COVID-19 Response (Courts Safety) Legislation Bill

We now move to clause 3. This is the debate on clause 3—and schedules 1 to 3—“Temporary amendments to enactments”, and I’d remind members this is a debate, if you haven’t already exhausted yourselves, where you can get on with it.

Thank you, Mr Chair. I want to ask the Minister about this section and the schedules of this Act being repealed on the date on which the COVID-19 Public Health Response Act 2020 is repealed. I want to ask the Minister just on the question of what will happen, and what will his response be, if the date that this Act comes into force happens just after the date on which the COVID-19 Public Health Response Act 2020 is repealed. I want to ask would the Minister be a little bit embarrassed if that were to happen: when you get to the point two years down the track after the pandemic began and the Act is scheduled to come into force, and then the COVID-19 Public Health Response Act 2020 is repealed?

I ask this question because matters are moving rather quickly. Today is the day that Australians can return into New Zealand. It’s been an exciting day, fantastic for our tourism industry, fantastic for families who haven’t connected with their Australian cousins for a long time. We’re excited as New Zealanders to welcome Australians back to New Zealand. It’s fantastic. However, I also note that today is also the day that the Government has announced that as at midnight tonight, all of New Zealand will be moving to the orange setting, so restrictions will be reducing, and yet we have this bill here, which will be carrying on as if the pandemic has only just begun.

This would have been a bill that would have been very helpful two years ago, or even a year ago or even six months ago, but today, we have Australians coming back to New Zealand, we have the whole country moving to the orange setting at midnight tonight, and yet we are talking about bringing in a temporary Act which will come into force the day after the Royal assent, and it could come in potentially just on or just after the date on which the COVID-19 Public Health Response Act 2020 is repealed. What would be the Minister’s response if that were to happen?

Can I thank Mr Mooney for his hypothetical question. As he will know, the COVID-19 Public Health Response Act will expire at the end of June of this year. So the sooner this bill is passed, the more effect it will have. I very much doubt that this piece of legislation will be passing after 30 June 2022.

Mr Speaker, as you’ve rightly noted, clause 3 is the last remaining clause. It includes under its banner all the schedules, which make all the changes. So I do look forward to, or at least I hope that there will be some kind of reasonable debate in the committee of the whole House tonight about this.

I note with disappointment that Labour members other than the Minister appear to have no interest in making a contribution other than to seek closure motions. For such an important piece of legislation affecting fundamental rights about which Labour members have been perfectly happy to speak at previous stages, and, as contained in clause 3, hugely fundamental rights affecting freedoms and security of people in this country, including the jury selection, basic fundamental rights contained in our New Zealand Bill of Rights Act—the lack of engagement that we’ve heard and a desire to shut down the whole debate within, seemingly, an hour or so, and the lack of seriousness on the part of the Minister, I find deeply disappointing.

More importantly than that, for the people who are affected by the horrendous backlogs we’ve seen in relation to the coroner’s court, other courts, various tribunals, and Family Courts throughout the land, the lack of seriousness that is very obvious in some of the Minister’s responses they will find deeply disappointing. So my opinion in these matters isn’t relevant, and the Minister can dismiss that if he wishes, but I do want to place on record, in relation to the crystal ball comment, that I find it amusing—and I’ll be charitable—that the Minister would drag out some sort of crystal ball metaphor to accuse us of wisdom with hindsight.

It was in this very House that we were asking questions—I was asking questions; other colleagues were asking questions—when the COVID-19 protection framework, aka traffic light system legislation was being passed, rushed through in urgency, and we said what about the courts? There was nothing in that legislation that contained the provisions, for example, that we find now in clause 3 of this bill. Nothing was said about them, either in or out.

