COVID-19 Response (Courts Safety) Legislation Bill

I present a legislative statement on the COVID-19 Response (Courts Safety) Legislation Bill.

ASSISTANT SPEAKER (Ian McKelvie): The legislative statement is published under the authority of the House and can be found on the Parliament website.

I move, That the COVID-19 Response (Courts Safety) Legislation Bill be now read a second time.

This bill is necessary to ensure that the judiciary and the Ministry of Justice can manage COVID-19 risks in our courtrooms. It will help court participants to feel safe and be safe in the courts while maintaining access to justice and public confidence in our courts. It does this in three ways. First, it clarifies the ability for the judiciary and the Ministry of Justice to set and enforce safety requirements for entering the courts and some tribunals. Secondly, it enables the judiciary to set safety requirements for selecting and managing juries. And, finally, it confirms that legislative protections for the public and media to access criminal hearings are satisfied when proceedings are held remotely and entry requirements are in place.

This bill embeds protections for access to justice as part of these changes. The 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. All the changes in this bill are temporary. Most of the bill will be repealed when the COVID-19 Public Health Response Act 2020 is repealed. A few provisions relating to the deferral and excusal of people summoned for jury service will continue for a further two years.

Some members have previously suggested that the evolving Omicron outbreak means that this bill is not needed, but this bill remains necessary for access and the functioning of our courts. I would like to re-emphasise a point that I made from the first reading that this bill does not prescribe any requirements for the courts. It does not mandate vaccination or any other specific measures and the recently announced changes in the COVID-19 settings therefore do not remove the necessity for this piece of legislation.

The bill is needed to clarify and strengthen the powers of the judiciary and the ministry to respond to changing health risks. We cannot predict how the pandemic will evolve and the bill ensures the judiciary and the ministry can assess what requirements are needed for the courts and implement them, informed by public health advice. This could encompass requirements relating to COVID-19 testing and masks, for example. Even as we pass the peak of the current outbreak, there is an ongoing need to reduce the risk of COVID-19 spreading in the courts, and we need to avoid COVID-19 further disrupting or delaying cases as much as possible, as has been the experience of the last two years.

I also note that the bill contains important clarifications that are not so tied to the severity of the pandemic at a particular point in time. For example, the bill makes it clear that remote hearings ensure the legislative requirements that the public and the media have access to criminal proceedings is ensured. It also ensures people can have their jury service deferred or excused if they or a member of their household or family are particularly vulnerable to COVID-19, or if their finances have been significantly harmed by COVID-19. For this reason, it is important that we progress this bill swiftly.

I’d also like to address suggestions from some members that the bill should have been progressed much earlier in the pandemic. In earlier phases of the pandemic, stay-at-home orders meant very few people physically attended the courts when COVID-19 was in the community. General alert level settings, along with operational measures and specific legislative tweaks, were sufficient to manage risks at that time. In October and November of last year, the Government considered implications for the courts in progressing the COVID-19 Response (Vaccinations) Legislation Act of 2021 and the COVID protection framework. We ultimately decided a more tailored approach was needed to ensure we had an approach that respected the court’s constitutional independence as a separate branch of Government and presumed access to and public confidence in the courts. The current bill reflects those principles and was developed in close consultation with representatives of the judiciary.

Can I now turn to the recommendations that have come about from the Justice Committee. The committee recommends by a majority the bill be passed with small changes that the Government fully supports. And can I thank the members of the Justice Committee for their thorough consideration of the bill within a shortened committee process. I also thank the 126 submitters who took the time to give their views on this bill to the committee. Taking into account feedback from submitters and the advice from the Regulations Review Committee, the Justice Committee recommended changes to make the bill’s intended scope and purpose even clearer. These changes will support the bill’s intent of managing safety risks while preserving access to justice.

The committee’s most substantive changes clarify the scope of the safety requirements that the judiciary may set to manage COVID-19 risks in jury trials. Ensuring the judiciary can set these requirements will help manage the risks associated with jury trials. Selections for juries involve over 100 or more strangers who are compelled to be present at court and will usually involve jurors being in close proximity for several hours to several weeks. These safety requirements can only be set if the judiciary considers them reasonably necessary in the interests of justice and to protect health and safety in the court, taking COVID-19 into account. The Justice Committee also emphasised the requirements are not intended to override the existing juror-related law. They will apply in addition to the existing law not instead of it.

Several submitters also suggest ways the safety requirements could be further targeted, and the committee agreed that the bill could further clarify the intended scope of the safety requirements in some areas. I support these changes because jury trials are a core part of our justice system and it’s important that the law is as clear as possible.

The committee also recommended the bill more specifically address the interaction between safety requirements and a provision in the Juries Act of 1991 relating to a person’s qualification to be a juror. The committee recommends that the intent of the provision could most clearly be achieved if the bill provides that a person must not serve as a juror on a particular occasion if their jury service has been deferred or excused on the basis that they do not meet the safety requirements that are set by the judiciary. This change makes it very clear that core juror qualification requirements cannot be overridden by the bill. The committee also recommended an amendment to make it more explicit that safety requirements cannot vary the circumstances in which a court may proceed with fewer than 10 jurors—and this is a useful clarification from the committee.

As well as discussing what the bill does achieve, I do think it’s important to provide assurance about what the bill is not doing. Many submitters opposed to the bill appeared to believe that the bill created a COVID-19 vaccination mandate for entering the courts. As I have outlined, the bill does not mandate vaccination or any other measures for entering the courts or participating in juries. The judiciary and the ministry will assess safety risks and identify necessary safety requirements in accordance with safeguards for access to justice. The judiciary and the ministry are looking ahead to the requirements that will be necessary once the bill is in place and are seeking public health advice and reviewing the implications of recent health announcements.

