Three Strikes Legislation Repeal Bill

I present a legislative statement on the Three Strikes Legislation Repeal Bill.

ASSISTANT SPEAKER (Hon Jenny Salesa): That legislative statement is published under the authority of the House and can be found on the Parliament website.

I move, That the Three Strikes Legislation Repeal Bill be now read a first time. I nominate the Justice Committee to consider the bill.

Can I acknowledge members of the Labour Party here and also those candidates of election 2020 who went out and campaigned strongly on a number of issues, with one of them being some unfinished business that we had from the term of Government from 2017 to 2020. So I do want to acknowledge all the hard work of all my colleagues here in the House for winning a mandate on a strong election platform to make strong changes to respond to the COVID-19 pandemic, but in amongst the promises that we made at the election were some, what I would call, business-as-usual commitments to New Zealanders. Within the justice part of our manifesto was a commitment at the 2020 election to get rid of the three-strikes legislation, as it was known, which was passed in 2010 by the previous National-ACT Government.

Now, there’s going to be some smack talk from the ACT Party tonight about what is going to happen as a result of this change in the legislation. What I want to make sure and very clear to everyone at home is that you can’t believe a word that the ACT Party is going to say about what was going to happen as a result of this legislation, because the judiciary doesn’t like this law, the lawyers don’t like this law, the public don’t like this law—and they gave us that message clearly in 2020—and we have arrived a little over a year into our Government, having made the commitment to change and repeal this piece of Draconian law. We are getting on with the job and doing it.

The smack talk that will come from the ACT Party, and possibly from the National Party as well, is that as a result of the changes, people will be resentenced and let out of prison early. Now, I can absolutely, 100 percent, categorically tell you that that is not the case, because that is not contained in this legislation.

I want to send a clear message to those at home saying that the Labour Party and this Labour Government acknowledge that offences were committed. Some of them, or many of them—or, in fact, all of them—are serious offences, and serious sentencing options are still available to the judiciary to deal with those serious offences. The removal of the judicial discretion that judges have when they’re dealing with these serious crimes—which is what this piece of legislation has done since 2010—has meant there have been some perverse outcomes, but we acknowledge that there are victims in this and there will be no revictimisation of those people during this process, because there is no retrospective aspect of this bill.

The principle of people being prosecuted and sentenced under the law as it stood at the time still holds true. That will not change, and under this legislation no one will have their sentences reconsidered. So let’s put that to bed before someone from that side of the House stands up and talks about it too.

This was an ugly piece of legislation from the outset. I should remind you of some of the history of it. A very good justice Minister in the previous National Government—Simon Power—introduced this bill relatively early in their term of Parliament. Then, lo and behold, Mr Power, who we on this side believe is a very principled man, perhaps had too many principles for the National Party, and all of a sudden, it became the responsibility of the Hon Judith Collins to pass this legislation. I understand there probably was a bit of debate in amongst the National caucus at the time, because they were dragged, kicking and screaming, to keep ACT happy and to make sure that this piece of legislation passed. It’s bad legislation, and we know that because it hasn’t worked.

Now, what was the promise of this piece of legislation at the time from the architect of this law, David Garrett? The ghost of David Garrett may still be walking these halls—an identity that no one wants to steal because of his past. But Mr Garrett said that by passing this legislation, we would make our communities safer and we would see the numbers of these serious offences drop. Well, that is not the case. It is not borne out in the evidence in the 10 years since this piece of legislation passed.

Now, I think there’s also going to be an interesting debate on that side of the House around mandatory minimum sentences as well, because I think I recall hearing a number of the members from the National Party discussing their distaste on mandatory minimums over there. I think I recall that during the debate, so that’s going to be an interesting internal debate—another interesting internal debate—for the National Party to deal with over time.

So the promise of this piece of legislation has never been delivered, and I think that deep down in their hearts, the National Party knew that at the time. I think Simon Power knew that at the time, which is why he didn’t see this legislation all the way through the legislative process. I don’t think I have heard of another instance where a Minister has introduced a bill and then, still in that portfolio, has had that piece of legislation yanked from him, or maybe he requested not to have it with him in that portfolio, and seen it offered up to be taken through the House by another person in another portfolio. It went from justice to corrections, so there must have been some very bizarre and interesting conversations around the Cabinet table when this piece of legislation was going through in 2010 and 2011.

There is a very serious side to this debate. As I have mentioned before, there are victims of serious crimes here, and I want to reiterate, before the ACT Party stands up and misinterprets or spreads disinformation about this piece of legislation, that there is no retrospectivity within this piece of legislation. So the press release that they put out before the announcement was made last Thursday again jumped the gun, and they were wrong.

