COVID-19 Response (Courts Safety) Legislation Bill

on behalf of the Minister of Justice: I present a legislative statement on the COVID-19 Response (Courts Safety) Legislation Bill.

💬 DEPUTY SPEAKER: That legislative statement is published under the authority of the House and can be found on the Parliament website.

Thank you, Mr Speaker. I move, That the COVID-19 Response (Courts Safety) Legislation Bill be now read a first time. I nominate the Justice Committee to consider the bill. At the appropriate time, I intend to move that the bill be reported to the House by 31 March, and that the committee has the authority to meet at any time while the House is sitting, except during oral questions, during any evening on a day in which the House has been sitting, and on a Friday in a week in which there has been a sitting of the House despite Standing Orders 193 and 196.

I’m sure we agree across the House that access to the courts is a cornerstone of a fair and democratic society and that the judiciary must be able to achieve access to justice while keeping the courts and all participants as safe as is possible. In the near term as the country responds to the impacts of Omicron, more proceedings of courts are happening remotely. None the less, in-person hearings remain very important and this bill is necessary to support safe, physical, in-person court proceedings. When people attend court they must have a reasonable assurance of safety.

This bill will help enable this in a number of ways. It will remove current legal barriers facing the judiciary and the Ministry of Health when addressing health and safety risks in the courts and in some tribunals, whilst also ensuring access to justice, and that the rights of people are preserved. Physical court proceedings do present a risk of COVID-19 transmission. However, there are many instances where the physical process is the fairest way to decide cases and therefore must be able to continue where possible. This bill will not change a person’s entitlement to access the courts when they are legally compelled to do so—for example, if they are a criminal defendant, even if they don’t meet the proposed entry requirements. It’s important to note that the New Zealand Bill of Rights Act applies and will continue to apply to the actions of the judiciary and the ministry, meaning that all of the requirements will need to be consistent with that Act.

COVID-19 has largely been kept out of the courts prior to Omicron, even when it has been circulating in the community. However, the safety measures used previously are not sustainable long term. They came at the cost of postponing many hearings, particularly jury trials, and restricting the number of people accessing the court. It is untenable to keep postponing hearings, particularly jury trials. This is true for those defendants in custody while awaiting trial and also for victims, families, and others involved in court proceedings. Ongoing delays can, of course, delay the exercise of justice and prolong the distress that is occasioned by proceedings. So this bill allows the judiciary and the Ministry of Justice to address the COVID-19 risks in the courts.

It is the judiciary and the ministry that are responsible for the safe running of the courts. They have prepared the courts as far as possible to operate under COVID. They’ve introduced new measures, including more remote participation, vaccine requirements for ministry staff and contractors, staggered court hearings, and entry requirements. They’ve delayed some jury trials, and I’d note that some of these actions have been taken by the judiciary themselves, not by the Ministry of Justice. However, they are encountering some legal barriers, some of which I suspect were accidental at the time and this bill is necessary to strengthen and clarify the ability of the judiciary and the ministry to manage issues which arise. It’s also necessary to remove the legislative barriers that are preventing the judiciary from implementing safety requirements they believe are necessary to support safe jury trials.

Without these changes, people who are attending court, many of whom are legally compelled to, could be exposed to a heightened risk of COVID-19. Without changes, some people may be unwilling or unable to attend court because of safety concerns. Surveys indicate there is a public concern about serving as a juror in the current environment, and representatives of the legal profession have indicated significant concerns amongst lawyers about the safety of some court processes, which also threatens to undermine the safe functioning and efficient functioning of the courts. Some people may also seek to challenge the outcomes of their cases because of the impact of safety measures without these changes. If these risks eventuate, then further delays in access to justice could occur disrupting court business and increasing the already lengthening number of cases awaiting jury trial. I would like to reinforce that the bill will not change a person’s entitlement to access courts where they’re legally compelled to do so even if they don’t meet the general entry requirements.

The bill is an omnibus bill and it makes three sets of changes. Importantly, the changes allow the heads of bench, that’s the senior members of each court or tribunal, to impose safety requirements for those divisions or courts. This means that requirements can be introduced consistently across, for example, a court or tribunal. All of the provisions are temporary. They will only exist for the period required to manage the risks associated with the COVID-19 pandemic. Most of the bill will be repealed when the COVID-19 Public Health Response Act 2020 is repealed. A few transitional provisions relating to the deferral and excusal of people summoned for jury service will continue in effect for a further two years.

The three classes of change, firstly, go to the judicial and ministry powers as to managing entry in the courts. This is achieved by amending the Courts Security Act 1999, clarifying that the judiciary and ministry can set and enforce conditions for entering and remaining in courts and in some tribunals to take into account COVID-19. The second class of changes are judicial powers to permit the judiciary to safely manage jury processes. The bill amends the Juries Act 1981 to allow judges to set additional requirements for selecting and managing juries to reduce the mix of close and prolonged mixing of proposed jurors and juries. It also permits a registrar or judge to excuse or defer a person’s jury service if they confirm they do not meet the requirements. The bill enables jury selections to take place in venues other than the court building to reduce mingling in the courts.

Thirdly, the bill clarifies how safety measures relate to open justice protection. The bill amends the Criminal Procedure Act 2011 to clarify that the right of the public and media to be present at criminal hearings does not affect the ability of the judiciary and the ministry to conduct hearings remotely or to set requirements relating to entry and remaining in the courts. Without these changes, there is a risk that remote hearings could be inconsistent with the existing law and open to challenge.

The bill carefully balances access to justice and safety requirements or considerations. It strikes this careful balance by making the changes temporary and including a number of safeguards. Notwithstanding the new general rules, the judiciary and the ministry can only set new requirements where reasonably necessary and in the interests of justice to respond to COVID related health and safety risks. As I said before, the requirements even then need to be consistent with the New Zealand Bill of Rights Act. The bill also includes a safety valve so that judicial and ministry safety requirements do not inadvertently compromise a person’s rights. The bill gives a discretion to the judge to direct that a person can enter or remain in a court or participate on a jury where this is necessary in the interests of justice, even if the person does not comply with the safety requirements.

