Three Strikes Legislation Repeal Bill

I move that the Three Strikes Legislation Repeal Bill be now read a third time.

💬 SPEAKER: No, you don’t.

Why not?

💬 SPEAKER: You present a legislative statement first.

I present a legislative statement to the House—

💬 SPEAKER: On the Three Strikes Legislation Repeal Bill.

—on the Three Strikes Legislation Repeal Bill.

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

I move, That the Three Strikes Legislation Repeal Bill be now read a third time.

This bill delivers on the Government’s manifesto, committing to repeal the three-strikes law. The three-strikes law was introduced in 2010 and created a mandatory sentencing regime for 40 serious offences. In doing so, it took away the discretionary power of judges to fully consider the context of the offending, as well as the individual circumstances of the offender in front of them.

The application of the three-strikes law has led to some extremely concerning sentencing outcomes. Since its introduction, the High Court, Court of Appeal, and Supreme Court have all ruled that sentences imposed under the three-strikes regime have contravened the New Zealand Bill of Rights Act. When we consider the distorting effect on sentence outcomes, it is clear that we would need to see strong evidence of the effectiveness of this law to justify its continued existence. However, there is little evidence that the three-strikes law has worked as intended: to deter or prevent any kind of serious crime.

It’s extremely important to note that this repeal does not mean serious and repeat offenders will not be held to account. All of the same measures that are required by the three-strikes regime will still be available to judges once the repeal takes effect. The courts have equivalent sentencing options available to protect victims and the wider public from people who commit serious offences, from limitation on parole eligibility through to the possibility of life imprisonment without parole. In effect, what the repeal does is return discretion back to the judiciary, who are best placed to respond appropriately to serious and repeat offending on a case by case basis.

I want to take this opportunity to reiterate that in approaching this repeal, one of our main concerns was to minimise the effects on victims. At the time the law was introduced, Labour highlighted how it failed to protect victims or address the causes of crime. In developing the bill, we worked with the Chief Victims Adviser to ensure that any potential impacts were understood early and could be effectively managed. As a result, we have developed the bill in a way that will not impact current victims of strike offenders, as the bill does not provide for the ability to apply for resentencing or change the parole eligibility. I want to thank Dr Kim McGregor for her guidance in the course of this bill.

The bill was introduced in November of last year. The select committee process invited robust discussions about the three-strikes regime. I want to acknowledge and thank Ginny Andersen for the way she chaired the Justice Committee through their deliberations, and, indeed, to all members of the select committee for their deliberations and considerations. I’m grateful for the level of engagement that we received, and I thank all of those who took time to make a submission on the bill.

I want to be clear: this repeal is about acknowledging and taking accountability when legislation does not do what it was intended to do. It is about ensuring we have appropriate criminal justice tools to hold offenders accountable, but in a way that is consistent with New Zealand’s human rights expectations and the New Zealand Bill of Rights Act standards.

The drivers of crime are often complex and intergenerational. This highlights the need and the commitment of the Government to make a pragmatic and evidence-based approach to build an effective justice system. This will ensure that, in the long term, we prevent further crime and victimisation and provide better support to those involved in the justice system to break the cycle of offending. I commend this bill to the House.

The question is that the motion be agreed to.

Thank you, Mr Speaker. We’re speaking on the repeal of the three-strikes legislation. This is the final reading. It will be passed by this Labour Government and come into effect after this debate.

National opposes this bill and thinks—I mean, let’s see. What is the purpose of this bill? What is the Government trying to achieve by repealing the three-strikes legislation? The purpose is to reduce the prison sentences that our worst repeat criminals should face. Let me just repeat that so people can get their heads around it: the purpose of the legislation we are passing right now is to reduce the prison sentences—that is, to make shorter the prison sentences—that our worst repeat criminals should face.

I suppose New Zealanders sitting at home, if they were in Auckland, hearing the “woo-woo-woo”, the regular hum of sirens in the background, hearing the helicopter flying overhead, reading the stories of the significant increase in gun crime, the 35-plus shootings in Auckland—not Chicago, not Miami in the 1980s, but Auckland in the last little while ago, when they see the massive increase in gang membership, recruiting faster than the police. They look at all that and they say, “Well, this Government thinks the priority right here, right now is to reduce the prison sentences that our worst repeat offenders should face.” We think that’s nuts. We think the priority is wrong, and it shows that this is a Government that is wholly out of touch when it comes to justice and law and order in this community.

We oppose this repeal and we will bring back some sort of legislation to replace it, if the people of New Zealand bring us back to Government next year, because our focus is on the victims of crime. We want to reduce the number of victims of crime. We want to see fewer New Zealand families torn asunder by violent crime, by gun crime, by the sorts of things that make New Zealanders feel unsafe in their homes.

Let’s just remind people what the three-strikes legislation did. It was introduced 10 years ago and what it means is that for a list of serious crimes: murder, rape, violent assault leading to grievous bodily harm, serious crimes—if an offender is convicted of that crime and they get a first strike, they are on notice that if, once they come out of prison, they do it again and they repeat, they have a warning that they could get a second strike, and if they get a third strike, the result is that they have to get the full sentence and serve the full sentence of their prison sentence for the crime that they are convicted of. That means that rather than having a heavily reduced sentence—we had an example of a prisoner that had been convicted of a serious crime that the judges thought might normally get two or three years, but the crime itself, under the third strike, meant that they were spending maybe 10 years in prison, or even 11 years.

The purpose of it was to keep those serious repeat offenders out of circulation for longer to keep the community safe. That was the purpose of the three-strikes legislation. This bill by the Labour Government is to repeal that and, as I say, to reduce the prison sentences that our worst repeat criminals should face.

