Criminal Cases Review Commission Bill

Members, we turn now to the Criminal Cases Review Commission Bill. When we were last considering this bill, the committee had given leave for all provisions to be taken as one debate. At the end of the debate, I will put all questions separately. The Hon Tim Macindoe had the call and he has three minutes and 15 seconds remaining, should he wish to take them.

Mr Chair, indeed I do, because I recall how utterly distraught all members were, but particularly members opposite, when I was interrupted in full flight when the House adjourned last night. So it is a great pleasure to resume.

But before I recap, I wonder if the committee would just indulge me for a moment as I send my best wishes to a young lady who I believe is listening to Parliament tonight on her radio in her hospital room in Auckland hospital. I would like to wish her well in her recovery and say “Get well soon, mum.” And if the previous debates did put you to sleep, well, that’s just fine too. But if you’re listening, we’re thinking of you.

I began my contribution last night on this Criminal Cases Review Commission Bill—which you’ve noted we are considering in one debate, so that makes it a little bit easier—just by recapping some of the National Party’s main concerns about the bill. I think, in all seriousness, it’s worth restating those at the outset just to ensure that the public understands why it is that the National Party is opposing the measure. I won’t go through all of them, but the key ones are the fact that we are very concerned that the commission is set to open the floodgates to anyone who believes they may have suffered a miscarriage of justice, because the standard for reviewing cases back to the court is so low. So I want to make it clear it’s not because we are indifferent to miscarriages of justice. I don’t believe there’d be any member of Parliament who’s indifferent to miscarriages of justice, but when the standard for reviewing the cases is very low, as it is in this bill, then there is a real danger that this is going to become an extremely expensive measure for the country, with the floodgates opening and leading, in many cases, to delays, which, of course, ultimately means denial of justice, and in particular puts additional pressure on victims.

We are concerned that the low threshold for referral back to court could see more pressure on court timelines. At the moment, there is already a problem with timeliness in the court system. It’s getting worse by the year. All members, I think, would acknowledge that. We should be looking to try to improve that situation, not exacerbate it. But we are concerned that this measure will have the effect of adding to the problem and will see other disputes having to wait longer for resolution, and that is in nobody’s interests whatsoever.

It will be an incredibly expensive commission. There’s a current estimation of $2.3 million to establish the commission and $3.9 million—virtually $4 million—per year in operating expenditure. So that is a significant factor.

We are also concerned, as was well articulated in the second reading of the debate, about the fact that two-thirds of commissioners will not be required to be legally qualified, making untrained and unaccountable commissioners extremely powerful. Even the remaining one-third of commissioners, who will be required to be legally qualified, may not have any criminal legal experience. Yet without a doubt, the vast majority of cases that are likely to be referred to the commission would be ones where there’s a criminal aspect to them.

So those are, as I say, some of the objections that we have, and—Mr Chair, I’m just a little bit puzzled by the fact that the clock’s going up rather than down. It has me slightly discombobulated. What should I read into that, Mr Chair, other than the fact I’m seeking another call?

CHAIRPERSON (Adrian Rurawhe): The Hon Tim Macindoe.

That is very, very kind of you. I just was thinking, well, this call’s going to go on and on and on. So let me turn now to the amendments, in my second call. I’m so pleased that members throughout the Chamber are enjoying this contribution as much as they were last night. It’s deeply satisfying, particularly given the great compliment that Mr McAnulty paid me when he was speaking on the earlier bill. I haven’t yet worked up to my finest state of outrage, but I will do my best to reach that in this call, because there’s plenty to get outraged about.

I want to note at the outset that the Minister, the Hon Andrew Little, in his Supplementary Order Paper (SOP) 398, has introduced quite a number of minor and technical changes, which, presumably, because the Government has the numbers, will be carried through and adopted. They are, of course, consequential and consistency changes, which I know the Minister of Health, who is the Minister in the chair at the moment, has paid particular attention to. So I’d be grateful if the Minister could just enlighten the House a little bit as to the nature of these changes and why, in his view and the view of the Government, they will improve the bill. But more importantly, I’m asking the Minister to comment on why he or the Minister of Justice appears not to have consulted the Opposition about these particular changes. If I’m wrong about that, I apologise, but I understand that he hasn’t yet done that. Also, as I say—to enlighten the House as to how these changes will support the bill, but then to move on to why he isn’t willing to consider the very substantive measures that are being put forward by the Opposition.