I’d also like to be clear that the bill also does not extend or restrict the circumstances in which remote technology can currently be used in our courts. Some submitters understood the bill to enable much wider use of remote hearings, and this is not correct. Existing criteria and protections that apply to the use of remote hearings will continue to apply unchanged. The Criminal Procedure Act contains protections to ensure public and media access to criminal hearings, and the bill clarifies that these protections are satisfied if the hearing proceeds remotely and the public or media has to observe via audio-visual or audio technology, and that’s an important protection to make sure that is continued.

This bill supports consistent, clear, and robust safety requirements in our courts. It is critical to support our courts to continue to operate safely and maintain access to justice. At this point, can I thank the judiciary, the ministry, and the Law Society for the work that they’ve undertaken over the last two years to ensure that justice in our courts and the court system and the justice system has been able to continue to operate despite the challenges of COVID-19. In particular, can I thank the outgoing president of the New Zealand Law Society, Tiana Epati, for the work that she has done to make sure that members of the Law Society have been informed and can contribute to the protections in the court system to make sure that their clients are best served. I commend this bill to the House.

Good evening, Mr Speaker. I rise on behalf of the National Party at this, the second reading of the COVID-19 Response (Courts Safety) Legislation Bill. Such is my dedication to the legislative process that I’ve contracted COVID specifically to make a point more strongly in relation to this bill! But I do actually want to make the point, while I’ve got the opportunity to participate remotely, about what has changed, in fact, in the real world since the time of the first reading of this bill.

I acknowledge the points that the Minister of Justice has made in bringing this bill back to Parliament following the select committee process, and, of course, as appropriate for a second reading contribution, I do want to focus heavily on the select committee process itself: the submissions, the excellent ideas that we heard from a number of different contributors. But I also think it’s fair and right to acknowledge the fact that the world is a different place now since the time of that first reading. Certainly, the world is a different place since the time that the equivalent legislation, which was the framework legislation establishing the so-called traffic light system that was established late last year. And, of course, the ideal time for legislation such as this to have been brought in would have been then, back in late 2021.

So since the time of the first reading, at which National supported this bill, a number of things have happened. I will come back to the legislative process, and more particularly the select committee aspects of the last several weeks, but in the real world, and the shape of the pandemic, things have changed greatly as well, of course. But equally significantly, from the point of view of the usefulness or otherwise of this legislation, the Government policy in respect of COVID-19, and our appetite, somewhat, for risk, and our acknowledgment of the reality of the Omicron outbreak is such that the laws pertaining to the world outside the courtroom door have changed vastly. Therefore, it’s appropriate to examine whether this bill is now still fit for purpose and whether the intent that it came to this House with in the first reading, a month or so ago, remains valid.

National believes that, in fact, this bill’s time is now past. It would have been useful, as I say, late last year, significantly less useful a month ago, and now it is useless. For this reason, I advise you in the House that National cannot support this bill at its second and subsequent readings. In the committee of the whole House stage, we will suggest ways in which the court system—by which I mean courts and tribunals, but more particularly, the courts proper—could be reformed in ways that take advantage of the lessons we’ve learnt through the COVID-19 pandemic and how the justice system operates. But that will be, as I say, for that later stage of debate I think we are expecting as early as tomorrow. So just to acknowledge, then, the different stance that National is taking now, reflecting the fact that the facts have changed and we are living in a different world from that which we entered this parliamentary process for this bill.

For the Justice Committee—and I do want to commend the members of that committee. I’m not a regular member of that myself, but I was pleased to be able to act as a substitute for at least one National colleague at different periods of time, in order to have the benefit of the advice that we received from officials and to receive the collective wisdom of various submitters. And I do want to acknowledge them and thank them for participating in the democratic process, as always. And the discussions with colleagues were fruitful, as far as they went. But, as I say, the context is very much that changes that would have been helpful some time ago, when we were anticipating an Omicron outbreak—and then in the Omicron outbreak, as it was ramping up, as opposed to the point at which it is ramping down, so to speak; and, certainly, Government policy is ramping down the response, but it colours the way that we must all consider the usefulness of this bill at this point.

The select committee process, if I can just mention that: a number of changes were proposed by submitters that were very, very thoughtful and useful, so far as the bill itself was concerned. National’s approach in relation to the passage of the legislation is that we acknowledge that with Labour’s majority in the House, any debate will pass regardless of the attitude of other parties. So from our point of view, it was worth supporting amendments that would improve the bill, and we entered into that discussion and process in good faith. The select committee report will record that National supported changes that other committee members also wished to put forward in order to make the bill a better one, knowing that it would ultimately be passed, notwithstanding that our support for the bill as a whole cannot stand.

So if we’re to understand the purpose of the bill in the first place—and the reason that I go back to this—as, traditionally, one does emphasise a first reading speech more so than a second reading—is that, as I say, the world has changed and it is a significantly different proposition that we have now in terms of the way that we allow fellow New Zealanders to access all manner of public and private institutions. There can be, surely, no more important institution than those of the courtrooms of this country, dispensing justice, and I think we hardly need to belabour the point that this is a fundamental issue of human rights, civil and political rights, for every Kiwi. I’m sure there is not a member in the House who would disagree with my proposition that this is an incredibly important area, and so it’s right that the House take the matter seriously and consider whether we are doing the right thing by the court system and therefore in the interests of justice for all New Zealanders.