The judiciary and the ministry will set the requirements subject to the safeguards I’ve described. I understand they have two key priorities: strengthening the foundation of existing entry requirements and setting new requirements to support the safe selection and running of jury trials. I understand the judiciary’s considering requirements under which all potential jurors will be asked for evidence of vaccination, but an alternative will exist: a recent negative COVID-19 test and willingness to undertake testing during the course of a trial. A person could also be deferred or excused from jury service if they are not willing to meet these requirements. A judge will also have a discretion to allow a person who did not meet these safety measures to none the less be a juror if this was necessary in the interests of justice. A person who has been deferred or excused from jury service can appeal against that decision. For the vast majority of people, these changes won’t change the way—

Order! The Minister’s time has come to an end. The question is that the motion be agreed to.

Thank you, Madam Speaker. I stand to give the initial response from this side of the House, and I can confirm to the Minister and others who will be interested in our position that we do support the legislation. The Minister is correct to say that across the House—or certainly I can speak on behalf of National, we do support the notion of access to justice being fundamental to maintenance of the rule of law.

We do have, perhaps, some points to make around the timing of this legislation, and, in fact, if anything, we’re bemused to see that the press release put out by the Government earlier in the week, describing the importance of the legislation, suggested that it would be important to avoid disruption and avoid delays and avoid backlog in response to the Omicron outbreak. In fact, we’ve seen those things already. They are, to be fair, longstanding problems in our justice system. They have been exacerbated by the Government’s response to COVID-19. So it is now that in March 2022, we are seeing for the first time a legislative response to the problems that have been apparent for some months, if not years. And it was obvious to anyone who has any involvement in the court system, and also to those on this side of the House, that such measures would be needed.

Indeed, we raised concerns, exactly such as the legislation is aiming to address, when the House passed the COVID-19 Protection Framework legislation, the traffic light system, and colleagues such as Chris Bishop and I asked the Government at that point whether it intended to include within that framework and that regime the courts and tribunals that make up our judicial branch of Government. The legislation itself was silent on that matter, but, on questioning, the Government stated that it would not be appropriate for Parliament to insert itself in the affairs of the court to that extent. I think that was a reasonable position, as far as it went, but it was disappointing that the Government hadn’t turned its mind to the question at that point, and certainly hadn’t provided for that to take place, and so it has been that in the last several months, the courts themselves have been asked to fill the vacuum, to formulate their own policy, and a number have done that, of course, in an inconsistent fashion, at least with each other.

So, to be really clear, we do support measures that will improve access to justice, and the Minister is right to acknowledge some pretty gnarly issues, some challenging issues, in relation to the fact that we have participants in the court system who are compelled to take part. We shouldn’t take lightly the fact that we are placing them in an environment that might be challenging from a public health perspective, even at the same time as we require them to do so, and that fundamental rights, such as the ability to be tried by a jury of one’s peers, are also affected. So we don’t say on this side of the House that these matters are simple, but we do say that they deserve addressing and, what’s more, they deserve to have been addressed some time ago. Nevertheless, we are where we are, as they say, so not only the access to justice point we would emphasise but also similar points regarding certainty and consistency.

I’ve touched on consistency, and it’s been disappointing to observe, at a distance, but relying on advice from contacts within the legal profession that courts have developed almost in an ad hoc fashion their own procedures in a way that is different from other courts who likewise have been seeking to fill the legislative gaps. Certainty is important because, as the Minister has alluded to, we need certainty in the court process for those involved, not only so that they can participate with some confidence at the time but also for the integrity of the system such that we will not see large numbers of challenges to the results or the judgments of courts on the basis only that procedural aspects have not been properly provided for and requirements such as this legislation provides haven’t been put in place. So that’s a pretty high-level discussion about the issues at stake. I’ve said my piece on the timing. My colleague Chris Bishop may wish to say more, including recalling those points that we’d made at the committee the whole House stage.

But I will move on in a prospective way, at this point, and talk about the fact that we need to be clear that the rules that are being made and being allowed to be made are going to be fit for purpose. The select committee process will be important for that, albeit that it will be a truncated process. The Minister has stated that he will seek that the select committee report back by the end of this month, and to meet the publicly stated aim of having the law in place by mid-April, that will be necessary. So it will be something of a scramble, unnecessarily so, in terms of not having had this action before now. But in the sense that it is needed now, without further delay, National will support that relatively short process. We’ll welcome the participation of all those who are affected by the court system and who have great knowledge of its workings.

It will be interesting to see, for example, if the practical requirements around providing ID outside courts will be enforceable. For those participants in the court process who might not have access to current valid ID, that might be problematic, for example.

We would say, on this side of the House, consistent with our position on matters COVID, and restrictions more generally, that we don’t want to see restrictions placed for longer than is necessary from a public health point of view, although the point’s been made by the Minister about the fact that we will need some period of time for the arrangements to be followed through—and I’m paraphrasing, but, certainly, that point was made in the legislation itself and I think there’s a two-year period for that. I do have some sympathy for that argument, notwithstanding, as I say, that general principle that the arrangements shouldn’t be required longer than is actually necessary.

Having said that, I think that, actually, we do have an opportunity now, as a Parliament, and the justice system more generally has an opportunity, to think about ways that we can use technology better to enable remote participation not only in the context of a global pandemic but, actually, following through beyond that period of time to allow the huge delays and the backlogs to clear and to enable people to interact with the justice system in a much more timely fashion, a much more efficient fashion, and in a much more cost-effective fashion as well. We will be asking, for example, that the Government consider amending the Courts (Remote Participation) Act to clarify that which is probably already in place, to allow judges to have evidence heard—or a hearing, perhaps I should say, more accurately—in relation to sentencing matters where the parties consent and, therefore, might have a right to an in-person hearing but be prepared to waive that right in the sake of efficiency and not give up their fundamental freedoms in doing so. So, on these kinds of practical matters, we will be interested to explore or work constructively with the Government, for any matters that will improve the justice system, as a whole, into the future, as well as in terms of the short-term response to the COVID-19 problem.

So I think it’s worth just touching on, before I resume my seat, the relationship between the courts and Parliament. I’ve referred to that already in the context of the Government’s reticence to legislate too heavily into this space. I think it’s right to be cautious in that regard, so I don’t think that the Government’s been unreasonable on that. I think leadership now is important to ensure that the courts have the measures and the certainty and the comfort that they need to be able to run their own affairs. So it’s a fine distinction. It’s not Parliament taking its hands off the wheel completely, but it’s also not trying to be a backseat driver, necessarily. It’s giving the Government the ability to drive its own affairs to provide the rules and the architecture for those rules, the secondary legislation that will allow that.

