COVID-19 Response (Courts Safety) Legislation Bill

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

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

💬 Hon KRIS FAAFOI: I move, That the COVID-19 Response (Courts Safety) Legislation Bill be now read a third time.

This bill supports the judiciary and the Ministry of Justice to keep courts and tribunals operating safely and effectively during the pandemic. This is critical to ensuring people can continue accessing justice. The amendments are not tied to the severity of the pandemic at a particular time. There continues to be a need to reduce the risk of COVID-19 transmission in courts and tribunals, even as we pass through the peak of the current Omicron outbreak.

The changes in the bill are temporary, linked to the COVID-19 Public Health Response Act being in force, and this ensures new powers exist for only as long as they are needed. The bill does not mandate any specific safety requirements; instead, it authorises the judiciary and the Ministry of Justice to develop requirements that will minimise the risk of COVID-19 transmission. These safety requirements will apply to the people entering the court or serving as a juror. The judiciary and the ministry will be able to rapidly adjust these requirements to respond to changing health risks and to ensure the requirements remain a reasonable and proportionate response to the pandemic. The requirements will be subject to safeguards. They must be necessary in the interests of justice and to protect health and safety in the courts to take account of the effects of COVID-19.

People who are compelled to attend court, such as criminal defendants, will be able to enter into the court even if they do not meet the safety requirements, and this is because the requirements cannot override the legislation regulating who is entitled to attend court. Judges will also be able to override the safety requirements on a case by case basis, and this means people who do not meet the requirements will be able to enter court or be eligible to serve as a juror where a judge determines this is in the interests of justice. In addition, the requirements must be consistent with the New Zealand Bill of Rights Act.

Existing law already authorises the judiciary and the ministry to manage safety and security at courts and tribunals; however, it is not a perfect fit for the risks that arise in the pandemic. This bill therefore amends the Courts Security Act to clarify and supplement the ability of the judiciary and the ministry to respond to safety risks. It clarifies their ability to set safety requirements relating to COVID-19 and, importantly, it makes express provision for senior members of courts and tribunals to set these requirements. This supports rules to be set consistently across jurisdictions. Court security officers will be able to enforce these safety requirements, and this includes an ability to refuse entry to people who do not comply with them.

People summonsed for jury service need to be able to come to court confident that measures are in place to protect them from COVID-19. These people are compelled to attend court, and jury trials may pose a higher risk of COVID-19 transmission because these trials involve strangers who have travelled from many locations and who may be required to be in a confined space together for several hours, and, in some cases, for several weeks. Addressing these risks, the bill amends the Juries Act to authorise the Chief High Court Judge and the Chief District Court Judge to set safety requirements that jurors and potential jurors must meet. These requirements will be additional to and applied despite the jury rules and provisions in the Juries Act relating to juror summoning and selection, service, and discharging of jurors.

Judges and registrars will be able to proactively defer or excuse a person from jury service if they are unable to comply with the safety requirements, and these people will be told in advance that their jury service has been postponed or cancelled. This will ensure that most of the people who attend court for jury service comply with the requirements, and this will reduce the risk of COVID-19 transmission amongst potential jurors.

The Juries Act is also being amended to expressly enable a person’s jury service to be deferred or excused for a reason related to COVID-19. People will be able to apply to 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 negatively affected by COVID-19.

Most of the bill will be repealed when the COVID-19 Public Health Response Act is repealed; however, a few provisions relating to jury service will continue for a further two years. These provisions aim to return people whose jury service was deferred for a COVID-19 - related reason to the position they would have been in but for the pandemic, and these people will be able to be excused from jury service on less stringent grounds than currently typically apply.

The bill also amends the Criminal Procedure Act to clarify two areas of uncertainty that have been exacerbated by the pandemic. The Criminal Procedure Act contains protections for the public and media access to criminal hearings, and the bill before us clarifies the relationship between these protections for open justice, on the one hand, and the use of remote technology and court entry requirements, on the other. Firstly, the bill clarifies that these protections for open justice are satisfied if a hearing is held remotely, and the public and media has the right to observe via remote technology. I would emphasise that the bill does not change the circumstances in which remote technology can be used or the types of criminal hearings that can be conducted remotely. The use of remote technology will continue to be regulated by existing law. Secondly, the bill clarifies that the protections for open justice do not limit the ability of the judiciary and the Ministry of Justice to set court entry requirements.

In conclusion, the COVID-19 Response (Courts Safety) Legislation Bill will enable the judiciary and the ministry to manage COVID-19 risks in the courts while maintaining access to justice, fair trial rights, and public confidence in the courts. This will help keep the court participants safe and will also avoid the social and financial costs of delayed trials. I commend this bill to the House.

