Bail Amendment Bill

I rise to speak at this very important phase of the passage of the Bail Amendment Bill. As will be apparent from the earlier stages of the bill, Labour supports this bill, but with considerable concern and reservations about some aspects of it. We understand, of course, the growing community concern about the number of offenders who, having been granted bail, continue to commit offences while on bail, and, in particular, those offenders who have previous convictions for serious offences who find themselves offending again and facing a bail application. So the legislation, in response to community concerns, now reverses the onus for an applicant for bail, and requires in some circumstances the applicant for bail to establish that they should be granted bail or that they are not a risk should bail be granted.

There are important principles that need to be balanced, the least of which is the fundamental principle in criminal justice, which is that a person charged with an offence is considered innocent until proven guilty. Next is the principle that the courts have responsibility in managing offenders, both pre-conviction and post-conviction, to protect public safety. One of the balancing factors that combines or draws those two together is that the minimum restraint necessary that is consistent with those two principles should be applied to a person, so that a person who is charged with an offence yet to be established but who poses a risk to public safety should face the minimum restraint necessary to ensure public safety. Another very important principle, in my view, is that judges, with the best information available to them, must be regarded as being in the best position to judge the appropriate course of action. It has become increasingly common and popular for there to be widespread commentary on the decisions that judges take, but the reality is we seldom see in the public arena all of the information that a judge has before himself or herself in making that decision. All those factors need to be balanced to determine what is an appropriate course of action to take in the contemporary or latter-day circumstances of the administration of criminal justice.

On those grounds and on that basis we accept that there are grounds for reversing the burden of proof in an application for bail in some cases. One clause in this legislation refers specifically to the onus of proof being reversed in relation to charges of murder. The starting point is that bail will not be granted but that a judge may grant bail. Then there is the clause that deals with a range of very serious offences. There is a heightened burden for those offences as well. It needs to be made clear, we accept, that this bill, should it be passed, does not deny bail—it certainly does not deny bail automatically—to any offender, but it does increase the threshold that has to be met by an offender before bail is granted where there is an obvious risk. That risk is usually established by looking at their past track record, and reoffending while on bail certainly increases the risk, which a judge is entitled to take into account. So we understand that, and we accept that.

We understand also that the bill ensures that police bail is now to be managed and treated in largely the same way as court-managed bail. So we accept those provisions. They strike a good balance of the principles that I set out earlier.

There are three particular areas where we are concerned. They are the Supplementary Order Papers—one from the Minister of Justice and two from the member Richard Prosser. There are many technical changes in the Minister’s Supplementary Order Paper 339. There is one that causes me particular concern, and that is the proposed new section 30E in the Minister’s Supplementary Order Paper. Whereas at the moment the police are responsible for monitoring those who are given electronic bail while on remand, this Supplementary Order Paper says that the Minister of Justice can give the authority to manage electronic bail to either the Commissioner of Police or the Chief Executive of the Department of Corrections. It is not clear why both should be given this responsibility. But even if we were convinced that it was a good idea that it should be shared between those two departments who lie at the heart of our criminal justice system, the next question is on what basis that discretion to grant authority for monitoring electronic bail should be given.

There is no signal given in the legislation as to how the Minister would exercise that discretion. Is the discretion going to be exercised in relation to different regions of New Zealand? Is it simply going to be that the police can monitor electronic bail and the Department of Corrections can as well, and they just sort it out amongst themselves? Is there going to be a memorandum of understanding between the two departments? What is the story going to be? What is the basis on which the Minister will exercise the discretion to give the authority for monitoring electronic bail to either department or both? I think it is fair that we hear what those grounds might be and what the distinction might be between the two departments. We might hear from the Minister what she considers would be the most effective arrangement and get a clear steer on how that discretion might be exercised. Is it going to be the police for some situations and the Department of Corrections for others, and, if so, what? That signal is often given in the primary legislation, and, in fact, it should be there in the primary legislation.

