Third Readings

I move, That the Criminal Procedure Amendment Bill, the Auctioneers Amendment Bill, the Crimes Amendment Bill (No 2), the Criminal Disclosure Amendment Bill, the Evidence Amendment Bill, the Juries Amendment Bill, the Misuse of Drugs Amendment Bill, the Sentencing Amendment Bill, and the Summary Offences Amendment Bill be now read a third time. The laws governing criminal procedure are now over 50 years old and well out of date. The current criminal procedure system has been characterised by avoidable delay, excessive complexity, unnecessary costs, and a high reliance on paper-based systems that do not make sense in a modern era increasingly dominated by electronic technology. In response to such concerns, this Government passed the Criminal Procedure Act in 2011 and its 14 associated amendment Acts in October 2011 to modernise and simplify criminal procedure. They represented the biggest reform and modernisation of the criminal justice procedure in nearly two generations. These Acts consolidated criminal procedure and introduced a comprehensive package of reforms to make the criminal justice procedure more comprehensible and efficient.

I would like to note that although this Government passed the legislation, the project has had a long gestation spanning more than a decade. Extensive work was undertaken by the Ministry of Justice and the Law Commission, in consultation with the legal profession. For much of that time it was under the guidance of the Labour-led Government, so I would, first, like to thank all those involved in the development of these reforms.

As I noted at the first reading, the reforms have the potential to deliver some significant benefits. They will reduce and streamline victims’ and witnesses’ exposure to the criminal justice system. There will be fewer repeat or unnecessary events in the use of staff time, and courthouse capacity will be optimised to ensure that money is spent more effectively. The reforms are part of this Government’s wider programme of modernising the way our courts are run, and are expected to result in over 31,000 fewer court events per year. It is estimated that they will free up about 10,000 court sitting hours each year—about 12 percent of the current total effort in the criminal jurisdiction.

The reforms have the potential to take up to 9 weeks off the average time of cases that go to jury trial. The overall reforms have the potential to increase the efficiency of the courts to a value of about $50 million over a 10-year period. The criminal procedure reforms will also have benefits for the defendants’ rights to a fair trial. The legislation achieves a careful balance between moving criminal cases through the court system more quickly and protecting the fundamental rights and safeguards that underpin our justice system.

Overall, making the court system more timely, efficient, fair, and easy to understand will reduce stress, delays, costs, and inconvenience for everyone—and this includes victims, witnesses, jurors, defendants, judges, lawyers, and court staff, and, ultimately, the taxpayer, who pays for our court system. It is important to keep in mind the sheer scale of these reforms when considering these bills currently before the House.

After enactment but prior to commencement a number of technical issues were identified in the Criminal Procedure Act and related legislation. These nine bills remedy those matters and will ensure that the Criminal Procedure Act and its associated legislation may be fully implemented as intended. Although the Criminal Procedure Legislation Bill was a technical Statutes Amendment Bill type of legislation, the amendments included in these bills are important for the coherent implementation of criminal procedure reforms on 1 July this year. Accordingly, that stand-alone omnibus bill was promoted.

At the first reading Mr Chauvel, the then Labour justice spokesperson, indicated that his party would support the bill so long as it contained only technical and uncontroversial amendments. Concern was raised by the New Zealand Law Society at select committee about the possibility of a proposed regulation-making power being inappropriately used to make substantive changes to the criminal law. The Justice and Electoral Committee listened, and removed the power. Although there were a small number of other concerns raised by the Law Society, it was generally supportive of the bill. The committee understood the concerns raised by the society but decided that good reason existed for the other proposed amendments.

There was unanimous support for this bill at the select committee and during the second reading. It was recognised that although the individual amendments were small, collectively they would provide significant benefit in allowing full implementation of the agreed policy. I am grateful to all parties that have indicated support for this legislation and the constructive manner in which members have deliberated on these reforms. As indicated by the widespread support the legislation has received, it is not contentious.

