Bail Amendment Bill

on behalf of the Minister of Justice: I move, That the Bail Amendment Bill be now read a second time. This bill makes changes that will improve public safety and ensure the overall integrity of New Zealand’s bail system. In particular, the changes will make it harder for those accused of serious offences to get bail. We want to ensure that bail decisions strike the right balance between keeping the public safe and maintaining fundamental rights such as the presumption of innocence and freedom from arbitrary detention.

I would like to commend the Law and Order Committee for its thorough consideration of the bill and for the sensible amendments it has proposed. The Government has adopted all of the proposed changes. The committee received 282 written submissions on the bill and heard 42 oral submissions. A number of the oral submissions were from victims of crime and their families. On behalf of the Minister of Justice, I would like to thank those people for their courage and their willingness to share their experiences in order to inform the committee in its consideration of the bill. I note that 119 submitters supported changes contained in the bill. Many submitters referenced the petition of Tracey Marceau on behalf of the Christie’s Law group and 58,000 others. Some proposals in the petition, such as those relating to judicial accountability, were outside the scope of this bill. They are being addressed by the Law and Order Committee separately.

The bill contains two parts. Part 1 makes amendments to the Bail Act, and Part 2 makes amendments to other related legislation, including the Children, Young Persons, and Their Families Act and the Sentencing Act. The changes contained in the bill fall into six broad categories. The first set reverses the burden of proof in certain cases, to target defendants charged with the most serious offences and those with the highest risk of offending while on bail. A reverse burden of proof means that the defendant must prove that he or she should be granted bail. Under the bill, there will be a reverse burden of proof for defendants charged with murder. These defendants will need to satisfy the court that they will not commit any violent offences while on bail. Public safety will be the court’s primary consideration in these cases. The bill also extends the list of very serious offences that currently carry a reverse burden of proof when the defendant has a previous conviction for one of these offences.

Secondly, the bill improves the courts’ ability to deal with defendants facing serious drug charges. Defendants charged with class A drug offences will now be subject to a reverse burden of proof when being considered for bail.

Thirdly, the bill strengthens the ability of the police and the courts to deal with young defendants on bail. The bill retains the strong presumption in favour of bail for 17-year-olds who have not previously been imprisoned. Those aged 17 who have previously been imprisoned and those aged 18 and 19 will be subject to the standard adult test for bail. The bill also gives the police new powers to deal with defendants under 17 years of age who repeatedly breach their bail conditions.

The fourth set of important changes contained in the bill relates to police bail. This is bail granted by the police before the defendant appears in court for the first time. The bill increases the penalty for failing to answer bail in these circumstances to 3 months’ imprisonment, in addition to the existing maximum fine of up to $1,000. The bill abolishes monetary bonds and sureties for defendants on police bail. These bonds and sureties are not available in the District Court. They were seldom, if ever, used by the police, because they are very difficult to enforce.

The fifth group of provisions relates to electronically monitored, or EM, bail. Currently, electronically monitored bail is granted by the courts under the generic power to impose bail conditions. The Government believes, however, that there should be specific provision for electronically monitored bail in the legislation, to ensure that it is applied consistently and effectively. The bill formalises the current arrangements whereby defendants can apply for electronically monitored bail only after they have been remanded in custody. The statutory regime will ensure a consistent process for assessing the suitability of defendants for electronically monitored bail and for monitoring them in the community.

The final set of provisions promotes the integrity and operational effectiveness of the bail system. These amendments will reduce situations where a defendant will be bailable as of right, and will restore the jurisdiction of justices of the peace and community magistrates to deal with certain defendants who breach bail.

Finally, the committee has recommended a number of minor and technical amendments to the Bail Act. These recommendations follow on from the recent reforms made by this Government under the Criminal Procedure Act, and ensure consistency with recent changes to criminal procedure. This Government recognises that a person charged with a crime has the right to be considered innocent until proven guilty, and the right not to be arbitrarily detained. However, these rights must be balanced against the safety of the public. The Government is committed to bail laws that make New Zealand a safer place and keep victims at the heart of our criminal justice system, and this bill demonstrates this commitment. The New Zealand public deserve bail laws that protect them.

The Minister of Justice will be tabling a Supplementary Order Paper that will clarify the drafting and technical amendments required to bring the bill in line with the recent changes to criminal procedure. The Supplementary Order Paper will also propose changes to the management of the electronic monitoring regime, so that Department of Corrections staff as well as the police may undertake assessments for electronically monitored bail. I believe that the amendments recommended by the committee respond appropriately to issues raised in submissions, and, once again, on behalf of the Minister, I thank the committee members for the work they have done on this bill. I commend this bill to the House.

Kia ora katoa. The Labour Party will be supporting the Bail Amendment Bill. In supporting it, that does not detract at all from our commitment, and, as expressed by the Minister, her commitment, to the presumption that is fundamental to the New Zealand system of justice, that everybody is presumed innocent until proven guilty. There has to be just cause to deny people the right to be freed on bail pending the hearing of the charges against them.

Traditionally in our system there are three areas that the court will take into account when considering whether an accused person should be granted bail. The first and most important, I think, is whether that accused person is at risk of reoffending. There has to be a counter set against the presumption of innocence, an absolute commitment to protecting the safety of the New Zealand public, particularly where a person is accused of a very serious offence or where that person has a track record that predisposes them to being at serious risk of continuing to offend, albeit under the restrictions imposed by their bail conditions. The second consideration taken into account by the court is the risk of absconding. Obviously, if you think that a person who is going to be given bail, or there is evidence to suggest that a person who is going to be given bail, will abscond and not show up when the charges against them are being heard, that is another risk that means you might remand a person in custody. The third is the risk that the defendant might pose in interfering with witnesses and perverting the course of justice. In New Zealand, the judge has considerable discretion as to whether or not a person should be granted bail, but it works on the presumption of innocence.

In any particular year, there will be something like 91,000 cases considered for bail. In most instances bail is given, and in most instances there is no problem while that person is on bail, pending the court case to hear the charges against them. But we do have a serious problem with bail in New Zealand, and that problem is set out in the Ministry of Justice’s own statistics, which show that nearly one in five persons on bail—17 percent, to be precise—offend while they are on bail. Much of that offending is of a minor nature—it may be not meeting all the conditions of the bail—but some of that offending is serious, and, in a small number of cases, but with huge implications, very serious offending.