In relation to Supplementary Order Papers 334 and 335, I simply want to record that we are opposed to those Supplementary Order Papers. They are Draconian. They do not achieve any sort of balance in the administration of justice when it comes to bail applications. They reduce the threshold against which bail might be granted. Supplementary Order Paper 334 deals specifically with the situation where somebody is charged with an offence but not yet convicted. The bill, as it is at the moment, says that if an offender has a conviction for the particular offence for which they are now facing another charge and are seeking bail, then it is a relevant factor for the judge to say the onus starts with them and the starting point is that they do not get bail. Mr Prosser’s Supplementary Order Paper 334, however, would say it does not matter whether or not the offender has a conviction; simply being charged is enough. That is so far contrary to the principle of innocent before proven guilty that in our view we simply cannot abide by that Supplementary Order Paper and we will not be supporting it.

The second Supplementary Order Paper in Mr Prosser’s name, Supplementary Order Paper 335, deals with younger offenders and the situation in which, in terms of assessment of being a risk, an offender has not been imprisoned for an offence but has a conviction for an offence for which imprisonment is a possible sentence. So they may not have been in prison at all, which suggests that their offending would be at the lower end of the offending, and does not suggest a greater risk if that offender is facing a subsequent bail application for a similar offence. We say that that simply draws the bow way too long and gets the balance way out of kilter, so we will not be supporting those Supplementary Order Papers.

On the whole, bearing in mind the principles that we have articulated, we support this bill but do simply remind the Committee that when it comes to criminal justice, our job is to make sure that the law ensures not only that the guilty are convicted and are dealt with but that the innocent are treated properly and appropriately and their rights are properly protected.

I am pleased to rise on behalf of New Zealand First to take a short call in this, the first part of the Committee of the whole House, as we give consideration to the Bail Amendment Bill. New Zealand First supports this bill. We support the broad aims of the bill and we welcome its passage through the House and into law. As I have alluded to in the earlier debates on this bill, if New Zealand First has any reservations, they would be to say only that in some certain key areas we do not believe that it goes far enough.

We accept that there were and are some misconceptions surrounding the bill in the eyes of the public, and that some of this may have come about because of a gap in understanding between what the public might rightly expect from such a bill as this and what this bill is able to actually deliver. Some of that gap may have come about because of publicity surrounding the tragic events of the Christie Marceau case. As we know, there are elements of the Christie’s Law petition that the select committee on which I sit, the Law and Order Committee, was not able to consider because the appeal in the case was still before the courts. Because of that, and for other reasons, it remains our hope that the Government will see a need to revisit the matter of court bail again as soon as is possible, in order to address these concerns and others that have been raised during the submissions process. We would look forward to working with the Government again on any such revisited bill.

In the meantime, however, I have introduced two Supplementary Order Papers to the bill, and I want to take a few minutes to speak about these. The first is Supplementary Order Paper 334, which seeks to amend clause 8. I quote from the explanatory note: “This Supplementary Order Paper amends the Bail Amendment Bill. The Bill added 6 more offences, including kidnapping and aggravated burglary, to the list of now 18 offences that are subject to a reverse onus of proof (all strike offences). But the threshold for that is still too high, as it requires the accused to have been previously convicted of one of those specified offences. This Supplementary Order Paper proposes the bail application should not require a previous conviction. The reverse onus of proof should apply upon being charged with one of the 18 specified offences.”

This Supplementary Order Paper also dovetails with my second Supplementary Order Paper, Supplementary Order Paper 335, in that it specifies an applicability to persons aged 17 years and over. Supplementary Order Paper 335 seeks to amend clause 9 by replacing in clause 9(1) the words “sentenced to imprisonment.” with “convicted of an offence punishable by 3 years imprisonment or more.” It states: “The Bill proposes that the strong presumption in favour of bail remains in place for 17 year olds unless they have previously been imprisoned. 18 and 19 year olds will now be subject to the standard adult tests … This Supplementary Order Paper proposes the threshold should be lowered and based on the seriousness of the offence of the conviction …”—rather than being based on the imposition of a sentence of imprisonment for that conviction, which may not necessarily always have been the case—“A 17 year old’s application for bail should stand or fall on its merits, rather than being strongly presumed.” It is our contention that a 17-year-old having been convicted of such serious offences would indicate that that person was no stranger to the court system, and the imposition of a sentence of imprisonment is too high a bar in terms of their assessment for bail, given that a conviction has already, in fact, been entered.