On the note of secondary legislation, of course, wearing a different hat than court spokesperson for the National Party, namely, the chair of the Regulations Review Committee, I know that my colleagues and I will be interested to see the regulation-making powers and in due course regulations themselves will be of interest too. So, for those reasons, we have much to look forward to, and let us hope that throughout the passage of the legislation starting today and proceeding, no doubt, in the week following the select committee’s consideration, we’ll have the opportunity to strengthen the access to justice, as is so currently challenging, provide more certainty in the court processes, and some consistency across the board. These are worthy aims and so the National Party, at the first reading, does support this legislation.

Thank you very much, Madam Speaker. It’s pleasing to hear that members opposite are supporting the COVID-19 Response (Courts Safety) Legislation Bill.

I would just like to take a moment—it’s the first time I’m joining Parliament virtually—to thank all of the staff and officers behind the scenes who make this dual sort of interface work each day. So it’s a great feat to make it work, and I know there’s a lot of work that goes on behind the scenes to make it happen.

The Government is progressing legislation in this space to ensure that courts can continue to operate safely and effectively as COVID-19 spreads throughout our community. Access to justice through the courts is vital to a fair and democratic society, and this Government strongly supports that principle. To date, measures to keep COVID-19 out of our courts have largely worked well. However, additional safety requirements are needed to manage transmission risks under the COVID-19 Protection Framework as more and more people are active while there is COVID-19 in our community. The Government has, therefore, agreed to make legislative changes that will apply during the COVID-19 pandemic, and the changes encapsulated in this piece of legislation will strengthen the ability of the judiciary and the ministry to set and enforce conditions people must meet when entering and remaining in any court and in some tribunals, as well.

This will enable the judiciary to set additional conditions for selecting and managing juries to reduce enclosed, prolonged mixing of jurors, basically, for good public health safety measures. For example, court security officers will be able request evidence of a person’s compliance with entry conditions by the judiciary and ministry to reduce the risk of COVID-19 transmission, and, potentially, to refuse entry and remove people based on non-compliance with those conditions. The changes will also mean that jury selection can take place outside of court buildings, where alternative venues can be used to reduce close physical contact between jurors and, again, try to reduce the ability for transmission to occur.

The ministry and judiciary intend to set these conditions where it’s required to respond to COVID-related health and safety risks. However, a judge will be able to depart from general safety conditions in individual cases to ensure people’s rights are not compromised. People will also need to be able to access courts when they are legally compelled to do so—an example of this is if they are a criminal defendant—even if they do not meet the entry conditions, so it’s necessary to have flexibility in these areas.

We support this bill because it’s a strong way of promoting access to justice through the courts, given the current conditions in the pandemic. Access to justice through the courts is a cornerstone of a fair and democratic society. During previous periods in which COVID-19 was circulating in the community, the virus was largely kept out of our courts. However, that came at the cost of postponing many hearings—particularly jury trials—and also restricting access to the courts. Urgent legislative amendments are needed to remove legal barriers to the judiciary and the Ministry of Justice addressing COVID-19 health and safety risks in our courts.

Some people who are essential to our justice system operating fairly, such as jurors and lawyers, are apprehensive about entering the courts for their own health safety reasons. Courts do carry transmission risks, and they do involve people mixing for extended periods of time. In the near term, as we respond to the impacts of Omicron, more proceedings are happening remotely, and this bill is necessary to support safe physical court proceedings.

Without this legislative change, people going to court, many of whom are legally compelled to attend, could be exposed to a heightened risk of COVID-19, and some people may be unwilling or unable to attend court because of safety concerns. These issues could delay justice, disrupt court business, and, potentially, even exacerbate existing jury trial backlogs. This bill enables those processes to continue. It supplements the ability of the judiciary and the ministry to respond to safety and security risks in our courts, and it does this by strengthening the ability to set and enforce conditions for entering and remaining in the court system.

The ministry and judiciary will continue to be responsible for assessing health and safety risks in courts. The bill will ensure that they have the ability to implement appropriate safety requirements in response to those risks. The bill does not mandate any particular measures.

The safeguards that will apply when the judiciary and the ministry set requirements are that the law change is temporary to respond to the pandemic, and also the requirements may only be set where it is reasonable and necessary to respond to COVID-related and health safety risks in the interests of justice. These requirements need to be consistent with the New Zealand Bill of Rights Act. In addition to this, there will be judicial discretion to make directions in individual cases that enable exceptions to the general safety requirements.

The bill won’t change people’s entitlement to access the courts when they are legally compelled to do so—for example, if they are a criminal defendant—even if they do not meet the entry conditions. The bill, therefore, ensures that appropriate steps are taken and can be taken to reduce risk while maintaining access to essential services and access to justice. This is a good bill that keeps our courts working as best as they possibly can, given the current circumstances New Zealand is now operating under, and I commend it to the House.

Thank you very much, Madam Speaker. It’s a pleasure to take a call on this bill, the COVID-19 Response (Courts Safety) Legislation Bill, and I’ve got to say, it is with some—I won’t say pride and I won’t say “I told you so”, although I’m dearly tempted to do so, but I’m a humble guy, but it is interesting to be here, because I remember at the tail end of last year, right coming towards the end of the year, standing in the House very close to where I’m standing now, and we were going through the very expedited process on the COVID-19 Protection Framework legislation. I remember myself and my good colleague here, Chris Penk, the venerable chair of the Regulations Review Committee and shadow Attorney-General and a much more qualified lawyer, may I say, than I am—I remember saying, “Are you sure you’ve got this right when it comes to the courts?” And we were assured by the Attorney-General at the time, who, actually, to be fair to him, did engage in the debate. Unlike other Ministers sometimes in the committee stage, he did engage in the debate. He said, “Look, nothing to see here. Don’t worry about it. We’ve got it sorted.” Well, actually, it turns out they didn’t. It turns out that we’ve had to quickly come down here in March 2022, and we’re going to pass through this COVID-19 Response (Courts Safety) Legislation Bill.

I missed the select committee instruction, but how long is it going to the committee for, Mr Penk?

💬 Chris Penk: End of the month.

