COVID-19 Response (Courts Safety) Legislation Bill

on behalf of the Minister of Justice: I move, That the COVID-19 Response (Courts Safety) Legislation Bill be reported to the House by 31 March 2022 and that the committee have authority to meet at any time while the House is sitting (except during oral questions), during any evening on a day on which there has been a sitting of the House, and on a Friday in a week in which there has been a sitting of the House, despite Standing Orders 193 and 196.

As we’ve heard through the course of this debate, this bill is an important one, and it’s needed to mitigate safety risks as soon as possible to ensure that courts can operate both safely and effectively, particularly as we face Omicron spreading in the coming period. If key court participants including jurors, defendants, lawyers, communications assistants, and others are either unwilling or unable to participate in court proceedings, then they may need to be delayed or adjourned. If proceedings have to be adjourned part-way through trials, that can significantly extend time frames beyond the extent of the delay itself; in fact, it can potentially require a trial to be stopped and a new trial to be rescheduled. A break of just three or four days in a trial can potentially create this. An Auckland High Court trial could potentially get delayed by up to a year if this occurs.

Court operations have been significantly impacted by COVID-19. Since August of last year, when Delta restrictions had an impact on court operations, around about 80,000 court events have been impacted. That means that around about 25 percent of court activity over that period has been impacted to some degree. The number of active criminal cases in District Court is now almost 8,500 cases more than we had pre-Delta, which gives an indication of the kinds of impacts that we’re trying to mitigate here, including an additional 428 jury trials awaiting trial.

The Government is moving rapidly through this bill to give the judiciary and the ministry the ability to address safety concerns. In doing this, we do need to be sure that people’s rights are protected. The Government has worked closely with the judiciary to understand the issues and to try and strike the right balance before we move through with this legislation.

So while this process does allow for a short select committee consideration, we believe that is the appropriate balance to strike, and, as such, we think that the process that I have outlined is the right way forward for this bill.

ASSISTANT SPEAKER (Ian McKelvie): The question is that the motion be agreed to.

Thank you, Mr Speaker. I’ll perhaps only take a short call. I understand that my colleague Hon Paul Goldsmith is also keen. I don’t know that he’s managed to indicate that in the chat yet, but if he does, then I’ll truncate my remarks.

It’s perhaps just worth placing on record that National has supported not only the legislation and the fact of it being referred to the Justice Committee—as most parties in the House have also agreed—and even the truncated process. The reason that we’ve done that is because this is a matter of some urgency—to use the lower case “u” for urgency, not technically in the parliamentary sense—and this is a problem that requires resolution as soon as possible.

Of course there are always dangers inherent in rushing legislation, so this is somewhat of a compromise, bearing in mind that with the legislation having taken so long to come to the House as an alternative to inclusion in the COVID-19 protection framework Act in the first place, and bearing in mind that even with an effective date of mid-April and regulations then to come out of that at some time subsequent, it will be difficult to justify any further delay. So for that reason, reluctantly, we do agree that a truncated select committee process will be necessary.

Thank you, Mr Speaker. It’s my pleasure to rise on behalf of the ACT Party to take a call on this referral motion to the Justice Committee.

I have a few points that I wish to raise, and the first is how short the select committee time is. The select committee is an extremely important part of the parliamentary process. The main function of it is to allow for there to be time to hear from members of the public and to hear their thoughts on what Parliament is passing through this Chamber into law.

Now, the date that the Minister has referred back to only gives a period of about three weeks for the select committee to sit, but if we walk through what has to actually happen in that time for select committee, it doesn’t really give much time for the members of the public at all. So if you think starting from, I guess, today, you’ll end up with advertising needing to occur so that submitters even know that we’re talking about this law. The submitters then have to have time to be able to prepare their statements for the House. They have incredibly busy lives, and that might only give you a couple of days—and then the clerks have to sort all of those submissions. Then you have to call people in for an oral hearing, if that’s what they’ve requested.

Once that’s happened, you would hope that the select committee has done their job well and picked up on any recommended changes that might need to happen, so they’ve drafted some amendments. Those all need to go through the Justice Committee for everybody’s acceptance. The report then needs to be finalised and, before you know it, you’re not actually giving a lot of time.

So, if I look at the calendar here, open on my phone, and if we work backwards and you actually look at how much time that’s giving you to put in place all of that work, you’re only really giving at maximum a week for the actual select committee hearing process. If we’re talking about the judiciary, these are extremely busy people. I don’t see how it’s acceptable that we could end up in a situation where we’re putting a new law on how the courts will operate, and yet the people who we depend on to be our judiciary, who are working extremely hard in a time-sensitive manner, will have to work around the clock to make sure that they can get their submissions in on time. I hope that this process will actually be fulsome and that it’s not just ticking boxes.