Thank you, Madam Speaker. I respond on behalf of the National Party in relation to the COVID-19 Response (Courts Safety) Legislation Bill. We have made tolerably clear throughout the legislative process that whereas our position at the first reading was to support the bill in the belief and expectation that it would be fit for purpose and necessary at the time of its passing, clearly that is no longer the case. So I do want to focus in my contribution on why that is so.

So a bit of history, first of all. It was late last year that Parliament passed the so-called traffic light legislation, more formally the protection framework, etc. At that time, National members in the House, having noticed, even in the short period of time that we were given to scrutinise that bill before it was rushed through with indecent haste—it became clear to us that there was no specific mention of how the regime of traffic lights, vaccination mandates, passes, and so forth would apply, if at all, to courts. So we asked the question: did it, in fact, apply, and, if so, what specific provision would be made for the particular circumstances that are so important in relation to Kiwis’ access to justice, the right to be safe when compelled to attend hearings, and so on?

The response at that time, which was reasonable, as far as it went, was that that legislation didn’t apply and that something separate was appropriate for the court system. We accepted the Government at its word that it would be providing something bespoke in that space in due course—one would have thought at the same time would be appropriate, but perhaps as soon as possible thereafter. So imagine our surprise when it was not until the following year, namely 2022 in March of this year, that the Minister finally got around to introducing into the House legislation that would provide some guidance as to what procedures and certainty and clarity might be provided to those working in the court system in the context of an Omicron outbreak of COVID-19.

The fundamental question, really, for the Minister and the Government in seeking to justify the ongoing passage of this legislation, noting that we’re at its third reading today, of course, is whether there have been defects in the system in the meantime caused by the fact that this hasn’t been on the statute book and how that can be justified and how the delays in the Minister getting around to introducing the legislation can be justified.

Alternatively, if it was not needed for the last three or four months, then why is it needed now? The great irony is, of course, that it was needed previously but is much less needed now. Members opposite, of course, may not wish to take my word for it in terms of what is required in relation to COVID-19 response but they should at least take the word of their own party leader, namely the Prime Minister, who announced on I think it was late March, but in any case before 4 April, that on that date various restrictions in relation to vaccine mandates and pass requirements would be lifted. And so that at the time seemed like a milestone.

Of course, with this bill having been introduced but, obviously, made redundant by that announcement, it seemed clear that, surely, the Government would walk away from what it had provided too little, too late, but at least realise the error of its ways at that time. So the facts changed, and the National Party updated its position accordingly. The same could not be said, ultimately, however, for the Government, who, through the select committee and its members on that, are determined to push through with this legislation none the less, which is now imposing restrictions that were needed to provide the clarity and certainty that the Minister is now talking about in late last year.

I do want to acknowledge the select committee process, though, because, on a more positive note, I was pleased to be able to join the Justice Committee, a body of which I’m not normally a member but was able to participate in those proceedings. So I thank its chair and its members, the officials, the advisers, and, of course, all those who submitted into the select committee process: a mixture of practitioners, professional bodies for the legal profession, but also ordinary New Zealanders who were interested to know how they would be affected by this. There was some positive commentary, there was some negative commentary, but, overall, it was a very worthwhile process. So I do just want to acknowledge that we have had positive interaction in the democratic process through the select committee, albeit, as I say, rather late. The whole thing has been rather late and the select committee process indeed itself was shortened in a bid to spare the Government’s blushes in relation to the late passage of this legislation.

At the committee of the whole House stage—as recently as last night, so not even 24 hours ago—the Minister made a couple of points that he, I suppose, thought were valid in relation to the National Party’s position. One is that he accused us of crystal-ball gazing, which, as I said at the time, I found remarkable, given that, at the time that the original traffic light legislation was passed, it was we who brought to the attention of the House the fact that there was nothing tailored to the courts [Audio issues] Secondly, he made allegations of, essentially, a political stance being taken, which is pretty amusing, to say the least, given that we’d supported at first reading, in good faith, the bill, because we could see that at that time, only a month ago, but [Audio issues] at least somewhat made sense and was worth exploring in the select committee process. For that reason, as I say, we supported the bill and decided, of course, as always, that when a bill has passed its reading and is going into a select committee process, that if changes can be made that are positive, then whether or not we support the overall passage of the bill, it would be worthwhile engaging in that discussion constructively, and so we did.

Some positive changes were made and we supported those accordingly with amendments at the select committee stage. But we did, none the less, have questions, and we do still have questions that relate to certain key aspects of the bill—that it doesn’t seem to us the Minister has been sufficiently on top of it to give us much confidence and, more to the point, the justice community and those involved in it, the confidence of how this thing should be operating going forward. A key example, as highlighted by a submitter at the select committee, is in relation to court security officers. Under the bill, they’re expected to provide legal advice, in effect, about why they are excluding persons from the ability to attend court or denying them access or, indeed, removing them, and that seems, to us, a strange way to go about dealing with fundamental rights and freedoms of New Zealanders in a courtroom context.