Oh, end of the month. OK, righty-o. So here we are, on 10 March. So it comes back on 30 March, is it?

💬 Chris Penk: Yes, that’s right.

Yeah, OK. So 20 days—righty-o. So it’s a very, very quick process. It’s certainly not the four months that normally bills would go through. Look, we support taking sensible measures, obviously, to make our court system operate in a safe way. But I suppose my starting point is to say this was eminently predictable. In fact, it was predicted by some people, notably us, and the origin of the problems go back to the speed with which the traffic light framework was developed. I’m not making a particularly political point. It’s just the truth. It was done very, very quickly. It was done in a rush, it was done in haste, because the Government had to work out how we were transitioning from an elimination framework into what could be described as a suppression framework where it became very clear as August, September, October, and November wore on that Delta was not going away and it was going to be here and we had to cope with it.

So the Government’s answer, after putting its head in the sand for most of 2021, was to say, “OK, we’ll dream up this thing called the COVID-19 Protection Framework.”, colloquially known as the traffic light framework. But the problem is that the work wasn’t done. It just wasn’t done. There was not enough work done quickly enough to develop it. So that’s why we end up with situations like the Prime Minister saying, “Well, we’re not using vaccine passes in New Zealand. We’ve got no intention of using vaccine passes.” Everyone went, “OK. Cool.”—banked that, and then three weeks later, the vaccine pass is introduced and we’re told by the Government and told by the Prime Minister that it’s an explicit public policy of the Government to set up a differential treatment between people who are vaccinated and unvaccinated. In fact, the Prime Minister proudly said so on TV in an interview. A month previously, she had said, “We’re not going to use vaccine passes in New Zealand because we don’t have any need to.”

Now, look, we supported the introduction of vaccine passes. In fact, we called for it before the Government did, because back then they were a pathway to freedom for vaccinated New Zealanders under Delta, particularly vaccinated Aucklanders who, of course, were stuck in that awful 100-day - plus lockdown. But the critical point is that Government policy was all over the show when it comes to this and we went from a position where we weren’t going to have vaccine passes and we were just all under pure elimination, to very quickly having to pivot away from that. But in the meantime, the Government hadn’t done the work on the replacement framework and so they had to move with haste. Because they had to move with haste, we ended up with a traffic light framework that basically—it’s not even in legislation. I mean, that’s the thing, and there are some serious issues regarding that; it’s all delegated to the Minister.

💬 Dr Duncan Webb: Have you read the bill?

And so we were—yeah, I’m explaining the background to why this bill’s so needed, Dr Webb, and why we will support it, but why this should have been done in December, Dr Webb. The Government just simply didn’t do the work until the situation was forced upon them last year. And so of course we support the intention of the bill, and of course we support the objective to make our court system and our tribunal system safe; I’m just simply making the point, in response to Dr Webb, that the haste with which the traffic light framework was developed is why this bill is needed.

The traffic light framework is not actually in legislation—to return to the point I was making. What we’ve done as a Parliament is delegated enormous powers to Ministers. Actually, Mr Penk’s select committee, the Regulations Review Committee, is doing an enquiry into some of these related matters. It’s a critical issue, and we heard from the Human Rights Commission yesterday and Jonathan Orpin-Dowell and Paul Rishworth QC in relation to it. I actually do worry a little bit about the powers that we have delegated to Ministers in relation to the traffic light framework bill. I know a lot of other people worry about it as well, because generally in this Parliament, when we are dealing with rights, rights as a matter of principle should not be altered by fiat, they should not be altered by ministerial decree, and that is what this bill does.

💬 Dr Duncan Webb: No, it doesn’t.

It does do that—it does. It does do that. Of course it does, Dr Webb, and it’s what the traffic light framework bill does as well, because it subsumes to delegated decision makers decisions around fundamental rights.

💬 Dr Duncan Webb: Oh!

It does do that. We’re in the middle of a pandemic and there are differential treatments for vaccinated and unvaccinated, and there’s some impact on rapid antigen tests and things like that. So of course it does, and of course I’m just simply making the point that we need to be careful around that and I’ll look forward to the inquiry of my good colleague and others. It was a pleasure to join the committee yesterday for some of that consideration.

The second point I want to make is in relation to the time limit. So the explanatory note of the bill notes that the bill, or the bill when it becomes an Act, will be in force for the time that the COVID-19 Public Health Response Act 2020 is in duration for. Now, that is much vexed piece of legislation. It expires currently on 30 June—I think I’m right in saying—this year, 2022, unless Parliament extends it. The Minister for COVID-19 Response did a good thing, which is he basically made that Act to be self-exploding—for want of a better phrase—unless Parliament says that it can continue, and there has to be regular re-authorisations now. And, clearly, in the current Parliament, that is in some ways a matter of course because the Labour Government has an absolute majority. But as a matter of principle, that is the right thing to do, because that Act, in and of itself, imposes extraordinary restrictions and regulations and gives the Government extraordinary powers.

💬 Chris Penk: They could cross the floor.

Well, my colleague Chris Penk says colleagues could cross the floor; it’s unlikely, given the iron-clad discipline that the Government operates under. The Act expires, but some of the rights, or some of the powers and some of the clauses, will continue for a two-year period after the Act expires. I’d just put it to the House—and we’re going to get into this in select committee—that it may be that we want to alter the bill so that the expiry date is actually earlier than the public health COVID Act. I’d put it to the House that my suspicion is that the Government is not going to give up the powers in the COVID Act too easily. I think what they will do is extend the COVID Act for quite some time, and I would say to the House that the powers in this Act, the court safety Act, should expire before the other COVID Act powers expire. The reason I say that is that Governments are very good at attaining power; they’re not good at giving it up, and the lesson from history is that Parliament should be jealous about the powers that the people have, and we should be careful about giving Governments too many powers, because they don’t like giving them up. The Government has accrued for itself extraordinary powers through this pandemic, and the sooner we can return to some form of normality and erode and get rid of those powers, the better. So I think colleagues who look at this on the Justice Committee may well want to look at bringing forward the time line for the expiry of this particular Act. Thank you very much.

Thank you, Madam Speaker. I just wanted to begin my short contribution by responding to my colleague across the House—Mr Bishop’s comments about public law. He noted that secondary legislation can’t or shouldn’t address the New Zealand Bill of Right Act rights and that simply is not true. Secondary legislation does that time and time again. The courts have the power to overrule secondary legislation when it’s ultra vires, unlike primary legislation, and therein lies the protection.