One of the arguments that they’ve put forward—none of them very convincingly. The first argument put forward by Kris Faafoi, the Minister of Justice when he introduced it, was that it’s bad legislation and we know that it hasn’t worked. He then proceeded to present no evidence whatsoever that the bill hadn’t worked. Then we, of course, finally got the official advice from the Ministry of Justice, Police, and Corrections, which was “There is no substantial international or New Zealand evidence on the effect of three-strikes law on crime.”—so no evidence. We just heard the Minister right now, right here, right now, talk about evidence-based decision-making in the justice sector. There is no evidence on this bill, but they’re repealing it anyway.

Secondly, she’s talked about the distorting effect of this Act, that it leads to disproportionate sentences. Well, hold the phone, people. That is the exact point of the legislation. It is like complaining that the legislation does what it says it’s going to do, which is to say that if you’re on your third strike, you have to stay in prison longer than you would ordinarily if you’d done the crime the first time around. That is the purpose of the legislation, and to say that it has a distortionary effect is nonsense—of course it does. That’s what we were trying to do. That is what Parliament said when it passed the law it wanted.

Then she referred to the judiciary being best placed to make decisions about the length of sentences. Well, I’m afraid, in the system that works at the moment, Parliament has the right to set parameters for sentencing. That’s what we did with this legislation, and if there’s a problem with it, then it’s for Parliament to turn around and say that it is disproportionate in its outcome—well, that is the very point of it.

Then the next argument is that perhaps it failed to protect victims. This was an argument that the Minister raised in the committee stage. She said, “Well, since this bill has been introduced 10 years ago, violent crime has increased. Therefore, it hasn’t worked. It hasn’t protected victims of crime.”, which was the weakest argument I’ve ever heard a Minister of Justice come up with. It probably didn’t occur to her that there might be one or two other factors involved in the increase in violent crime in the last few years. I could suggest one or two, perhaps the most obvious one being this Government’s soft-on-crime approach and the messages that it has sent, the excuses that it’s come up with for violent crime, and the fact that it hasn’t done anything successful in countering it and keeping the community safe.

Then the final argument that the Minister came up with, having delivered all of those ones which are very weak and ineffectual, was to say, “Well, it was a promise. The Labour Government made this promise and we intend to keep it.” I just wish that they’d kept their promise to fix the housing crisis and to deal with mental health effectively and to do a whole heap of other things which they have failed to do manifestly over the last 4½ years, but this one they can keep because even they are clever enough to pass a repeal bill. That doesn’t exactly involve great skill, but they’ve managed to do it.

So what does it mean? It means that our worst repeat offenders will be out of prison earlier and will be able to create more victims. I refer to the commentary of Nick Tuitasi, one of the submitters on this bill, a former policeman from Northland, where he talked about the third strike. People, just remember, by the way, that currently, after 10 years, there have been 13,000 people who had been delivered their first strike. If it had no effect, it’s surprising that only 640 have had their second strike and only 21 have had their third strike. So they are the numbers so far: 13,000, down to 640 for the second, and 21 for the third at the time when we started this debate.

So Nick Tuitasi made the point that, on average, the people who have had three strikes have had around 70 offences each. So what we’re going to see is the restoration of the conveyer belt approach to justice, where violent, repeat, serious offenders are cycling their way through the system, creating new victims, going into crime, getting a short sentence, coming out, creating more victims, having another short sentence, coming out, and creating more victims. The purpose of this Act is to focus on those repeat serious offenders, to keep them out of circulation and, as Nick Tuitasi said, they’re not going to change. This law was designed to take these third-strike offenders out of circulation to reduce the number of victims, to give the victims a break. Victims are still scared to go out at night.

The message that the criminal fraternity are getting today from this Government is that for this Government, when it looks at the situation New Zealanders face, when it sees what’s going on in Auckland, when it sees the increase in gun crime, when it sees the increase in violent crime, when it sees the large numbers of victims of crime, its conclusion, its priority, is to reduce the prison sentences for our worst repeat offenders. If any Government could actually go down to central Auckland’s CBD and talk to the average man or woman on the street and tell them that’s their priority—

Chlöe Swarbrick: I’d take you down there.

Well, yes, indeed. The member for Auckland Central, who has been lamentably quiet about the breakdown of law and order in that city, has something to say about that.

We do not support this bill, and we see it as a real—

Order! The member’s time has expired.

Thank you, Mr Speaker. It’s time to take down the curtains, because the window dressing that’s the three-strikes regime is coming down. It’s time that this House moves past window dressing, dog-whistling, and the political posturing in the law and order space and started a real debate about what actually reduces recidivist offending and what actually reduces the number of victims in New Zealand. In order for us to learn from our past mistakes, such as three strikes, it’s important that we do three things: (1) what is the initial three-strikes bill and what did it set out to achieve; (2) why it failed; and (3) what does work to actually prevent crime? And I’m sure Mr Goldsmith would be interested in learning that.

First of all, the three-strikes regime was a law that was introduced back in 2010 and it created a mandatory sentencing regime for over 40 serious offences. In doing so, it took away the discretionary power of judges to be able to fully consider the context of the offending as well as the personal circumstances of the person standing before the judge. When we look back at communications back in 2010, it’s important to try and understand what was going on in the minds of those decision makers, and one that really amazed me was the first press release put out by Judith Collins. At the end of the press release, where you have the questions and answers, the first question was “Why has this policy been agreed?”, and the first line back is “The National and ACT parties both campaigned heavily on law and order in the election campaign.” That’s the answer they gave to the purpose of this bill. That, I think, put simply, shows it was a political promise that gave the appearance of being tough on crime.

This is important, and I want to make it clear: the truth is that the courts could already impose sentences equivalent to those under the three-strikes regime when that was appropriate. These options will continue to be available to the court once this legislation is repealed, and I’m going to lay out what those options are: preventive detention for repeat serious offenders, public protection and extended supervision orders, minimum periods of imprisonment, and maximum penalties up to life imprisonment. What goes further to the point is this was just window dressing.