We’re also not satisfied that the Minister has given much, if any, attention to the practical implications of providing audiovisual link and audio link facilities for courtrooms and tribunals throughout the country. Now, to be fair, that’s outside the ambit of this bill. One wouldn’t expect that to be included in the legislation per se, but it’s part of the overall network and framework of justice that the Minister and his Government are responsible, in conjunction with the courts themselves, for providing and it’s clear that little attention has been given to that or, indeed, to making positive changes through this bill that would have a permanent nature and survive the temporary passage and, then, repeal of the legislation.

In my remaining time, I did just want a note on the subject of comity, that is to say the relationship between different branches of Government—of the judicial and the legislative branches—we are anxious to ensure that our courts do have the ability to control their own affairs, of course, in relation to COVID-19 and other matters, and the Minister and other Labour MPs have made noises along those lines too. Again, that is all sensible, in so far as it goes. But the Minister does need to explain that if this bill is providing the ability of courtrooms to arrange their own affairs now and it is to be repealed, then what remains after that. I think it would be helpful for the Minister, perhaps, in subsequent legislation or by engaging with the judiciary in some other way, to make clear the expectation that the clarifications and the certainty provided by this legislation, supposedly, will survive its passage and repeal.

In my remaining time, Mr Speaker, I do just want—excuse me, Madam Speaker, I think; it is always difficult to gauge remotely not engaging physically with the House. But at last count, we are disappointed that opportunities for change, such as suggested throughout the submission process, aren’t being picked up as permanent features. The Minister and the Government have said that they will consider these in due course. The time is now. The time was last year. It’s too little. It’s too late. We cannot support the passage of this bill through the House.

The question is that the motion be agreed to.

Tēnā koe e te Māngai o te Whare, tēnā koe. My contribution on this bill is brief. The COVID-19 Response (Courts Safety) Legislation Bill is important; the Government is progressing this legislation, most importantly, to ensure that the courts can continue to operate safely and effectively as COVID-19 spreads in our communities.

Access to justice through the courts is vital to a fair and democratic society. To date, measures to keep COVID-19 out of the courts have largely worked. However, additional safety requirements are needed to manage transmission risks under the COVID-19 Protection Framework, as we’ve got more people who are active, and while there is COVID-19 actively being transmitted within our communities.

The Government has therefore agreed to make legislative changes that will apply during the COVID-19 pandemic. These changes will strengthen the existing ability of our judiciary and the ministry to set and enforce conditions people must meet when they are entering and remaining in any court—and also in tribunals.

It will enable the judiciary to set additional conditions for selecting and managing juries to reduce close and prolonged mixing of juries. These changes will also mean that jury selection can take place outside of court buildings, where alternative venues need to be used to reduce close physical contact between jurors. These changes are important because they promote access to justice through the courts. We see this as a cornerstone of a fair and democratic society.

I would like to acknowledge the Minister the Hon Kris Faafoi for the quick shepherding of this bill through the House, the officials who have worked incredibly hard to make all of this come together quickly, those submitters who took the time to put their views forward to the committee, and my fellow Justice Committee members for working hard through this.

This is a good bill, it will continue to make sure our courts are operating safely and fairly under a COVID-19 pandemic, and I commend it to the House.

Mr Speaker, thank you very much for the opportunity to speak on the COVID-19 Response (Courts Safety) Legislation Bill. Now, this is an omnibus bill that removes legal barriers to the judiciary—or seeks to remove legal barriers to the judiciary—and the Ministry of Justice in addressing health and safety issues in relation to COVID-19 and the safety risks in courts and in some tribunals. So that’s what everybody, of course, has been very much concerned about over these past two years as we have battled with COVID-19 and the restrictions imposed by Government, which they see as in the best interests of New Zealanders in order to reduce the harmful public health effects of COVID-19.

This legislation is what we believe to be a rather belated attempt to try and deal with the complications of those rules in the legal setting. And I suppose it reflects the broad theme that was seen in relation to COVID-19 in this Government, which is one of scrambling to pass laws urgently to try and fix problems that were very easily foreseeable. So the genesis of this bill starts with the legislation in November for the traffic light regulations, as they might be called, which we’re all, sort of, trying to grapple with now, being in orange and wondering what that means for ourselves and our families. Now, this was brought in in haste, under urgency—the traffic light measures back in November—to bring in all these rules and regulations about when to wear a mask, who was to come, and what mandates to have there, and all these issues raised in preparation for the inevitable arrival of COVID-19 in some form in the country.