New Zealand First hopes that all members, particularly those from the Government side, will give consideration to supporting these two Supplementary Order Papers in my name, as we believe that they will strengthen and improve the bill. New Zealand First supports this bill. Thank you.

The Labour Party supports the Bail Amendment Bill. It supports it because the net effect of the bill is really to toughen the provisions for giving bail on the margins where people have the greatest likelihood of reoffending while on bail. This bill does not make a huge difference, to be absolutely frank about it. What we found in the Law and Order Committee, particularly with the reverse burden of proof being placed on the defendant, was that this bill might result in another 50 prison beds being required. Something like 350 people a year, I think, might be affected by this. If you take that 350 people in the context of how many people are granted bail, it is in excess of 91,000 people getting bail a year, based on the 2009 figures.

So we have a bill here that will make it more likely for a relatively small number of people not to be granted bail when they are accused of a serious offence. I guess we should acknowledge that the Minister of Justice’s bill makes some difference, as against that of her predecessor, Simon Power, who in the last Parliament brought in a bill that had the net effect of influencing the imprisonment of 10 people a year. That bill was, as a well-known professor of criminal law said, simply window dressing.

But I want to say to the Minister that it is a fairly soft measure. If you compare this with the legislation that came in in 2000, which I as the then Minister of Justice was responsible for, you will see that that saw a 200 percent increase in the number of people who were remanded in custody rather than being granted bail. So that Bail Act 2000 made a huge difference. Before that, the level of offending on bail was pretty rampant. There needed to be a toughening-up, and that toughening-up occurred.

But I want to say I am not being particularly critical of the Minister, because if you look at the figures for the number of people who have been charged with an offence whom we remand in custody, you will see that in New Zealand it is 43 per 100,000. That compares with Australia where it is only 30 per 100,000, the United Kingdom where it is 25, and Finland where it is 10. So in relative terms our bail laws are reasonably tough.

Having said that, why would Parliament want to support a further toughening at the margins? Well, the reason why we support a toughening at the margins is that there is still too much offending by people who are out on bail. Judged over the period of time from 2006 to 2010, the number of those who offended again while on bail added up to about 17 percent. That is nearly one in five. A lot of those offences were relatively minor offences, but some were not. For example, if I look at the figures during that 5-year period, I see that 23 people committed murder while they were on bail and were subsequently convicted of murder, 21 committed homicide, 763 were found guilty of sexual offending at the time they were on bail, and quite a large number, 7,140, were convicted of acts that were intended to cause injury. If you take those figures as a proportion of the 450,000 people who were bailed over that 5-year period, they do not seem to be a lot. But if you are the victim of that offending, or a member of the family of the victim, then that is very serious.

We heard cases before the select committee where families came along to the committee absolutely aggrieved, and understandably so, that somebody who was out on bail for allegedly committing a relatively serious crime again offended in a serious way while they were out on bail. When you look at those figures you see that New Zealand still has to do better. Seventeen percent of those who are out on bail still committing offences is a figure that is too high.

So this bill works on a number of different areas. The first point that I want to make is an important point, and that is that there is nothing in this bill at all that removes the discretion of a judge to grant bail. That is important because every case is different, and there has to be flexibility for the judge to look at all aspects of the case to make a decision, rather than the law being too prescriptive. So there is nothing in this bill that takes away the discretion of the judge.

But what the bill does do is reverse the onus of proof. Normally there is a presumption of bail, and that is important. For centuries our British system of justice has said you are innocent until proven guilty, and if you are innocent until proven guilty, then there has to be a presumption of bail. But, of course, nobody in this House, and certainly nobody on the bench, is naive about that. If a person has allegedly committed an offence and, one, they might present a serious risk of reoffending, or, two, there is a serious risk that they may abscond, or, three, there is a serious risk they might interfere with witnesses, then judges use their discretion to say that that person will be remanded in custody and they will not be released on bail. So that does not change. That is the main reason why judges, under the existing law and under the future law, will make a decision either to grant bail or to remand in custody, or rule that the defendant spend some time on bail and maybe some time in custody.