I think the last point I’ll make on this is on the very implementation of this bill. In those first few months when three strikes became law in New Zealand, there was absolutely no integrated data system within in the Ministry of Justice to keep tabs on how those strikes were being recorded. My job, along with a few others back then, was to manually monitor when an offender with a strikable offence was coming up before the courts. A phone call would have to be put through to the prosecutor to alert them that someone was coming up before the courts, and this needed to be done at sentencing. We even had a red rubber stamp made with “strikable offence” that would help remind them in the court. More than a few were missed, and each week we drew straws as to who was the unlucky official that had to front up at the Minister’s meeting and tell Judith Collins how many had got away that week.

I think it’s important to get back to the point of why the three-strikes legislation failed. Since its introduction, the High Court, the Court of Appeal, and the Supreme Court—all three have ruled that this law was inconsistent with the New Zealand Bill of Rights, and I think that’s an important point to note.

When we consider the distorting effect on our worst sentence outcomes, you have to really weigh up and say, “What is this bill doing?” There is no consistent pattern to changing crime rates before and after the three-strikes regime became law. The Ministry of Justice’s paper on the Sentencing and Parole Reform Act, which was the three-strikes bill, quite clearly stated, “The proposals will add substantial direct cost to the justice system without creating any significant improved outcomes in terms of reducing the drivers of crime, improving social outcomes, or reducing reoffending and victimisation.” Those justice advisers were actively prevented from appearing in front of the Justice Committee, and it was clear from the outset that this law would do nothing to reduce the drivers of crime.

As we’ve already been asked by Dr Goldsmith that there is no evidence, well, I would like to provide evidence that has been provided through the Ministry of Justice in their brief that recorded the three highest-volume strike offences over the period of time from 1996 to 2014: serious assault, sexual assault, and robbery offences. The report concluded that there were few changes that could be contributed to the three-strikes law—no change. So while three strikes failed to do any deterrence as it promised to do, what it did do was further entrench the over-representation of Māori in our prison population. Māori are almost nine times more likely to receive a first strike than those of European or other ethnicities, and over 18 times more likely to receive a second strike.

So what does work? In summing up, I think it’s important that we do say what does work. The drivers of crime are complex and intergenerational. They are not a sound bite. They are not a strapline. They are people’s lives—both victims’ and offenders’ and their families’. This highlights the need and commitment for this Government to make a pragmatic and evidence-based approach to build an effective justice system. This will ensure that over the long term, we prevent further crime and victimisation, not just by calling out “tougher on crime” whenever we can but by providing better support to those involved in the justice system to break the cycle of reoffending, and that means evidence-based solutions that actually work in order to reduce reoffending and the causes of crime.

Here’s a few examples that we’re doing already: the alcohol and other drug treatment court provides an evidence-based best-practice treatment pathway that includes intensive monitoring, case management, drug testing, and mentoring; Te Pae Oranga, rolled out with 14 more in the last Budget, and, again, the evidence provided is that recidivist offending is reduced by addressing the root causes of crime; Rangatahi and Pasifika Courts, which are designed to re-engage young people with their culture and have better long-term outcomes; Te Ao Mārama reforming our court system—another one. We are also giving police the tools to target organised crime, as announced already by Ministers Hipkins and Allan in July, as well as passing legislation around firearms prohibition orders.

For too long, our justice system has been used as a political football. Window dressing such as three-strikes legislation has prevented a real focus on how we work together and reduce offending and victimisation. I hope that the repeal of this bill—three strikes—is a stake in the ground that marks a new chapter for the justice sector in New Zealand, one that is based on evidence and based on best outcomes for our people. I commend it to the House.

Point of order, Mr Speaker. I seek leave of the House to table a number of letters to members of the National Party, various spokespeople, pertaining to the rhetoric they have made about Auckland Central and the crime rates therein—

💬 DEPUTY SPEAKER: Can you back it up?

CHLÖE SWARBRICK: Yep.

💬 DEPUTY SPEAKER: How many letters?

CHLÖE SWARBRICK: There’s several of them, noted to multiple spokespeople for the National Party, addressing their rhetoric. I can table the very first, from December.

OK, there are a couple of things that are bothering me about that: one, do all the recipients know that you are tabling them?

Chlöe Swarbrick: The recipients have been made aware that there is every intention to make—

And they agree?

Chlöe Swarbrick: I can seek that in writing.

Well, you do that first.

Mr Speaker, where do I start?

Chlöe Swarbrick: With the letter I sent you!

Well, I can tell the member right now that I haven’t seen any letter from her, but I’ll be very interested to read it when I receive it. I assume—

Chlöe Swarbrick: Point of order, Mr Speaker. Addressing the points just made by the speaker—

💬 DEPUTY SPEAKER: No. They’re debating points; you can wait for your turn.

Thank you, Mr Speaker. The reality of it is, with the three-strikes legislation, that when we debated this in the House at the committee stage, there were three times—three times—I got to my feet and I asked the Minister the same two questions. And she didn’t respond and she didn’t answer, because it was asking for evidence around—there have been several reasons why that have been put up to the House by varying Ministers, in terms of why we’re having to repeal the three-strikes legislation at a time in our country when we’re experiencing the worst levels of violent crime that I certainly remember in my lifetime, highlighted, I think, by a report in the New Zealand Herald today that there was a young lady on the streets here in Wellington who was surrounded by patched gang members on bikes that kicked her mirror off and, in her words, terrified her. I don’t know about the rest of the members in this House, but I don’t want to live in a country like that, where a young lady is driving her vehicle through the streets of Wellington and is surrounded by patched gang members that feel they can start punching and kicking her car and ripping the rear-vision mirror off, causing her to be terrified. That is not the country that we need to live in, and, unfortunately, at a time when we need tougher penalties and we need stronger and more consequences, the priority of this Government was to come into this House and repeal the three-strikes legislation, which actually removes tougher penalties.

And, by the way, this House should recognise and respect the role of our courts and our judges and our court system, but there is a separation, and the only thing that I’ve heard this Minister stand up and say is that because the Supreme Court and the High Court made judgments and they don’t like this legislation and they don’t like the fact that they’ve lost some of their discretion—I don’t think their voice should be any louder than the voice of the public or the victims or those that come in front of the committee and took the time to make submissions against this bill, groups like the Sensible Sentencing Trust or the Dairy and Business Owners Group, which are facing ram raids and assaults and attacks and armed robberies.