Now, the point we made at the time was we started this back in March 2020, and the Government’s strategy—in so far as it can be determined—on COVID-19 was to buy time; that is, to put boundaries up around the country and to lock down parts of the economy and to, basically, encircle the country with a very strict border control with enormous economic cost, and to do that so that we could vaccinate the population when vaccines became available and prepare our health system to respond to the inevitable subsequent arrival of COVID in New Zealand, which would be mollified by high levels of vaccination.

Now, of course, in 2021, what we saw in the first half of the year was a very slow vaccine roll-out and a missed opportunity there that contributed to the requirement to lock the whole of Auckland down for such an extended period in the second half of the year. Nevertheless, in the second half of the year, we did get on, finally, and got cracking on the vaccination, and New Zealanders as a whole have done a remarkable job there. Nevertheless, still, eventually, we have to open up; we have to re-engage with the world. We can’t just stay isolated as a hermit kingdom forever. At some point, COVID is going to get into the country, that was obvious to everybody—that was obvious to everybody—and so some sort of mechanism to deal with that burst of activity that was going to occur when COVID came into New Zealand was going to be required.

Now, the Government finally got round, in November, to coming up with what they term this “traffic light framework” through some legislation through the House. And at the time, we thought, “Well, what are the consequences for the court system and access to justice for people who are compelled to go to the courts, and where does that all fit in?” We’re very conscious of the broader context of the justice sector, which is very slow; it’s a trite thing to say that “justice delayed is justice denied”, but it’s true. You know, there are, sort of, three elements around justice that have to be considered: one is getting the judgment right; but also it is how long it takes to get that judgment; and, thirdly, whether it is an affordable thing for the people involved. If you don’t pay enough attention to the time it takes and the cost, then you still don’t really get justice, particularly in the civil setting and in many other areas, and families’ lives are on hold, and we’re seeing that right across the country at the moment.

That access to justice and the efficient movement of the courts is a critically important issue. So having scrambled in November to introduce the traffic light setting, nothing was done on the court side. Then we heard last night in a revelation from the Minister that the officials got on to it in the new year after Christmas—when he says the “new year”, my hunch is that it’s probably the last week of January that they got on to it and started the policy work on this bill. And as a result, what we have is a bill that makes amendments to the Courts Security Act 1999, which clarifies that the heads of bench—the senior members of courts—set requirements relating to COVID-19 that people must enter and remain in court and some tribunals. It applies safeguards where people are compelled—it sets out a bunch of things that make it, in essence, easier for the court system to be able to clarify how the court system can deal with COVID restrictions in a way that is legal and that works.

Then, secondly, it amends the criminal procedure—well, thirdly, I won’t work about the second one, in the interest of time, but, thirdly—arrangements around the Juries Act and allows people to decline jury service if they have been affected by COVID-19 and particularly if their family has even been economically affected by COVID-19.

The problem is, of course, that being so slow to get around to doing this and waiting for the new year to start the policy process and introducing it into the House, it now has been made redundant, largely because most of the restrictions have been removed; the mandates are drifting off into the sunset. We are now, sort of, working our way down the traffic light—we were red for a very long time and now it’s blazing amber, and we’re hoping that, like the traffic lights, the amber will be short and we’ll be in green before we know it. In fact, we don’t do that in New Zealand, but in the United States, they do that. It’s usually the other way around here, so that metaphor doesn’t work. And so the outcome of it all is that this bill is redundant, largely.

The point I was trying to make in the committee stage last night was: what is astounding in this whole process is that if the Government wanted to do one thing to deal with the broader issue of the slowness of access to justice and the big backlog that we see in court cases and the years that people are waiting to get resolution to justice issues and cases that put their lives on hold, you would think that any Government worth its salt would have thrown resources and, if necessary, legal changes into ensuring much more effective audiovisual responses and technological responses to keeping those parts of the court system running that can run in that setting. Not everything can, of course—not everything can—but there is a substantial volume of work that can be dealt with audiovisually. And as we’ve all learnt, everyone, through this pandemic, there is this thing called Zoom, and there are these options where things that were unthinkable two or three years ago that could be done over the phone or online can be done over the phone and online, and things can actually happen; people can get on with life.

Now, there’s been an element of that in the court system, but nowhere near as much as we would have liked. As I pointed out to the Minister, there were 27 courts or tribunals throughout the country—it might have been 29—that don’t have any—any—audiovisual facilities. You would think that in the context of a Government that has spent something around $60 billion on the COVID response and a Minister of Finance that’s opened the chequebook for all sorts of mad job-creation schemes at a time when there’s no workers, such as Jobs for Nature—all that sort of stuff—that he would have found some resources to really advance the audiovisual capabilities. So, on that basis, this is a bill that has missed the boat, and we won’t be supporting it.