As I have indicated to the House on introduction, it is technical, non-controversial legislation that clarifies and gives full effect to legislation that this House has already approved. It will ensure that the largest criminal procedure reforms in 50 years can be implemented effectively and coherently and that the benefits predicted are fully realised. The criminal procedure reforms, when fully implemented, will have positive impacts for those who deal with our justice system. As the previous Minister of Justice said at the introduction of the Criminal Procedure (Reform and Modernisation) Bill, these reforms will ensure that timely justice is delivered for victims, witnesses, defendants, and the community. This legislation will assist in ensuring that these objectives are realised. I commend these nine bills arising from the Criminal Procedure Legislation Bill to the House.

It is a pleasure to get up to speak on what was previously the Criminal Procedure Legislation Bill and is now broken into nine bills. I will not adumbrate them all; they have been laid out by the Hon Chester Borrows, who spoke just now. As we have done so throughout, the Labour Party supports this legislation. This is the end of a process that started under the previous Labour Government to reform our criminal procedure legislation, when the original amending bill was passed. This now deals with some refinements and some technical amendments. It has been properly processed through the chamber of this House and the select committee, and it is supported by us. There is no controversy to it, and, indeed, the select committee process showed that the Government was listening. It listened to Labour’s concerns about the “Henry VIII” clause that was in the original bill. That has been removed, and this is perfectly acceptable legislation now that ought to have the backing and the support of this House.

As Mr Borrows pointed out, this completes the most significant reform of this area of our law in around 50 years. I am very pleased to see that one of the break-out pieces of legislation is the Auctioneers Act. It is an Act that goes back to 1928, and if there was ever a piece of legislation that was crying out for review it is probably that Act, at least, and it has been amended in part under this series of bills—

💬 Hon David Parker: Going, going, gone.

Going, going, gone, as my colleague Mr Parker says. That is probably a piece of legislation that deserves some attention in its own right, given what is happening now on the interweb. The trading and retailing that happens in that forum now is perhaps making a traditional auctioneer’s role somewhat obsolete—although not completely, because, of course, they are good people and do good things.

Mr Borrows talked about the many other changes that are happening in criminal justice and the administration of criminal justice. One aspect, of course, that will not be there, which was expected to accompany this legislation when it took effect on 1 July, is eBench, the new information technology system that was meant to cover the courts and the court system. It has been delayed by at least another year. Talking to people in the traps, they expect it would be longer. But, of course, due to a reliance on eBench, a number of courts—admittedly, small regional courts—have been closed down, and the people in those courts do not have the benefit of new, wondrous technology that allows them to communicate by looking at a TV camera and a screen, and communicating through that with courtrooms in other parts of the country. We do not have the benefit of that, but we do have the benefit of modernised legislation.

The objectives of this legislation and of the total reform are worthy. They are about ensuring fewer appearances, not only for counsel and for judges but for witnesses, as well. That should lead to less delay. If there is one problem that defines the difficulties with our justice system at the moment, it is the problem of delay. I can say from talking to many members of the profession that they approach 1 July if not with trepidation, then, certainly, with a small degree of anxiety, as they wait to see how this will all bed down and bed in. The very many crimes that we have in our Crimes Act, the Summary Offences Act, and the various other criminal statutes have been categorised into four types of crime, and that is going to have a bearing on the way that criminal lawyers conduct their practices, and, indeed, how judges administer the law. So this will be an interesting time for us all.

I repeat too what the New Zealand Law Society said as this bill was progressing through the Justice and Electoral Committee, and that is that in areas such as criminal justice, these should proceed on the basis of cross-party agreement, as opposed to the Government ramming through its particular agendas and its desired reforms. This is an area that requires—or where, at least, the participants in the system are entitled to—certainty and agreement in this House, and the full backing of this House when it comes to that area of our law, because it affects people’s lives, but, most important, it affects their constitutional rights, and criminal justice potentially affects their liberty. That is a matter upon which this House ought to, ideally, speak with one voice.

But, of course, there is one other aspect that was expected to have been successfully reformed to accompany the commencement of this new criminal procedure reform, and that is the system of legal aid. That is now in complete disarray, and yet it need not be. As recently as last Friday the Court of Appeal handed down its ruling on the challenge by the Criminal Bar Association, and found that that aspect of reform, which was handled single-handedly by this Government and by two Ministers of Justice—the current one and the preceding one—is now left in a most unsatisfactory state. It was declared by the Court of Appeal to have been implemented in an unreasonable way, for the Legal Services Commissioner, now responsible for legal aid, to have had his independence compromised, and that there was a lack of flexibility and far too much rigidity in the regime that this Government would like to impose on the system. So my plea to the Minister of Justice is this: it is not too late to get the legal aid system sorted out and in a satisfactory state, in time for 1 July.