We saw an armed robbery in the middle of the day in Queen Street, where members of the public felt like they had to try and make an intervention. Thank God no one was hurt or killed in that situation. The Minister said, “Oh, we’re worried about a disproportionate outcome, or we’re worried about offenders or defendants not being able to do a plea deal because the three-strikes legislation might get in the way.” What a perverse reason to put up to support them wanting to repeal this Act. What a perverse reason—that they want to protect a defendant’s right to be able to negotiate some sort of plea deal, against the victim’s right to justice. I think that is a disgrace. The Minister would not actually stand and respond to that when I put it to her.

Nick Tuitasi—can I acknowledge Nick Tuitasi. I had the honour of serving with Nick, and I had enormous respect for him. In fact, he was hugely respected inside the police service, because, even at that time, he was working tirelessly—tirelessly—inside his communities in South Auckland and West Auckland. If there’s one man in this country that understands and knows what’s going on inside his community, it’s Nick Tuitasi. If he takes the time to make a submission to our select committee, saying, “Please, leave the three-strikes legislation in place, because what it does is it takes the worst offenders, the offenders with 72-plus convictions, out of the community, and it makes it safer.”—and the other question that I have, and this is this is relevant, and this will probably upset the Government members, but I want to know what’s going to happen when this legislation is repealed, and it is repealed, and there is an offender that is out in the community who otherwise would have been inside prison, under the three-strikes legislation, and that offender seriously injures, sexually assaults, or kills someone. Who’s going to stand up and defend the decision then? Who’s going to be standing up, making the speeches then, saying that was the right thing to do?—“Yes, we have a new victim or victims. Yes, someone’s been killed. But do you know what? That was just the price we had to pay to get this legislation repealed.” I’m making a prediction—and God forbid, and I hope that I’m wrong, but I’m predicting—that we’re going to have a serious recidivist violent offender that should have been incarcerated in prison under the three-strikes legislation that isn’t going to be, and they’re going to be out in the community and they’re going to create another victim. And I’ll be interested to see, when that happens, whether or not the Government has got the belly to actually stand up and defend it. I don’t think they will be.

I just want to look at some of the numbers, because I asked the Minister, during the committee stage, to please bring the evidence—show us the evidence. There was no evidence. Three times I asked that. Three times there was a failure to actually provide any. But, actually, when you look at the numbers—and, by the way, I want to acknowledge the chair, and I want to acknowledge the other members, because she does do a good job of chairing that committee. On the whole, we try to get on and we try to be bipartisan. We try to do the best that we can, because justice and public safety is important to all of us on that committee. But I just want to clarify here: when she stood up and she started pulling stats out and saying, “Justice said that this has made no real, tangible difference to the level of sexual assaults and serious violent attacks”, and things like that—the data was being collected back in the 1980s and ’90s; is that correct? Or were you referring to data that was collected from 2010, when the legislation came in—

💬 Ginny Andersen: From 1993 to 2014.

1993? That’s well before the three-strikes legislation even came in. So they’re using data—you can’t take and use data to—

Chlöe Swarbrick: No, you’re not listening.

I thought you said ’93.

💬 Ginny Andersen: It’s data, and 2014 ends—

Yes, I know. So, if you’re actually going to collect data to try and show the impact of a bill, you start collecting data for when the bill actually becomes law. That’s when you start collecting the data. And, by the way, what a perverse, ridiculous argument to say that, because crime rates are going up, because we’ve still got serious assaults, because we’ve still got sexual abuse and domestic violence, and all those—oh, it’s the three-strikes legislation’s fault! So let’s get rid of that!

Chlöe Swarbrick: No one is saying that.

Well, that’s the argument that’s being put up: there’s been a continuing rise in serious crime, so let’s get rid of three strikes; that’ll fix the problem! What a ridiculous argument. We may as well look at all our sentences if that’s the argument that’s being put up.

And, by the way, if you actually look at the numbers—let’s just go through the numbers to see whether or not three-strikes appears to be a deterrent. First strikes: 13,349 first-strike offences—offenders would get their first strike. Let’s go on to second strikes. So let’s see how many of those offenders reoffend and actually pick up that second strike. The second offence is 640 second strikes. That’s only 4.8 percent of first-strikers that have progressed to the second strike. So looking at those numbers, it appears that the first strike has been enough; they don’t want to progress to a second-strike offence; only 4.8 percent of them do. And now let’s have a look at the third-strike offences. So we go to third strikes: there’s 21 third-strikers. So that’s only 3.2 percent of second-strikers that have gone to that third strike. So, if you actually look at those numbers and you analyse the numbers, what would that tell you? It would actually tell you that maybe—maybe—the strikes are a deterrent. Maybe a first-striker doesn’t want to pick up a second strike, and maybe the second-striker doesn’t want to pick up the third strike. That’s actually the evidence. That’s actually what’s in front of us. When they get to the third strike, on average, they’ve got 74 convictions. They’re serious, recidivist offenders.

This piece of legislation—all the victims groups that came in front of the committee didn’t want to see it go; their voice was ignored. It’s the High Court and the Supreme Court judges that are being listened to on this, not the victims, not the members of the public, not the people that are actually affected directly—it’s the judges. This legislation should not be repealed—

Order! The member’s time has expired.

Thank you, Mr Speaker, for the opportunity to take a brief call. One thing I would agree on is that we do share a concern for community safety across this House, but there is a difference: when it comes to that side of the House and justice and community safety issues, that side are about reacting and often performing. On this side of the House, we’re about responding responsibly. Our response is based on the evidence, including what occasionally the lack of evidence tells us about the effectiveness, or not, of policy. There is a lack of evidence here and that tells a story as well.