The figures from the ministry, looking at the period from 2006 to 2010, were that 23 people were convicted of murder at the time they were on bail issued by the court; 21 were convicted of homicide while they were on bail; 7,146 were convicted of acts intended to cause injury while they were on bail; 1,132 were convicted of abducting, kidnapping, or threatening behaviour while they were on bail; and 763 were convicted of sexual assaults while they were on bail. Set in the context of over 91,000 cases a year of the court granting bail, it is relatively small. Set in the context of the victims or the families of victims who came before the Law and Order Committee, whose family members and whose loved ones had been murdered or seriously injured or damaged by people on bail, you understand why there is public concern.

That is not to say that this House has ignored the question of bail laws being sufficiently tight. One of the first Acts I passed as Minister of Justice in the year 2000 was a new Bail Act, and that Bail Act had dramatic consequences. It increased by 200 percent the number of people remanded in custody, from around 500 in 1998 to over 1,700 in 2007, which was the end date of the statistics I looked at. So there was a dramatic increase in the number of people remanded in custody. New Zealand is not soft when it comes to denying bail. The figures suggest that the rate of remanding in custody in New Zealand pending the court case is 43 per 100,000, much higher than the United Kingdom at 25 or Australia at 30. The laws are not soft. Laws were changed again in 2011, but I have got to say it was more for political purposes—lots of rhetoric, not much substance, and it did not have much impact.

This bill will make a difference, but it will make a difference on the margins. The Ministry of Justice predicts that it will result in an additional 350 people per year being remanded in custody, with the necessity of an additional 50 prison beds. It is significant; it is not huge. The difference that this bill will make is on the margins, where the judge is considering whether bail should be granted or whether the risks to public safety outweigh the presumption of innocence until proven guilty. One of the ways in which this bill does that is to extend the situation where there is a reverse onus of proof. Normally it is up to the prosecution to prove that the defendant cannot be trusted to be on bail. Where there is a reverse onus of proof, it is up to the defence to prove that the person will not commit offences while on bail. The judge still has the discretion, but the judge will look more carefully at those cases because of the reverse onus of proof, and it is appropriate in cases of serious offending or serious risk to the public well-being that the judge does look more closely at those cases. In the cases of murder, there will be a reverse onus of proof, but right now two-thirds of those who are arrested and charged with murder will spend the entire period awaiting their trial in custody. That may increase slightly at the margins.

When we look at the reverse onus of proof in regard to people who have already been convicted of serious violent and sexual offences, many of those offences were previously included in the original legislation—murder, attempted murder, manslaughter, sexual violation, wounding with intent, aggravated wounding, use of a firearm. But other offences have been added, and appropriately so. They are things like aggravated burglary, assault with intent to rob, kidnapping, and abduction. For those charged with serious class A drug offences, we know that more than a third of those who are granted bail will reoffend, and often reoffend quite seriously, while on bail. So it is appropriate that there is a reverse onus of proof there. The bill makes other changes, one of which is to make the law regarding the age of adulthood consistent. So you will not be treated differently in regard to bail if you are 18 or 19; you will be if you are 17, unless you have previously served a term of imprisonment, and that is because there is a very high rate of reoffending on bail if you have previously been in prison—over 50 percent. I want to say that by and large those changes are positive changes, but that we also need to look at systemic causes of offending while on bail.

The committee, as you will be familiar, is looking at the Christie’s law petition and is looking at some other factors. I sat in court the other day, along with you, Mr Assistant Speaker, and we watched the process of bail being granted. It is a production line - style process. The judge considers it seriously, but there is limited information that may be available to the judge. There is reason to look at that to see whether we can provide better information to the judge, whether there can be risk factors for which we can provide a proper tool of analysis. That ought to be done. One other factor—I am going to finish on this factor. One reason why there is a lot of offending on bail is that it takes so long to bring people to trial. For serious class A drugs, it is well over a year. If we can get a more efficient court system and we can deal with the cases more quickly, that will be a major factor in reducing offending on bail. We support the bill.

I want to acknowledge in this second reading of the Bail Amendment Bill the work of the Law and Order Committee and the willingness of committee members from across the House to have a decent look at the issues surrounding the Bail Amendment Bill matters that were brought before us. I also want to acknowledge with thanks those families and family members who came to our committee to make their submissions and to tell their harrowing stories of the loss of partners, children, and family members at the hands of people who were out on bail at the time that their family members were then murdered or grievously harmed.

I want, in particular, to acknowledge Tracey Marceau for her petition, and the 58,000 people who supported and signed that petition. The committee thought very carefully about how we would best consider the Bail Amendment Bill and the Christie’s Law petition matters that were brought before us. The committee agreed that in order to do justice to both those matters, we would separate the two matters—deal with the Bail Amendment Bill, which this House is doing now, and the committee would then consider the matters raised in the Christie’s Law petition. The committee is doing that. The committee is working carefully and thoroughly on the issues raised that were out of scope of the Bail Amendment Bill consideration. That work is ongoing, and in due course the Law and Order Committee will be reporting back to the House on that very important bill and the issues it raises.

The Bail Amendment Bill amends the Bail Act. It also amends the Children, Young Persons, and Their Families Act, the Sentencing Act, the District Courts Act, and the Summary Proceedings Act, and that is done to improve public safety. I do not agree that the changes proposed in this bill are around the margins. I believe that the changes promoted in this bill will make a real impact on public safety, which is the primary reason for bringing this bill to the House.

When National took office we promised to review aspects of the bail system. What we did do was we reversed Labour’s 2007 amendments that made it, in fact, easier for defendants to get bail. Labour made amendments that restricted the test for remand in custody and, in fact, made it easier for defendants to get bail. We reversed that, and then in 2011 we did wide consultation with the public on their views about what else needed to change; hence this bill has come to the House.

The main provisions of the bill are in reversing the burden of proof in bail decisions for those charged with serious class A drug offences such as manufacturing or dealing in P, which in 2011, when this Government came in, was at epidemic proportions. It is known that more than a third of defendants arrested for serious class A drug offences do go on to offend while on bail. We are also moving to reverse the burden of proof in bail decisions for defendants charged with the most serious crimes, such as murder.