💬 Hon Judith Collins: I raise a point of order, Mr Speaker. Perhaps the member is not aware that this matter is currently in front of the Supreme Court. It is not appropriate to be discussing a court matter in Parliament.

The ASSISTANT SPEAKER (Lindsay Tisch): Yes, I thank the Minister for that. Also, when we are doing a third reading, I refer the member to Speaker’s rulings 122/4, which says: “Members must confine themselves to the general principles of the bill as it emerged from the committee.” So please confine your comments to that.

Thank you, Mr Assistant Speaker. I appreciate your guidance on this matter, except to say that when it comes to the administration of criminal justice, the Criminal Procedure Amendment Bill and the other bills that we are dealing with in this third reading came under the umbrella of the Criminal Procedure Legislation Bill, and is integrally related to other aspects of criminal justice. It is simply not possible to not talk about the greater efficiencies that are expected from this set of bills without referring to other integral aspects, which, in this case, includes legal aid. I will say no more on that.

I simply want to say this, though. The way we deal with criminal justice, the way we deal with criminal procedure, and the way this House speaks on it, is absolutely crucial to the principle of the rule of law. The way this legislation—what was originally one bill and is now nine bills—has been managed has been a model process for the management of bills by this House, and in a very sensitive area. It was properly introduced, it was allowed to be subject to the scrutiny of the select committee, members of the public, and, indeed, important institutional submitters like the New Zealand Law Society had their say, and changes were effected during that process, and we now have a satisfactory piece of legislation to complement changes already made. That is a good thing, but it would be nice if the felicitous way in which this process was carried out was reflected in other pieces of legislation too. I make that point because it is becoming increasingly apparent that the way some pieces of legislation and some issues are handled is not good for the reputation of this House. This piece of legislation, this bill, will stand as a model of lawmaking by this House. It is a good bill, and it is being conducted appropriately and properly.

The process started with the Labour Government, and we would expect that a piece of legislation that started its life under a Labour Government would be a good piece of legislation, and would be managed and processed correctly and properly. But the same cannot be said of other pieces of legislation, including, sadly, pieces of legislation that bear upon people’s individual and personal rights, as we saw in the aftermath of the Budget just a couple of weeks ago. We welcome the fact that this bill has reached this stage. We are 5 or so weeks away from the implementation of what will be a significant change to the management of our criminal justice system and the criminal procedures that will apply in our courts leading up to it.

That is a very sensitive point and a very sensitive area. We have a profession that will now be called upon to bring life to these pieces of legislation and to this reform. Members of the profession who are practising at the Bar and judges will have to make sense of it, and I am confident that they will do—no pun intended—justice to the legislation we are passing. But they are in a state of concern. In fact, it would not be going too far to say there is a sense of alarm developing in the profession about the way in which, and about the respect with which, they are treated, as well as their issues and their ability to conduct themselves and fulfil their duties—both statutory and ethical—when it comes to criminal justice laws and the criminal statutes that they are called upon to work under.

So it will be a pity if we look upon this time and the passage of these bills as the high-water mark of good legislation and good legislative practice. Let us take a leaf from these pieces of legislation, these nine bills, as we see them through their end stages tonight. Let us say that we want all legislation to follow this proper constitutional process, with good input from members of Parliament and good input from members of the public and those stakeholders who have a greater interest, perhaps, than others when it comes to legislation, as we have heard from the important stakeholders in these pieces of legislation. As I have said, we support the bills and we will be voting for them. But let us take a lesson from these bills, and let us not allow this House to repeat the exercises that it has been forced into in the last couple of weeks that have dealt with individual and personal rights and ridden roughshod over them. Let us look at these pieces of legislation, these nine bills, and say that this is the right way to go about it, this is the way to pass law, this is the correct way to do it. Let us make sure that this law is simply the start of a new approach, a breath of fresh air, for this 5-year-old Government to say: “You know, we’ve got it wrong before. This is the way we do it. We’ve taken a leaf out of the Labour Party book. We know what good law looks like, and this is the way we’ll approach all other legislation from here.”

