Three Strikes Legislation Repeal Bill

Members, we come now to Part 1. This is the debate on clauses 3 to 10, “Amendments to Sentencing Act 2002”, and the Schedule. The question is that Part 1 stand part.

The three-strikes law is unique in New Zealand because it prevents judges from properly considering the context of offending and the individual circumstances of offenders at sentencing. Given the distorting effect the three-strikes law has had on sentences, strong evidence of its effectiveness would be needed to justify its ongoing existence. Instead, there is little evidence the three-strikes law has worked as intended to deter or prevent any kind of serious crime. There is, however, clear evidence of the disproportionate impact the law has had, including requiring judges to impose sentences so extremely excessive they breach the New Zealand Bill of Rights Act. Further, we know that the three-strikes regime exacerbates the overrepresentation of Māori in the prison population. Māori are almost nine times more likely to receive a first strike than those of other ethnicities, and over 18 times more likely to receive a second strike.

The courts already have equivalent sentencing options available to protect the public from people who commit serious offences, from limitations on parole eligibility through to the possibility of life imprisonment without parole. For these reasons, it is the Government’s view that discretion should be returned to the judiciary, who are best placed to respond appropriately to serious and repeat offending.

This bill was introduced on 17 November last year and was referred to the Justice Committee. Submissions were received from a wide range of submitters, including those with firsthand experiences of the three-strikes regime. Submitters included victims of crime, legal practitioners, criminal justice advocacy groups, and strike offenders themselves. I thank everyone who took the time to make a submission and, as well, the members of the committee for their careful consideration of this bill, chaired by Ginny Andersen.

In their report on the bill, the committee noted that the clause preventing people from bringing a claim for compensation arising from any effects of the three-strikes law should be more clearly worded. This is to make sure that the interaction of the clause with the New Zealand Bill of Rights Act is clear. Even in the short amount of time since the bill was drafted and introduced, the Supreme Court and Court of Appeal have found sentences imposed under the regime to be in breach of the New Zealand Bill of Rights Act. This Government does not and would never direct the judiciary in their consideration of how these breaches should be responded to, and the amended clause makes this even clearer.

There were no provisions in the bill as it was introduced that would provide, however, for a right to resentencing or other sentence adjustment measures for people who have been sentenced under the three-strikes law. As part of its examination of the bill, the previous Minister of Justice, the Hon Kristopher Faafoi, asked the Justice Committee to consider whether sentences imposed under the law should be reviewed in some way. The committee has not recommended any provisions be included in the bill that would provide for the reconsideration of any sentences handed out under the three-strikes law.

I’m sure that the Opposition has plenty of questions—and colleagues who have sat through the select committee process—so I’ll be on hand to answer questions as they arise.

Thank you, Madam Chair, and I thank the Minister for her introduction. My first question will relate to what’s changed in her thinking. When the Ministers first introduced this bill, they—and I quote from Minister Faafoi’s first reading speech. His quote was “It’s bad legislation, and we know that because it hasn’t worked.” And his main argument was that the three-strikes legislation hadn’t worked, and that’s why we were going to repeal it. The slight problem with his argument, however, was that there was no evidence whatsoever that they could draw on to say that it hadn’t worked, because the advice that we got from the ministerial evidence brief from the Ministry of Justice, from the Police, from Corrections—all combined in an evidence brief—was “There is no substantial international or New Zealand evidence on the effect of three-strikes law on crime.” Oh dear. So we have a Minister bringing in a bill, saying, “We’re bringing this bill in because the current regime, the three-strikes regime, hasn’t worked.” And then the officials come out and say, “There is no substantial international or New Zealand evidence on the effect of three-strikes laws on crime.” They went on to say the existing evidence is mixed and more robust research is needed to understand the true effects of these laws.

And, now, so having basically waffled and—I think, quite frankly—misled the House, because the Minister said it hadn’t worked and all the evidence showed it didn’t work, and then we were told, “Hang on, there is no evidence,”, we now hear from the Minister, who’s subtly changed her argument, which is to say, “This bill, the three-strikes legislation, so changes things that it shouldn’t remain in place without clear evidence to the effect that it’s working, and, therefore, we need to repeal it,”, which is a rather circuitous kind of logic, but I suppose there is a strange logic to it.