If you think of the types of people that you’d hope would be submitting on this type of law, you’ve got the judges: the people in charge of the courts. You’ve got those who might be doing the jury trials and those will be doing judge alone. Then you’ve got the registrars: the people who make sure that the court process are followed and they’re helping the judges. Then you’ve got the juries: people who have actually sat on jury trials and might be able to give you their opinion on how this will affect jury trials going forward.

The prosecutors: the lawyers or police officers, who are trying to prove that the defendant is guilty. You’ve got media, who quite often cover court cases; defence lawyers, who, quite clearly, are lawyers for the defendant; and the actual defendants themselves. I think that’s incredibly important and shouldn’t be skipped over.

People who are police escorts and prisoner escorts, who help out at courts; people who sit in the public gallery—also very important for victim support—and witnesses. We have court victim advisers—another very, very worthwhile member of the court and judicial system—the witness support person, which is the person that a judge has agreed can support the witness in court; and the witness, who is actually giving evidence on what they saw happening in front of them or on what they know about a particular case.

When you take all of those people who will be affected by this law change, we want to be making sure that we have given them the sufficient time to get their thoughts in order to make sure that they have an effect on this law. That’s incredibly important.

I think there is an element that Chris Baillie from our party talked about earlier in his speech. We already have changes that have gone through the court system, and I think it’s really important that if we’re changing this law, then we’re actually giving time to even ask questions of submitters back to them in that select committee process to ask why the changes that have occurred already in the courts have already been able to do that without having this law change, because if I just refer to the Chief Justice’s latest post on requirements of the court, it shows a lot of things that have happened.

The Chief Justice said—operational from Monday, 14 February—that “The Chief Justice has today published revised protocols for the operation of the Courts of New Zealand. The protocols have been adjusted to allow for an extended period in the Red traffic light setting, following the Government’s announcement of its three-phased public health response to the Omicron variant on 26 January 2022. All court protocols are available here on the Courts of New Zealand website …

“The court operating protocols set out a framework to ensure that everyone who needs to participate in proceedings is able to do so. The primary considerations that underpin the protocols, and decisions made under them, are the interests of justice and the protection of the health and safety of those in court buildings. Key changes to the protocols published today: the protocols issued last week have been adjusted and republished today to ensure that courts are operating as safely and fully as practicable during the Omicron outbreak, within the current legislative settings that govern access to courts and the right to be present at hearings. The revised protocols will take effect on Monday 14 February 2022.

“The main changes to the protocols are as follows. For those entering the Courts without a My Vaccine Pass, the requirement for a negative PCR test to be administered has changed from 72 hours to 48 hours. If a person whose attendance is required presents at court without a My Vaccine Pass and is unable to provide proof of a negative PCR test and is asymptomatic, free supervised Rapid Antigen Tests (RAT) will be available at pharmacies until 30 June 2022. For health and safety reasons, there may be limits on the number of people not directly involved in proceedings who can be physically present in courtrooms and court buildings. The High Court has moved to a presumption that at the Red setting its business will be conducted to the extent possible by remote participation. In remote hearings in the High Court and District Court, media representatives who are present must introduce themselves to the judge. A new triaging process has been introduced for the Youth Court. This includes judges reviewing lists at least two days before a hearing to determine which cases can be dealt with remotely. Matters requiring an in-person hearing will be allocated time slots to reduce numbers of people present in Court.

“Jury trials: criminal and civil jury trials in the High Court and District Court continue as scheduled and will be subject to enhanced health and safety measures including rapid antigen tests for jurors and other participants.”

But if I look at what this bill is seeking to hope to do, they’re starting to talk about some people being maybe unwilling or unable to attend court because of safety concerns, and they’re wanting to remove legal barriers to desirable safety measures. It appears the courts have done most of this already, and I think this select committee needs to hear from those who make these decisions in the court. Thank you, Mr Speaker.

Thank you, Mr Speaker, for the opportunity to speak in this debate. We’re about to, if we get to it—the next bill to be debated is around the New Zealand Bill of Rights Act and parliamentary processes for debating decisions made by the court in relation to that, and this debate that we’re having here is another example of those processes that have been introduced to the way that Parliament operates to ensure that decisions made by the Government have consequences in the House and they’re forced to explain themselves. So what we’ve got here is this Government wanting to rush through some legislation in response to COVID-19 and not having the normal amount of time that you have at select committee looking at a piece of legislation.