But there are six areas where changes are made. Firstly, if you are alleged to have committed murder, the most serious offence you can commit, there will be a reversal of the burden of proof. That will not actually change things a lot on the ground. If you look at the statistics for those who are alleged to have committed murder, two-thirds of them are remanded in custody anyway. But what this bill requires is that the judges look a little bit more carefully at those who they might release on bail, albeit charged with the serious offence of murder.

The second thing the bill does is build on the list of repeat violent and sexual offences that I put in the legislation in 2000, where there will be a reverse burden of proof—a burden on the defendant to prove that he or she is not likely to offend, rather than the burden being on the police to persuade the court that he or she is likely to offend. Previously, for murder, attempted murder, manslaughter, sexual violation, wounding with intent, aggravated wounding, or use of a firearm in a crime, then you had the reverse burden of proof. This list is added to by including other serious offences: sexual conduct with a child, kidnapping or abduction, aggravated burglary, and assault with the intent to rob. If you have been previously convicted of those offences and you are charged again with a similar serious offence, the reverse burden of proof makes sense. I have no objection to that at all.

The second key area that it changes is in regard to serious drug charges. We are talking here about class A drugs. The alarming thing about the statistics here is that of those charged with committing a class A drug offence, 34 percent of them are subsequently convicted of another serious drug offence while on bail, and that is simply too high. More than one-third are convicted of a further drug offence, and that is another reason why in this area the reverse burden of proof can be justified.

The third area relates to young defendants. There has been a strong presumption in the past of bail for those who are 17, 18, and 19. When we considered the 18 and 19-year-olds, we considered that since they were adults in every other facet of the law, there was not a strong case for treating 18 and 19-year-olds differently from any other age group. In fact, the offending by 18 and 19-year-olds tended to be higher than in other age categories. So that strong presumption in favour of bail is removed in that area, and likewise for 17-year-olds who have been previously imprisoned. Just to finish off, I say that I would not want to see 17-year-olds normally placed in jail if there is any alternative, because they are young and impressionable. But the statistics also say that if they are 17 and they have previously been imprisoned, then there is a very, very high chance that they will reoffend, and therefore that presumption of automatic granting of bail should be removed.

The other things are relatively minor. There are changes in terms of police bail, to bring it in line with court bail. That is supported by us. The bill gives a statutory basis to electronically monitored bail. Electronic monitoring has proven very effective in reducing offending by people while on bail. This gives a statutory basis to it. There is no problem with that. And there are some relatively small amendments made in relation to bailable offences that are bailable as of right, removing from that category offences for a false declaration and providing the necessaries of life.

The thing I want to finish on is to say that this is a piece of legislation that is not radical. It has a relatively minor effect. I think it will be helpful. But if we really want to deal with the much wider problem of offending on bail, then we need to look at the delay in people actually having their cases heard in court, because if you are on bail for a longer period of time, obviously the offending on bail will go up. That absolutely has to be looked at. I think you, Mr Chair, and I both sat in at the District Court in Auckland and watched the production-line nature of bail applications being heard. Any assistance we can give to judges in terms of risk assessment tools will be important.

The other thing that I think is particularly important is that where decisions to grant bail are, in hindsight, wrongly made, we need to have a better system of reviewing those decisions that the judges have got wrong. I am not proposing here an interference in judicial independence. I am saying that the head of bench should probably have a better way of reviewing cases where wrongful decisions are made to see what we can learn from those decisions to stop mistakes happening again. With those comments, I say that we support this bill.