That legislation didn’t say whether it covered the courts and tribunals, and so we asked the question. There was our crystal ball, Minister. We had at it at the time, we asked the right questions, and we received—to be fair to the Government, the Attorney-General came down to the House and explained that it wouldn’t be appropriate for that regime to apply to the courts because it was important that the Courts be able to conduct their own affairs. Fair enough—that was a reasonably good answer back in November or December of 2021. It’s not a good enough response in April of 2022 to be rushing something through the House on the basis that, clearly, they hadn’t thought about it and didn’t act quickly. So for months, further delays have been ruining the lives of many Kiwis, and I would very much hope that we’re going to have a serious interaction about the detail and the fundamental rights and freedoms contained in the provisions under clause 3.

The first of those that I want to touch on is in relation to jury selection. What does the Minister believe is the balance that’s been struck between traditional methods of selecting jurors and that contained in clause 3 of the bill?

Obviously, we are passing this piece of legislation to give both the judiciary and the Ministry of Justice more flexibility and more certainty about the way it operates the courts. The member asked in the final part of his contribution in terms of how juries are selected and the changes that have been made there. One of many things around the jury changes that I think within this piece of legislation could be quite useful in terms of the management of the large numbers of people who are called for jury selection is that under current settings or normal sittings, as it is, jury selection has to happen on a particular court precinct. Within this piece of legislation, in order to manage any health and safety risks that either the ministry staff or that the judiciary have put in place in a particular location, that can be done off site. That isn’t able to be done under the normal settings.

I think one of the positive changes in terms of jury selection changes is that very simple health and safety one, where that jury selection process, where we are bringing large groups of people together, which can be a risk for people if they are either vulnerable or haven’t had COVID or may have COVID—the ability for the court staff or the judiciary to ask for that to happen off site and for it to be done in a much safer way is one of the aspects, I think, that this piece of legislation enables that to be done in a safer way.

Thank you, Mr Chair. I thank the Minister for his engagement with the debate this evening. I want to refer to clause 2 in the new Schedule being inserted in the Courts Security Act by clause 3 in Schedule 1 of the bill, which is the power to ask for identification and information. It says that “(1) A court security officer may ask any person who wants to enter, or is in, a court to provide the officer with—(a) the person’s name and address; and (b) evidence of the person’s name and address; and (c) the person’s reason for either wanting to enter the court or being in it, if the officer has reasonable grounds for asking for the information; and (d) evidence of the person’s compliance with a direction given or requirement imposed under clause 1(1).”

Now, I’ll just ask if the Minister has spent any time in any of the courts around New Zealand and appreciates the difficulty that, in particular, paragraph (b) could impose, which is evidence of a person’s name and address. I ask that question, Minister, because I have spent a lot of time in courts from near the top of the North Island to the bottom of the South Island, and very often we are dealing with people who live very complex, challenged lives and simply do not have any documentation apart from maybe their court summons, if we’re lucky.

So my question here is: has the Minister turned his mind to the problems that this could impose on persons who are required to attend court, but do not have evidence of their name, do not have evidence of their address, and are being required by a court security officer to supply either one or both to enter the court?

Can I thank the member for his question. Look, my understanding is that most of the issues that are in the clause that the member refers to embeds the current situation in terms of what security officers can ask for, other than the issue that the member is asking himself. I think there could be some relatively simple ways in order to make sure that we can have evidence of people identifying themselves, if they are definitely there for a specific reason. If they have been summonsed, then they will have a summons themselves with their names—

💬 Joseph Mooney: Not always.

Not always, but I think if they’ve managed to get there, then they know they have to be there at a particular time and at a particular place, usually because they’ve been sent a letter with their name and their address on it.

Thank you very much, Mr Chair. I have a question for the Minister of Justice regarding the jury selection. I do want to acknowledge his response to my previous question in that space, which I thought was helpful and thoughtful. I would be interested to know his thoughts to the extent that that interacts with the New Zealand Bill of Rights Act and fair trial rights in the New Zealand Bill of Rights Act.

I also want to pick up a theme of my questioning that had commenced under clause 1, and it was in relation to the role, if any, that tribunals have in our court system. In his mind, with regard to the COVID-19 response, the Minister said that tribunals, along with courts, were treated in a certain way during level 4 and level 3, and I don’t wish to relitigate whether those were appropriate. That’s outside the scope of the bill. But is the Minister saying that there is nothing in this bill that relates to tribunals, and, if so, how can he justify such a huge gap in our justice system treatment unless he’s prepared to say that the dictates of public health, safety, efficiency, and so on don’t equally apply to our workers, our litigants, our parties in those systems?