The point of a select committee process is to allow New Zealanders from all walks of life to submit on the bill and on what is proposed, recognising that the 120 MPs and the hard-working and very focused ministry advisers in Wellington don’t always know everything, and they miss things. They misunderstand things in draft bills. When a bill is introduced into the House, very often, if enacted, it would achieve the exact opposite of what they had set out to achieve or it would have all sorts of unintended consequences, and so, very often, public feedback on legislation allows New Zealanders to point out: “Hang on a moment, you’ve got this wrong, you’ve got that wrong.”, or “What about this?”, and “If you do this, this is what’s likely to happen.” So in our wisdom, when Governments do propose to rush through legislation with a shorter select committee process, they have to have this debate to explain themselves.

Now, Mr Michael Wood, the Minister, gave the explanation at the start of this debate, and his justification seemed to be, in essence, that it’s a terrible thing that justice has been delayed because of COVID restrictions under Omicron fears that people have around the spread of the disease and that this is having a material effect and possibly seeing trials delayed for as much as a year because of delays in the process. So this is a terrible situation that we face. It’s an urgent problem, therefore we need to deal with it urgently. Ultimately, we are prepared to support this speedy process and this legislation. Partly, we support the speedy process, because if it was even longer, then the bill would be enacted even later—even more months after most New Zealanders will have moved on and want to get on with their lives—and it will be even more redundant than it would be if we had got on with it in a quicker time span.

But the point I was making, though, was his arguments for urgency really just underscore how disappointing the whole thing is in the sense that it would have been much better if the bill had been introduced earlier so that we could have got ahead of the issues that have been raised. My colleague from the ACT Party Brooke van Velden pointed out, of course, that the courts on their own bat have made a number of changes already. There are a few legislative issues that we’re trying to deal with here. It’s probably not going to be the end of the world, but it may be helpful at the margins, and it would have been helpful if it had been brought in sooner, particularly when the Government introduced the red light process legislatively back before Christmas, when, as we pointed out, they’d missed a whole lot of things.

So, look, unfortunately, we’ve had a pattern over the last couple of years now of a Government responding on the back foot to a whole lot of things that were eminently predictable and likely to happen relating to COVID-19. Everybody jumped up and said, “Watch out, this is going to be an issue in the courts.” They do nothing about it until very late in the piece, and then rush legislation through Parliament. Quite often, as a result of that, they’re getting it wrong and having to come back with more legislation and further tweaks, and then in the meantime, the poor people who are working in the system—in this case, in the judiciary and in the justice system or the court system—suffer the consequences for that. But they have to go with that.

So we will with some regret support this truncated process. We understand the urgency; we just do wish that this bill had been introduced much earlier in the piece.

Thank you, Mr Speaker. It’s with some concern that I hear the submissions on this motion from our fellow opposition party, the National Party, supporting it with reservations.

There’s been a number of motions for urgent select committee referrals that have come to this House since I was elected as a member of Parliament in October 2020 and took my seat here in November 2020, and on each and every occasion there’s been a motion seeking an urgent or truncated select committee consideration of a piece of legislation. It’s for a number of similar reasons: there is a longstanding problem, whether it’s social or environmental or economic—in this case a problem with the functioning of the justice system that the Government has known about for a very, very long time—where people affected by the operation of the justice system, in this case, have raised issues with access to justice, the functioning of the courts, and whether trials are delayed because a lawyer gets sick or a witness is unable to attend because of another emergency or their car running out of petrol. These are not new problems, and yet today, again, we have a Minister telling the House that the select committee report-back period of only a few weeks is absolutely necessary in order to solve a problem that is so incredibly urgent that if it’s not solved by Parliament in the next few weeks, then a whole lot of things will happen that are bad.

But if we look at the records, in fact, the Minister himself mentioned that even before COVID a delay to a High Court hearing in Auckland, an adjournment, could result in a delay of up to a year before another hearing date was available. Having this bill referred to select committee as proposed for a truncated hearing period and consideration period of only a few weeks will not address a backlog of over 8,000 cases that have built up during the COVID period. They are 8,000 more cases than the actual backlog, which I’m sure is many, many, many thousands more.

So my point is—or point one—that referring a bill for a truncated consideration at select committee is a completely unacceptable way to address what are in fact long-term, structural problems that affect the lives of everyday New Zealanders, whether they are seeking justice through the court system, or whether they actually have been accused of an offence and are seeking to demonstrate their innocence in some way. So whether this bill is in fact necessary itself is questionable, and, again, that comes back to the rushed approach. If a Government, if a Minister, or if a department can’t get the problem statement right, how on earth do they expect to solve problems that affect everyday New Zealanders like access to justice, and if they can’t get the problem statement right with all the resources of Government, all the time available and all the advisers, how on earth do they expect the people affected by poorly thought out legislation to develop their own submissions and to consult with their own stakeholders?