The current list of specified offences has not been reviewed since the Bail Act was enacted, and it now does not reflect the risk posed by defendants charged with other serious offences—violent and sexual offences—who do have a history of serious offending. So the bill expands the list of violent and sexual offences that result in a defendant being subject to a reverse burden of proof. If they have prior history of such offending they need to convince the judge, through their counsel, that they should be allowed out on bail.

The bill will strengthen bail conditions around young defendants. It will make defendants aged 17 to 19 years old subject to the standard adult test for bail if they have previously served a prison sentence. What this does is remove the strong presumption in favour of bail that currently applies to them. The bill allows the court to detain defendants under 17 years of age who significantly or repeatedly breach their bail conditions. The bill enables the police to uplift young defendants found in breach of court-imposed curfews, and return them to their homes and to approved places of safety—not only so that they cannot reoffend, and to keep society safe but also in an endeavour to keep them from further harm and further reoffending. Police bail is granted by the police before the defendant appears in court for the first time, and so the penalties for failure to answer police bail are increased under this bill to be an offence that carries up to 3 months’ imprisonment, in addition to the current maximum $1,000 fine.

The electronically monitored bail regime will be put into law under this bill, to ensure that it is administered consistently and effectively. Courts have been able to impose electronic monitoring, as a condition of bail, since 2006. The Government has reviewed electronic monitoring of bail, and it is turning out to be an effective and safe way of managing defendants in the community.

Finally, before National came into office in 2008, crime was increasing, gangs were growing stronger in number and in influence, prisons faced a critical shortage of beds, the drug P was at epidemic levels and was seriously damaging communities, violent repeat offenders were being freed on parole, and the courts were truly congested. National is turning that round. This bill is part of that, and I commend it to the House.

I rise to speak on the Bail Amendment Bill. In acknowledgment of the last speaker, Jacqui Dean, I just say what a pity it is that when the House is able to come together and talk with almost one voice on a very important measure—a criminal justice measure, a measure that deals with trying to strike the very important balance between the liberty of the individual and the protection of public safety—a member should rise to try to score cheap political points about criminal justice. The truth is that the only real toughening of our sentencing laws and bail laws in criminal justice happened under the last Labour Government. We have a lot to thank the Hon Phil Goff for for that work, which he himself gave an account of.

When the bail laws were changed in 2000, about 500 defendants were denied bail. That number increased to 1,700 over the 5 or 6 years following the implementation of that legislation. Look at the National Government’s change to the bail laws in 2011 and you see that the impact was on 10 people. Ten people were detained who otherwise might have got bail. Then, if you have a look at the assessment of the impact of this bill, it is that it will affect possibly around 50 people. But we come from the principle of justice where if an innocent citizen is harmed, hurt, or negatively affected by another citizen committing a crime when the justice system might have prevented that harm through proper risk assessment and properly managing a previous charge of that offender, that is still an injustice. So any measure that takes us a step further towards ensuring that that sort of injustice does not happen is a step worth taking, and that is why we support this bill.

The way we handle criminal offenders is vital to public safety. It is the public safety aspect that underpins this legislation that cries out for proper consideration and, ultimately, for our support.

We note and acknowledge, of course, that offenders on bail either have merely been charged or, of course, are in the situation where they have been convicted but not sentenced. But in those situations where a defendant has simply been charged and has yet to be tried or to admit the guilt of their offence, then they are entitled, ordinarily, to a presumption of innocence. However, when we look back over the last couple of decades, the reality is that there has been an increase in the reported instances of those on bail committing other offences, and in some cases very serious offences. It would be a neglect of our duty as a Parliament if we did not take note of that and ensure that the courts and the judges have the tools to make a proper assessment in a bail application of a defendant who comes before them of whether that defendant poses a continuing or real risk to the community in terms of further serious harm.

Clause 8 of this bill expands the number of offences to which the reverse onus that originally appeared in the Bail Bill of 2000 applies. Somebody charged with murder faces the reverse onus, regardless of whether or not they have any previous convictions. That is a sensible balance. Murder is a serious charge, and I think the track record of the New Zealand Police now is that the police do not charge somebody until they are satisfied that there is at least a strong prima facie case. So I think a judge is entitled to look at the prima facie evidence and decide whether or not the defendant poses a further risk to the community.

Then, of course, the reverse onus applies in relation to other serious offences where there have been previous convictions. In my view, that is a good balance to strike in terms of the court exercising its discretion over bail and having the ability to make a proper assessment of the risk posed by a defendant. The new serious offences added by the bill include kidnapping and aggravated robbery, and a handful of others as well. In this situation, the defendant must satisfy the judge that they will not commit any other violent offence or pose a danger to any other person.

These changes, as I think the Minister correctly pointed out, arise largely out of the killing of Christie Marceau and the petition that arose out of that. I think it pays to dwell for just a moment on the details of that case. There is no question that it was an unspeakable tragedy for the Marceau family to lose their daughter and sister and granddaughter in that way.

The facts known about that case ultimately resulted in the defendant pleading guilty to some kidnapping charges for the first incident, and then being found not guilty by reason of insanity for the ultimate act that he committed, which took Christie Marceau’s life. There is no question that the defendant’s poor mental health played a large part in that offending. The sequence of events was that the defendant had committed a very serious set of offences when he detained, effectively kidnapped, and threatened other serious offences on Christie Marceau. Then, when he was arrested, he was detained, denied bail, and kept in custody for a period of time because the court was aware, and the police knew, that his mental health was an issue. Through the detention he had at that time in custody he had his mental health issues addressed and he was placed on medication. Some weeks later, when he had a subsequent bail application, which at his age he was entitled to make, the judge, faced with a call about whether or not the defendant should be given bail because this was not a defendant who had any previous convictions, made a judgment call that was in accordance with the law at the time.

Without wanting to detract at all from the pain and the suffering and the trauma that the Marceau family has felt, there are others who have peddled those events into a case for something other than what appears in this bill. The truth is that the balance that has been struck in this bill means that were there to be another tragic event such as this case—and, hopefully, there will never be—the reality is that even under this bill, it is likely that the court would find it difficult not to grant bail for a defendant of the nature of the defendant involved in the Christie Marceau killing in the circumstances in which that defendant was. That is not about avoiding giving comfort to the New Zealand public at large, but it is a reality about legislation like this drawing an appropriate balance in the criminal justice context.