The Labour Party and the Labour Government are very aware of the pain that the victims have been through, and I want to reiterate that this piece of legislation is in no way offering resentencing options for the offenders who have already been dealt with under a first, second, or third strike. So I want to make sure that that is made very clear.

We want the select committee to have a good look at this, and I acknowledge the chair of the select committee, Ginny Andersen, to my left. It is a select committee that has been extremely busy. We know there will be debate on both sides of the ledger about how we have constructed this, but we believe that we have got the balance right—we’ve got the balance right.

As I’ve said, I think the legislative statement and the speech that I’ve given today have pretty much summed up the position of the Government, and I look forward to not only the contributions from the ACT Party—and, again, I give a warning to those who might be watching to take that with a rather large dose of salt—and also, potentially, those from the National Party as well. This was a bad piece of legislation when it was introduced. I think the National Party and the National Government knew that at the time. That’s why it had an ugly passage through its process through this House. They were dragged, kicking and screaming, to pass this so that the ACT members could have something to wave as a part of their coalition arrangement.

I look forward to the submissions at the select committee, but I also look forward to making sure that this piece of legislation—which was bad legislation when it was introduced and it’s bad legislation now—is repealed, and we can get on with making sure that judges are the ones who have a discretion and we take a smarter approach to law and sentencing in this country. I commend this bill to the House.

National opposes this repeal bill, the Three Strikes Legislation Repeal Bill. And I want to say to the member opposite, the Hon Kris Faafoi: at a time of record violence, at a time of record gun crime under the Labour Party, at a time when gangs are creating record havoc and misery around this country—more victimisation than we’ve ever seen in this country—is it really the time to go soft on crime? I doubt it. Now’s not the time for Labour to go soft on crime, Kris Faafoi. You see, if everything was hunky-dory here and we had a situation where crime was going down, our prisons had empty rooms because the Government was doing such a good job in this area, well, that possibly would be an argument to say, “You know what, no we don’t actually need to have this sort of law to deter. There’s less violence, there’s less gun crime, there’s less gangs and so on.”, but that’s not the case. We’ve got certainly decade-high violent crime in this country, and now’s not the time for Labour to go soft on crime.

The second point I want to make is that that party over there, on COVID and everything else—although they haven’t actually followed it—tries to pretend they’re science-based, they’re evidence-based, they do everything according to what the so-called experts say, yet in this case, this law, the three-strikes law on the books, on the evidence, works. It makes the public safer and it deters violence and gun crime. And before I get into what the New Zealand evidence says, it’s right to ask that party to back up its position on this bill—that is the Labour Party in Government’s position on this bill. And to go soft on crime like they have, what reviews, what evaluations, what evidence did Labour collect or commission in the preparation of this bill? Can you hear the cicadas chirping? I can. They commissioned none. They collected none. They did not get a single report, a single piece of commissioned evidence from a university or anywhere else from New Zealand on the necessity for this law and how it was working. And by the way, while I’m mentioning that, how many members of the public, let alone victims of crime and organisations that work for victims did this Government ask or consult in putting this bill together? None.

You see, the only study, I think, was at the backend of the National Government, done by the Ministry of Justice. It shows quite clearly, yep, there was no change in offending levels from people before the bill through to first strikes, once the law was in place; there wasn’t a change in the level of offending. But when it came to second strikes at the time of the commission of this report—there weren’t any third strike offenders, I don’t think, at that time—actually, the strike offenders and their offences decreased—they decreased. And that’s because—it’s not rocket science—the more individuals are warned, the more they said to themselves, I would think, “This isn’t smart. I don’t want to keep offending.”, and they as individuals were deterred, resulting in their cases in fewer victims of crime. The bill, on the only report commissioned by any Government, the Ministry of Justice, deterred criminals. And more fundamentally than that, what we also know is that—and wait for it—there is an average of 74 previous convictions per strike offender. I just want the members of the public back home to hear that: 74 convictions is what the average three-strikes offender has, right? We’re not talking tiddlywinks here. We’re not talking theft of a Mars bar, as some on the other side may have you say. With that going on, when they’re in prison for a strike, second or third, the public is safer for longer, there are fewer victims in our communities throughout New Zealand. That legislation serves as both general and specific deterrence of criminals.