Tēnā koe e te Māngai o te Whare. This is a straightforward bill, and so I will make my contribution straightforward. It supplements the ability of the judiciary and the ministry to respond to safety and security risks in the courts at a time when there is an incredible level of uncertainty in our courts and the need for more flexibility. This makes a real change for people’s lives, like my constituent Eileen, who reached out to her local MP to help her navigate how her and her family, who had been infected with COVID-19, were meant to apply to be able to leave their jury service duties. It was important for Eileen and this is important. We’re seeing a Government that’s committed to a better court system in enabling some of those changes that need to be made now, and one that is committed to access to justice for everyone, whether they are people with vulnerabilities who cannot come to court or people who are legally required to be there and need to be kept safe. That is why I commend this bill to the House.

Thank you, Mr Speaker. This is a very straightforward bill. Members of the judiciary do already have discretion to govern for health and safety in their courtrooms. This bill just extends that existing discretion to governing the courtroom to be safe in terms of the COVID-19 pandemic.

It is the case that the pandemic is not over. We do need to continue providing for this type of discretion. It’s also the case that those who work in our justice sector are actually essential workers. They don’t have a choice about coming to work; whether it’s the court takers, the registrars, judges, the defence counsel, members of the police force, or prosecutors. It’s also the case that those who are arrested and charged, witnesses, and victims don’t have a choice but to interact in a confined space in circumstances where they may need further protection. That goes for jurors, of course, as well.

So this provides for judges to exercise their discretion in terms of spacing, in terms of masks—it’s not a vaccine mandate—and it allows for people who need to opt out to apply for that and for a member of the judiciary, or a judiciary officer presiding, to make decisions around that.

As an immunocompromised person who previously worked in the justice sector, I hugely appreciate that this bill will be a relief. I also want to notice that the community most disproportionately targeted by our system of justice—that is, Māori—are particularly at risk of COVID-19, so not passing a bill like this would have been callous. I do commend it to the House.

Thank you, Mr Speaker. I stand to take a call on behalf of the ACT Party on the third reading of the COVID-19 Response (Courts Safety) Legislation Bill. ACT continues to oppose this bill and we did clearly outline in both our first and second reading speeches our reasoning why, which includes our position that we continue to maintain that this bill is simply not needed. But let me go a little further on what the adverse impacts of this bill will do.

The passing of this bill will allow for the heads of benches to make decisions as to who can access the courts and under what conditions they may enter. They will call these decisions “protocols”, and this legislation does not tell us what the protocols will contain. The details will be written at the discretion of the Chief High Court Judge and the Chief District Court Judge. These protocols will become secondary legislation, and what is secondary legislation? It is law that is made by someone other than Parliament, and it’s made under a power that Parliament has formally delegated in a particular Act.

What does that mean? Well, quite simply, it means that the Government has transferred the ability for lawmaking to be done outside of this House of Representatives and outside of those members that the voting public put into this House to be lawmakers on their behalf. Submissions received from the New Zealand Law Society and our own Regulations Review Committee had concerns about the secondary legislation and the by-product of that legislation, and I commend the New Zealand Law Society for their considered recommendations to try and help alleviate what those concerns may bring. In fact, they did give, I believe, three different options on how to amend it; however, the officials advised that, in their opinion, it’s OK to allow secondary legislation to occur and that they believe it is appropriate. The ACT Party disagrees.

It goes further, though, because additional requirements can be set by other heads of benches, and this includes decisions which can include restrictions on accessing other venues such as the courts, tribunals, or where there is a constituted dispute resolution body. The bill specifically lists 35 entities and allows others not named on that list to also be included. Therefore, the additional requirements, which include rules for who can partake in proceedings, will be decided by adjudicators, authorities, and chairpersons, not just judges.

So this bill is not about access to the Family Court, the District Court, or the High Courts alone; it includes access to public services such as those ones listed in the bill. So we understand about the Supreme Court, even the Court of Appeal, High Court, District Court, the Employment Court, the Environment Court, the Māori Appellate Court, the Māori Land Court. But what about the Court Martial Appeal Court or the Court Martial, the Disputes Tribunal, and Principal Disputes Referee, the Tenancy Tribunal, Private Security Personnel Licensing Authority, the Licensing Authority of Second-hand Dealers & Pawnbrokers, the Alcohol Regulatory & Licensing Authority, the Motor Vehicle Disputes Tribunal, even the Human Rights Review Tribunal, Real Estate Agents Disciplinary Tribunal, the Canterbury Earthquakes Insurance Tribunal, the Copyright Tribunal, the Coroner, the Customs Appeal Authority, and the Immigration and Protection Tribunal? It just goes on and on, but we even have the Legal Aid Tribunal, the Social Security Appeal. What about the Student Allowance Appeal Authority, the Taxation Review Authority, the Victim Special Claims Tribunal, the Weathertight Homes Tribunal, and the Waitangi Tribunal?