This legislation also puts tighter restrictions on defendants charged with more serious drug crime and, given the prevalence of it and given the prevalence of criminal offending in relation to drugs such as methamphetamine, that is an entirely appropriate path to take. Then, finally, the bill deals with making more explicit the management of, and the risk assessment associated with, the granting of electronic bail.

When it comes down to it, that is what we in this day and age call on the courts to do. When they are dealing with offenders in this modern age, we need the courts to have the confidence to make an appropriate assessment of risk that those defendants—and some are former offenders, they are convicted offenders—pose to the community, as the judge considers whether or not an ongoing detention is an appropriate status for the defendant to face. That poses for judges an enormous responsibility. They are responsible for community safety, as much as they are responsible for ensuring that the defendant has and can get a fair trial and is not presumed to be guilty before the facts of their charge are properly tried in the court. This is always a difficult balancing act to achieve. So on that basis, and with those comments, we will support this bill.

The stated purpose of this bill we are debating today, the Bail Amendment Bill, is “to improve public safety and to ensure the overall integrity of New Zealand’s bail system. The changes will make it harder for those accused of serious offences to get bail.”—and that is quoted directly from the bill, of course. We are actually not persuaded that the changes that are proposed in this bill will achieve those outcomes. We cannot argue with the intention of the bill, clearly. Those are perfectly sound aims. But, really, this legislation will not achieve those ends. It will compromise some of our commitments to our own New Zealand Bill of Rights Act, and to various international conventions to which New Zealand is signatory, and it will not, overall, achieve the preferred outcomes.

In part, we think the failure of what is intended in this bill to present a long-term solution to problems that undoubtedly do exist is, in part, arguably due to the fact that it is a very reactive bill. It seeks to amend, to shift, and to chop and change a few existing provisions in law. I think we could have taken a lesson from the Australians. We used to hear a lot from this Government about catching up with Australia. That language seems to have been a little more subdued of late. But in this instance we could have usefully looked to the New South Wales Law Commission, which a year or so ago produced a very useful report in that context. It recognised that bail legislation, in terms of the practice of the courts around issuing bail, had been chopped and changed and much amended over time, and it got to a point where it was not satisfactory, and it was not fit for purpose. So the New South Wales Government took a clean sheet approach, basically, and thought “OK, what’s the nature of the problem here?”. That is something we could usefully do here, but unfortunately this bill does not take that approach. It does not take that clean sheet approach to say: “OK, what is the problem? What are the issues? How can we best achieve the outcomes that we need to achieve?”.

In the Australian example they came back to some basic principles, asking what the purpose of bail law was, how that purpose should be reflected in legislation. Then they looked at the workings of bail law in practice and how that might be amended and modified and generally made better. I think that is what is absent from this legislation: taking one step back, taking the big-picture approach to looking at our bail laws. Some of the amendments have value, clearly, and we could support them, but others we cannot support, because they are substantial challenges to the constitutional and legal norms. As we have heard from Mr Goff, for example, the outcomes will actually be very marginal. It will not make significant difference to the outcomes. We think that there should be an approach of supporting a judiciary to interrogate some of the outcomes of decisions that have been made, to seek to establish whether errors were made—errors of judgment—and to ask whether we can put in place means, tools, and processes that will at least reduce, if not eliminate, those errors that have led to some acknowledged tragedies over time.

The New South Wales review came up with a set of key principles about bail law and suggested that those principles were public interest and freedom; securing justice according to the law; the integrity of the criminal justice system overall; the likelihood of harm or threat of harm to people in a relationship or in some other relationship with an offender, or with an alleged offender; the protection and welfare of the community, having regard to the likelihood that a person may offend or commit serious offences if released and not kept on remand; and the interests of that person and their family and associates. They seem to be some pretty sound principles on which to establish a comprehensive set of legislation around bail and its practice and whether or not bail should be allowed to individuals in individual cases.

What bail does not and ought not ever be used to do, of course, is to punish offenders. The granting, or not granting, of bail ought not to be seen as a deterrent to offending. That is not its function; there are other mechanisms within legislative and judicial process to ensure those things. One sees hints of this in this legislation, in the idea that somehow the likelihood of bail or reduced likelihood of bail will be a deterrent and, indeed, a punishment to people who are before the courts on charges, and indeed quite serious charges.

In that context, I think it is worth recalling that the most recent numbers we have, which I think come from 2006 to 2007, tell us that over half of people, something like 56 percent of people, who are remanded on charges and are not given bail are later found not guilty of whatever charges they were facing. That is, more than half of people who are remanded are ultimately found not guilty, despite the fact that they have by that point often spent significant time in custody. That is no trivial matter. The point was made earlier, particularly with drug charges, that it is perfectly common these days to have a year or 18 months on remand before a person actually gets their day in court, before the matter is settled. If people are spending a year or 18 months in custody, that is a huge cost to their family life, their professional life, and their employment. Inevitably, people lose their income and end up in debt. The consequences of that are significant and ongoing, and we need to think very carefully about the extent to which we are imposing that burden on people, given that more than half those individuals are found to be not guilty of the charges that they are facing.

It is not a trivial matter to deprive somebody of their liberty. It is the ultimate sanction of our legislative process, our judicial process, and to make it more difficult for individuals to get bail, based on a response to a very small number of cases, albeit tragic cases, we think is not the way to make good law.

The bill would undoubtedly compromise New Zealand’s international commitments to a number of conventions around human rights, not least of all the United Nations Convention on the Rights of the Child, which says very clearly that, in this case, 17-year-olds should not be treated as adults. Yet within this legislation we see a requirement that 17-year-olds who have previously served a term in prison will be treated, effectively, as adults; the reverse burden of proof will apply in those instances. We think that is very unfortunate. It is also an admission, a quite explicit admission, that imprisoning young people generally does not work in terms of dealing with their offending. We know that prison is actually a cause of crime, and that provision acknowledges that having been in prison means a young person is much more likely to reoffend. Prison is not effective in rehabilitating young people. It does not deter them from crime on the whole. Most often we see that it actually is the first step to a career of crime. Over some 15 or 20 years, typically, a young person in prison will continue to offend until their mid-30s or beyond. The prison sentence has very little effect on them. We see that the provision in this bill around the expectation that 17-year-olds who have served a previous sentence in prison is unreasonable. It is an admission of defeat, effectively, an admission that prisons do not work.