I want to make one last point that has been made before: that the three-strikes regime never created harsher penalties. The bill today will not remove the ability of judges to put in place those tougher penalties when they are needed. We need judicial scrutiny because judges are the closest to the facts on the ground. They are also the ones who consider the views of victims. On this side of the House, we believe that victims’ views should be considered always.

This is a much-needed repeal. I commend this bill to the House.

Kia ora. I stand on behalf of my colleague Golriz Ghahraman in support of the Three Strikes Legislation Repeal Bill. It repeals the Sentencing and Parole Reform Act 2010 that created what we know as the three-strikes law.

The Greens strongly oppose three strikes on the basis that it leads to punitive rather than restorative justice and rehabilitation. We’ve been attempting to get this repealed for some time, and we add our thanks to the Minister of Justice, the Justice Committee, and all of the submitters who took the time in this process.

The impact of this straightforward repeal is that an offender will be subject to normal sentencing rules, where the sentence is proportional to the crime committed—what I think the general public would expect of a justice system. We echo the disappointment, though, of many submitters that the bill states that anyone who received a harsher sentence because of this law will not be eligible for early release, resentencing, or any compensation because of the altering that is going to occur. We believe that people who have been made subject to a third strike should have their sentence reconsidered by a judge. Unfortunately, the Supplementary Order Paper on this in Golriz Ghahraman’s name was not ruled in scope of the bill.

We agree with JustSpeak, who wrote in their submission that three strikes focuses “on punishment, not justice”. It is remarkable how three strikes directly breaches the separation of powers that Westminster systems like us would normally uphold: that while we as Parliament make the laws, we leave it to the courts to interpret and apply them in individual cases—in other words, to use their discretion based on their years of education, knowledge, and experience. A shout-out to all the lawyers in the House who have been in this position, who know exactly how this works and how they have been constrained by this law.

Because three strikes is rigid and fixed, it has removed that discretion for all the people involved in this process—that’s from the probation officers, the mental health advisers, cultural advisers, and all manner of people who contribute to this, to the defence and prosecution lawyers, and then, of course, to the judges themselves. It ignores the circumstances of the offence, the circumstance of the offender, the victim’s views, the purpose of sentencing that goes into trying to keep the community safe, and what accountability or deterrence might look like in a given case. It ignores what rehabilitation and successful reintegration of that person safely back into the community might look like.

Most importantly, three strikes has resulted in disproportionate and excessive sentences being handed down. In addition to the negative impacts eloquently outlined by the chair of the Justice Committee, Ginny Andersen, the Prison Education Project noted in its submission that “The arbitrary nature of the legislation prevents the court from taking into account factors such as age, cultural background and mental or physical health issues. Meaning that members of vulnerable populations, such as our youth, mentally ill or Pasifika populations, are more likely to be disproportionately affected”.

Three strikes originated in California in the early 1990s without any kind of academic or policy foundation. It is yet another example that transplanting something from the other side of the world does not usually work in this country, and it often exacerbates the inequalities already faced by marginalised and vulnerable parts of our population. But before it was adopted here, multiple issues had already arisen in America because of this legislation. Quoting again from the JustSpeak submission, three-strikes legislation was identified as “an extreme example of populist pre-emption of criminal justice policy making”. That was in 1996, 14 years before the Government of the day thought, “That sounds great. Let’s bring it here.”

Since 2010, evidence has been collected in this country, including by the Ministry of Justice, that has reiterated that three strikes does not work. It does nothing to deter offending and exists mostly to perpetuate tough on crime rhetoric. Building on that, research shows that prisons don’t really work that well, either. The Greens would support investigating alternatives to that through restorative processes and iwi- and Māori-led responses.

In conclusion, I quote my colleague Golriz Ghahraman: “We know that three strikes has disproportionately impacted Māori, Pasifika, and other communities of colour, as well as those with mental health and addiction issues and brain injuries. Fixing the justice system doesn’t stop at three strikes. Labour must now show courage in moving toward a system that addresses the causes of offending, including mental health care, addiction treatment, housing and livable income support, while introducing a new pathway away from prisons.” Nō reira, I commend this bill to the House.

Thank you, Mr Speaker. I take pleasure in rising on behalf of the ACT Party and saying we oppose the Three Strikes Legislation Repeal Bill. I’m going to start off by talking about what’s just happened in the last week, perhaps even just this weekend, because it tells us why we need to have this sort of legislation in place.

What have we heard about? Kids armed with hammers and crowbars doing daylight robberies. This is our next generation of three-strikers. What about the 60-second ransacking of stores? The best one from this week would be the six retail stores targeted in one night in Auckland over this past weekend, and a youth caught in an aggravated robbery yelling to be freed because he’s just 13 years old. In Taranaki, they’re investigating their fifth homicide in six months; the second one in a week. Violent crime is out of control, and three strikes has done its bit to keep the worst of the worst locked up and away from participating in this free-for-all of vicious and violent crime that our communities are currently experiencing.

This Government is giving these strikers an early Christmas present, and it’s at the expense of victims, of victims’ families, and of society. We have a Minister who is wanting to take a victim-centric approach to her new portfolio, but this just does not cut it. In fact, this repeal is a disgrace and it’s disrespectful to victims. Not once were victims a part of the policy process for repealing this legislation, and I repeat here in the third reading our absolute dismay at the Human Rights Commission failing even to report on victims in their submission to this bill. No wonder there is a need for that commission to go. ACT have always expected that this law is to affect those serious violent criminals committing crimes in our communities, regardless of their race, regardless of their colour, and regardless of their breed. When one argues with us that this law offers disproportionate sentencing to Māori, I retort that this very same law offers protection to the disproportionate number of Māori victims, victims of any one of the 40 most serious violent offences that sentence its perpetrator to a strike.