I mentioned last night how impressed I was by the learned member for Helensville, who is the Opposition’s courts spokesman. He has done a very fine job, and I know he blushes when I mention this, but I am genuinely appreciative of the leadership he has shown in this area. He’s done a very fine job in putting forward some serious amendments, and I do want to stress to the committee that I hope that they will pay attention to them, because the common theme underpinning Mr Penk’s amendments is the rights of victims, and even though there’s been a bit of jocularity, I’m sure that members would appreciate the fact that the rights of victims should always be at the forefront when we deal with anything of this nature. In clause 4, in the interpretation clause, he is requesting that after the definition of “specialist adviser”, there should be an additional mention of “victims”, having the meaning given to it in section 4 of the Victims’ Rights Act 2002.

I would be very interested to know if members are willing to consider that SOP 399, but particularly I say to the New Zealand First member who was here this evening: will New Zealand First support this SOP to insert the rights and interests of victims into this bill, and if not, why not? New Zealand First frequently likes to parade as the party for law and order and all the rest of it. Well, here is an opportunity for them actually to put their money where their mouths are and to tell us if they are going to support this SOP. I hope that the Minister will tell us whether the Government will support the SOP as well, and whether the Government shares National’s concerns for the implications of this bill on victims.

In the little bit of time remaining, I’d also like to lend my support to Mr Penk’s SOP 400, which, again, is a very admirable suggestion. I genuinely believe that it would make a big difference to improving this bill. It seeks to amend Subpart 4 of the bill to recognise the rights and interests of victims—and this is where I could build up to my outrage, Mr McAnulty, because I am outraged that at the moment, the Government is showing no interest in supporting this SOP. I hope that they will. I strongly encourage and request that all MPs should support it. I again put a question to the Minister in the chair: would he please address the SOP here, because in clause 25 we are seeking to insert that “The Commission must, as soon as practicable after making a decision under this section, give written notice of the decision to investigate the conviction or sentence to any victim entitled to be notified”. Clause 26, again, refers to “any victim entitled to be notified”. Clause 27: “If the eligible person does consent, the Commission must, as soon as practicable, give written notice of its decision to investigate the conviction or sentence to any victim entitled to be notified”. So in other words, at various stages along the way, this commission will have wide powers. It will have the power both to initiate inquiries and also to respond to requests for them. Please ensure that the victims are notified and taken into full consideration.

Thank you very much, Mr Chair. I’m pleased to take a call at the committee stage of the Criminal Cases Review Commission Bill as the chair of the Justice Committee. Can I just, first and foremost, for those members in the House—this establishes the Criminal Cases Review Commission, and the purpose of the commission is to review convictions and sentences and decide whether to refer them to the appeal court. This will replace the power exercised by the Governor-General under section 406 of the Crimes Act 1961, commonly known as the royal prerogative of mercy. The commission will be established as a new independent Crown entity with a membership of no fewer than three but no more than seven commissioners.

Can I just acknowledge the work of the select committee. I just remind members that the bill was referred to the committee on 25 October 2018, submissions closed on 7 January 2019, 33 submissions were received from groups and individuals, and eight submitters were heard orally. As the member that’s just resumed his seat—and can I just also send my best wishes to the honourable member’s mum in hospital, as we think of our mums, those who are fortunate enough to have their mums. But I do want to send my best wishes to the honourable member’s mum, mother.

So coming back to the bill and acknowledging that the select committee could not agree on the bill but did make some amendments, and that member that just resumed his seat raised a few. In the select committee report, though, that was received in the House, I just want to address a couple of the concerns that the Opposition have raised here in tonight’s debate. One was the victim’s rights, and the other concern that they had in their minority view was around the use of existing structures. It may be useful to the House to be reminded of what’s currently available under the existing structures around any person who is convicted of an offence who feels that they suffered a miscarriage of justice. The current process is that they apply to the Governor-General for the exercise of the royal prerogative of mercy. The royal prerogative of mercy can, among other things, be exercised to grant a free pardon or refer those convictions to the Court of Appeal.