We believe that this bill, and the provisions in it, would reduce judicial discretion. There is always a tension between the rights and powers of this Parliament and the rights and independence of the judiciary—the independence of the judiciary to make its own decisions as it sees fit. We think some of the provisions of this bill take a step too far in terms of reducing the discretion of the judiciary. I forget for now the number of bail decisions that are made each year, but it does run in the tens of thousands. Often the decisions are quite straightforward, around relatively trivial matters, but, nevertheless, judges do get it right most of the time, and I think we need to acknowledge that. To the extent that this House seeks to limit the discretion of the judiciary, I think that is unfortunate and we ought not to be going that way. The Greens will continue to oppose this bill.

It is a pleasure to take a call on the Bail Amendment Bill. Firstly, I would just like to acknowledge Ministers Collins, Tolley, and Borrows, the three Ministers achieving great results in our criminal justice sector. I would also like to acknowledge the Law and Order Committee. I would like to acknowledge our chair, Jacqui Dean, who has done a very, very good job chairing the committee in its hearing of the submissions on this bill. I would like to acknowledge the Hon Phil Goff, Kris Faafoi, David Clendon, Richard Prosser from New Zealand First, and, of course, my own colleagues Jami-Lee Ross, Ian McKelvie, and Lindsay Tisch—you, Mr Assistant Speaker.

This was actually quite a difficult bill to debate and for the committee to have in front of it because, obviously, it deals with victims of crime. We had a lot of brave submitters come along to the committee and make submissions that were deeply personal. Some of them had been victims of crime and others had been supporting families and friends who had been victims of serious crime. It was, actually, really important for us as a committee to hear submissions like those, because we can sometimes live in a bit of a sterile world down here in Parliament in Wellington, and to actually hear submissions like those allows us to get really focused and to understand how law changes can really affect victims and people in the community.

I listened to what Mr Goff said. I understand that as part of the Opposition’s role it does a fair bit of work trying to analyse and work out how much of a real impact legislation is going to make. He talked often about how this bill operates and touches just around the margins. You know, I just cannot buy that. Personally, I think that if we can prevent one other Kiwi or New Zealander from becoming a victim of a serious crime, then it is our duty and our role to make sure that we pass law that can stop that from happening.

I do have to take a short call, so I am going to get to the crux of the bill, which I think is a very, very important part of it, and that is one of the main provisions, which is around reversing the burden of proof. The bill will reverse the burden of proof in bail decisions for those charged with serious class A drug offences, such as manufacturing or dealing in P, as more than a third of defendants arrested for serious class A drug offences actually offend while they are still out on bail. It will also reverse the burden of proof in bail decisions for defendants charged with murder. Obviously, murder is the most serious offence in New Zealand law currently, but it is currently subject to the same test for bail as other, less serious offences. So this, obviously, was a no-brainer. This had to be corrected. We will make this change to reflect the seriousness of the charge of murder.

The current list of specified offences has not been reviewed since the Bail Act was enacted. It does not reflect the risk posed by defendants charged with other serious violent and sexual offences who have a history of serious offending. These were very, very important changes to make, to actually put the onus of proof back on the defendant, to ensure that they could show a judge or a court that they are not going to be a danger, that they are not going to reoffend against the community.

The bill also expands the list of violent and sexual offences that will result in a defendant being subject to the reverse burden of proof if they have a prior history of such offending. We have only to read our papers, watch the television, or turn on the radio to understand that, sadly, our communities are still at risk and exposed to these offenders, who are habitual reoffenders. This bill, with this reverse burden of proof, is going to strengthen the laws around them being able to be granted bail. This is a very good bill, and I am very happy to commend it to the House. Thank you.

I am pleased to rise on behalf of New Zealand First to speak to the second reading of the Bail Amendment Bill. New Zealand First supports this bill. This bill has been examined by the Law and Order Committee, under the fine chairpersonship of Jacqui Dean. I sit on the committee, but at the time that this bill was first referred to it I was not a member, so this is the first opportunity I have had to speak on this bill.

In general terms, New Zealand First finds itself most often in agreement with the National Government on matters of law and order. We find that we agree with it more closely than we do with the Labour Opposition on these matters, and this bill is no exception to that. However, we also find that we frequently feel that the measures taken by National that are intended to improve public safety and law and order do not go far enough. Again, this bill is no exception.

New Zealand First believes that some further changes could have been made within this bill in order to make it an even more robust tool that the courts could use to improve public safety and to protect innocent people from the actions of criminals. But our dissatisfaction with that aspect is not sufficient for us to not support the bill, nor is it enough that we felt compelled to submit a minority report to the House as part of the bill’s report back from the select committee, as Labour and the Greens have done.

We are satisfied that this bill will improve the bail system and that it will contribute to the enhancement of public safety. We hope that in future a New Zealand First - influenced Government, of either potential flavour, will have the opportunity to revisit the subject of court bail yet again, and, when that times comes, we look forward to tidying up some of the aspects that we feel to be insufficient at this time.

New Zealand First supports the provision in this bill that will introduce a reverse burden of proof for offenders charged with serious violent offences and class A drug dealing. We support the provision that will remove the strong presumption in favour of bail for defendants aged 18 and 19. We are not particularly happy that the removal of the strong presumption in favour of bail will not extend to 17-year-old defendants as well.

We do not agree that the international obligations referred to, namely the United Nations Convention on the Rights of the Child, should take precedence over the requirements and processes of lawmaking here in New Zealand. New Zealand First believes strongly that laws applied in New Zealand should be made in New Zealand, with the realities of our society and the rights of our citizens being placed first and foremost. We do not believe that the United Nations should be making our laws or influencing our lawmaking processes.

We are also not happy with the provisions that will empower the police to arrest only those young defendants who they believe have significantly or repeatedly breached the conditions of their bail. New Zealand First believes that, as a matter of principle, any breach of bail should be regarded as significant and should be classed as grounds for arrest.

We understand the objections raised against this position by the Labour Party and some submitters that a person on bail has not been convicted of a crime and should not, therefore, be penalised for any so-called minor breach of the bail conditions imposed prior to a court appearance. We understand that objection, but we do not agree with it. We hold—I reiterate—that any breach of bail conditions constitutes an offence in its own right, and the police should be empowered to arrest a person on that basis. Indeed, as the committee’s report states, we were told that some young people disregard their bail conditions because they are aware of the restrictions on their arrest—they play the system. We do not believe that a requirement for breaches of bail to be significant or repeated will be sufficient to deter them from doing that.