Another point that I would like to make, and I think it’s important for the public to know, is this legislation actually has a clause within the temporary provisions schedule that allows court staff to use reasonable force if you do not comply with whatever these protocols or additional requirements may actually be. And if you don’t adhere to the protocols or additional requirements legally placed upon you, then a security guard working for any of these Public Service entities, any of the 35 that I should have named—but I think I only gave you 30—they can manhandle you to remove you. And it’s an interesting concept, especially when this week we’ve heard how patched gang members are getting jobs as security guards around the country, even when our police had objected to it. This House is legislating reasonable force on compliance of behaviour and are expediting their ability to do so.

What about my learned colleague Mr Goldsmith, pointing out that out of all of the courts in the country, 29 of them do not have access to audiovisual (AV) equipment to run virtual court sittings? A large part of this bill is about ensuring that remote hearings can continue. We are legislating, under urgency, something that is already happening; at least, it is where the facilities are available. I recall Mr Goldsmith stating that Ruatōria doesn’t have AV equipment. I’ve been inside that fully ring-fenced District Court, the one where a judge has a corrugated-iron roller door between his bench and the rest of the court. I guess there’s no need for gang-patch security guards when you can bring down the internal garage door instead. But the point being made by Mr Goldsmith at the time is quite valid. If you have someone living in a remote, a rural, or an isolated piece of New Zealand and they make their way, say from Hicks Bay to Ruatōria for a court case or a hearing, they may be turned away if they don’t meet the protocols. So if no AV equipment is available for a remote hearing to take place, then this House is allowing a delay to justice, and it appears to me that the cart has been put before the horse.

Should we not make sure that we have our courts able to execute their business with the equipment that they need before legislating their ability to prevent access? This Government is expediting this law in the name of COVID-19. It is giving power to the judiciary to set protocols that, depending on what they set, could be considered unreasonable to those seeking justice and could be viewed by many as State-sanctioned mandates. And all of this is happening at a time when the restrictions are easing and the peak of the Omicron pandemic has passed.

The Labour Government really should stop treating the people of New Zealand like little children who need to be constantly told what to do. Stop interfering so much in our lives, and let everyone move on. ACT continues to oppose this bill.

Thank you, Mr Speaker. I’ll take a very brief call. We are of course very delighted to see the recent shift to orange, but there are still foreseeable risks in terms of COVID. There are also circumstances that the courts currently need to address in terms of COVID, and my colleague Golriz Ghahraman referred to those. This bill allows certainty of the courts’ powers; it allows consistency in terms of the powers allocated to courts, as well as other decision makers; and it allows the courts to respond to access to justice needs, particularly to those who have acute vulnerabilities when it comes to COVID. I commend this bill to the House.

Thank you very much, Mr Speaker. I’m pleased to see the enthusiasm of one of my colleagues across the House to stand and speak, I’m sure, for a good five to 10 minutes.

National continues to oppose this bill, the COVID-19 Response (Courts Safety) Legislation Bill. The basic principle is that it’s no longer in line or in time with where the COVID response overall is. Other speakers have far more eloquently than I articulated National’s position, but, sadly for the other side, that won’t stop me for speaking for another four minutes and 26 seconds. Welcome, people, to the delights of Parliament and how it operates.

Fundamentally, this was a bill that should have been progressed months and months ago. The principle of allowing our judiciary to make its own decisions of how to manage COVID—be that who can access the courts, what their vaccination status could or should be, how juries could be composed, what might happen if someone was found to be COVID positive, how would all of that be managed. It’s quite right and proper in our Westminster tradition to make sure that the courts have the power to do it themselves, to make those choices. We as the Parliament have to provide those instruments, these legal recourses, but it’s to give the courts that independence and power. Again, members here know, it’s called comity. I mean, I’m not a lawyer. There are lawyers here, and much smarter ones, of course, than me. But, fundamentally, the courts do need that independence. So National has no problem with a piece of law which empowers the courts to make those decisions.

The only problem, of course, is that the COVID situation in New Zealand has dramatically changed. We’re coming out of the current dynamics that we’ve been accustomed to. Yes, I hear the debates and discussions from the other side that COVID is still with us and more things could come—that’s quite true. I prefer not to be someone who lives in fear; it’s just not the way I operate. Yep, things could get worse, but at the moment they’re tracking in a pretty good direction. You don’t have to believe me—I’m only espousing words. The Government itself has, effectively, acknowledged this. We’re progressing down the traffic light system. On this side of the House, we want the whole traffic lights tossed out completely, but that’s a whole separate discussion.