It is a pleasure to stand in support of the third reading of what was originally the Criminal Procedure Legislation Bill but that has now been broken into its nine component parts. As the two previous speakers, Chester Borrows and Andrew Little, have indicated, this is a measure that receives wide and, probably, unanimous support across the House, so it is very good to be part of it.

This is a Government that makes absolutely no apology for putting victims first in our criminal justice system. That is right and appropriate. These nine bills are just another milestone along what is quite a radical overhaul of our total justice system. They contain technical amendments that are needed to ensure that the legislative intent of the Criminal Procedure Act 2011 is made clear and can be applied as intended. These measures, as others have said, are non-controversial, and the Justice and Electoral Committee was unanimous in its support for the introduction of these measures. I would like to thank the members of the committee for their work and for their diligent attention to detail, most of it of a very fine, technical nature.

The benefits of these changes, including the changes made by Supplementary Order Paper 233, have the potential to free up something like 10,000 court sitting hours each year, with potentially something close to 31,000 fewer court events, and, it is expected, somewhere between 300 and 500 fewer jury trials, and a reduction of somewhere between 6 and 9 weeks in the average time to complete a jury trial. The net benefit to taxpayers of these sorts of savings—let alone to litigants and those people who are participating in our criminal justice system—is just huge.

Criticisms of our criminal procedure over the last 20 years can be summarised broadly into four areas: excessive delay, excessive complexity, an outdated legislative framework, and excessive cost. It has been estimated that currently there are about 43,000 unnecessary court fixtures and appearances a year within our criminal justice jurisdiction. More than two-thirds of cases that reach a defended hearing fail to proceed on the day. We can, and must, do better than that.

Our current system, of course, is built entirely on an obsolete assumption of a fully paper-based system. It is a bizarre but current fact that the system currently makes and puts in place barriers to the use of modern technology. An example of the delays being experienced is that the median time to dispose of a High Court jury trial is now something in the order of 16 months. That is an increase of about 5 months in the last 5 years. As has been quoted many times in the earlier readings of this legislation, justice delayed is indeed justice denied. Our system is clogged, and we need to fix it.

This Associate Minister of Justice, Chester Borrows, is a good Minister who is getting on with the job. He is making our criminal justice system more responsive, more effective, and more cost-effective for all involved. These are good measures, and I commend them to the House.

Not only do I, together with my colleagues on the Labour benches, want to support these bills but also I want to commend the Associate Minister of Justice and his predecessor, actually, for the way in which they have conducted the process of legislation through the House. In recent times we have seen so many legislative outrages. Going back to just the last week of this session, we were pushing through under urgency things that never went to a select committee at all. They did not go to a select committee and they did not get the benefit of having ordinary citizens and people who are experts in their fields come in and have a look at the legislation to make sure that what this Parliament is intending to do is actually carried out in the form of the legislation.

This criminal procedure legislation actually allows us to put into effect the primary piece of legislation, the Criminal Procedure Act, which is a very thorough overhaul of our criminal justice system. In fact, the primary Act is a massive 426 pages long. It is a huge change, and Scott Simpson was very supportive of that change and attributed it, somehow, to the National Government. In fact, this came into effect as a result of a project set up in October 2007. In fact, I recall working on it some years before that as Minister of Justice. It was a huge job to do, and it was a really important job to do.

I think that most people looking at the New Zealand justice system say that we have got a generally good system of justice. We have integrity, we have an independent judiciary, and we can rely on the quality and the principles of those who operate within the justice system, both on the bench and in the Ministry of Justice and the people who support them. But there were some very obvious problems with the New Zealand justice system. It came down to about four different categories. There was excessive cost, and that excessive cost was caused not by thoroughness but, rather, by inefficiency. Wherever we can within the Public Service, we need to reduce inefficiencies. We need to make sure that things are done right and that they are done properly but also that they are also done efficiently and that we are getting value for money. Our court system was replete with problems that meant that court cases took longer, and we have an obligation in this House to cut down on the costs that are involved.