We note that the changes to bail that this bill will bring about will have an impact on prison capacity. We accept that reality as, we believe, do the majority of New Zealanders. There will be more required of the prison system. There will be more beds required. There will be a greater cost. We accept that cost. We accept that it is going to cost more. But we believe in protecting New Zealanders and in keeping people safe, and if it costs more to do that, then it costs more.

There is a cost in not locking people up as well, which is often not taken into account when the cost of running prisons is being talked about. There is a social cost and there is a financial cost—the cost of dealing with offenders when they commit further crimes while on bail, and the cost associated with helping and assisting their victims.

Sometimes the cost of not locking someone up is unacceptable, as we saw with the tragic case of Christie Marceau. The committee received the Christie’s Law petition at the same time as we were considering the bill, and, because the appeal in the case was still before the courts, there were aspects of it that we were not able to take into account. There remain some deficiencies in the bill with regards to the concerns raised by Christie’s Law petitioners, which will not be addressed by this new law. That is something that I am sure all members of the House find as unacceptable as do those fine people who campaigned on behalf of Christie Marceau and her family.

I salute those brave people. I believe that this House owes all of them a debt, and we must undertake to revisit the matter of bail yet again, as soon as is practical, in order to address the deficiencies that still remain and to put in place the learning that we took from considering the petition. I believe that the Government must sponsor such a change, and I call on the Minister of Justice and the members opposite to give this possibility serious and urgent consideration.

In closing, I would like to highlight an issue that the Labour Party raised in its minority report, and with which we in fact do agree. Labour says: “A critical issue that the Government must address is delays in the court system.” Indeed it must. New Zealand First agrees with Labour that the time taken from arrest to court appearance, and from court appearance to trial, and the length of too many trials is far too long. Justice delayed is justice denied, I say to this House. Two weeks may be an acceptable time frame but 2 years is not.

Delays in the court process system put great pressure on judges to grant bail, rather than keep accused people in custody, and this in turn results in more offences being committed by people who should be locked up, and in innocent people being hurt, raped, robbed, and, in some cases, murdered. This is not good enough, and it is the Government’s responsibility to address this issue, to resource the courts sufficiently, and to look at matters of procedure that lead to unacceptably long delays. That said, we believe this bill is a step in the right direction, and we are happy to support its passage into law while reiterating that the deficiencies in it still need to be addressed and should be addressed as soon as possible.

Tēnā koe e te Rangatira. E te Whare e tū nei, tēnā koutou, tēnā koutou, tēnā tātou katoa. This Bail Amendment Bill is another in a list of bills introduced to this House by this Government with a view to improving and reforming the law and order sector in New Zealand. There is an extensive list of those bills, and many of them have been successful.

The Law and Order Committee spent much time on this bill, receiving a large number of submissions, many of which related directly, as has been said by a number of speakers already, to the Christie’s Law campaign. The chairperson of this committee had a very difficult task in, firstly, sifting through those submissions and appropriately placing them, and, secondly, dealing with what were some very testing submissions during the course of the select committee process. Some of these submissions described some very challenging and tragic issues, so I congratulate the chairperson, Jacqui Dean, on her performance in handling this select committee. I would also congratulate the select committee on what was a very difficult task for its members. I found it quite testing at times.

The select committee has reported back to Parliament a number of sound recommendations. A number of those have been dealt with already. I would like to deal with just a couple of them in the course of this short speech. One is related to defendants under the age of 20, and David Clendon referred to this in his speech. I would remind the House that these people are not amateur criminals. Many of them are hardened criminals, and as we went through the submissions on this issue, we came to the conclusion that a lot of these young people really need to be dealt with very firmly by the courts, and we needed to give the courts the opportunity to do that. That is the first issue I wish to deal with.

The second one relates to the amendment to the Children, Young Persons, and Their Families Act, and it is the power to arrest a child or young person more than 14 years of age and less than 17 without a warrant where they have been released on bail and have repeatedly breached their conditions. Again, this refers to the issue that David Clendon raised. These kids, as you might call them, are by no means amateurs, and I think we needed to deal with that strongly too. The reverse burden of proof and a number of other issues have been dealt with very competently earlier in this discussion.

I want to briefly touch on some issues that Phil Goff raised in the course of his speech, related to numbers. He used a lot of numbers, all of which are historical. I contend that changes this Government has made will transform those figures. You see, our objectives of reducing crime and the effects of crime and the rehabilitation of prisoners and so on are having a great effect and they are working, and the Bail Amendment Bill will add to that.

Our judges carry a great deal of responsibility. They often carry the community’s safety with them as they make their decisions on bail. Our role is to give them the best possible tools to achieve that. This Government has a great record when dealing with law and order, and I am pleased—in fact, I am quite proud—to be part of a law and order section in this Government that I think is achieving great results. I have no problem in supporting this bill as it proceeds through the House. Thank you.

I rise to speak on the Bail Amendment Bill. I wanted to start with a quote from some briefing papers to a former Minister of Justice. “It was stated that the problem of offending on bail could be addressed by remanding more people in custody than at present. There are, however, several major difficulties with this approach. The first is that it remains difficult to predict with any certainty who will offend while on bail, and, secondly, it is difficult to see how a greater use of custodial remand could be based in principle simply on the seriousness of the offence since it picks out one variable and ignores others, which the research concludes are much more important in determining the rate of offending while on bail. For example, only 2 percent of those charged with a violent offence committed a violent offence while on bail. Research indicates that a large proportion of those remanded in custody who are subsequently convicted do not receive sentences of imprisonment.” That report was to the then Minister of Justice, the Hon Douglas Graham, in 1991. I spoke on the Bail (Miscellaneous Provisions) Bill 22 years ago, and we are still debating the same issue today.

I think that it is possibly time for a consideration of bail laws on a basis where, basically, we get all parties together to actually consider what the evidence says and what would be effective in terms of identifying what the drivers of crime are. I attended a ministerial meeting on the drivers of crime when the Hon Simon Power was the Minister of Justice, and very little has flowed from that, and yet such a good beginning was promised at that meeting when we had people presenting evidence on what were those fundamental underlying drivers of crime. Yet we continue to deal with the ambulance at the bottom of the cliff instead of building a really strong fence at the top of the cliff. I would like us to think about bail in that sense.