Reflecting, then, on that initial purpose of the bill coming to the House, and measuring that against the real-world scenario with which we are now faced, National supported the bill for three reasons, primarily. These are outlined in our differing view, or minority report as it would sometimes be referred to, within the select committee report. The first of these was in relation to consistency, the second in relation to comity, and the third, change—and I’ve deliberately chosen three shorthand ways of referring to some somewhat complex and interrelated topics.

But, at its heart, I think the consistency element is largely understood by reference to the fact that the world outside the courtroom door was being modified in ways that the Government brought forward in so-called traffic light legislation, to use the colloquial phrase, in late last year. So consistency with that world and the world of the court room was desirable, to enable New Zealanders to have a degree of certainty and understanding of what might confront them in that legal context as compared with others within their public and in private lives.

The second point is comity, which is, of course, the way we often describe the fact that relationships between the branches of Government should be respectful and should acknowledge the separation of powers, so that the legislative branch, namely Parliament, doesn’t interfere unduly with the way that the judicial branch or the courts want to operate. We were presented with a bill that would allow the judges the certainty of being able to determine in their own courtrooms the way things would be handled from a security or safety perspective, in relation particularly to COVID-19. So we thought that that was a worthwhile thing to encourage, in the spirit, as I say, of comity.

The third was in relation to change, and this was, I suppose, an opportunity that National was keen be taken in relation to reforming the justice system. We have huge backlogs in our court system. Access to justice has never been more challenged or challenging in this country. Major system reforms are needed. We’re seeing very little evidence of an appetite or willingness in the Government to confront those issues. They are longstanding issues, to be fair. They have been exacerbated by COVID-19, to be fair. But that’s not to say that they shouldn’t be taken seriously and tackled. So there are opportunities that the COVID-19 pandemic and the courts’ response to that provide in relation to reforming our court system, and National thought that this bill might provide an opportunity for such opportunities to be taken. It appears that other parties are less willing; certainly, the Government majority on the select committee was least willing. So that’s a topic to which we will return in the committee of the whole House stage of debate.

In my remaining time, then, allow me to summarise by saying the National Party cannot support this bill any further. It is no longer needed. It was well needed some time ago. More recently, it was somewhat needed. Now, it is not needed at all. For that reason, National, at this, the second reading, does not support the passage of this bill going forward, and further contributions from this side will emphasise that. We look forward to the continuation of the debate on this matter. Thank you.

Thank you, Mr Speaker. In preparing to speak on this bill tonight. I had looked through the first reading Hansard, in which the Opposition supported this bill’s passage through to select committee. I actually think my colleague, who I have a lot of respect for, Chris Penk, who’s just spoken, covered very well in the first reading the rationale for the bill at that stage. His arguments in the first reading stand, although I acknowledge that we may disagree about that at this stage, so I’m going to refer to some of his comments in the first reading. But before I do, I would just say that, in my view, it’s good governance, when you have foreseeable risks, to put into place an empowering or framework legislation—it is good governance. This operates as a hinge, allowing decision makers to open doors, close them, or adjust the size of the gap of an open door, to respond at pace to change in very changing circumstances.

At the first reading, Mr Penk covered the high-level arguments for this bill. He spoke to the need for consistency in terms of our COVID response. There is still a foreseeable risk in terms of the pandemic, and for the time being that justifies continuation of our broader COVID framework, the COVID-19 Public Health Response Act. Consistency requires putting in place parallel empowering provisions for the judiciary.

The second thing he spoke to at first reading, and I might quote him because he said it beautifully, was 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”. Very eloquently put, and I’m sure none of us have to stray far in our minds to think of the people we know who are at heightened risk. The changes in this bill, essentially, provide tools for the judiciary to ensure that individuals who are compelled to attend can do so in a safe way for them and for their family.

Thirdly, the concept of certainty: there’s significant value in explicitly empowering the judiciary to create procedures in relation to COVID should they need to in response to public health advice. And again, we are preparing for foreseeable risk and that’s exactly what these provisions do.

Finally, I do think it’s valuable to have a conversation about the way in which the courts can evolve and mature to suit today’s world. I agree with Mr Penk on that. But it shouldn’t happen in a way that mixes it together with pandemic response issues. That muddies the water as to where the appropriate balance of rights lies. So I look forward to that future conversation, and I commend this bill to the House.

Thank you, Mr Speaker. We’re here, at the second reading of the COVID-19 Response (Courts Safety) Legislation Bill, and this is a piece of legislation that this Labour Government is rushing through the House with a very shortened period for submissions from the public and from people who work in the sector and understand what’s going on, in order to try and deal with some issues related to COVID-19 restrictions. The National Party won’t be supporting this bill, fundamentally because most of the restrictions will have been removed anyway by the time this bill, rushed as it is, comes into force. As we’ve all noticed, the world is moving on. The peak has passed. People are wanting to get back to a sense of normalcy in their lives. They’ve worked out what to do, when to wear masks and when not to wear masks, and we need to get on with things. And this bill probably would have been useful for the last couple of months, but ultimately its time has passed.

If we were to step back and think about the justice sector generally and the challenges that we face as a result of COVID-19, there is no question there’s been enormous pressure on the justice system, and we’ve heard a lot about the police in recent times and their inability to respond in a timely fashion to violent crime and incidents throughout our cities over the last year. One of the reasons put forward is that many officers have been working in managed isolation and quarantine facilities and doing COVID duties, and distracted doing other things, and that has been one of the costs of this approach that the Government has taken, and we’ve suffered in terms of our law and order because of that.