There was also excessive delay. Court cases were taking far too long from first appearance to the final disposal of the cases. You know, when court cases are drawn out in that way, you then create problems for everybody involved in the system. You create problems for the victim—most important—because the victim has that agony of the court case drawn out over a much longer period. You create problems for the defendant, and all defendants are innocent until proven guilty, so if the court case does not stack up, then that person is again on tenterhooks for much longer than should be the case. It creates problems for the juries. These are people who are taking time off work, who are being paid a pittance to do so but who are prepared to participate in our justice system—and the really good thing about our justice system is that it allows for peer evaluation—but they find that a much longer period of their time is required if you have excessive delays and if you have inefficiency.

The third problem with the system was excessive complexity. This was very clearly the case, with legislation being spread across several statutes and seven different categories of offence. The Law Commission actually went as far as describing the courts system as “an impenetrable maze”. When the Law Commission, with the eminent jurists on it, reaches that determination, you can really believe that there is some credibility in that criticism.

The fourth and last problem with the system was that it provided an outdated legislative framework.

So what we have had was this very thorough process, which involved the Law Commission and the Ministry of Justice, going back to October 2007 under a Labour Government, setting out to make some real changes in our justice system that will improve it considerably. I think an earlier speaker mentioned that this is likely to free up something like 10,000 court sitting hours, that there will be 300 to 500 fewer jury trials, and that there will be a reduction of 6 to 9 weeks in the time taken to conclude a jury trial. Those are huge advances. That primary legislation has gone through, and it is important that we pass this legislation so that the 2011 Act can come fully into force in July of this year.

This legislation largely, as has been mentioned, makes technical changes. It amends the Criminal Procedure Act 2011 and 18 other enactments in relation to criminal procedure matters. These matters are largely things such as cross-referencing, technical matters, amendments to allow procedures and processes to operate as intended, and amendments to references to crime reflecting the repeal of the definition of “crime” in the Crimes Act 1961, to make explicit the type of offence that is being referred to where the context requires it. The legislation also clarifies the jurisdiction of community magistrates. So those things are technical, but the primary Act has real and important changes.

I want to go back to what I was saying before. A good Government—a Government that is not arrogant and overbearing—takes into account the criticisms made of the legislation as introduced. Too often that does not happen. Too often you see just straight-out arrogance: “We’ll ram this through. We’ve got the numbers. To hell with the principle.” It is almost a matter of principle for the National Government, if the Opposition is opposed to legislation, to not make any changes, and that is really unfortunate because that is not how a good democracy works.

In this case the primary legislation did involve a range of things that were quite controversial. They included things like the threshold for jury trials. It was going to be extended up to, I think, about 3 years before you could get a jury trial, yet a jury trial is something that is a traditional right under our British system of justice. It is not something that we should give away lightly. The original bill required the defence to identify and disclose issues in dispute before the trial, and that would have been at the jeopardy of the position of the defendant. It would have allowed courts to proceed in the absence of a defendant—this was really quite remarkable. Again, a fundamental principle of justice is that no trial should proceed in the absence of the defendant. It also involved the right to silence and compliance cost issues.

There could have been a huge dispute over this piece of legislation, but, quite sensibly, the then Minister of Justice, Simon Power, decided that he would listen to the criticisms that were made. He took a step back from those issues, and the result is that we have a piece of legislation before us that actually has the support of all sides of the House. That makes this a very powerful piece of legislation. It has been carefully considered. It has sought and achieved consensus.

I have just got to say again, if only in areas—I was thinking of the New Zealand Public Health and Disability Amendment Bill (No 2), which was rammed through the other night, with the Attorney-General himself saying that it breached the New Zealand Bill of Rights Act. You know, that was appalling process. That was a Government that, for no good reason, forced things through under urgency. It did not follow good process and did not seek consensus. This legislation stands in contrast to that and, therefore, this legislation will be enduring.

The other thing that I would like to finally add is that there was some controversy over this legislation in the sense that it provided a regulatory power that is commonly known as a “Henry VIII” clause, which is a power to make regulations that amend statutes. Again, to be fair to the chair of the Justice and Electoral Committee and to be fair to the Minister involved, Chester Borrows, they agreed that this was inappropriate, and this was taken out.

So I think, all in all, we have a piece of legislation that has followed good process, that has been properly researched, that has been carefully planned, and that will make a real difference. It is not a piece of rubbish like the gang patches bill. This is good legislation and we are supporting it.