I do want to acknowledge that juries, specifically, of course, don’t operate within the tribunal system, so I do acknowledge that one particular specific carve-out. But in respect of most of the rest of the provisions, I want to hear from the Minister whether or not they apply equally to tribunals, and, if not, why not, and, if not, also, when he will be introducing legislation that gives them some certainty about security and safety in procedural aspects in the COVID-19 environment, because, again, the Minister can’t have it both ways. He can’t say these things are important for courts but not for tribunals. So, again, I do want to hear the Minister say something more about that.

While I’ve got the call—noting it’s probably never more than a couple of minutes away from another closure motion being sought—I do want to ask the Minister to justify clause 6 within the new Schedule to the Courts Security Act in clause 3 of Schedule 1, and that’s the one in which court security officers are being asked to inform persons of the consequences of them being denied entry or being removed from court. Is the Minister, through this legislation, saying that court security officers are appropriate to provide legal advice to those who have been denied such a fundamental right as being denied access to a courtroom?

Can I thank the member Chris Penk for his questions. I think I’ll just remind the member that within the piece of legislation, if there are instructions from a judge or a head of bench around any changes or protocols, they have to be done to keep the health and safety of the courtroom and to also be in the interests of justice. I’d also note that this piece of legislation has been, obviously, through the New Zealand Bill of Rights Act vet process and has been found compliant.

I do think the member asks a reasonable question in terms of who is covered by this. It is courts and it is tribunals that, I understand roughly, are held in court buildings. So there will be a very small number of tribunals that won’t necessarily always hear issues in person that won’t be covered by this, but the vast majority of tribunals that operate—especially those that operate on the site of a court—are covered by this piece of legislation.

Thank you very much, Mr Chair, and thank you to Minister Kris Faafoi for that response. I wonder if the Minister can explain—excuse me as I search through my notes—what changes are made in this legislation that will be worthy of consideration as perhaps promoting safety and/or efficiency, particularly efficiency in the technological space. Going forward, does he see this as an opportunity for unlocking some of the issues that the courts have had logistically in terms of operating oftentimes in a paper-based kind of way, requiring physical attendance, including in geographical locations where that makes it prohibitively expensive and difficult for literal access to justice in many cases?

I wonder if the Minister as well, when he’s talking about the possible application of the legislation to tribunals—and it appears to me concerning that the Minister doesn’t seem to know one way or t’other whether that’s the case. We’ve heard a couple of different versions of that throughout the night, and I wonder what he will say next on that. But particularly, given the provisions within this bill at clause 3, via the various different schedules and amendments to those handful of Acts, how many of those actually have functional audiovisual link and audio link facilities such that the advantages—temporary as they may be—of the bill can actually be enjoyed by users of those tribunals. I’ll give him a clue: it’s more than 12, and it’s also more than 29.

Can I thank the member for his questions and probably ask him not to rely on Mr Goldsmith’s numbers there. Can I just in response to his question note that while this is a temporary piece of legislation, I think there will be aspects of it that we will look to to ensure we can make changes that are of a more permanent nature. The Government has certainly injected funding into the Ministry of Justice in order to try and deal with some of the backlogs that have eventuated over the last two years, and I think some of the initiatives that have come from that we will certainly be able to look at putting in with more permanence. That debate, because of the permanence of those settings, deserves, I think, a fuller policy process. Obviously, it will possibly take further investment, and I won’t commit to anything over and above what the Minister of Finance has committed to because that is rather career limiting. But I think there are aspects of what we have done over the last couple of years and aspects of this piece of legislation which can help us improve efficiencies.