Then, if we think about the access to justice, the process of justice, that has been hugely affected over the last couple of years. If I was to look at the justice sector more broadly, I would say that the big challenges facing the country are the rise in violent crime, more than 20 percent increase in violent crime since this Government took office; the 40 percent increase in gang membership, at least—and anybody who lives in any New Zealand city or town is only too aware of the much greater presence of gang membership and intimidation across the city—and also a concerning rise, in that sense, of lawlessness in CBDs and town squares. That on the one side, and then, on the other side, the real No. 1 issue is this very slow access to justice through our criminal justice system, which, of course, is not new; it has been a longstanding issue, but it continues to get worse.

I was in the Auckland District Court recently, just spending a morning there watching things come and go, learning about the system, and the stories that I heard from some of the duty lawyers were just astounding: of three-year waits for justice to be delivered in certain cases—criminal cases, civil cases—people’s lives on hold for extraordinary lengths of time, trying to just get basic things dealt with, and the system is gunged up to an enormous extent, for a combination of reasons. One: legislation, and there is a huge job to be done to deal with the extreme ease with which a clever lawyer can drag things out if they are of a mind to; the efficiency of the court process itself, and the amazing delays that are allowed and countenanced and that drag on; and also the participants themselves. I mean, there’s a whole host of reasons, and the sort of antiquated technology used in many places, much of it with handwriting rather than computer systems, and the lack audiovisual (AV) facilities.

So we have this real challenge. It’s bad in the criminal sector, where, like I say, people’s lives are involved for a very long time. It’s even worse in the civil area in many cases. And, if you try and weigh up those things that people think about when they think of justice, yes, the correctness of the decision is a very important factor, but also the timeliness of that decision and, thirdly, the cost of getting to that decision are equal factors, because it might all be very well if you get to the right decision, but if it takes 10 years and costs too much, that is not justice. And that balance does not seem to have been fully taken into account. And so, if we look in the civil space, if someone steals $50,000 from your business, basically, getting access to justice through the civil courts just does not work. It does not work in a practical sense, in terms of the cost and the time involved.

So, when we confront this crisis with COVID and the lockdowns and the impact that it has had on the court systems, first I do want to acknowledge, like the Minister did—and I was pleased that he did—the hard work of the many people in the sector, who were doing their best in trying circumstances. That is right, and people have been working very hard, trying to make things work as best they can. But still the reality is that huge delays have opened up, and waiting times for delivering cases and getting justice and getting juries through, getting people back to pick up their lives after the calamitous events that often lead of court cases, is a real problem. So when I look at the whole COVID response from this Government, the $60 billion or however many billion dollars Grant Robertson has spent, and this Government has spent, in response to COVID—one of the highest per capita spends in the world, in terms of COVID response—when I look at all that and then I look at what’s happened in justice, which is relatively little, in order to keep these things moving effectively, I don’t think they’ve quite got the balance right; the classic example being, and the Minister was at great pains to point out, that nothing in this piece of legislation does anything to effect remote hearings and the use of audiovisual equipment in the courtroom.

Well, it would have been nice if they could have got round to doing something about that more effectively in the two years that we’ve dealt with this issue. It is a fact, and I’ve just had some written questions come back in the last couple of days, that 29 courts across this country still—still—don’t have any access to audiovisual facilities. So, I mean, has Mr Faafoi heard of Zoom? Does the court system not actually know about modern technology? I mean, is it not possible to get our act together sufficiently to enable people to get access to justice through Zoom or Teams or something like that, something other than us all having to rock up and put on our masks and go past security, and all these things that are outlined in this legislation?

Now, of course it doesn’t fit every element of the legal system; there are some things that do need to be in person, and it’s quite tricky to arrange it, but there is a lot of work that can be done across the system through AV. But, if you’ve got 29 of your courts that don’t have any facilities still, after two years of a pandemic where everybody else in the world figured out that there is a heck of a lot you can do using AV, it is an astonishingly slow response from this Government. So if we scroll through it—and I’ve got this list of all these courts—if you happen to live in, where are we, Dargaville, well, there’s no audiovisual facilities in Dargaville, sorry. Sorry to hear that; tough luck. You’re out of luck. What about Kaitāia? No, you’ve got to turn up. You’ve got to drive in if you happen to live up at Ninety Mile Beach or wherever. You’ve got to drive all the way into Kaitāia to get your justice. If you live in Morrinsville, no chance. Te Awamutu? No chance. Waihi? No, nothing there. Ruatōria? No. So, if you happen to be up at Hicks Bay, you’ve got to get in the car and drive all the way from Hicks Bay—get on your horse—and go all the way into the court because Zoom has not reached Ruatōria, according to this list. Wellington Employment Court? Well, you would have thought the Wellington Employment Court would have been on to it, but no, they’ve got no AV facilities. And so the list is endless.

What we’ve seen is very modest—very modest—progress from the Government on what you think would be interesting, but they bring in a piece of legislation that tinkers around the edges and will come into effect after it is required. And that is why we, on this side of the House, aren’t impressed and aren’t voting for it. Thank you, Mr Speaker.

Mr Speaker, thank you for the opportunity to take a brief call on this COVID-19 Response (Courts Safety) Legislation Bill, a bill that I am very much encouraged by the cross-partisan approach in this House tonight, because we have heard three speeches of people who are committed to expanding access to justice—this is exactly what this bill is about. But I’m also encouraged especially by the comments of Mr Penk, in how we should continue to work together to make sure that our justice system, our courts, are open to everyone—that everyone can access the court system in a fair way. This is what this bill does, by empowering the judiciary to make the sorts of rules proactively that they need to do to protect vulnerable people who are compelled to be in court.