I am pleased to take a short call on this bill, or this suite of bills as they now are, to affirm the Greens’ continued support for this legislation. It is actually quite a rare day that the Greens are able to support a Government justice bill throughout every reading, for the reasons, of course, that generally they fail to meet the standards of good lawmaking and they fail to improve the situations for offenders or for victims, or the judicial system. But in this case it is legislation that we have supported, and are happy to continue to support through this final reading.

The point has been made that the provisions of this bill in other circumstances could well have been addressed within the contents of a Statutes Amendment Bill. But, of course, there are time constraints. This legislation must be in place by 1 July this year, which is barely a month or so away, and so, of course, we are quite happy to cooperate and to see this legislation go through in time to ensure that the original legislation is enacted as was intended at the time.

It is true that the purpose of this legislation, or the original legislation, should I say—the principal legislation—was to improve the efficiency and the effectiveness of our court processes, and to remove delays from the court process. And it is well said—it is an old, well-tried cliché—that justice delayed is justice denied. It is important that we get our justice system working effectively. Justice bills must be seen as some of the most important that go through this House.

We make law in this place, clearly. The courts, the police, and other arms of the justice system enforce that law and take people to task if the law is not complied with. We have the capacity, the State has the capacity, to fine people, to deny them their freedom and their liberty in the extreme cases, so it is doubly important that the processes around the judicial system—the justice system generally—are seen to work effectively, efficiently, and properly in order to maintain public confidence, and to ensure that that confidence is well founded.

Unfortunately, at the same time that this very useful legislation is being put in place to minimise or at least to reduce some of the delays and some of the roadblocks to good process in the courts, we are seeing other aspects of policy and implementation of policy that are working against the intention of this—issues like staff cuts in our courts. Anecdotally, we are hearing repeatedly from lawyers, from people who work in the courts, and from people who have business in the courts that the loss of skilled staff and the loss of experienced staff in our courts is causing ongoing delays. Work is not being done in an effective manner. Judges’ time is being wasted. Witnesses’ time, even defendants’ time, is being wasted because of cuts to staffing. It is critical that we do not save pennies and lose pounds in the way that if we do not have sufficient staffing—experienced, well-skilled, well-trained staffing—in our courts, then the processes will fail, we will lose the confidence of the public and other participants, and, no matter what we do in legislation like this, the process will fail and be seen to be failing.

Sadly, also, of course, recently we have seen—and Mr Little, I think, referred to this—closures of some of our courts. We have seen reduced services at some of the courts. The consequences of that are quite significant, not least of all for offenders and for victims of offending, and, again, for witnesses. Unfortunately, that is not saving any money, which is what we were told it would be doing. It is simply putting costs on other departments of State. The police, for example, will be picking up the tab for the extra cost imposed on their budget by some perceived savings in the courts’ budgets.

So, unfortunately, although this legislation will go some way towards speeding up the judicial process, sadly, other policies that are being enacted are actually working in the opposite direction.

We could talk about legal aid, and I am aware that there is a sensitivity about that question at the moment. Unfortunately, the Government has found itself on the wrong side of a legal judgment. But, more generally, there have been cuts to the availability of legal aid, and that has negatively impacted on access to the courts. We are hearing this again from participants, and it is not only beneficiaries, low-income people, or unemployed people; it is middle New Zealand that is discovering that as the access point, the entry point, for legal aid is being made more difficult, access to the courts is being denied—access to representation. The intention of this legislation we have before us is to speed up the processes of our courts. Self-litigation will do nothing to speed up the process of our courts. Quite the contrary, it will slow it down. The cuts to legal aid will inevitably lead to more self-litigation in the courts.

We are told in terms of some of the difficulties that this legislation endeavours to overcome but cannot do entirely that some of the slack will be picked by NGOs—by the community law centres, for example, which unfortunately have had no funding increase for something like 7 years. In other words, their funding is being cut. So although we might like to pass legislation to streamline legislation to make our courts work better, if we do not support the infrastructure around public access to the courts, then our work will be in vain. I could critique the Government’s judicial approach all night—

The ASSISTANT SPEAKER (Lindsay Tisch): I am sorry to interrupt the honourable member. The time has come for me to leave the Chair.

Debate interrupted.

The House adjourned at 10 p.m.