Three strikes is not about locking up those petty criminals; it’s about locking up those that commit one of the 40 named qualifying serious violent offences, the worst of the worst criminals committing the most heinous crimes. The time for making excuses is up. New Zealand has had enough of being victims of violent recidivist offenders and having a Government that not only makes excuses for them but lines the pockets of gangs while they’re doing it. The reality is that this law has not seen enough time to see its full potential. People have to serve the entire prison sentence on a second strike, and there are 640 of them who will be doing this when the legislation got under way back in November last year. Now, we have 24 third-strikers—21 when we started—that average 74 serious violent convictions each. Again, these are not the petty criminals; these are the worst of the worst.

Our second-strikers: I mentioned 640 of them being eligible for a third strike, and there’s been concern about disproportionate sentences having to be offered by judges. Well, let’s analyse that a bit, shall we? In the second strike, you still need to have a full sentence, but a judge can actually look at what that sentence may be, and we have a couple of examples here. What about Justice Cooke’s sentencing of Wayne Reardon, the Black Power member who was convicted of being the ring leader in the shooting of James Butler in his driveway? That sentencing happened in only April of this year—a second-strike sentence—and despite the finality of death for Mr Butler, Reardon had his upbringing, the trauma in his life, taken into account at sentencing, and Justice Cooke was also mindful of not being disproportionately severe in the second-strike sentencing because the entire sentence would need to be carried out. In Reardon’s case, it was suggested in one media report that the sentence was light because it would need to be served in its entirety. A second-striker sentenced to a full term of incarceration for taking a man’s life—it seems fair to me, and it seems fair to a number of Kiwis out there, too.

What about last year’s sentencing of John Collins for the baseball bat killing of Brent Bacon? The injuries to the victim were so violent in nature that they were described as being akin to that of a severe head trauma, comparable to a high-speed impact to the head often seen in car accidents, which this was not. But Collins also tried unsuccessfully to justify the murder as self-defence, which it was also not. The judge decided that a whole-of-life term would be grossly disproportionate and so jailed him for life, and, as a second-striker, he got a minimum non-parole period of 17 years. These criminals need to serve their second-strike sentences and be back out in society, either committing more crime or not, for us to really see the full benefits of the three-strikes sentencing. We’ve allowed judges to take into account the disproportion that could occur in sentencing, so that’s no excuse, really.

There is data that shows a small deterrent having had occurred already, contrary to what the Government and other Opposition parties will tell us, and we expect that that would have grown, especially as the Act has only been in place since 2010. Had the worst of the worst been able to be retained and rehabilitated, having served their full second-strike sentences, we would have seen a decrease, I am sure of it, in another 10 years’ time. But you know what is disproportionate? Violent crime.

Violent crime is showing a disproportionate occurrence every day in our communities, especially if you live in Auckland, or, as it’s playing out now, anywhere in New Zealand. What’s worse is the notoriety that goes with it all. One quote from research talks of a second-strike offender that had an offence take place in the prison where he was serving his second strike. In order to rally up the troops from his gang, he—and I quote—“smeared the injured inmate’s blood on his hands and wiped it on the bars that covered the windows of his gang member’s cell doors.”

Labour wants you to let these people out, back out to a home near you. We won’t have it and we plan on repealing this repeal when we get into power in 2023 with our neighbours National. We’re going to have very busy time undoing this mess. We oppose this bill.

Thank you, Mr Assistant Speaker Bennett, and congratulations on your appointment to the role. It is a pleasure to take this first call before you—congratulations.

I will only take a short moment. As a proud member of the Justice Committee and as the proud co-chair of the Māori caucus, I support the repeal of this three-strikes legislation. Māori, as the chair of our Justice Committee pointed out in her contribution, are almost nine times more likely to receive a first strike than those of European or other ethnicities, and over 18 times more likely to receive a second strike. In the advice that we received at the select committee, the Court of Appeal and Supreme Court have found sentences imposed under the regime contravene the New Zealand Bill of Rights Act, with Māori significantly overrepresented in the group of offenders who have received a strike. Twenty-three offenders have received a third strike, 81 percent of whom are Māori. I commend this bill to the House.

This is a split call.

Thank you very much, Mr Speaker. Well, what an honour to be taking a call with you newly in the Chair. Can I just acknowledge the last speaker, Willow-Jean Prime—that no one wants discrimination and disproportionateness—but now she is suggesting, ultimately, that justice is no longer blind but is to take into account colour rather than the crime itself, and that, itself, is a problem, and I want to make it really clear on the record that our justice system should not be based on who a person is; it should be firmly based on what a person does.

National continues to oppose this bill, the Three Strikes Legislation Repeal Bill, and I want to illustrate the reasons why by drawing on some very local examples in my Tāmaki electorate, which highlight the need for strong laws that not only are strong in themselves but also send very clear statements to people that crime is not appropriate. So in recent hours in my electorate, there’s been an attempted aggravated robbery with a gun. There’s been at least two shootings in my electorate in the last month or so. There have been more ram raids than I can count on my hands and toes. And just in the recent days—the last three or four days—I could count the number of break-ins, again, on one hand, one of them leading to the owner of that business having a medical event, which obviously traumatised him and his family but also my community. We’ve had dirt bikes swarming Tāmaki Drive and through the likes of Kohimarama and Mission Bay and St Heliers.

Others, of course, reference what’s happening wider. We’ve had the terrible events on Queen Street—daylight robberies, again, involving weapons—and I do want to echo what Mark Mitchell has said, because I also have this fear that in time, and in a short time, with this ongoing and more and more brazen crime, we are going to see someone be very seriously hurt, be it an innocent member of the public, a police officer, or the offender themselves, particularly if they’re a youth offender and some store owner understandably—but, you know, wrongly, in a vigilantly sense—takes it into their own hands.

Why this is also a major problem is that, even for those who eventually get locked up into our prisons, under Kelvin Davis, thousands of them are let out. And again, just in recent weeks, we’ve seen six youth on the roof. We’ve seen a bail house, which the Minister has visited multiple times but forgot to put in his diary, now been found to be filled with guns and drugs, not just bailed people from our prisons. We’ve had an officer stabbed 12 times and information in recent days, which is only just touching media, of a prison officer thrown off a balcony to fall 2 metres after an altercation with a violent prisoner.