I would say it’s undeniable that over the past two years the biggest skill that many parts of our essential services have learnt, possibly all of us have learnt, is a new kind of adaptability, and courts are really no different, and in many ways I think the need to respond to the risk of COVID has made us much more conscious about what we understand the right to justice, the right to access justice, means. And there is some utility in this, and my colleague Chris Penk spoke to this, that in reality there are some parts of our justice system—and this isn’t unique to New Zealand—where there are delays, COVID or no COVID. If we view this as a learning opportunity there’s real potential to address some of the longer-term challenges our courts and access to justice face.

But, in this instance, this bill is a temporary and limited response particular to our COVID response and it has within it a number of safeguards in place to ensure that it doesn’t impede unduly on rights. In the context of COVID there’s a need to ensure that access to justice, to courts, remains fair and safe for judges, for staff, for the accused, for witnesses and for juries. And the big risk, as my colleague Ginny Andersen mentioned, is without this bill people who are compelled to attend court could be exposed to a heightened risk, and for some, that may put them in the impossible position of having to make a decision about their safety versus being compelled to attend court. So, clearly, the best way to do that, to address that situation, is to ensure the courts themselves have the powers they need to support the safe and effective operation of both the courts and tribunals by making amendments to reduce the risk of transmission for those who visit the courts or carry out work there.

Others have already spoken to some of the key provisions of the bill, and I sort of thought it was interesting when I looked at this to consider the measures that other jurisdictions have put in place in this regard to accessing court systems. In Canada, for instance, there are requirements about only accessing public areas unless fully vaccinated, and in some parts of Canada, such as Manitoba, they go a bit further, requiring jurors to show proof of vaccinations, whereas in New South Wales in Australia, there’s a rule that’s much more focused around rapid antigen tests. So, again, there’s quite a bit of diversity internationally and I’d again come back to the idea of flexibility but flexibility with consistency, which is another thing that Minister Parker referenced—so consistency across particular courts or tribunals but flexibility for rules that suit them.

I’d also say that one of the interesting provisions of the bill is new Schedule 1AB, outlining that a hearing may be conducted by audiovisual link or audio link, and that includes members of the public and others who wish to observe the hearing, members of the media. I’d note that again, this isn’t new, this isn’t different. In the last year, the Supreme Court in the UK, courts in Brazil, in Singapore, in India were all conducting hearings by video link. So it’s not necessarily all the hearings, but certainly a substantial number. And, again, this is a huge learning opportunity as we tackle some of the future challenges in the courts and access to justice. I’m going to leave my short contribution there, and just say that I commend this bill to the House.

E te Māngai, tēnā koe. I rise on behalf of my colleague Golriz Ghahraman to support the COVID-19 Response (Courts Safety) Legislation Bill. We note that this is an omnibus bill that amends the Courts Security Act 1999, the Criminal Procedure Act 2011, the Juries Act 1981, and subordinate Jury Rules. It also applies to tribunals covered by the Courts Security Act 1999. This bill will support the safe and effective operation of courts and tribunals by reducing the risk of transmission of COVID-19 among those who visit the courts or work there. It also enables heads of bench to make rules for conduct at court proceedings necessary to address health and safety risks.

Not being a lawyer, I had to look up what “heads of bench” meant. So for anyone else watching who had no idea, each court is headed by a senior judge, usually described as the Chief Judge or Principal Judge of that court, and those positions are often referred to as heads of bench. In this country this also includes the Chief Judge of the Māori Land Court in respect of both the Māori Land Court and the Māori Appellate Court. So those heads of bench have administrative responsibilities in relation to the court but no direct authority or responsibility over the judicial work of the judges.

Having established that, this bill enables those heads of bench to, for example, require physical distancing of visitors and staff within the courtroom, and the wearing of masks. They’re also able to hold the proceedings in whole or part by audiovisual or audio link. So we support the heads of bench having this appropriate level of power in addition to the massive power they already have as judges.

Frankly, I’m quite concerned that given all the COVID restrictions that exist, we need to pass a law for this purpose at this time. Have the courts not already been doing this, and if they have, does that mean that they’ve been illegally keeping people safe—the public and their staff—all of this time?

Now, the Greens have supported measures necessary to protect public health and adapt to the ever-changing presence of COVID amongst us in a way that minimises harm, particularly to vulnerable populations such as Māori, Pasifika, people with disabilities, and immunocompromised people. We’ve consistently raised the importance of safe workplaces during this pandemic, because any worker in this country should be able to go to their work and know that they are safe—whether that’s paid work, whether that’s voluntary. But they should also know they have access to support in the community should any one of them or their whānau succumb to this virus. So we agree this is urgent, and we support this bill going through the truncated select committee process.

This bill also changes jury provisions. They can be deferred or excused if potential jurors do not comply with COVID requirements, like having a vaccine pass, or they’re vulnerable to the effects or have household members who are, or their income will be significantly disrupted by COVID. I would say that at any time a juror should be able to be excused if their income will be significantly disrupted by them having to attend and not be at their workplace. However, for Māori, because of systemic racism in the justice system, Māori are disproportionately more likely to appear before the court, and because of systemic racism in the health system, Māori are also proportionately more likely to be infected with COVID.

So these public health measures are very, very necessary for Māori but also anyone who is compelled to be at court for any reason. Of course, being able to take part in the jury process shouldn’t be a risk to your health because of the close and prolonged mixing of jurors. Otherwise, again, there’s potential risk of low representation of Māori in juries.

As of midnight last night, only seven of our 20 DHBs had reached 90 percent double doses for Māori. Congratulations to Wairarapa, who just passed this milestone. With cases skyrocketing even despite likely under-reporting, it seems very belated to start insisting on vaccine passes into a place. We reiterate our earlier position that the wider use of rapid antigen tests should be able to broaden access for people who are not vaccinated to prove they are not infected so they can, in this case, have better access to the justice system.

However, we note that these changes are intended to be temporary. This bill expires when the COVID-19 Public Health Response Act 2020 is repealed, or earlier if my colleague Chris Bishop has his way. We all look forward to that—when mandates are removed, when restrictions are lifted and we can walk maskless in the world. So, for as long as it is necessary, let’s do our best to keep our people safe in the courts, regardless of how they come to be there and whatever their role might be. So I commend this bill to the House. Kia ora.