I can give an example from a recent select committee hearing I was involved with with the Environment Committee on the enabling housing amendment bill to the Resource Management Act, which had a similarly truncated three-week report-back time frame. There was a large number of submitters who came to committee, and they said that all of the problems that the Government and the National Party, who had held hands, like they are today, on a podium and announced a piece of legislation that had to happen under utmost urgency to solve a problem that was so urgent, despite the fact it had been developing over decades. Actually, many of the submitters told us, “We’ve come here with our submission. It’s four pages long, and it summarises the things we could get down on paper in the week that we had. We weren’t able to go back to our governing bodies. We weren’t able to go back to the executives of the organisations that we worked for and make sure that everybody in our executive leadership team understood the risks that this Government’s legislation were likely to cause, and therefore say what was our organisation going to propose to the Government as an alternative.” They weren’t even able to get sufficient legal advice on what all the implications were of a piece of legislation that was brought to the House, and were then told, “Well, we’ve only got a week to make a submission, a week for hearings, and then a week for the committee to consider.”

It’s an appalling way to develop legislation, and if this Government really wants New Zealanders to think that they are all about solving long-term problems that affect our communities, then they would do well to actually take their time, because these problems are not new. There are 8,000 additional delayed cases compared to March 2020. That’s a lot, but it’s not because of COVID; it’s actually because the court system appears to be under-resourced and to be operating in what appear to be archaic modes of working. They don’t appear to have an effective programme management system that enables them to move resources or move court hearings around, and if they’re insisting on still sending notices to people by mail when most people rely on electronic communication, it’s probably not this piece of legislation that’s going to solve the problem of access to justice for people who need to get to court, either as defendants or as witnesses or as jurors or as victims during this period—which may well only go on for a few more weeks—of a COVID pandemic response.

This bill is actually a COVID-19 response court safety legislation bill. The courts have been operating since March 2020. When New Zealand shut its borders and imposed some of the harshest lockdowns in the world, the courts have continued to operate. Serious criminals have been through the criminal justice system and have been sentenced to prison. Appeals have been heard. So it’s not just whether the Government has actually come up with a problem statement that leads to the need for legislation; it’s actually: is this Government reading the tea leaves, are they reading the newspaper, and are Ministers and members of Parliament of the Labour Party getting out into their communities and actually seeing what’s going on in their communities?

Because if they were, they might see what members of the ACT Party who visit their local communities see, like my colleague here, Mr Mark Cameron, who’s a member of Parliament who’s based in Ruawai in Northland, who spends some of his time when he’s not in Parliament talking to people in the dairy sector and in the Ruawai community about issues that affect them, and my colleague here Toni Severin, who, with her partner, has had an interest in an industrial water-blasting and cleaning business for many years. Now, her customers and the customers of that business tell them that they actually still need to get their buildings cleaned, and it turns out that you can clean a building, you can milk a dairy cow safely, and you can also operate a court system safely because the courts are operating safely. Therefore, the justification for a truncated select committee process is not proven.

The ACT Party will oppose this motion to refer the bill to a select committee for only a short period of three weeks before it reports back, because, in fact, the need for urgency is not demonstrated. The problem is not clearly defined and the stakeholders who would want to submit on the bill will not have sufficient time, and if the bill in fact does pass in the time frames that the Minister and the Government insist on, the bill itself provides an almost farcical situation where if the COVID-19 rules change and none of the other things around vaccine mandates or vaccine passes are even used any more, people who start their court process during the period this legislation is in effect will still be subject to all of those controls for two years, while somebody else who walks through the door of the court the day after the vaccine mandates drop won’t be. For that reason, the ACT Party opposes this bill.

I move, That the question be now put.

Mr Speaker, thank you. I’d like to speak on the COVID-19 Response (Courts Safety) Legislation Bill. Like my fellow colleagues here, we think this, again, is a rushed bill, and we totally agree that justice is needed. However, if you don’t already trust what has already been implemented; if you don’t trust your COVID-19 testing system, where you can do PCR testing or rapid antigen testing; and if they’re concerned about the safety of people catching COVID-19 within the court system, there is surely enough room within a court, in most courts, that you can—can—separate people within it and limit the numbers that are sitting within that courtroom.

I feel this is so unjust on our lovely select committees, who are just so busy. Having to have these things dropped on them so fast and so quickly is just totally unfair on these staff members, when they are already at capacity. Also, some of them are probably at home with COVID themselves, and so they are probably working on limited staff.

I think this should not be rushed in the time frame. We need to give our lawyers, our judges, and even the witness protection people—

Sorry to the speaker. This debate is interrupted and set down for resumption next sitting day. The House stands adjourned until 2 p.m. on Tuesday, 15 March 2022.

The House adjourned at 5 p.m.