So I’m sharing all of this because we have a major problem with crime. We have a major problem with corrections under this Labour Government. My community is sick and tired of it. They’re sick and tired of the violence, the robberies, the raids, and the disruptions, and they want to see tougher laws. And so, fundamentally, why a Labour Government, supported by the likes of the Greens, would remove three-strikes legislation—would remove tools for justice—is beyond them. And so I reject this piece of legislation and will not be supporting it.

Tēnā koe e te Pīka. Tēnā tātou e te Whare. I rise on behalf of Te Paati Māori to speak to the third reading of the Three Strikes Legislation Repeal Bill—or, as the National Party call it, the “Three Strikes (Unless You Want to Go to Kings College) Legislation Repeal Bill”! Hoi anō, three strikes might make sense in baseball, but our criminal justice system is not a game. However, when you treat politics like an American sport, it’s easy to see how National and ACT could confuse the two. We too disagree with violence and bullying, and the three-strikes law bound the hands of the judiciary with the implicit purpose of locking up more Māori for potentially low-level crimes—modelled on the US law which targeted black Americans. It has made our racist justice system even more racist, and even less considerate of tikanga Māori. The repeal of this mean-spirited, archaic, and ineffective piece of legislation is long overdue, and Te Paati Māori hopes that this also signals a move to a more transformative system of justice and reform.

Crime in Aotearoa is a result of colonisation and inequality. If we are serious about curbing crime and violence in the country, then we need to get serious about looking at the causes, not the symptoms. We must invest more into initiatives that work, like Whānau Ora, and into our communities, who know what is needed to reconnect whānau to their marae, their hapū, their iwi, and their Māoritanga. State-run services have proven to fail Māori, and it’s time to devolve our resources by Māori, for Māori, to Māori kaupapa. We are facing the worst cost of living crisis in generations. Successive Governments have continued to ignore growing inequality and the breakdown of community that drives people to commit crimes in the first place, opting for a tough on crime approach to poverty instead.

I feel for whānau who are living in fear of violence in their communities—fear that has been stoked by the media and the likes of National and ACT for political clout. A community-strengthening approach that addresses the drivers of offending is what will make our communities safer for everyone. Since the Government began its programme to decrease the number of Māori in prisons in 2019, our prison population has gone up by 2 percent. It has become abundantly clear that this punitive approach to justice has only made things worse for Māori. The only time Māori receive special treatment is when we are dealing with the criminal justice system. It has profiled and targeted tangata whenua for as long as it has existed in this country. We cannot imprison inequality out of society. ACT and National cannot call themselves “tough on crime” when they are soft on poverty.

Repealing three-strikes legislation has been longstanding Te Paati Māori policy, but we are disappointed that the Government ruled out compensation and transitionary arrangements for those currently serving time as a result of the law. This should have been reconsidered at the select committee. In the words of my tungāne Hone Harawira, when the three-strikes legislation was originally passed in 2010, “It is a short-sighted man who thinks that legislation that sends people to jail for a long time reduces crime rates. It is a blind man who sees justice in sentencing people to life imprisonment for responding to circumstances they have little control over. It is a bloody fool who thinks that this bill will do anything else but create frustration, anger, and violence within our prison population.” Te Paati Māori opposes this bill with all its heart. We’ll work with whomever it takes to develop intelligent policy over knee-jerk idiocy, and rehabilitation over degradation. Tēnā koutou katoa.

Mr Speaker, thank you and congratulations on your appointment to this role. This will be a short call from me and I am grateful to the Labour Government for passing this legislation imminently, because I’m done with this conversation. I’m done with the conversation in this House, which is mostly political posturing about a problem we all agree on: a problem of reducing crime on those that are most affected by it. And who are most affected by it? They are people who look and sound like me. In South Auckland, Māori are 30 percent more likely to experience violent crime. Māori women make up 7 percent of the population but we experience 20 percent of the assaults. We’ve got to get serious about addressing crime and that’s what this Government is doing. This window dressing that is three strikes does not solve the problem and I’m proud to be getting rid of it today.

Thank you very much, Mr Speaker. I join others in congratulating you on your elevation to the current role that you have. I was relieved to see that no one objected to your appointment, including yourself. But we’ll see; the night is yet young!

Obviously, an incredibly serious topic. It’s being treated seriously across the House, as is right. Obviously, differences of opinion on a number of different points, including its most basic level as to whether parties support the repeal or not. As others of the National Party have made clear—and our colleagues in the ACT Party, likewise—we don’t support the repeal. We do, indeed, support the three-strikes regime, or at least a three-strikes regime. I think it would be fair to say that to the extent that there are any anomalies in the regime as to which are qualifying offences, then a reasonable conversation could be had. But for now, we’re engaged with the discussion of that which is in front of us, which is, of course, the holus-bolus repeal of what’s often referred to as the three-strikes regime, being, of course, an aspect of the sentencing arrangements in this country.

In my time, I wanted to focus mostly, or at least initially, on the constitutional aspects. Others have made mention of these, but I think it’s important to ensure that we all clearly understand—and, for what it’s worth, place on the record—some thoughts about how the different branches have interacted in relation to, first, the passing of the law, its application, and, indeed, what we might broadly describe as the repeal process. Also, I did want to discuss different aims of the criminal justice system. It seems to me that often in these debates there’s a conflation of different but related aims of the criminal justice system. I think it’s fair to those who are arguing in favour of the regime actually to understand the benefit that such a sentencing regime can have beyond the tired old discussion about whether certain types of offending are likely to have a deterrent effect or not.