As we go through what I suspect will be quite a brief Committee stage of this Bail Amendment Bill, it is worth just reflecting on the progress of the bill overall through the House, which has been rather a stop-start, hurry up and wait affair. It was introduced in May last year, and 3 days later we found ourselves in the midst of the first reading, having had very little time to look at a bill that does affect quite a range of primary legislation. Some quite elaborate and some quite important changes are being proposed here, and we had 3 days before the first reading. It then went off to the Law and Order Committee, of course, and that was a 6-month process, which is as it should be. I will make some more comments about that process later. Then we sat on it for some 8 months. Nothing happened. And now here we are entering urgency—this bill is named in the urgency motion—and we will be doing the third reading tomorrow, I suspect, in urgency. So I just reflect on the fact that it has been a very strange process of getting this bill through the House, and one does wonder why it has been such a disjointed affair. As I say, it was a great rush to start, then a considerable period of nothing going on, and now here we are entering urgency to get through the remaining stages of this bill.

Our major objection to this bill is, as Mr Goff has just said, that it will not actually do a great deal. It will have some effect around the margin, but it will not make any substantive or substantial change to the outcomes of bail hearings, although there will be one or two decisions that may be swayed by it. That, in a sense, is unfortunate because we probably do need to have a hard look at some of the admitted shortcomings of some bail decisions—a very, very small number, it must be said, in the context of some tens of thousands of decisions that are made each year by our judiciary. But, nevertheless, some of the consequences have been severe and tragic.

This bill is a meddling bill. It is a fiddling around the edges sort of an approach, and one has to look only at the way in which it has laid out the provisions of the bill. They are very bitsy—a tweak here, a shift here—none of them actually contributing much to the stated aims of the bill, the stated objectives of the bill. But, nevertheless, there we are, and that is what we are confronted with.

We had a large number of submissions on this bill—something in excess of 280, and a large number of oral submissions on the bill. I have to say that sitting on that select committee we heard some very painful stories, some genuinely tragic stories, of people who had lost loved ones. But it has to be said that in amongst the very real hurt and the very real sadness of some of those contributions, we also saw a great deal of political theatre carried out, with submitters basically being shepherded through, handed their script, and sent on their way at the completion. It was not a happy way to see a select committee being treated, in fact. As I say, the political theatre that surrounded some of the processes, particularly the submission process, around this bill almost belittled the very genuine hurt and the tragedy of those people who were genuinely and directly affected by some of the bail decisions that had very bad consequences in the long run. I think it has to be acknowledged that a lot of those people who did make submissions in a genuine way will actually be disappointed when in a year or two they see that this bill will not actually make a great deal of difference. I will say more about some of the alternative approaches we might take in a later reading, which, of course, will be tomorrow morning.

In terms of some of the specifics of the bill, our primary objection to it is that it extends the reverse onus of proof. No longer will people necessarily be deemed innocent until proven guilty. It expands and extends the situations where the so-called reverse onus of proof can be used, where effectively people are obliged to prove that they will not reoffend if they are allowed bail. That is quite a peculiar notion when you think it through. How does one prove what one will or will not do in the future? I disagree with some of the Labour spokespeople. I think this does reduce judicial discretion. Not only will the pressure be on the judges to think long and hard, because I am sure they do that anyway, but I think it does reduce the range of options available to them in a number of ways. I think that is unfortunate.

I think there were some improvements made in the select committee, and I compliment the select committee, which actually worked very hard on this bill—I know that. There were some useful changes made, such as the business about youth and the removal of the class B provisions. It is a better bill, but the bill is not yet at a place where we could even contemplate supporting it, because, as I said, the reverse burden of proof is a significant shift. It contravenes our own New Zealand Bill of Rights Act, section 24(b), from memory. It puts us in a very tenuous position in relation to our having signed a number of international agreements and conventions, and in return for very little positive result. We cannot expect much at all of this bill in terms of eliminating or even reducing some of the real tragedies that can occur if the outcomes of a bail decision go horribly wrong.

I will comment briefly on a couple of the proposed Supplementary Order Papers, the amendments. Regrettably for Mr Prosser, we certainly will not be supporting either of his amendments, which we think look at a bad bill and proceed to make it worse, or endeavour to make it worse. We see no benefit in those, no value in them—quite the contrary; we think that they are very regressive and that they actually add nothing to the bill.