💬 Mike Sabin: What was that? Crime at a 30-year low? What’s that all about, then?

The member is just really defeating his own argument. The point that I am making—

💬 Mike Sabin: Well, hold on—if there is less crime, is that not an example of more activity at the top of the cliff?

Well, why are we passing this legislation without the evidence to back it up? I heard members on the other side of the House basically saying that as long as we save one person’s life, it does not matter how much we spend, and that it does not matter how many people we lock up as long as one person’s life is saved. I think that Parliament owes this issue much more in-depth attention than those members are prepared to give it, because they seem to be debating around the emotionalism, which is always the case when one is presented with a petition, as the Law and Order Committee was in this case.

I sat on the Justice and Law Reform Committee, as it was back in 1991, when it considered the bail legislation back then. We are always hearing from people who present a very compelling case based on the tragedy that has befallen them, and we are right to listen to their concerns. But we are not responsible unless we actually address them by doing something that is effective and actually makes a difference, so that those lives that are lost are not lost in meaningless political debate that does not actually advance the cause. That is simply the point that I am making.

That being said, in 1991 we voted against the Bail (Miscellaneous Provisions) Bill; today we are voting for, with reservations, the Bail Amendment Bill. I hope that the next Parliament does decide to make more progress in this area. I think that would do more to honour those who see themselves as families of the victims of crime than political rhetoric.

I take exception to what the member resuming her seat, Lianne Dalziel, has just said about more activity at the bottom of the cliff and not at the top because if there is one Government that has actually done something about the drivers of crime, it is this Government. Yet the Labour Government sat for 3 years in a position to be able do something about it—

💬 Hon Member: 9 years.

—sorry, 9 years. So that is three sets of 3 years. It sat for 9 years and did nothing. It did absolutely nothing. Labour is a very effective Opposition party because Labour members like to sit on the Opposition benches and criticise the fact that we are actually doing something—the very something that they never did themselves. That is a constant irony that we see, and I think that that is something that New Zealanders have completely woken up to. They actually realise that the disingenuous words are never followed by any real actions from that party.

This Government has got on and made the changes that are required at the top of the cliff but is also doing things at the bottom of the cliff. The reality is that laws are made for law-abiding citizens and there are some citizens in this country who feel that those laws do not apply to them. The criminal justice system and the corrections facilities must deal with those people.

There are some very, very important changes being made in this Bail Amendment Bill, in its second reading. As a former police officer, and certainly as a detective dealing with some of the more serious crimes—reversing the onus of proof, or the burden of proof, back to the offender is a very, very positive move because there are so many who will reoffend, knowing full well that the likelihood of consequences is insignificant and diminished.

There are many who are suffering under the burden of drugs like methamphetamine, and the idea of remediating their criminal activities will simply not enter their heads. They are driven by other forces. The ability for the criminal justice system to be able to put the onus back on that offender, back on that defence team, to say “Well, they must prove that this individual will not reoffend.” is a very positive move.

We have also seen the idea that if youth aged 17 to 19 years who have been in prison—and make no mistake about it, people have to do something very significant at that age to be in prison—come out of prison and they reoffend, then they should be treated as adults. They should be treated as adults because clearly they are in a very troubled state and in a position where they simply do not get it. They must not be in a position where they can single out—

💬 Jacinda Ardern: They don’t get it, so just moving the line helps!

I am not going to listen to what that member says, because if we are talking about disingenuous chance, that member knows how to sing them long and loud.

💬 Jacinda Ardern: Tell me what you mean.

There are some very good—

💬 Hon Member: Motor mouth, with no evidence.

Bring it on. There is some very good—come on, Mr Faafoi, you are supposed to speak on this sort of stuff—work being done here with youth.

The changes to the granting of bail as of right are also very positive, because so often, as a policeman, I saw people bailed because the law said that they had to be bailed. The rights should remain with the victims, and that is what this bill is about. It is about putting the rights back with the victims.

I understand the next call is a split-call.

I am glad that Mike Sabin has had the opportunity to have his daily rant. There are some things that I have agreed with him on, and there are some things that I have disagreed with him on. I will get to the stuff that I agreed with him on soon; it will be a very short part of my speech. What I did disagree with him on is that that side of the House has got some kind of longstanding record on law and order. It relies on it a lot, but it is actually quite shallow. He says that on this side of the House, any moves that we have taken in this area have been—I think he said we were sitting on our hands. But, as Mr Goff pointed out in his speech, the changes that the last Labour Government made in the areas of sentencing, parole, and bail are much more fundamental than the changes that are taking place in this bill, the Bail Amendment Bill, so I fundamentally disagree with Mr Sabin on that issue.

I just want to begin by acknowledging the other members of the Law and Order Committee. I know we have had our challenges as of late, but I do see Mr Mitchell; Mr McKelvie; you, Mr Assistant Speaker Tisch; David Clendon; and also Richard Prosser. The process of listening to the many submissions on the Bail Amendment Bill, I think, as Mr McKelvie said, was challenging. We had a lot of submitters who had very emotional stories to tell, and I think that all those people who did come through with some personal stories are very, very brave. I did want to point out two people—the first one being Tracey Marceau, the mother of Christie Marceau, and also someone who at the session we had in Auckland stood out for me, and that was Charlie Borrell, the father of Augustine Borrell, a young man who was killed by someone who was out on parole.

As has been said, the Labour Party will be supporting the Bail Amendment Bill. One area that I do agree with Mr Sabin on is that we do support the reverse onus of proof operating in cases such as those with, I think it was, class A drugs and serious offences. We support—[Interruption]

Excuse me?

💬 Hon Tau Henare: You heard.

I prefer not to listen. We do support that reverse onus of proof, because that will put more of an onus on the judges to look more carefully, especially at the high-risk cases, when using their discretion about applying for, or whether or not to give, bail. I guess that in the case of Christie Marceau—and that is certainly one case we heard a lot about during the submission stage—that would have made a difference.

Mr Sabin also talked about the discretion of police to arrest youths without an arrest warrant. We also do support that, with a proviso, and this is something that Youth Court judges said needs to clearly exclude the trivial while providing the police with the ability to be effective when faced with serious and significant breaches of bail with young people. As Mr Prosser said in his speech as well, we think an issue that the Government does need to address is the serious delays in the court system, which are creating long periods of time for people waiting for their cases to be heard and which are increasing the likelihood of offending while out on bail.