I would also point out that there have been longstanding efficiency issues with the court processes, some of them exacerbated by the previous Government in terms of the Family Court changes and some of them that will necessitate the likes of investment in some of the back-office functions of the Ministry of Justice. Some will also require, possibly, legislative change in order to make sure that justice can happen more efficiently. Some of them will be practices of practitioners and, possibly, the Ministry of Justice and the judiciary as well. All of those can be brought together to look at the system—hopefully, post-COVID—to make sure that justice can be better served and swifter.

Thank you very much, Mr Chair. Minister, I’m going to ask you a couple of questions. I understand we’re probably sort of getting towards the tail end of this, but these are important questions I want to ask and hope to get answers from you about.

So in Schedule 2, inserting new Schedule 1AB in the Criminal Procedure Act—we’re looking at pages 8 and 9 in front of us—it talks about audiovisual links and it says, in particular on page 9, “audiovisual link or AVL, in relation to a proceeding, means facilities that enable both audio and visual communication between, or to be received by, participants when some or all of them are not physically present at the place of hearing for all or part of the proceeding”, and my question here is: does the Minister envisage that where appropriate, things like Zoom or Microsoft Teams could be used, because I note that the courts tend to have a preference for secure communications in their audiovisual link. But this seems to leave it open for a broader application for using tools that are commonly used now—and, in fact, we’re using in the House—for something like Zoom, for example. So that’s my first question.

My next question is over the page, on page 10, under Schedule 3: Part 1, “Temporary amendments to Juries Act”. I note that it says that “(2) The temporary provisions set out in clauses 3(2) and 21 of Schedule 2 apply during the period—(a) beginning with the repeal of the COVID-19 Public Health Response Act 2020; and (b) ending on the second anniversary of the date on which the COVID-19 Public Health Response Act 2020 is repealed.” So my question here is: why has the Government decided to end those provisions two years after the COVID-19 Public Health Response Act 2020 ends?

My third question, Minister, is—moving to pages 14 and 15—referring to the powers of judges. So in particular, down the bottom there at clause 4 in new Schedule 2 being inserted in the Juries Act, it states that “(1) A head of bench may make a protocol setting out additional requirements”, and then I’ll go over to clause 6, “Judge may impose requirements on jurors for particular trial”. I note it says, “(1) A Judge may, on their own initiative, impose requirements on jurors for a particular trial if the Judge thinks that the requirements are reasonably necessary in the interests of justice and to protect the health and safety in the courts to take account of the effects of COVID 19.”

Now, I acknowledge that on its face, that seems fine, but my question is: has the Minister considered New Zealand Bill of Rights Act implications here for a juror who feels that their freedom of movement or association or other freedoms have been impacted by the judge’s decision and consideration given to recourse to appeal the judge’s decision, because I note that a judge may hold a juror in contempt. It has been done in the past, and they have been imprisoned. So there is a potentially significant issue for a juror if they feel that a judge has imposed requirements on them, and then they’ve been found to be in contempt of those conditions that have been provided for them.

So I would appreciate it if the Minister could refer to those three points in particular.

The clauses that the member referred to around audiovisual and audio links is just embedding what is already there. I guess, in response to the member’s general question, you want to make sure that it’s secure as possible. I’m not sure which platform the Ministry of Justice uses, but I’m sure you’d want it a little bit more secure than any old Zoom link for security purposes.

The second question around the different time frames: we, obviously, want this piece of legislation to expire at the same time as the primary legislation around COVID. The maximum amount of time that you can defer someone’s jury service, I understand, is two years. So, technically, if someone has deferred their jury service at the very end of this piece of legislation, then the ability to control that deferral will need to be able to go for another two years.

I think the member’s third and final question was about the protocols that a judge can have and that can change in a particular case. If a protocol was in place in a courtroom or within a tranche of courts—whether that be the High Court or the District Court, for instance—each member of the judiciary has the ability to manage that courtroom in the way in which they see fit. So if they believe that a jury member should stay there, despite their adherence to the safety rules, which is in the interests of justice—if they can manage that, then it is within the purview of each member of the judiciary to manage that in the way that they see fit.