We see value in common sense, in fact, in some of the changes around electronic monitoring for bail. Clearly, that is a technology whose time has come. We see it as a means where bail actually can be, in a sense, less restrictive, enabling people a degree of freedom of movement. No doubt those technology changes over time will allow us to take a somewhat different approach and expand the range of options, I guess, available to us to ensure that people’s movements are constrained, but also to allow perhaps a greater level of freedom. It is no small matter to be holding people on bail for longer. That is one of the key issues that this bill fails to address, that, in part, our objection to toughening the bail law is recognising that court processes are now so slow that very often it is not uncommon for people to be sitting in custody for 18 months at a time. Twelve to 18 months is by no means unusual for a drug case. We have to remember that a large number of those people actually are then found not guilty. They are not convicted, and yet they have spent a year or more in custody. They have probably lost their employment, they have probably lost their place in society, and there have been all sorts of negative effects on their families and on their friends, with significant social, personal, and, indeed, financial effects, to no good end. We think that is really not a particularly helpful or a positive way to go. It is clear that the provisions of this bill are almost, in a sense, wanting to treat bail as part of the punishment, using bail as a punitive mechanism. Bail should never be that. Bail should be allowed unless there are compelling reasons not to.

This bill tightens the bail provisions but not in a helpful way, not in a strategic way. It is a very piecemeal approach. It is a very reactive approach, and one that we think will not actually make significant difference, will not dramatically affect outcomes, and will not achieve the stated goals of making society safer. It will not serve the integrity of the judicial system or the bail system, because you cannot improve the integrity of anything by taking this piecemeal, incremental approach that really is reactive. We do not believe that it will do any good. It does do some harm. For those reasons, we will not be supporting this bill.

There have been six Bail Amendment Acts in less than 10 years, with the most recent in 2011. We had the Bail Amendment Act 2002, Bail Amendment Act 2003, Bail Amendment Act 2007, 2008, 2009, 2011, and now we have this Bail Amendment Bill. Surely, we are better than having these knee-jerk bills and legislation. We should do it once and do it right.

Laws are based on anticipated consequences that are sometimes never seen. We see horrific crime, but judges can go on only what they are given. We do not need more knee-jerk, populist laws; what we do need is proper resourcing. These knee-jerk laws need to be tempered. We have seen the police gasping for air, if you like, being under-resourced. We have got now a situation where more police than ever are leaving—

The CHAIRPERSON (Lindsay Tisch): Order! This is not to do with the police. This is on bail, not the police.

Thank you. I would say that this bill is funded to fail. I spoke with one of New Zealand’s top barristers today, and he told me of a 17-year-old girl charged with the possession of a class A drug. The police said it was a class A—

The CHAIRPERSON (Lindsay Tisch): Order!

I am talking—

The CHAIRPERSON (Lindsay Tisch): Order! What you need to focus on in this bill in the Committee stage is the bail amendments—nothing to do with the police. Just get back to the substance of the Committee stage.

Thank you. I would like to say that the reverse onus of proof is wrong. It is against natural justice. It is against our New Zealand Bill of Rights Act. We need to be tough on crime, but, equally, we need to be tough on bad legislation.

Speaking on the reverse onus of proof, I can say that I was told today of a case where a 17-year-old girl was charged with possession of a class A drug. The judge said to the police: “Well, why do you not just do what they do at the airports and test it?”. But the police do not have the resources for that, so they sent it to the Institute of Environmental Science and Research. That could have been a hold-up of over 7 weeks, and a 17-year-old girl would have been in jail for 7 weeks. It turns out that it was not a class A drug at all; it was a party drug.

This is just one example of why we should vote against this bill. It is populist and it is knee-jerk. We need good laws in this country. We need good legislation, not something that is just pulled out of a hat and is against natural justice. Thank you.

Members, we move to the votes on the Committee stage. Although the parts and the clauses were taken as one question, I intend to put the questions on the parts and the clauses separately.

The question was put that the following amendments in the name of the Hon Judith Collins to the proposed amendments set out on Supplementary Order Paper 339 in her name to clause 19(2) be agreed to:

in new section 33(1A), insert “a” before “District”; and

in new section 33(1B), insert “a” before “District”.