The member that resumed his seat, Tim Macindoe, talked about—sorry, the Hon Tim Macindoe—the National Party’s opposition to this bill, because in parts they believed the existing structures that are around right now will meet the test of the appeal rights. However, in the information we received at the select committee, this is an independent body that we are talking about here: the establishment of a commission. In that independence—because, currently, the existing structure is that the lawyers of the Ministry of Justice have to take up the challenge on behalf of anyone that wants to appeal or apply for a miscarriage of justice. So the establishment of this commission will allow the independent, dedicated unit to thoroughly investigate the concerns that an individual may have around the miscarriage of justice. So I believe that the proposed position of the Opposition around current processes do not allow that level of independence, that level of due diligence, or that level of being able to justify that people have got a right to appeal.

Just to again alleviate some of the concerns of members in the House, it’s really clear, and the committee also received advice from overseas jurisdictions about what can be put up for review by the commission, to stop the so-called open gates or floodgates—that everybody’s going to come to the commission and want their particular cases appealed. So here are some of the principles as per the royal prerogative that the commission will adopt in their establishment. Essentially, “the courts should have [the] opportunity to [consider] a person’s conviction or sentence if a miscarriage of justice may have occurred:”—so this is what we’re trying to do with this commission. The “convicted persons are normally expected to exercise their rights to appeal against conviction or sentence before asking the Commission to intervene:”—so, clearly, we’ve got to exhaust the system now around an appeal before you put your case to the commission. Thirdly, “the referral process is not an opportunity to simply repeat arguments or re-examine evidence that has already been considered by the courts:”—so, again, if you didn’t get your way in the courts, you cannot just present to the commission and take that particular route.

The last fourth and fifth points are around the principles that will guide the commission. One is around ensuring that you’re producing new evidence. One of the considerations is that if it’s not new evidence, then obviously it’s not going to meet the test of the commission. Again, if it’s been previously examined by other courts, then it won’t be accepted by this commission. So those principles, as currently applied under the royal prerogative of mercy, simply will be transferred over to the commission. So the issue around existing structures—hopefully I’ve addressed the difference of what the Government’s proposing around the independence of a commission, and that the guidance currently in operation around what meets the prerogative of mercy will be transferred over to the commission.

The second point I just want to address in my second contribution is around victim rights. We have two Supplementary Order Papers (SOPs) in the name of Chris Penk. I wanted to share with the members of the committee that currently the Victims’ Rights Act 2002 continues to be applied, so under SOP 399 this side of the House feels that those concerns are covered under that Victims’ Rights Act 2002. So we won’t be supporting SOP 399.

In terms of SOP 400, again, where it removes the commission’s discretion around timeliness of notifying victims, our concern on this side is if the appeal isn’t successful but we’ve told victims before they’ve made the determination that we are going to reopen the case, that could in itself re-victimise the victims, because there’ll be an expectation that we’re going to look at this case. But the commission may decide, for whatever its reasons, they’re not going to pursue the appeal process. So SOP 400, in terms of removing the discretion of the commissioner to make the timeliness of notifying victims, could, in our view, re-victimise the victims. So I just wanted to ensure that the member has had a response on this side about why we will be opposing particularly SOP 399 and SOP 400 for the facts that I’ve laid out, covered under the Victims’ Rights Act 2002. The discretion is a really important point to ensure that we are not re-victimising the victims in the case that appeal is not successful.

So, that’s my contribution. I know other members from the Justice Committee are dying to get up and make a contribution, and I might pick up some of the other points that may unfold as part of this debate, but I commend this bill and look forward to other people contributing to the debate.

Thank you, Mr Chair. I do acknowledge the chair of the Justice Committee, Meka Whaitiri. She’s made a good-faith effort to outline the views at least of the Labour members—I don’t know if they speak for all the Government parties. I suppose we’ll find that out in relation to New Zealand First soon enough.

I mention, particularly, the Supplementary Order Papers (SOPs) in my name that I spoke on partly yesterday, which the Hon Tim Macindoe has picked up and run with tonight, so to speak, and which, as I say, the Hon Meka Whaitiri has also addressed, at least from the perspective of Labour MPs.