So my first question to the Minister is: am I right in assuming that the basic purpose or rationale for this repeal Act has changed? And I suppose people might be wondering, “How does this all fit in to the context that we face today as a country?” Where we all look and I, as I was waiting for this piece of legislation to come up, was looking at the New Zealand Herald website and was saddened to see a video of a smash-and-grab attack on a shop not more than a few hundred metres from my home in the Epsom electorate, where people have smashed into a jewellery shop and people from the community have fought back and there’s been fighting on the streets in our house—in our neighbourhood, not in our house, thankfully; in our neighbourhood—and many New Zealanders are confronting that reality day in, day out. And all New Zealanders are conscious of the rise of violent crime in our communities, and this Government has presided over a more than 20 percent decrease in the prison population at the same time as a more than 20 percent increase in violent crime. And people are legitimately asking the question: “Well, how do those two things work?”

Should the focus of Government, right now—looking at the situation, looking at the prevalence of crime in our community, looking at the rise of violent crime, looking at the increase of gang membership and gang activity on our streets, looking at the more than 500 percent increase in ram raids associated with youth crime in particular, looking at all that, my fundamental question to the Minister is: why has she and her Government then come to the conclusion, given all that, that the priority for legislative change is to reduce sentences for our worst repeat serious criminal offenders? Where is the logic? “Looking at the situation today, the main problem we face is that we’re too tough on our worst repeat criminal offenders.” So the first question is a broad logic question.

Tēnā koe. In response to my colleague across the House, there’s a couple of his comments I’ll just respond to briefly. First, in reference to the introductory remarks of my colleague the Hon Kris Faafoi, who introduced this legislation, the quote that my learned friend across the aisles raised is that this is bad legislation and that the legislation hasn’t worked, and he made numerous references as to why and how that statement is incorrect. During the select committee process, the Ministry of Justice presented a brief of evidence—2018 it was referenced. And what we say, and I’m not sure if the member had the opportunity to review this evidence himself but I am assured it was certainly provided. What we did see, if we’re looking for evidence that this legislation has worked, is to the contrary: we saw a stark rise in sexual offending, we saw a stark rise in—sorry, I’m just trying to find a graph that I can easily provide to the House; I did have it, but now I’ve lost it. Yes, thank you. We saw a stark rise in serious assaults with a seven-year maximum penalty, and in sexual assaults in particular.

Moreover, on this side of the House, we have a fundamental respect for the three distinct branches of Government, and the judiciary has a very important role to exercise their discretion, and it is their discretion which is fundamental to the administration of justice. At each of the distinct levels of the court—from the District Court to the High Court to the Court of Appeal to the Supreme Court—each court found that the three-strikes sentences, when they were having to give effect to them, had breached the New Zealand Bill of Rights Act. On this side of the House, we fundamentally believe in the administration of justice. We believe in the exercise of the judiciary. We have sound sentencing legislation, and we’ve had this legislation in place for a lengthy period of time. And for a party on the other side that prides itself on being one that upholds law and order principles that are fundamental to the administration of justice in this system, I am startled by the approach that they are taking with respect to some of the comments just made by my colleague. We believe in the independence of the judiciary to make sound decisions. The statements made by my friend would suggest that the judiciary cannot do its job effectively or appropriately or doesn’t do it well.

On this side of the House, we don’t agree with that. That is the nexus of the argument, Mr Goldsmith, that you are advancing. What we have found is that there has been a significant disproportionate impact on otherwise marginalised groups in our communities. In one instance, I read a judgment that found that but for this legislation in place, I think the gentleman received a maximum penalty of 10 years in accordance with the legislation, but the appropriate sentence for the offending that he had committed would have been in the vicinity of three years.

So I take it back to the comments that my colleague from across the House made in reference to the Hon Kris Faafoi’s statements that this legislation hadn’t worked. It hasn’t worked in the sense that we’re sowing trends of violent crime trending downwards, which was, of course, one of the intentions of the previous Government’s approach that would be an indicia of success. It hasn’t worked in terms of upholding some of our fundamental constitutional principles. We’ve seen the judiciary at every level refute and make stark comments about the implications on the New Zealand Bill of Rights’ impacts. So, with all due respect to the remarks made, and having regard to the evidence that was presented in the select committee process, I do not think that I can find myself in alignment with the views put forward—and that’s what they were: they were views, not fact—of my friend across the House.

Debate interrupted.