Another thing—a practical thing—that the select committee heard was around a risk assessment tool that may be able to be provided for the judiciary. I understand that the Department of Corrections does have one called ROC*ROI, and there was some talk about being able to see whether we could implement a similar risk assessment tool for the judiciary to use. Hopefully, that is something that is followed up by the Government when it starts implementing some of the changes in the Bail Amendment Bill, because we think that that is one practical way that could help.

Just to finish up, this is a bill that we hope will make a difference to a lot of people who we do not want to have the same experience as the people who came to us and submitted to the select committee.

Tēnā koutou, tēnā tātou, e huihui mai nei ki roto i te Whare. I would like to add to my colleague David Clendon’s voice in offering the Green opposition to this Bail Amendment Bill, recognising that that voice is in a minority in this House.

There are some key reasons that we oppose this bill. One is that it widens the range of offences that call for a reverse burden of proof, despite the challenge that this poses to that basic principle of law that a person is innocent until proven guilty. We also oppose it because it significantly reduces judicial discretion when hearing bail applications, despite the exercise of discretion also being a very basic principle in judicial practice. Thirdly, it compromises the presumption in favour of bail for those aged 17 to 19 where the accused person has already served a term of imprisonment. That is despite there already being a provision within the Crimes Act that allows for the detention of people in this age group, which really means that no extension of power to detain is necessary. So it signals to us that this is about more of a dog whistle to those who have that misunderstanding of what works in this system and the sense of needing to get tough on crime and the misunderstanding that that kind of approach will actually make a difference in our community, when we know it will not.

I would like to also note the Human Rights Commission submission on this bill, when it looked at whether there was a basis for going against the New Zealand Bill of Rights Act. It noticed: “Statistics demonstrate that most people who commit murder do so only once and the figures appended to the [regulatory impact statement] itself indicate that homicide and related offences amounted to only 0.1% of offences committed on bail from 2004-2008. The case for change therefore effectively relies on a reverse onus preventing less than one instance of a serious violent offence a year.” Therefore, that is hardly the basis for undermining the New Zealand Bill of Rights Act for many, many people.

I would also like to point out and reinforce what my colleague reminded us: that in cases where people are remanded on bail, 60 percent are found not guilty, and that in terms of remand people are now waiting between an average of 1 year and 18 months for a hearing. So I just really want to ask people to think about what those two things together mean.

I would like to now speak more specifically around the provisions in this bill and what they mean for young people. As I have highlighted, we believe that the provisions are more of a dog whistle than anything substantive to address reducing crime. I would like to refer this House back to a piece of meta-analysis research that was done by the Ministry of Youth Affairs in 2000 on the consideration of youth crime. It was titled Tough is not Enough—Getting Smart about Youth Crime. It noted that effective interactions with young people will touch on the four cornerstones of a young person’s life, which are family, school and work, peer group, and neighbourhood, and be fair and respectful in terms of treatment by the youth justice system. It noted that those kinds of approaches will make a positive difference. But, sadly, arrest has little positive impact, and particular types of sentences seem to have little impact on offending, except for the situation of probation or restitution and fines. Things that really, really struggle to work are residential interventions, and I think we can consider prison the most obvious example of a residential intervention.

Getting tough on crime offences almost always fails, and the primary reason for that is that a lot of the young people who are most at risk of being serious offenders are young people who have come from situations where physicality and physical responses and tough responses to anything were the norm. These young people have been inured to that type of approach. What will make a difference in their lives are strength-based approaches. Sadly, this bill is another example of a dog whistle to conservative interests.

Thank you, Mr Assistant Speaker. I appreciate the opportunity to speak on this bill, the Bail Amendment Bill. This Government’s focus in the law and order area has been all about ensuring that New Zealand is safer for New Zealanders. We are seeing great results. Crime is at a 30-year low. We have got more police officers on the street. Public confidence in law enforcement in New Zealand is on the increase, and long may it be so. But this bill is all about ensuring that we have our bail laws correct. It is an important thing that we ensure that we both balance the rights of those who are rightfully innocent until proven guilty but also ensure that New Zealand’s streets are safe for those who want to go about their daily lives in the normal manner. The changes in this bill will help to achieve that. The changes in this bill will ensure that New Zealanders are kept safer.

Firstly, we have got a reverse burden of proof, which will be beefed up around murder, and I think that anyone out there in New Zealand who looks at the bail situation for accused murderers would appreciate the fact that for a first-time offence an individual is subject to a reverse burden of proof. They will also appreciate the additional offences that will be included in the list for the reverse burden of proof for people who are accused of a crime and have previously had some time inside at Her Majesty’s pleasure. I am also particularly pleased that in the Law and Order Committee we had quite a long discussion about the situation for 18 and 19-year-olds, and now they will be subject to the adult test for bail at the age of 18 and 19, rather than the youth test. I think that most New Zealanders would accept that the age at which you become an adult is 18, and therefore the age at which you should be subject to the adult test for bail should be at 18 not at 20.

I am pleased, though, to follow the Green Party member Jan Logie, because, like a number of members on this side of the House, we are actually quite offended by some of the comments the Greens have to say. I want to read out for the record what the Green Party said in its minority report. It said: “Many of the provisions contained in the bill appear to be a purely political response to expressions of public concern about crime …”. So, for those out there who are listening at home, the Green Party thinks that ensuring public safety is a prime consideration when it comes to bail for murder is purely a political response. It also said: “Unfortunately much of that concern is based on misinformation aided by a vocal minority calling for excessively punitive measures,”.

I do not know whether the Green Party members were actually listening during our hearings, but we had family members who had suffered significant losses at the hands of criminals. We had in front of us mothers and fathers whose children had been killed by offenders who had committed heinous crimes against their children. I would not call them a vocal minority. I would call them New Zealanders who are hurting. I would call them New Zealanders who want to ensure that the ratbags and rascals who commit crimes against their family members are given the proper test for bail. I would call them New Zealanders who want to ensure that this country is a safe place to raise a family, a safe place to live in, a place where we are not soft on criminals, and not a place where we have politicians who care more about reducing prison numbers than ensuring that our streets are safe. This bill is an important part of ensuring New Zealand is safer for New Zealanders, and it should be passed by this House.

The question was put that the amendments recommended by the Law and Order Committee by majority be agreed to.