But the Government itself is acknowledging that the environment’s changing, and yet it’s pushing ahead with this piece of legislation. It’s probably around the question of audiovisual links—or AVL or AV; whatever acronym you choose to use—where, if you will, the nub of this discussion and debate comes up, and, for me, for at least two reasons. We’ve heard from previous speakers one of the concerns is that there’s lots of talk about how we might use AV in our various courts. I won’t list them all off—I think it was 35, I heard from a colleague—but there are a number of courts. The problem is that for all the good intentions in this legislation that the courts, the judges, may be able to decide to use this technology under this COVID response courts safety bill, what we also know, of course, is that we don’t have AV technology in most of our courts. I think, unfortunately, it’s a missed opportunity by this Government. Instead of, if you will, having wasted, ultimately, I think, the Parliament’s time on this piece of legislation, if they’d taken the time, particularly through justice and the Minister of Justice, to find the funds—and the Government is profligate with cash. I’m sure they could have found the tens of millions required to actually get the audiovisual technology into those courts so they could be used.

My final point around all of this, and the second reason why I think this is not needed, is it’s rushed. We’re not in urgency, but I think it’s important for people to understand at home. The Government rushed this through select committee. It’s been driving it very fast through the Parliament for reasons that don’t make sense. A number of submitters have rightly pointed out that more time would have allowed for more consideration.

Mr Speaker, if you might indulge me for 20 seconds, because this will be the last time I can make a quick acknowledgment of my colleague Louisa Wall. Actually, I’m feeling a bit emotional, which might seem strange to people, because Louisa and I disagree on just about every issue, to put it mildly. But I think—very quickly—I respected her fervour for her positions and she respected mine, which meant that when we came to discuss human rights and the likes of China, we united. I will miss her terribly but wish her well in her valedictory.

I call Tangi Utikere—five minutes.

Tēnā koe, Mr Speaker. I just intend to take a very brief call. Colleagues on this side of the House have indicated, I think, the position for the Government, and my colleague, actually, Vanushi Walters touching on the certainty this will provide—not just the certainty moving forward but the flexibility within the confines of a courtroom environment. It’s appropriate, I think, that that judicial discretion remains there. It’s the role of the judiciary and the heads of bench to determine those matters. Can I finally just acknowledge the Minister—Minister Faafoi—for his leadership in this particular space. I commend the bill to the House.

I reiterate the words of my colleague Tangi Utikere and my other colleagues on this side of the House. I bring to this House, further, the information from discussions with my colleagues back at the criminal bar who have said what they want is for the judiciary to have the certainty to continue to innovate without creating uncertainty where they feel obliged to mince their words—they want this bill. I commend it to the House.

Thank you, Mr Speaker. I rise to take a call on this final reading of the COVID-19 Response (Courts Safety) Legislation Bill, which will shortly pass into law as Labour have the majority. National does not support this bill. I note that I put it to the Minister of Justice yesterday in the committee of the whole House that this bill should really be called, among other things, the “Too Little, Too Late Act 2022”. I note that the pandemic began, functionally in New Zealand—at least, we had our lockdown—in March of 2020; we are here in April 2022 talking about putting in place a bill called the COVID-19 Response (Courts Safety) Legislation. It begs the question: why did it take Labour two years to do so? It’s ironic that we’re having the final call of this bill on the day that the country has moved into the orange setting, and only yesterday, Australians were able to return to New Zealand—both positive things. But the question is: why are we here now and why are we talking about a COVID-19 Response (Courts Safety) Legislation Bill so long ago?

Things have moved on in a whole raft of ways. For me personally, back in March 2020, I was a courtroom lawyer working in Invercargill, and I had to go into court on occasion during that lockdown period. I also had various appearances from home—everyone was trying to figure out how to make it work, and we were all doing various kinds of audiovisual-type links into the court from home, and people were just trying to make it work. The courts have done this for over two years—the courts have regulated their own proceedings; they have found ways to keep the court system running. All credit to all the participants in that process; it’s a very challenging environment for everyone involved, and an important one. It’s very important that people have an opportunity to appear in court and to get the certainty of the decisions that the court will provide for them. Regardless of the outcome of those decisions, it’s very important they have that opportunity. A lot of work goes in, from all the participants, to make that happen.

However, we’re here, just as, thankfully, the Omicron wave is on a downward trend. The Minister for COVID-19 Response made very positive comments recently about how things are looking good in that respect. And, like I said, we’re here on the day that we moved into the orange light setting, and yet we’re still dealing with this COVID-19 Response (Courts Safety) Legislation Bill which is about to come into law. And I listened with interest to my colleague Nicole McKee, when she talked about putting the cart before the horse. And it’s made me think about some comments yesterday in the committee for the whole House stage, when we were talking about Ruatōria and the quite humorous scenario, which is real, and I’ve talked to people who’ve been to that court, and spent time there—you know, people who sometimes ride their horses to get to the court. And it made me think at the time, when I was talking about that, that this should really be called the “Horse has Bolted Legislation Bill”, because the horse really has bolted and we just don’t need it. I mean, that’s the fundamental point. I’m using a little bit of humour here to make the point that we do not need this law.