Thank you very much, Mr Chair. I appreciate the ongoing dialogue, but there are, obviously, a number of important issues yet within the bill that we do need to canvass. So I look forward to the opportunity to continue that interaction with the Minister.

I didn’t receive a response or an addressing of the question even, let alone an answer, in relation to court security officers. I asked specifically about new clause 6 of the new Schedule being inserted in the Courts Security Act by clause 3 of Schedule 1 of the bill that talks about the “Duty of a court security officer to inform of consequences when person denied entry or removed.” This is an important matter. We’ve got a situation where a person may be denied entry to or removed from a court under this legislation by a court security officer, who in performing their role, naturally, has to be given the ability to remove persons from a court or deny them entry.

I don’t think anyone would quibble with the fact that, ultimately, we do need to have people given the power, if necessary, to do that. But to then expect that security officer, who I suppose we might refer to as a bouncer in a courtroom setting, and I don’t mean to diminish the importance of the role by saying that—either role, in fact, whether at a courtroom door or a nightclub door. But the fact of the matter is these are important rights. They’re fundamental rights for New Zealanders to attend court, all things being equal, where other legitimate restrictions on open justice do not apply.

Where, if it’s determined under this legislation that a person should be denied access to the court, then under this legislation, we have in the following clause a requirement that the court security officer—not a duty lawyer, not a judge, not a registrar—should give, effectively, legal advice to the person so removed or so denied. We hear that they “must at the same time tell the person the gist of clause 5.”, and I presume that means something like the nature and meaning of effect. I presume that the plain language mafia have got to this one, to the extent that statutes and any other Government documentation is more easily understood in plain language, that’s all well and good. But the fundamental point is, and the substantive point remains, that to ask court security officers to tell people why they are being denied access to courtrooms in which they might have a legitimate interest in proceedings seems to me not good enough, and I want to know from the Minister—and this is why I’m asking him again—whether he thinks it’s good enough.

I also do want to ask a couple of other related questions. I do expect the Minister to at least address them—whether or not to my satisfaction, I do request that he at least try. One is that he has talked about changes to improve the court system that he and the Government have made well beyond the four-year mark. I’d like to know what those are, because, actually, on every measure, access to justice in this country is getting worse. Yes, it’s been a longstanding problem. Yes, it wasn’t perfect under National. Yes, it’s getting worse under Labour. Yes, COVID-19 has played a part in the Government’s response to that. But I do want to hear the Minister justify—seeing as he has brought up in this debate changes that the Government has made to improve the court system—exactly what they are. These will be news to a lot of Kiwis who have been denied their right to access justice in this country these past several and further years.

I do want to know, beyond vague promises that there may or may not be better funding of the system—I mean, it’s all very well to say cheerily and collegially that he can’t make promises about cheques that the finance Minister won’t write, but in that case, what changes can be made of a non-financial nature that might improve the system? What stroke-of-the-pen changes are represented as an opportunity within this bill that are not being taken up and that he would actually seriously wish to take forward that he would brief his Cabinet colleagues on and that could be made?

For example, as suggested by the Auckland District Law Society in the submission process via Samira Taghavi: will the Government contemplate an opportunity for people to appear remotely and participate remotely, with their own consent, at their volition, perhaps for other matters than are currently contemplated? The bill makes some nods in these directions, but I do want to know from the Minister which specific changes he will contemplate making.

By the way, Minister—excuse me, Mr Chair, but I can’t see the clock. I don’t know how close I am getting to five minutes, but please regard this as a call for a continuation. I won’t have much more to say, but I do want to at least finish this thought and have a response from the Minister in that time.

These are important issues. They’re fundamental issues, and we haven’t canvassed them properly before this bill is rushed through, seemingly, in this week. So my final question there, on which I do also request a response, is in relation to vaccination status as it affects the ability of people to participate in the court process. I think most people have acknowledged the fact that—[Bell rung]

In terms of relevance to the bill and the provisions that the member Chris Penk asked about in terms of court security officers: this is just a continuation of the existing provisions. I can assure the member that security officers are trained to ensure that they operate within the constraints of the provisions.

I move, That the question be now put.