And it empowers the judiciary to decide when audiovisual (AV) will be used. Things like in sexual violence cases, which this Government has made important changes around allowing the use of AV in those cases. Now it’s a very specific set of circumstances where you would use that. It’s important the politicians aren’t making that call, because politicians think that we might use Zoom in all situations, in Ruatōria or the Employment Court. But that’s not what AV is for. It is used in a specific set of circumstances where that aids access to justice, something that we are all committed to in this House. We use AV in the specific set of circumstances where you would not want someone to appear in court, because they have had the kind of traumatic experience that we do not want them on the stand talking about them in there. It is a specific tool for a specific use, and it’s not what this bill does.

I’m proud to stand on this side of the House, speaking in favour of this bill which makes specific changes around protecting people in the COVID-19 circumstances, and empowering the judiciary to make those calls. Thank you.

Our next call is a remote call—

💬 Simon O’Connor: You mean by AV?

ASSISTANT SPEAKER (Ian McKelvie): —and I call Golriz Ghahraman.

Thank you, Mr Speaker. [Interruption] I take it there are some amusing heckles that I’m not privy to. I stand in favour of this bill as a former justice sector worker—as a former defence lawyer in the courts—who is also immunocompromised and who has been thinking this whole time of my former colleagues the court takers, the registrars, the prosecutors, the cops, and the judges, who’ve had quite a hard time of it as essential workers and as people who interact with large groups of members of the public, often in distress. That distress has certainly been exasperated by the COVID crisis—and the Minister of Police even referenced this in our discussions earlier in questions—as things like domestic and sexual violence were heightened in their rates and as we face more and more pressure in all sectors. The courts are really where we see that all come to a head. So to allow the courts to regulate their own settings for both staff and members of the public who are trying to participate and access justice—whether as witnesses, as victims, as accused persons, as their support people, or as jurors—I can’t think of a more essential piece of legislation to come through, even if it is quickly.

It’s funny to me to hear the Opposition talk about using Zoom. It’s only very recently that we’ve used Zoom in this House. I recall their former leader insisting on travelling even under level 4 lockdown from Auckland to Wellington to be in the Chamber in person because that was so important, but people like the victims of very sensitive, very personal crime, witnesses giving evidence in those contexts, and jurors who are to come together to make decisions by consensus should be expected to use Zoom. It also speaks to a real lack of understanding of how well resourced people are who are most often coming before our courts—in particular, in the context of serious crime in the jury trial jurisdiction.

This bill takes account of all that and allows for judges, who are the most experienced at conducting proceedings in their own court rooms, to come up with ways of minimising the risk of COVID. That includes things like distancing, the requirement to wear masks, and other types of practical limitations that might mean that people like me, as an immunocompromised person, might feel more comfortable sitting on a jury, for example, or that I wouldn’t have to, for example, choose between representing a client and my own health or the health of family members. That is what essential workers all over New Zealand have had to do, which is why we’ve supported the supermarket workers, for example, having mask mandates placed on members of the public that they interact with as part of their workplace health and safety requirements. As such, in even this House, we have our own safety protocols, which we’re very grateful for.

This makes sense. I would just note two ways that it makes particular sense. We are doing away with the vax mandates, and we have never had them for essential services like courts. So to acknowledge that the next barrier of support for people like me—for immunocompromised community members—is to require things like masks and distancing when we are interacting with essential services, but also to recognise that our courts and our justice system as a whole vastly targets Māori disproportionately to other populations, and that is a group who is most vulnerable. So to say that we wouldn’t have the power as judges to make good faith rules about how to keep people safe in their own court rooms, that we wouldn’t take account of the fact that we’re actually protecting Māori, is sort of obscene to me.

What I would just hope is that the Government does take up the Green Party call to make all N95 and NK94 masks—the best masks; the ones that really protect against Omicron—freely available to everyone, including everyone who is accessing our justice system, which is the next step in ensuring that essential workers and everybody accessing essential services is safe. I do commend the bill.

Thank you, Mr Speaker. I stand on behalf of the ACT Party to speak to the COVID-19 Response (Courts Safety) Legislation Bill in this second reading, and I note that this is an omnibus bill and it is being heard under urgency in order to allow our judiciary to mitigate the risk that the impact of COVID-19 restrictions enforced under the COVID-19 response Act.

So what does this bill actually do? We covered this before, but I’m going to cover it again because I think it’s important. It’s amending three pieces of legislation: the Courts Security Act 1999, the Criminal Procedure Act 2011, and the Juries Act 1981. So bear in mind that this bill is being heard under urgency, with reduced time for submitters to prepare and appear in front of the Justice Committee to speak to and of their concerns.

The effect of the amendments on these three pieces of legislation includes: for example, under the Courts Security Act 1999, it will enable the judiciary and the Ministry of Justice to impose requirements relating to COVID-19 for people entering or remaining in any court, and in some tribunals. Those requirements include allowing security stationed at the front of and throughout the courts to determine whether or not a person can enter, remain, or partake in the court process, based on these imposed requirements. Now, that could be anything, because nothing yet is determined that will tell us what will allow or disallow you entry into the courts.

The Minister of Justice says that there’s no vaccine mandates to restrict access, but that’s not determined within this bill. This bill could allow the courts to impose vaccine mandates if they wished, and that is concerning, because it is time to move on.

Also being amended under this omnibus bill is the Criminal Procedure Act 2011, and it’s about the access to justice protections that sit within sections 196 to 198 of the Act. This amendment confirms that courts holding remote hearings, it’s OK to do, and it confirms that it would not be inconsistent with the right of the public or the media to attend criminal hearings. So this is a confirmation of what is already happening in aspect to that bill.