What’s the best that Labour can say about this law? Well, I think it’s in the regulatory impact statement. They say about the three-strikes law that it results in “excessive and disproportionate punishment by preventing sentencing judges from taking the circumstances of the offenders and offending into account.” And I want to go through that. Firstly, “excessive and disproportionate”, they say. Rubbish. They may want to, as they have in so many of the laws that have come through the justice department here in New Zealand, import US-style culture wars to this country, but it is a load of rubbish. There is not a single case that they can point to, that any academic can point to, that anyone in the judiciary can point to where someone’s been sentenced for theft of a piece of pizza for 50 years in jail or the like. It simply hasn’t happened in this country.

And the cases that they refer to and that are in the regulatory impact statement and the various other documents that the Labour Party refers to, I just urge any reasonable New Zealander who’s worried about this to go and check out—you’ll find it, I think, online—the summary of facts of those cases. They were serious offences by serious offenders with long histories. And, yes, the sentences under the three strikes regime were firm, but they were not excessive or disproportionate in my view, and, I say, actually, in reasonable New Zealanders’ views in the slightest.

The second bit—that “excessive and disproportionate punishment by preventing sentencing judges from taking the circumstances of the offenders and offending into account.”, is to me the real reason the Labour Party’s against this. You see, this is about the judiciary and a judiciary-pleasing Government that wants judges to decide, not this Parliament. This is actually a constitutional argument. I’m not going to deliver a treatise on that here, but there is a growing trend from our judiciary in New Zealand seeking to push back against Parliament and assert interpretations that aren’t conventional on parliamentary statutes and powers for themselves that they have never had. In relation to sentencing of criminal justice, courts increasingly want to assert that a complete judicial discretion belongs and exists for them. Well, they are wrong. There is no such principle. Parliament and its sovereignty determines sentencing policy, as well as a raft of other things, not the judiciary.

There’s other criticisms that the other side makes in the various documents on this bill. Three strikes, they say, disproportionately affects Māori. Well, that ignores that the victims of the three-strikes offending are also disproportionately Māori. And on this side of the House, we stand up for Māori victims of crime and victims of crime generally over offenders every single day of the week. And I say to the members on the other side who are Māori, “You know what, your brothers, your sisters, your whānau are victims, and this law would have done something about that.” This law that shouldn’t be repealed did something about that, not the soft-on-crime approach from the Labour Party.

The final thing they say is, “Well, this bill, it offends against the New Zealand Bill of Rights Act.”, as if the New Zealand Bill of Rights Act is some sort of religion we have to follow with the Pope being “Saint Geoffrey Palmer II”. “It’s a religion. We have to follow it. We just can’t ever do anything. Parliament can never pass a law if there’s a New Zealand Bill of Rights Act issue in it.” Here’s the problem with that: the Labour Party is exceptionally venal and acts exceptionally conveniently when it comes to that argument, because right now at the Justice Committee we’ve got a hate speech law, we’ve got a conversion practices law, we’ve got several other laws that Kris Faafoi’s come to this House on and spoken on that grossly offend the New Zealand Bill of Rights Act. It’s all too convenient to come down here and give us that sort of conversation.

Now’s not the time for Labour to go soft on crime. Three strikes has worked for individuals in generally deterring them and keeping New Zealanders safer. Unlike Labour, we back Parliament, not judicial activism that marches onwards from our courts. And here we don’t want more violence and more gun crime. We’re on the side of communities around New Zealand, not offenders. We oppose this bill.

Order! The member’s time is up. The question is that the motion be agreed to.

The three-strikes law is an anomaly in New Zealand law and it’s for one main reason. It’s because it severely restricts judicial discretion. That’s number one. It provides fixed sentences that give no ability for a judge to take into account the seriousness of the offending or even the circumstances of the offender. Sometimes I do wonder whether the National Party would like to just do away with judges altogether and come up with a script and corresponding years to be served because that would work better.

The fact is that this kind of blanket mandated sentencing does disproportionately affect Māori. We know that for a fact, because we see that 81 percent—and we’ve even had comments in terms of that. The Court of Appeal and the Supreme Court have found that sentences imposed under this regime contravene the New Zealand Bill of Rights Act with Māori having an 81 percent number for those who receive the three strikes.

But I would actually like to speak from inside. When I was working in Government, when this legislation came into force—and the reality was that it wasn’t a National Party idea and there was no preparation for this in any manifesto or policy, because it was an ACT promise that then had to be delivered upon in a hurry for quick political points. That was apparent when there was no computer system able to actually deal with the three-strikes system. And so what happened was, in a quick hurry, as a way of monitoring that, we had to develop a stamp. It had “Striker” on it. So what would happen when a file came before a court room in a short term was that the judge at sentencing had to read out a certain statement in order for one strike to be applied. Because there was no one computer system, I had the job of reading through three different databases, finding out when there was a striker, finding the court, ringing up the court, letting them know they had a striker in the cells and the fact that that had to be applied.