I did actually also—and, in fact, I’m determined that however I manage my time in relation to those other points—want to finish on a note of acknowledging victims of crime. I think if we are to take seriously our role as legislators, but also as members of our communities, whether they be geographical communities, constituencies, Māori or non-Māori—aka general—electorate, or, indeed, constituencies in a more general sense in that we represent people of New Zealand. In any case, we should in this House always be mindful of those who are affected by the laws that we pass. Of course, in the criminal law, the parties to a matter before the courts are the accused and the State. The victim, roughly speaking—and I’m using shorthand here—isn’t actually a party to the proceedings, isn’t actually formally involved. Almost entirely that’s the case, and that seems to me to heighten our responsibility in this House to speak for victims and the things that are important to them in creating an architecture of criminal justice.

First, then, the constitutional aspects, as I promised. It goes without saying that there are circumstances in which judges can make law—in the case of civil wrongs, aka torts, also in situations where statute law is unclear, or there are gaps, or interpretation is needed. It’s reasonable—indeed, conventional—that if there are inconsistencies between domestic law and international law, where there is a lack of clarity about whether Parliament had intended such an inconsistency, that the judges will give the bounce of the ball, so to speak, in favour of the interpretation that be consistent with the international obligations. However, I think it’s been pretty clear, and generally acknowledged on both sides of the debate for and against three strikes, that many of our courts—and I choose my words carefully—have decided to prefer an interpretation of the three-strikes legislation that seems at odds to most observers with the clear intention of Parliament at the time that it passed that statute.

So as my colleague and friend the Hon Paul Goldsmith has noted, the disproportionality—which is the objectionable element within the New Zealand Bill of Rights Act, according to those who would have three strikes repealed. As to proportionality, actually that’s a feature, not a bug, of that legislation. The distorting effect, as those across the House have described it, is intended by Parliament, because the evidence is clear that those who commit some crimes—sadly, there’s a large recidivist element, and three strikes is actually poorly named to the extent that oftentimes there are many dozens of offences. Indeed, on average, that’s the case—that many dozens of offences have been racked up by offenders who are facing what is formally their third strike in the sense of being qualifying offences. There’s much damage that is done to communities when any kind of offending takes place, and so if we’re going to talk in this House about distorting effects, then we should acknowledge the hugely distorting effects on communities, victims, and their families of violent crime.

There’s a sense in which laws are passed not only to have specific effects that are very measurable and tangible but also in the sense that they send a signal to the community about what its representatives regard as reasonable and acceptable in a civilised society. To the extent that the Parliament, in passing laws that will soften the official position on offending—the point I’m trying to make is that while one would never wish to condone vigilante action or self-defence beyond the reasonable and the proportionate, the reality is that many people in our communities feel under threat by violent offending. They’re not confident that they will have the protection that the courts and the prisons and the justice system generally should afford it. That’s the fault of Parliament, rather than the courts and the prisons, I hasten to add. So it’s important that we don’t undermine that sense of justice, in that general sense, as well as the real feeling of protection and safety that citizens of this country—by which I include, obviously, those who are not technically citizens—should derive from the laws of the land.

The sense of justice—which is, obviously, a pretty nebulous concept—I think needs to be understood alongside the aims of deterrence, and we’ve talked about that. But also prevention, and it’s often missed by those opposed to the three-strikes regime that there’s an important preventative role; namely, that those who are incarcerated having committed at least three very serious violent crimes will be prevented from offending in the community during that time that they are behind bars, and, of course, that’s an opportunity for rehabilitation. I think there’s common ground across the House that rehabilitation is one of the very worthy aims of our criminal justice system, and it is not incompatible, it is not mutually exclusive, it is not inconsistent with the idea of the three-strikes regime, because we allow people the opportunity to, you know, gain education or generally mend their ways, and a chance to reflect on that while they are quite literally a captive audience.

The manifesto commitment point that others have made across the House—and then, almost in the same breath, criticised National and ACT for having brought in the regime on the basis of a manifesto commitment—yeah, we can trade this kind of observation all day long, but I don’t think it does much good. I don’t think it’s much of an argument to say that it is enough that a party has promised to repeal a law. Of course, that’s unhelpful from a mandate point of view, and I do acknowledge that. The Government, now occupying the benches, of course, won the last election. That’s why they’re there, and included in their manifesto was a commitment to repeal. So that, so far as it goes, is fair enough. But they also have a mandate to protect victims, not only because that’s what most reasonable people would say should be a role of the State, and, indeed, this House, but because that is the very rhetoric that they have been employing when it has been convenient to them in relation to other matters of criminal justice. So I just appeal to the House to hold Government members to account when they say, perhaps glibly, that it’s sufficient justification to repeal a law that one had campaigned on it; noting that if they’d also campaigned on the aspect of victims’ safety and victims’ rights and a victim-centred justice system, then they should honour that commitment as well, no less than the other.

So, finally, then, but most importantly, the victims of crime deserve not only that general sense of justice, not only that physical, real, tangible notion of safety but also they need to have some sort of certainty, where possible, in relation to the conduct of their victims, the movement of their victims, the ability of their victims to threaten and revictimise them. So to the extent that there is certainty provided by the three-strikes regime—yes, to the extent that that’s inconsistent with judicial discretion, that’s unusual—but to the extent that provides some certainty for the victims about the amount of time from which they will be free from being terrorised by their previous tormentor, then that’s a good thing, we say. We are on the side of the victims, and we, therefore, for all the reasons we have said today, oppose the repeal of the three-strikes legislation.

Thank you, Mr Speaker. One of the key functions of the judiciary is discretion in sentencing. The repeal of this law—the three-strikes law—will put the discretion back where it should be: with the judiciary. This is really important, because the loss of liberty is one of the most serious sanctions we have as a society, and it should not be entered into lightly.

This three-strikes law has not worked. It has created distortion. It is not evidence-based. It has not reduced offending. It has created inconsistencies. It has created unfairness. It has not made our communities safer. It does not tackle the drivers of crime or, as the previous speaker suggested, protect victims. It is contrary to the New Zealand Bill of Rights Act. It creates disproportionality. As previous speakers have suggested—and it is true—it also predominantly affects and unfairly affects Māori. And—my most important point—it is unnecessary. Judges can always put the maximum sentence in place, and that is why I commend this repeal bill to the House.