I rise on behalf of ACT to speak to the COVID-19 Response (Courts Safety) Legislation Bill. This bill aims to strengthen the existing ability of the judiciary and the ministry to set and enforce conditions for entering and remaining in courts and some tribunals. It also enables the judiciary to set additional requirements for selecting and managing juries to reduce close and prolonged mixing of jurors. It clarifies that the health and safety measures in remote hearings are consistent with the legislative open justice protections. It embeds in legislation the ability to use an audiovisual link, which is currently already being used extensively, and I suspect this is the reason for this bill—to avoid any future litigation of any technicalities that haven’t been thought of yet, and the technicalities that probably should have been thought about. The bill also gives more power to court security to check and remove those who don’t comply with the rules.

Clause 6 of the new schedule refers to, as was mentioned, heads of bench, and there are 38 examples of identified positions, not just judges but presiding judicial officers who have the discretion to make the conditions of a hearing and who attends those hearings. The heads of bench are a wide range, as was mentioned before: from the Chief Justice of the Supreme Court to the chair of the Weathertight Homes Tribunal, and it just makes you ask why CEOs and employers and managers of businesses, those who care about the welfare of their staff and are trying to run a business, aren’t trusted with similar discretionary powers—for example, allowing staff to work if they have a rapid antigen test, so they can keep trading and keep paying their employees.

The timing of this bill is interesting, because currently the courts are running relatively well with the number of COVID provisions already in place—for example, people without a vaccine pass who enter a court that requires a vaccine pass just have to have a negative PCR test, and that’s adapted from 72 hours to 48 hours currently. If their attendance is required at court they can have a rapid antigen test and that’s available until 30 June 2022. In terms of health and safety there may be a limit on the number of people allowed into court—it’s already being achieved—and who can be physically present.

The High Court has already gone to the red setting, and it’s just assumed that they do remote participation, along with the Youth Court, to get through their workload. Criminal and civil jury trials have continued, and the health and safety measures include rapid antigen tests for jurors and other participants. At the end of January, under these protocols 87 percent of scheduled court events were able to take place. This is currently what’s going on, and just last month the Chief Justice said, “It isn’t business as usual, but I’m really pleased that we have been able to conduct a considerable amount of work over the last 10 days.”

We’re two years into this pandemic and the Government is just sorting out the court system. It really makes you wonder what they’ve been up to besides little jigs and patting themselves on the back. Schools have had to adapt. Every business has had to adapt, and if they can’t, they can just be regarded as collateral damage. Even Parliament has had to adapt. We’ve got COVID-positive healthcare workers able to return to work, and around the world restrictions are being relaxed or dropped completely. Supermarkets have put up screens to protect workers from the customers. I’ve been in many courtrooms and there’s plenty of room for Perspex screens.

While justice delayed is justice denied, we have to ask whether this bill is really necessary. The Prime Minister has said that Omicron would peak mid-March, and then restrictions would be reduced. This bill will come into force in mid-April. ACT believes it’s time to move on from the fear and take back control of our lives, and with that in mind we won’t be supporting this bill.

It’s wonderful to be able to take a short call on this bill and thus prove the effectiveness of remote participation in our most fundamental democratic institutions. I want to first turn to the point raised by my colleague Dr Kerekere: yes, the courts have been handling this themselves. They have a range of measures much like those that have already been described in terms of seeking that people give vax passes, where necessary, and amending those procedures where someone is compelled to attend, such as a defendant. They’ve been doing it themselves.

This also goes back to my colleague Mr Bishop’s point, which is why haven’t we done this earlier, because it is absolutely crucial that Parliament stays as far away from the day-to-day operational matters of the court as possible. These are fundamental constitutional matters. Courts guard their constitutional independence to run their own hearings very, very strongly, and it is right that they should do so. So we are intervening now because they are concerned that they need the backup to ensure that things continue to run smoothly. That is what we are doing, and this is the appropriate moment to do it at.

Now, there is of course concern from some members that these measures such as remote participation might actually further endanger the right to trial, and it’s my pleasure to be able to say that not only have we got the COVID experiments that we heard about from my colleague Ms Walters but, actually, things like remote participation have been tried for many, many years in many different courts that we compare ourselves to. So, to give one example, Western Australia has been running its cross-examination of child witnesses remotely for about the last 25 years. It did that because this is a province where the trials need to be conducted over a huge geographical distance. They don’t find it a problem at all. I have spoken to the defence counsel. They say the only problem with remote participation is when you have to listen to the recording of yourself—rather like having to watch or read one’s Hansard back. They say it is intensely boring.

I would like to take the point, lastly, that my colleague Ms Walters made. These are things that are going to disappear with COVID in terms of this legislation, but the innovation that we get to trial now, with no threat to the fair trial, is something that we can learn from and that may actually last into the future. So I commend this bill to the House.

Thanks, Mr Speaker. I’m going to take a short call on this, effectively, court safety legislation. I thought I’d just pick up on one element that the previous speaker Emily Henderson touched on. She said that the Labour Government hadn’t done anything prior to the courts to enable the courts the freedom to manage their own affairs and that this was a matter of what we’d call, technically, comity: courts do their things; we do our things. If that argument is right, then why are we doing anything at all at any time? So I thought I might just reflect that back.

Look, it’s a relatively good bill. As Chris Penk, our lead on this, has mentioned, we’re going to support the bill through first reading and into select committee because there are a number of little curly questions that need to be dealt with, and, look, fundamentally, as others have intimated, this bill—well, actually, they haven’t intimated it; they’ve said it very explicitly and clearly: this bill is giving powers to the courts to run their own affairs, which makes sense.

I’d make the point, though—actually, two points: first and foremost, National has beaten this drum and, I think, rightly so. This was something we mentioned when the COVID orders were first going through with those first bits of legislation that the Government was pushing through the House, and I think, rightly, we opposed. This was something they should have considered back then. It is a bit of a “told you so” situation. Maybe I’m not as humble as Chris Bishop, who first raised it. These were very specific elements. When you look at this legislation, a lot of the aspects, including access to audiovisual technology, was something that was mentioned previously, in previous debates. The Government ignored it at the time, and, as has become a little bit of a habit in this place, we’ve got to return into the Parliament to fix up, if you will, a piece of legislation.