The trick was that that didn’t work over the whole of New Zealand. So there was a running tally that the Minister at the time, Judith Collins, was required to hear, of how many strikes had been missed in any given week. People had to draw straws—now much like I’m sure the National caucus does in giving other news about polls—on who was going to tell the Minister about how many strikes had been missed that week. And the reality was the system was not ready—it was not ready for being able to cope with this change and it has never been ready. That is in relation to the fact that it does not address the underlying causes of crime. That is still true now. So I’m quite happy at this moment to see this bill repealed, because it is bad legislation, as the Minister has already said.

I won’t speak too long, because I’d like to finish on what the advice was from the Ministry of Justice at the time this Act, the Sentencing and Parole Reform Act, came about. What the Ministry of Justice advised the Government of the time was that proposals will add substantial and direct costs to the justice system without creating any significant improved outcomes in terms of reducing the drivers of crime, improving social outcomes, or reducing reoffending and victimisation. That is exactly what has played out over time and that is exactly why this Government will be repealing this poor legislation. I commend this bill to the House.

Thank you, Madam Speaker. It’s my pleasure to take a call on this, the Three Strikes Legislation Repeal Bill. As my colleague and friend, the Hon Simon Bridges, said, we oppose this bill. And, I have to say, I would hope that one of the Government speakers will get up and actually use the full 10 minutes to outline clearly why they’re repealing this legislation. I listened very carefully to Ginny Andersen, the chair of the Justice Committee—and I acknowledge her past experience and role around policy and with the police—but she didn’t outline it for me. The only real reason I could hear that she gave for why this Government is repealing the legislation is that they don’t like the fact that our Parliament has legislated and has asked the judiciary to apply a much stronger sentence for recidivist offenders, serious recidivist offenders. That’s the only reason I can see put up tonight for repealing the legislation. That is not a reason; in fact, quite the opposite.

I just want to support the comments that Simon Bridges made. Right now in this country, we’ve probably got the worst situation that I have seen, certainly in my lifetime, of a proliferation of gang numbers, serious violent gang members that are well resourced and highly organised that now are regularly carrying high-powered firearms and using them. In the last three days in Auckland there’s been three serious firearm incidents. My greatest fear is we lost Matthew Hunt last year and, of course, we’re very lucky that Constable David Goldfinch wasn’t killed, as well, in broad daylight, on the streets of West Auckland with a gang banger that had a high-powered AK-47 type military-style firearm.

Simeon Brown has been doing an outstanding job in supporting the police and trying to hold the Government to account and make them understand just how serious the situation out there is, how much more at risk members of our community are and, actually, how much support our police need in trying to deal with a gang situation that has rapidly escalated and got out of control. But I can tell you now, in the last three or four years of trying to hold this Government to account, normally what we get is a whole lot of barracking from the other side, we get jokes, we get told that somehow being tough on crime and taking community safety seriously is something to be scoffed at and laughed at by the Government. But, actually, get your heads around this: we believe that communities deserve to be safe. We actually believe that law-abiding Kiwis should have the freedom to be able to move around in our country without the fear of being tied up in some type of gang violence, being intimidated, having their property stolen—we believe in that. That’s fundamentally a core part of our DNA. The reason why we supported the bill from the ACT Party is because it’s a good bill, and, actually, it was in response to some fairly horrific violent crime that occurred in our country. Christie Marceau—can anyone remember Christie Marceau? That was horrific. I just want to acknowledge her parents, and especially her mum, that went through a living hell.

Actually, as a country, we decided—and, actually, if you go back and have a look at the polling that was done, in terms of the support for the three-strikes legislation when it was brought into the House, National Party voters were 78 percent in support of this bill. You’d expect that, because, fundamentally, National Party voters and members take community safety extremely seriously. But then you look at Labour—you’d expect Labour to poll very low, wouldn’t you? When you hear the rhetoric on that side of the House, when you hear their position, you’d actually expect them to be polling very low; I’d say in the 20s, maybe down in the teens, even. Do you know what Labour Party supporters thought of this bill when it was brought to the House by the ACT Party? Sixty-three percent of Labour voters supported it—63 percent of Labour voters supported that bill. And this one will really blow you away, because I would have thought the Greens maybe scrape up, on a good day, 5 percent—maybe 5 or 6 percent support. Fortyeight percent of Green voters supported the three-strikes legislation to come into this House and be passed.