Lastly, the Juries Act 1981: this amendment allows the judiciary to set requirements for managing juries, and I find this intriguing, because I note also that as recently as 24 March 2022, the Ministry of Justice released their jury bubble guidelines for safe operation of jury trials. If the Chief High Court Judge and the Chief District Court Judge can release their guidelines, then why are we rushing through this piece of legislation, which includes amendments to the Juries Act 1981?

Another interesting aspect to this urgent bill is that while nearly everything in this bill will expire on the COVID-19 Public Health Response Act 2020 being repealed, there are aspects about this amendment that will not expire upon that repeal. The ability for a two-year deferral of jury service based on COVID-19 reasoning will be extended for two years after the COVID-19 Act is repealed, as an example.

We’re told that this amendment is needed to manage keeping jurors safe, even though the guidance on exactly this was released nearly three weeks ago by the Ministry of Justice, and I note this amendment allows the judiciary to also make exceptions to their own rules. For example, the judiciary can allow those who don’t meet the requirements that they themselves have set to enter the courts for jury service and be eligible to serve, so why are we legislating this?

This whole bill is about allowing or disallowing people into the courts based on COVID restrictions which are rapidly decreasing, or on COVID requirements made up by the courts and implemented without discussion. So what are the COVID-19 jury requirements that the judiciary can or will impose on those attending courts? We don’t know. It’s whatever the bench decides it to be, perhaps on the day, or perhaps on a trial by trial basis, and whatever the provisions are that they implement, they can continue for two years after the COVID-19 response Act is repealed. The judiciary can change the rules to suit on the day or on the case for one person, with something completely different for another, and we call this access to justice?

When vaccine passes are no longer relevant and the courts are not defined as a mandated service, then we question the relevance of continuing to pass this bill under urgency. When we look set to move to the orange traffic light setting, possibly as early as tomorrow, Labour still continues to move this bill under urgency.

I think it is relevant and important to note that the Clerk of the House has reported back to the committee that they did not get enough time to produce a legislative scrutiny because of this bill going through under urgency, and the committee noted that the fast-tracking of this bill should not include permanency clauses within it when the time frames for submissions have been reduced. They correctly commented that another bill with fuller time frames should address the issues that the judiciary would like to see made permanent.

We conclude that there is no need for this bill at all, let alone under urgency. In a democratic society, everyone should have equal opportunity to have a say. There is no need for this bill to proceed under urgency without the people of this country having had an opportunity to have a decent go at having their say. If we are to have thriving communities in successful societies, then we need to be inclusive and stop making rules that potentially exclude some at the expense of others and at the expense of accessing the judicial system for fair hearings.

The people want control of their lives back. They want to not be caught up in more Government bureaucracy. ACT opposes this bill.

Kia ora, Mr Speaker. Well, what a night of revelations. The National Party, and it appears also the ACT Party, are grappling with the realisation that the pandemic is not in fact over and therefore we still need to give the court the support they need to continue to innovate and do the vital job of giving access to justice and producing justice. It is not over. We need to give the court the power. Why are we doing it now? Because one does not jump in to tell the courts how to run their own business. That is something that I think would assist my colleague from ACT who has just spoken.

The problem here is one of constitutional separation of powers. Our legislative Chamber should very, very seldom interfere with the operation of a court and the way in which a judge wants to run their own court. These are fundamental things that go back all the way to times like the Star Chamber and ship-money and the English Civil War. We do not rush in where angels fear to tread. And that is also, I think, the reason that we have taken this long.

We needed the judges to tell us that they needed the support. But having said that, what that also gives us is the support to know that this is going to be OK, because unlike my friend on ACT’s benches, I am aware that when we say that judges will run things according to the interests of natural justice and that they will do things that are reasonably necessary to ensure the interests of justice and to ensure access, that doesn’t come out of nowhere. That comes from 400 or 500 years of legal tradition as to what those things need. We are giving the courts the backing to know that they can continue to innovate when they need to without fear of appeal or repeal.

In answer to my friend Mr Penk, I am so looking forward to the innovative, forward-thinking National Party members who are going to support the continuing good things that we are going to want to do to ensure access to justice in the future. Although, having dealt with three National Ministers of Justice when I was trying to get those things done, including audiovisual links, and not having made any difference until we had Andrew Little and that lady over there on the Green benches [Member indicates to Jan Logie], I have my doubts. I commend this bill to the House.

I call Simon O’Connor—a five-minute call.

Thank you very much, Mr Speaker. Oh, only five minutes. It’ll be a great disappointment to the other side! Look, it’s fantastic to hear the member resuming her seat, Dr Emily Henderson, trumpeting the great benefits of the British legal tradition that New Zealand’s inherited. And I look forward to her engaging her colleagues, maintaining that, as our courts and law professors are discussing how they might change and subvert things.

💬 Dr Emily Henderson: French?

The thought that comes to mind—actually, I was going to use a piece of French. They must have actually seen my notes here. I was going to use the wonderful French quote: “plus ça change, plus c’est la même chose”—

💬 Kieran McAnulty: What’s French for “sit down”?

—the more things change, the more they stay the same, which I had to translate for the likes of Kieran McAnulty, who we’re not even sure can speak English. The whole point is that this bill isn’t changing much, despite its attempt to change things. And the whole point of that—and speakers on this side of the House have already touched on it. This is a temporary piece of legislation which is meant to end when the COVID restrictions end. And it’s been lost, I think, on some members of the Labour side that this is not a piece of legislation which is bringing about permanent changes into our judicial system. The initial clause of this bill is very, very clear: these powers granted to the judiciary, yes, under-hold principles of comity and all of that, are meant to expire when the Government lifts the COVID rules. Now, logically, ipso facto, if these rules are going to end, we’re pretty much headed in that direction already, and a number of speakers on this side have already eloquently put that forward. We are rushing through this House under urgency a whole series of changes which, by and large, are already expired, of no use, or of very, very limited use.