The second point I would make is just how far this goes. I mean, we in this Parliament, I think—and particularly through COVID, but not singularly so—are having a bit of a habit of passing what I’d call blank cheque legislation. It’s an enabling piece of legislation which then in turn allows the Minister, or Ministers, to, basically, just make any regulation they want. That’s bad law, and we as a Parliament have to stop doing that, regardless of what political parties are in charge.

But I would mention—particularly as this bill is set around COVID—and go back to a theme I often hit on, which is proportionality. As we’ve learnt over two years how to manage COVID and as we’ve vaccinated people left, right, and centre, we do have to ask ourselves how many more restrictions are actually required in the state that we are in today. So, I suppose, to those looking through this bill and to the courts themselves, to the extent that a parliamentarian is allowed to pass comment on the courts, I think the way they approach this should be with a very light touch. The ability of New Zealanders to access justice should not be too overly controlled by COVID any more. We’re two years in, we’ve learnt a lot, and we’ve got a number of protections in place. Now, as I say, we’re all pretty much vaccinated significantly. I would just like to see the courts take a very, very light touch in managing things and not be too ruled by fear or worry.

New Zealanders need to access justice. That’s probably my final point, which is, unfortunately, it doesn’t matter if it’s the weathertight homes court or all the way through to the Supreme Court, New Zealanders are already experiencing unacceptable delays in justice, so anything we can do to speed it up is a worthy cause. Thank you, Mr Speaker, and I commend, of course, the bill to the House.

I call Tangi Utikere—a five-minute call.

Thank you, Mr Speaker. I’m delighted to take a brief call on this piece of legislation, because equitable access to justice is a fundamental tenet of a free society—and, indeed, that’s the case here in New Zealand—and this bill goes quite some way, actually, I believe, in enabling that within the current context of a global pandemic.

The proposed legislation is temporary—that is, generally, it is tied to the life of the COVID public health legislation—so that gives some context. But judicial officers, which many probably—actually, when you look at the list that’s contained in the schedule within the bill, it’s much longer than perhaps I think many people might think. But, generally, most people think of judicial officers as judges, community magistrates, and the like, and they need to be able to facilitate proceedings in a way that they consider to be appropriate.

I can share with the House that I’ve actually had some experience in this space as a judicial officer who has presided over hearings—

💬 Dr Duncan Webb: Judge—the judge?

—not a judge, Dr Webb—in courtrooms within the District Court jurisdiction, largely around arrests, remand, and bail hearings, and I have done that for over 10 years. Actually, Mr Speaker, I spent some time in your electorate presiding over bail hearings and traffic hearings in the Feilding District Court. So there’s the connection and the link that we make, sir. Of course, your courthouse is no longer there.

ASSISTANT SPEAKER (Ian McKelvie): Don’t need it!

But what it does, I think, signal is that there are many courtrooms and court facilities all around the country that are very different. The infrastructure is different. The six courtrooms that exist in my Palmerston North courthouse are all quite different in themselves, but, distinctly, they are different from other courtrooms and courthouses around the country, and so what this bill will do is it will provide an opportunity for presiding judicial officers, within the context of some guidance from the heads of bench, to issue determinations that they consider appropriate within the context of specific proceedings. So the flexibility is important, because on the one hand we want to ensure that these proceedings can continue to take place where people have considerations such as health and safety at play but also it doesn’t undermine an individual’s right to a free and fair opportunity when it comes to justice and natural justice.

I think this is a piece of legislation that will go to the select committee. We’ll hear from the select committee as a result of this working through the process, and I am happy to commend this to the House.

Tēnā koe e te Mana Whakawā. Look, I really just want to make a brief comment around some of the concerns raised from the Opposition to make it clear and reinforce what the Minister introducing the bill noted, which is that these restrictions absolutely must be New Zealand Bill of Rights Act - compliant. There is, of course, a very strong presumption set out in the Drew case, I think, that this House will not pass legislation which—and Fitzgerald, the three-strikes case, as well made it clear the presumption that this House will not intend to pass legislation which breaches the New Zealand Bill of Rights Act.

Further, when we get into regulation and acts of the executive, of which some of these restrictions under this Act will be, it’s simply the case that the executive don’t have the power, that they are constrained in their actions by the New Zealand Bill of Rights Act, and that in the absence of a truly extraordinary statement by the legislature that they can breach the New Zealand Bill of Rights Act—one which doesn’t exist in the law—there is essentially an irrebuttable presumption that any powers conferred on the executive must be exercised consistently with the New Zealand Bill of Rights Act.

So, access to justice and—can I just say one other thing—open justice and the ability of people to know what’s going on in the courts, whether they’re a party to a proceeding or not, is of critical importance to our constitutional system. This is really a part of making sure that that continues in this modern, COVID-affected age, and I commend it to the House.

Thank you, Mr Speaker, and it’s very good to see you in the Chair. I stand—well, I come in here from remote in Auckland to support this bill, the COVID-19 Response (Courts Safety) Legislation Bill. Nobody would deny the importance of the issues covered by this bill, which is to say to try and reduce the amount of interruption to our justice system during the COVID crisis that, unfortunately, we continue to face coming up to two years since we first encountered it.

This legislation does deal with issues through the courts and tribunals in terms of creating a safe and effective operation of the courts to reduce the transmission of COVID-19. It knocks out a couple of legislative barriers to having the courts respond in a way that enables safety but also enables the practice of the courts to continue. So, look, we’re not going to oppose it, but we do feel obliged to point out some pretty obvious things, the first of which is that this is arriving far too late in the piece for New Zealanders.

Now, we’ve heard the Chief Justice in her first annual report referring to real issues in terms of access to justice in this country. We hear of people waiting sometimes two years or longer for their cases to come before the court. That is, frankly, a dysfunctional justice system, in my view. If we have such long delays to justice and this COVID situation has made it worse, it was entirely predictable, and what we see here with this legislation is that finally, in the final sort of “Hurrah!”, we have a piece of legislation that might come into effect in mid-April, at a time when I think most New Zealanders will be hoping and expecting that the vast majority of the COVID restrictions will have been removed.