We’ve been consistent on this side of the House in relation to the Criminal Cases Review Commission Bill. I feel that the reward for our consistency will be brevity. I don’t intend to traverse old ground except to the extent that that would be helpful within perhaps the current five-minute call that I’ve been awarded by you.

I point out, first, that our preference would be that the Government move to reform the criminal justice system, if there is a perceived difficulty with miscarriages of justice that aren’t able to be rectified within the current system—the existing avenues of appeal courts and the royal prerogative of mercy. Second, we would like to see that the Government, if concerned about access to justice issues which might reasonably be said to exist, has the opportunity, again, to do that under the existing structures and frameworks as opposed to creating a whole new body. Third, as the Hon Tim Macindoe has already mentioned, we have some issues with particular aspects of the design. We have discussed those in the select committee. Some of those have been addressed, and we acknowledge that that process is one that we’ve been able to contribute to, and we’ve supported the amendments made at select committee with the purpose of improving the bill, notwithstanding that we continue to oppose it for the reasons that I have outlined briefly now.

Turning to the SOPs in my name—I’ll let the Government speak to its own, if it feels the need to do so. We haven’t had the benefit of such explanations of their own proposed changes yet. We look forward to that, whether from the Minister in the chair or perhaps some other member of the executive who can speak to this authoritatively for the record. As far as the SOPs in my own name: the first requires that as a mandatory relevant consideration the commission take into account the potential impact on victims; second, that they be notified at every step of the process; and, third, and this is within SOP 400, which we’ve touched on previously but not this particular aspect, is a proposal in relation to legal aid.

The rationale for this is simple, but before I proceed to explain our thinking behind this, I’d like to acknowledge the advocacy of the Sensible Sentencing Trust on behalf of victims everywhere. They have made a very sensible suggestion which we’re happy to give voice to in this Chamber tonight, particularly around the fact that wherever a victim has been dragged into the criminal justice system, as we would say, by circumstances almost invariably beyond their control, they have a considerable cost already exacted upon them. That cost might be emotional, it might be physical, and in some cases—an obvious one might be an assault—it would be a physical cost, but there are other costs too.

One of those costs is financial. A financial cost unless covered by ACC, and even then to a limited extent, might extend to rehabilitation from injuries, whether physical or mental. The financial cost might also come in a reduced ability to perform one’s ordinary work as a victim, which is an aspect of unfairness that the State is not involved in creating. Of course, we’re not suggesting that, but the State should have a role to play, a constructive role, in at least seeking to mitigate or reduce that harm caused by financial costs as soon as possible.

So it is that we make a practical suggestion along these lines, which is simply to make available legal aid for victims who are re-entering the criminal justice system as required by the operation of the Criminal Cases Review Commission. We can see no good reason that a person who is placed in that situation, again by the acts of others that are by definition criminal, or at least are found to be criminal, notwithstanding any overturning that might be the case—so we put forward for that reason this suggestion. We hope that it will be supported by all Government parties.

The question was put that the amendment set out on Supplementary Order Paper 398 in the name of the Hon Andrew Little to Part 1 be agreed to.

The question is that Chris Penk’s amendments to Schedule 2 set out on SOP 400 be agreed to. All those in favour say Aye, to the contrary No. The Noes have it. A party vote has been called for. The Clerk will conduct a party vote. [Party vote takes place] Can we just check with the Labour Party? Is it 46 votes in favour? The Ayes are 103; the Noes are 17. That amendment is agreed to.

💬 Kieran McAnulty: I raise a point of order, Mr Chairperson. I’m so sorry but there appears to be a misunderstanding. If that was Chris Penk’s SOP, then we did not vote in favour of it. I was sure I said “Opposed” and I apologise for any misunderstanding.

CHAIRPERSON (Adrian Rurawhe): We’re going to take that vote again.

💬 Matt Doocey: I raise a point of order, Mr Chairperson. Could you just repeat which amendment we are voting on?

CHAIRPERSON (Adrian Rurawhe): I apologise.

The question was put that the amendments set out on Supplementary Order Paper 400 in the name of Chris Penk to Schedule 2 be agreed to.

Members, on this, the 26th anniversary of the election of the Hon Damien O’Connor and the Hon Ruth Dyson to this House, I adjourn the House until 2 p.m. tomorrow.

The House adjourned at 10.05 p.m.