The second, of course, if you’re the slightly more conspiratorially minded, is that it’s a hint that the Government—even though this bill is meant to expire when the COVID Acts go—are sort of still wanting to cling on to all the sort of authorities and controls which they’ve got used to over the last two years. When you listen to the other side, you don’t get the feeling that this is meant to be temporary. There’s always something else to fear and worry about down the line. I sit on the side that says we want to get back to normal. It doesn’t matter if it’s in the courts or in this Parliament, I want to see the end of masks, I want to see these stupid screens go. I want people back face to face. And that’s one of the reasons—as the speaker who’s resumed her seat would know—that, actually, why the likes of AV and AVL haven’t been used all that often is more because of the judges than anything to do with Ministers of Justice. They have their statutes, they have their approaches, they prefer face to face. I think they say kanohi ki—oh, I’m not even going to try it. The nose to nose. I’m getting all my Māori mixed up tonight, which is unfortunate.

💬 Tangi Utikere: We know that.

Ah yes, the purveyors of fake news are still here tonight. But, actually, that’s where we want to get back to. And yet we have a piece of legislation here which is just entrenching some of the controls that are not needed—they’re not needed.

The final point that I’d make is there’s been talk again about AV and AVL. It’s all well and good that this bill touches on how it might be used, but as my colleague Paul Goldsmith, who was here earlier, pointed out, what’s the point of talking about all this AV technology when it doesn’t exist in most of our courts? For a variety of reasons, I sort of have a bit of understanding of what the courts are like up north—north of Tāmaki that is. People struggle to get to the courts. All this talk of access makes no or very little sense if you don’t actually have the equipment in place.

And that’s probably the final point. We hear the Labour Government wax boring—rather than wax lyrical—about what they’re trying to do, but where’s the funds, Minister, to put this technology in? If you’re in power and it’s through the supposed temporary bill, why are you not funding that the technologies available to be used? So for argument’s sake, if the courts, the judiciary, decide they want to implement some of these schedules, well that’s all well and good, but they don’t have the funding for that technology to make it so.

So, as many a member on this side has noted, it’s an interesting bill. There’s elements we did support. But as, actually, the COVID response changes, or it should be changing, the need for it wanes. And certainly the fact that this is being used and rushed through urgency should be something which people at home understand and fundamentally more time should have been given to properly consider aspects of this bill. As I say, the more things change with this Government, the more they stay the same.

I’m pleased to rise in support of the COVID-19 Response (Courts Safety) Legislation Bill. I just want to clear up a little bit of a misuse of the word “urgency”. I understand that to be something very specific here, and this is not an urgent—it’s not actually being made under urgency. It’s an expedited bill, and it’s a very simple bill, but it’s not a bill that is being called under urgency, and it may confuse people.

I also just want to talk about the issue that my colleague Emily Henderson talked about, the comity of the courts and the separation of powers. This is something where there is an inherent judicial discretion, and it’s been used very effectively. People have used all sorts of tools to make our courts work in a really difficult time, where things have very, very much changed, but actually, they have asked for back up from this legislature, and I think we need to give that to the people who actually are working in our courts. I accept that a lot of those people are vulnerable. They are there because they are essential workers. There are people there because they’re compelled. There are victims. There are defendants. There are all sorts of people that need a deft approach, and this has happened here. So I look through this and I see a really clear balance. Things like the requirements must be consistent with the New Zealand Bill of Rights Act. These are important and sensible amendments, and they’re important balances in our system. I commend this bill to the House.

E te Māngai o te Whare, tēnā koe. If I can perhaps start my contribution by assisting the member on the other side, Simon O’Connor, I think he was going to say “kanohi ki te kanohi”. I might just pick up on that point of, as the pandemic moves on, the key point that the Minister made is that the pandemic is not over. And, in fact, this legislation will empower the courts to be able to design and to implement the appropriate measures to ensure ongoing health and safety in our courts. If we are to engage kanohi ki te kanohi, the Minister said the requirements could encompass testing and masking, for example.

So while there has been a lot of emphasis on the use of audiovisual links, courts do continue to meet kanohi ki te kanohi. And through this legislation, the courts will be able to put in place safety measures as the pandemic continues to evolve. I know that there has been mention of courts in the Far North in the debate this evening—and, as many of you will probably be aware, unfortunately in Northland, we do have some of the lowest vaccination rates in the country; we have not passed our peak yet. So I am 100 percent supportive of the legislation as it is proposed tonight to be able to give the courts the ongoing ability to implement measures which are going to ensure maximum health and safety for all of those participants within the process.

So with that, I do not want to prolong this speech. I commend the bill to the House.

I rise on behalf of the National Party to speak on the COVID-19 Response (Courts Safety) Legislation Bill. The thing that springs to mind is that there’s nothing so permanent as a temporary solution. This is proposed as a temporary solution—a COVID-19 response bill that will expire when the other rules and regulations around the COVID response also expire, or, in fact, I think two years after they expire in this case, for a number of reasons.

The Government passed the traffic light system in late 2021 and it became clear that that regime could not apply to the court system. The Government proposed that rules would subsequently be provided in relation to court situations where it was problematic to exclude participants on the basis of vaccination status; for example, accused persons, witnesses, jurors etc. Last month, in March 2022, this bill was introduced and passed its first reading. It was referred to the Justice Committee with a shortened report-back period, 31 March, in order to enable the Government to pass the legislation by mid-April. However, later in March the Government policy changed in relation to the implications of the vaccination status and other key aspects of the COVID-19 response, with most restrictions being removed on 4 April 2022. So things are changing rather rapidly as the country learns to deal with Omicron and the response to it.