So, with blazing trumpets and people waving palm ferns, this legislation will arrive just at the moment that everybody’s wandered off and got back to their normal lives. Meantime, for the past few months, we have continued to work through real restrictions and complications in the court system that this legislation, if it had been introduced earlier, may have helped.

Now, people might say, “Oh, that’s a bit harsh on the Government. They’ve been trying to do their best.”, but I think that any rational review of 2021 would demonstrate that that was the year of missed opportunities. In 2020, New Zealand followed a strategy of buying time for COVID-19, which was to say we would spend an enormous amount of money to secure New Zealand, to close the boundaries, and to subsidise businesses that were affected by that in preparation for vaccinations and for improving the health system so that we could cope with a COVID outbreak. Then 2021 came along. In the first half of 2021, we waited for everybody else in the world to get vaccinated before we started. The Prime Minister said that other people needed it more than us, so that delay was directly attributable to the more than 100-day lockdown in Auckland and the severity of it.

Second, no progress was made on any more ICUs, so we found ourselves this summer, with the outbreak of Omicron, with the same issues that we had back in 2020 in the sense of a worry that the health system would be overwhelmed and the need to go back into highly, highly restricted circumstances, notwithstanding the fact that New Zealanders in their millions responded very quickly when they did, finally, have the opportunity to get vaccinated.

So, now, we are very highly vaccinated: well over 90 percent. We have a higher number of boosters. The health system, notwithstanding the limited progress on ICU, is able to cope so far, and yet we continue to be in what is becoming almost a virtual lockdown, with so many families now in isolation.

My guess is that public demand for the steady reduction of the restrictions around COVID over the next few weeks will dramatically change the rules. So having this legislation, like I say, emerging mid-April—hopefully—will be too late from a country point of view, but it really does reflect very badly on the Government that they didn’t deal with this much earlier in the piece.

I would also state that this legislation obviously can’t deal with the broader issues around access to justice. If I step back and look at the justice sector more broadly, a rational person looking at it would say, “Well, what are the big issues?” The big issues are a rise in violent crime in this country, a 50 percent increase in gang membership and that link to rising crime, and a sense of lawlessness in parts of our country. Then, secondly, I think a big issue is this whole area of the slowness and cost of getting access to justice, not just in the criminal courts but also in the civil courts.

I do think any Government worth its salt would be focused on those issues. Sadly, when we look at the legislative focus of this Government in the justice area, that is not where they’ve put their attention, generally, and they haven’t really dealt with these issues. They make big announcements. Budget 2020 announced a huge amount of money to be spent on the courts. Very little has actually been spent of that fund in the last two years. A lot of talk; not much actual delivery.

I understand—I’ve been told—that only four out of 17 Auckland courts are able to do audiovisual work and are wired up for it. I mean, that is an astonishing figure. They’ve been very slow to get the systems into place that we need to be able to respond.

Then we’ve heard Government speakers referring to the fact that “Oh, in Australia they’ve done this. In Canada they’ve done that. In Sweden they’ve done that.” All these other countries have done these things weeks, months ago, and yet we have twiddled our thumbs and thought about it for some time.

I do think there, frankly, are issues in the criminal space about the threshold for jury trials, and I think long term we need to think about these things in terms of dealing with the massive delays that we face. So, look, those are broader issues that I hope that the Government will be looking at over the next few months. This legislation deals with specifics around COVID. It’s very much part of the Government’s overall response to COVID, which is swinging in months too late with some changes that, yes, make sense, but actually most of the country is very rapidly moving on.

I do want to finish by paying tribute to the many New Zealanders who work in the court system, particularly the judges and—well, all the people, from security to the clerks and the many people who have been trying to do their best, the lawyers defending and prosecuting. I’m not going to thank the criminals, but I will acknowledge particularly the victims of crime who have had to struggle with the effects of the delays.

Can I just pay tribute to our court workers and the judicial system in the broader sense and encourage them that we understand the difficulties that you face. We do want to do in Parliament everything that we can to enable you to do your job productively and effectively. When you think about justice, yes, the quality of the decision, or the accuracy of decision, is critical, but, equally, timeliness and costs are very important as well, because it’s all very well if you arrive at the perfect judicial decision, but if it takes 10 years and is unaffordable for many New Zealanders to access, then there is no access to justice. So speed and costliness are important issues, and we all need to be absolutely focused on them.

Finally, I had another point, which I have forgotten what it was, so I’ll leave that for the time being. I’d just say that—

The member’s time has expired.

Thank you, Mr Speaker. I am pleased to be speaking in support of this bill, which will go to select committee.

It’s been rather churlish, reluctant support from the National Party today. However, it is a bill that there is mostly support over. I’d make the point to the Hon Paul Goldsmith that we aren’t really over the need for something like this. We have Omicron, and this piece of legislation is very much designed around it. What we had was the use by the court of their inherent jurisdiction and, yes, absolutely a respect for the powers that they have separately. This is something that is being done cooperatively and supportively. So what this will do is actually just give shored-up support over things like the Juries Act, the Criminal Procedure Act, and the Courts Security Act, and what it is about is actually access to justice.

Access to justice is an interesting concept. We throw it around and we don’t think about it much, and, actually, what that is about is it is about all the vulnerable people who come into a court situation. That involves victims and it involves defendants, it involves the media being able to watch the proceedings, and it involves lawyers. I was mindful that Golriz Ghahraman—who has not spoken on this bill, but her colleagues spoke on her behalf—would be one of those lawyers that would have found this very difficult. Going into the court for her, because she’s got immune-compromised issues, would have been difficult, and her clients, no doubt, would have been the poorer for it.

So it’s very important we have safe settings in courts, because people don’t go there for fun. They’re actually pretty vulnerable when they go in. So this produces some of those balances, and what I think is very important is that it is subject to the New Zealand Bill of Rights Act. I take my colleague Dr Duncan Webb’s point that this is actually built into our system: when people make decisions by delegation, they make them mindful of their obligations under that Act. It is temporary, and that’s important too.

It is something where I think the most interesting part of this is the discretion that the judge has, despite the decision of the heads of court, in, actually, every single case. So they are actually thinking about what they do, mindful of those principles and respectful of them in making sure that access is actually something that’s real. So I commend this bill wholeheartedly to the House, and I look forward to it coming back from the select committee.

The question is, That the COVID-19 Response (Courts Safety) Legislation Bill be considered by the Justice Committee.