We’ve actually had this debate in the House before. I had this debate when I was justice spokesperson and Andrew Little was Minister of Justice, and he tried to get this repealed through the House. That was when they were in coalition Government with New Zealand First.

💬 Hon Simon Bridges: Bit of common sense there.

Yeah, there was a bit of common sense applied, and probably through Darroch Ball, who’s now one of the joint CEOs of the Sensible Sentencing Trust. He could see what was going on. He took a stand. Good on him, and actually New Zealand First said they would not support Labour, and, therefore, they didn’t have the votes, and, therefore, the bill was thrown out of the House. The right thing to do.

💬 Hon Member: I mean, to be fair, you and I pressured them in to that.

That’s true—that’s true. But now it’s back in the House, they have a majority, and they’re going to force it through. The worst thing about this is that they’re going get away with it, to a certain extent because we’re in COVID. Because of their poor response to that, the whole country is focused on COVID, right? So it’s like, look at the squirrel over there. It’s a complete distraction. Sadly, this is going to go through.

The other point that I just want to raise very quickly is—and Simon Bridges touched on this—that, unfortunately in this country, sadly, Māori are overrepresented inside our criminal justice system, right? We all recognise that as a problem and an issue that we have to be serious about and address. You cannot address it by trying to legislate your way out of it by removing laws. Because where are we going to go to next? We’ll repeal this law, then let’s get the Crimes Act out, and let’s start going through it. Let’s go and say, “OK, look, young Māori offenders, there’s lots of theft ex cars and serious assaults. Let’s just legislate that away.” Let’s just legislate it away. Because then you’re not going to have the offending. Then you’re not going to have them in front of the courts. It’s ridiculous—it’s ridiculous. You’re trying to legislate away a problem in this House that you cannot do.

You need to take a social investment approach to it. You need to get into people’s lives much earlier. I saw this working on the East Coast of New Zealand. I spent 10 years policing on the East Coast of New Zealand from Ruatōria down to Wairoa. If you want to have a front-row seat into the social issues that this country faces and continues to face, go and try and work on the East Coast of New Zealand; it’s tough. It’s a tough area. I realised very, very quickly as a young policeman—I didn’t know what social investment really meant then. But one day the light bulb came on when I’d been called to a job where a young guy had broken into a car. He was prospecting for the Mongrel Mob there, and I tracked him with the dog, we caught him, we took him back to the police station. I had him in the charge room, and we had a charge sheet there we had to fill out, I said, “What’s your occupation?”—he was only 17. I said, “What’s your occupation?” He said, “Unemployed.” I said, “But that’s not an occupation.” I said, “You know, what do you do for a job?”, and he said, “No, that’s my job: unemployed.” He said, “That’s what my dad does as well.” His dad was a patched up member of the Mongrel Mob. The light bulb went on right there and then, and I realised that this young guy who should’ve been full of aspiration and should’ve had the education and the support and the mentoring to allow him to take advantage of all the incredible opportunities that exist in this country was instead on a pathway into the criminal justice system, because that’s the environment that he’d been born into. If you want to change the system, if you want to stop young Māori coming into our criminal justice system, we have to be committed to a social investment model, where we invest in their lives much earlier—not come into this House with a piece of legislation, repeal it, and throw it out because you think that’s going to deal with the problem. It’s not going to deal with the problem. All it’s going to do is it’s going to put more serious offenders back out on the street and put the community and the public at risk.

When you say that this legislation didn’t work, get up and talk to the numbers. Someone on that side of the House, get up and talk to the numbers for me. Because I’m looking at them right here. The study that the Ministry of Justice went through in 2018 on the effectiveness of the three-strikes law showed that 10,433 offences went up for first strikes, so that’s about 10,000 first strikes, 338 second strikes. Do the maths in terms of the reduction. Let’s go to third strikes: six. So if someone on that side of the House stood up and said to me there were 10,433 first strikes and there were 10,400 third strikes, then I would agree with you, and I’d say that the legislation wasn’t working. But it’s not the case; it’s very clear this legislation is working.

It’s very clear what the agenda is on the other side of the House, and it is a shame. I’m sorry to my ACT colleagues because this was a very good piece of legislation that was campaigned on, and we were pleased to support, and we continue to support it. I think it’s a serious indictment on this Government that there’s not even a Government speaker that can stand up and actually speak to this bill.

Debate interrupted.