to be and than it ideally would be. Anything we can do to amend that has got to be a desirable thing and something we will support.

However, there is some disconnect, I have to say, between the intention of this bill—the efficiency, and the streamlining of the justice process and of the court process—and other policies, other legislation, and other practices of this Government, where it seems almost deliberately to be setting out to slow the functioning of the courts, and to make the courts less effective and less efficient than they ought and need to be. I think of issues like the numbers of support staff. As with elsewhere in the Public Service, we are seeing a reduction in numbers. We are hearing from lawyers, from people working in the justice sector, that we are seeing a loss of experienced staff in the courts. As a result of that, we are not seeing the courts operating as effectively and as efficiently as they might. That is clearly not a desirable thing. We should be at least ensuring we have sufficient well-trained, well-qualified, and experienced staff in our courts to ensure the prompt and the effective delivery of justice to people going through the court system.

Similarly, it seems perverse at a time when we are seeking to improve the functioning of the court system that we are closing courthouses in some of our provincial areas and reducing services available at other courts. This is not helpful, clearly, to the public.

I am sorry to interrupt the honourable member. The time has come for me to leave the Chair. This debate is interrupted, and the people’s House stands suspended until 9 a.m., when I shall resume the Chair. Tihei mauri ora! Parekura Horomia, haere rā. Pō mārie. Good evening, honourable members.

Debate interrupted.

Sitting suspended from 10 p.m. to 9 a.m. (Thursday)