However, this bill continues despite that, and the National Party is of the strong view that this bill is no longer required. The bill no longer makes sense. It is intended to enable courts to align with non-court settings in relation to vaccine passes—rules that will no longer apply for many people at most places by the time that this bill becomes law. Given that the mischief which this legislation’s attendant remedy is now moot, the question becomes this: is it really necessary to proceed with a shortened report-back period and the heightened sense of speed on this bill that could impact procedural fairness for criminal litigants?

As another speaker on the other side of the House said, we need to be careful to tread in some spaces where angels fear to tread. One of those spaces is in the operation of the courts, as a key thread that goes through our system is the right for defendants to be heard and the rights of defendants to appear before the court and to face their accusers and to have a fair hearing before a jury of their peers, if they choose to elect a trial by jury. We need to be very cautious in interfering with any of those processes, to ensure that people who are accused in our country face a fair process.

I was also interested to hear a comment about the Star Chamber from a speaker on the other side of the House, and this makes me think of unintended consequences, which we need to carefully think about when we think about a bill like this and a bill that has moved through the House very quickly. The Star Chamber was originally established to ensure the fair enforcement of laws against socially and politically powerful people that ordinary courts might hesitate to convict of their crimes. However, it became synonymous with social and political oppression through the arbitrary use and abuse of the power it wielded. So it is a very good little example of unintended consequences of something that might have a good intent, but ends up having the wrong outcome. That’s something certainly I think we need to be very cautious of with a bill of this nature, which affects an important part of our constitutional framework, which is the courts.

I agree with my colleague Mr Penk, who spoke earlier, the shadow Attorney-General, as well as the submissions of the Auckland District Law Society, that we should thoroughly examine whether it’s desirable to obtain permanent benefits from what would otherwise be merely a temporary COVID-19 related measure. For example, the Courts (Remote Participation) Act 2010 could be amended permanently by this bill to enable the hearing of pleas and sentencing of willing defendants. National would support such a change being made, and I can say, having spent the best part of a decade working as a trial lawyer and working the courts across the country, from Auckland to Tauranga to Christchurch to Gore, Dunedin, Invercargill, Queenstown, and Alexandra, amongst other places, that I’ve worked in all of these courts, some which had audio-visual link facilities, some which didn’t—I have to say that the provision of an audio-visual link does provide a very valuable service. I would say with caution, though, that there should always be the exception that if someone wishes to appear in court kanohi ki te kanohi, face to face, then they should have that option.

However, an audiovisual link or AVL facilities do provide an opportunity for defendants to have faster access to justice. For example, I can speak of many, many occasions in our courts in my region where it was not possible to get a judge to travel the two hours or more to get to the court from, say, Invercargill or Dunedin. However, we could arrange an audio-visual link for a bail application to be made—not always successful, sometimes successful—and that made a big difference for that person and their family.

One of the important principles out of a justice system is ensuring quick access to justice. “Justice delayed is justice denied” is a saying that’s well known, and something that is unfortunately very common in our justice system, as our justice system is, frankly, overloaded a lot of the time, and it is very difficult to get speedy access to justice, particularly in more remote areas. So the audio-visual link facilities are very, very valuable, in my experience. And also from the perspective of a defence lawyer, it’s an extremely useful way of connecting with clients if people are incarcerated for whatever reason, at a distance from various courts. It enables a lawyer who might have to travel two to three hours—and I’ve personal experience of this—one way to get to a prison to connect with their client and obtain instructions much more readily than they otherwise could, and it makes a big difference to representation and a speedy way for those defendants and their families. So I’m certainly someone who is very much in support, from a practical experience point of view, of the audio-visual link process, and I trust that that’s something that will be looked at more, further down the track.

I think I will bring my comments to a close, just noting, finally, that rushed law can unfortunately turn out to be bad law, and there are many, many occasions where we have seen that happen. It’s regrettable that an opportunity has been missed here, in my view, to pass a better quality Act that could be relied on permanently by practitioners and provide our justice sector with greater certainty. With the reduction of the COVID-19 response settings, this bill is just really not needed any more, and we look to the Government to recognise that and to start to indicate to the country the response that we can now take to move on.

I’ll, finally, just say—it’s probably entirely on point—that I’m looking forward to seeing people coming back from overseas tomorrow. That’s an indication that the country is moving on. That’s a very positive thing, and I look forward to seeing more of that. Thank you, Mr Speaker.

Tēnā koe, Mr Speaker. I’m privileged to be able to speak and take the last call on this particular piece of legislation. But I would think that the last speaker, Joseph Mooney, my very good friend and colleague across the way—we work and appreciate a lot of things together—but my friend, on this one, isn’t quite correct. What he says is that this isn’t needed any more. On my last check, in the last 48 hours, 11,000 cases of COVID-19 have been reported to the Ministry of Health. We currently have 68,000 active cases of COVID-19 in our country. This pandemic is not over and, while I appreciate we all feel that we would like to move on and for things to go back to normal, our reality is somewhat different.

So this piece of legislation does ensure that we are able to continue to operate, to provide the access that we need to, and it’s this very sensible piece of legislation.

But I also want to acknowledge our chair, Ginny Andersen, for the work that she does in the Justice Committee, and our mana wahine on this side of the House, in Labour, who staunchly represent wonderful pieces of legislation like this one. So can I thank you, Mr Speaker, and I commend this bill to the House.