In terms of the main provisions, I should probably just spend a little bit of time going through that so that anyone listening has some clarity about what is involved in this bill. So the bill empowers the head of bench of a court to create directions or requirements in respect of COVID-19, which must be complied with in order to enter a courtroom. The person making the directions or imposing requirements must be satisfied that they are reasonably necessary in the interests of justice and that they are to protect the health and safety in the courts. A court security officer may ask a person who wants to enter, or is in court, to show evidence that they comply with COVID-19 requirements set by a head of bench and may deny entry or remove a person who does not comply.

A person who has not complied with COVID-19 requirements may enter and remain in the area of the court if the presiding judicial officer considers it in the interests of justice to permit or require the person to do so. Additionally, the bill enables a head of bench to make a protocol, setting additional requirements relating to the selection and management of juries that are necessary to protect the health and safety in the courts on account of COVID-19. A judge, on their own initiative, will also be able to impose additional COVID-19 requirements on jurors during a trial.

And I’ll take a moment there just to note that I did ask the Minister yesterday, in the committee of the whole House stage: what would be the potential remedy for a juror who felt that the judge had imposed requirements on them that they thought were a breach of their rights, and what appeal rights they might have? I don’t know if the Minister had entirely turned his mind to that aspect of this. And it’s an important one, because a judge may regulate the proceedings within the court, but if they are not complied with, the judge does have the potential discretion to hold a person in that court in contempt of court, and they can actually hold them in custody. So it is an important point and one I don’t know if the Minister agrees completely adequately, when I questioned him on it yesterday, but that’s another matter.

The bill also enables a court registrar or a judge to defer or excuse a person from jury service if they do not satisfy the registrar or judge that they comply with the COVID-19 juror requirements.

National members participated at select committee in consideration of this bill, having supported it during the first reading debate in the House. Support was based on three key factors. The first was that consistency, that this is needed between the court system and the rest of New Zealand society in relation to COVID-19 restrictions—for example, regarding vaccination status, when the Government had passed legislation establishing what is commonly referred to as the traffic light framework in late 2021, it became clear that such a regime would not apply to the court system.

The second key principle was on comity, and we wish to respect the ability of the judicial branch to determine its own affairs to enable comity between the separate branches of Government. The context was allowing the judiciary to implement equivalent protections of those that apply elsewhere in New Zealand society, and that is certainly an important matter that we have great respect for in this House, and the independence between the separate branches of Government.

The third was change. We noted the potential for temporary measures introduced for the purpose of responding to COVID-19 to be made permanent features of court systems—for example, remote participation by audiovisual link for sentencing matters and all cases where the accused person consents. And, certainly, that is something that I can say from personal experience is of great value, having appeared in numerous courts throughout the country. For various reasons, the audiovisual system is of great value, particularly in remote areas where a judge is not available and can be two to three hours’ drive from court, but is available via audiovisual link, and it is also helpful if someone is in custody and doesn’t have to sit in the back of a van for hours to get to and from court. So that is of great value and something I have certainly seen in my time practising in the courts in previous years before coming to the House.

During the time that the committee considered this bill, relatively short as it has been, the Government announced that various key COVID-19 restrictions—for example, vaccination status, determining access to certain places, were to be removed on 4 April 2022. Given that this bill will not be enacted until later, and we have already passed that 4 April 2022 date, and it’s almost likely it will be later this month or next month, the first two factors noted above, namely the importance of consistency and comity, no longer apply.

This only leaves the third factor, namely the desirability of obtaining permanent benefits from what would otherwise be merely temporary COVID-19 - related measures. And, as suggested by the Auckland District Law Society submission, the Courts (Remote Participation) Act 2010 could be amended permanently by this bill to enable the hearing pleas and sentencing of willing defendants. National would support such a change being made by the bill, but it wasn’t advanced by the Labour Government. The majority of the committee members have advised that they didn’t support that approach; however, preferring the permanent reforms would be subject to greater consultation and consideration than is possible while enacting this bill.

As I said in my earlier comments, this is a bill that has come well after two years after the pandemic began. And as we are winding things down, somewhat ironically on the day that the country moves into the orange framework, it really is a case of the horse having bolted and the Government just playing catch-up with a piece of legislation that is only intended to be temporary in nature and, in fact, is to be repealed on the date on which the COVID-19 Public Health Response Act 2020 is repealed, which may well be later this year. So the question is: why it took Labour so long to put this in place.

This is a very sensible piece of legislation. It’s very practical. It supports our courts. It supports all the participants in it. I commend this bill to the House.