Legal Services Amendment Bill

We come now to clause 2. This is the debate on clause 2, “Commencement”. The question is that clause 2 stand part.

Well, I must firstly—but briefly—express surprise and dismay that those two tabled amendments were ruled out of order, because they were very descriptive and very apposite. They might have been firmly worded, but they were not joke amendments; they were serious. So I’m actually very surprised and disappointed about that.

But I have also suggested an amendment because—I’m assuming the Minister believes in access to justice for all.

💬 Hon Willow-Jean Prime: Well, I’d hope so, being the Minister of Justice!

You’d hope so—that’s right, Willow-Jean Prime. I’m sure he knows his Magna Carta and the clause that’s still in force in New Zealand: that the courts will do right by all, rich and poor alike. So I’m assuming that he’d be happy for this little amendment bill of his to be deferred from coming into force until we have finally reached that goal of doing right by all, regardless of whether you’re rich or poor. He is smiling at me. I do believe he’s nodding, and that is, at last we are at one!

My proposed amendment, which I think has been marked by the Clerk as “C”, says, “Let’s defer this for Order in Council, and once this Minister, who has such lofty goals of equal access to justice for all, can certify that there is equal access to justice in New Zealand for all, regardless of means, that’s a great date on which to bring this into force, because this bill, this funding, won’t be needed.” In fact, you could probably put a Legal Services Repeal Act in and, if we got to that lofty goal, we’d probably vote in favour of it. It’s a wee way off, to be fair, but we’re happy to wait.

So my proposal is that we don’t set a fixed commencement date. It’s a little unusual to have a deferred commencement date. I’m familiar with the caution that the Clerk and the Parliamentary Counsel Office have around executive powers being able to wait. But, if the objective here is to get rid of something that’s not needed, let’s wait until that day arrives, when everyone, if they do find themselves in a bit of strife and are needing one of these reports, can in fact get it. I’m sure the Minister can’t want a world in which some people who have wealth will get a better justice outcome than those that don’t have wealth. And, if that’s the case, I’m sure he doesn’t want this in just now.

I must say—putting it in within 14 days—I am a little concerned that this is just a little bit of posturing around getting stuff done and being able to say, “Look what I’ve delivered to you.”—a kick in the guts for the poor, because that’s what it is. And, if that’s the kind of delivery this new Government wants, it’s really disappointing, because rushing it through and having a 14-day commencement clause is just really unseemly haste. It reflects very poorly on the Government. And, of course, I do want to say this because this hasn’t gone to select committee. I’m saying what a lot of other people would say: taihoa; just hold your horses; there is no massive urgency here. And certainly the papers that I’ve read from the department give that sense: let’s just slow this down a bit, because there are other options; there’s a whole lot of administrative abilities that the Minister and the Legal Services Commissioner have which could equally easily be used to ensure that quality reports are given by qualified people at reasonable prices, when they’re required. You don’t need legislation for that. That’s one of the first rules.

So let’s not get this coming into force in 14 days from, essentially, today, if the Minister has his way with the legislation as it appears on the Order Paper. Let’s just wait a little. Let’s wait for the day when we reach the goal that he and I agree on: that we have equal access for all, whether rich or poor, regardless of means. So I hope he will support that amendment.

Thank you very much, Mr Chair. I’d just like to make a brief comment in relation to clause 2, on the commencement. The point I’d like to make is the fact that 14 days is just not enough. It’s a sweeping change to access to justice, and that period of time after Royal assent for this to become law in New Zealand is just undemocratic. There is simply no opportunity for the people directly impacted by this bill to be able to have their voices heard. So my suggestion to the Minister is not only to take a look at the amendment that has been tabled in the name of the Hon Duncan Webb but also to think about what additional consultation should be undertaken as a Treaty partner and also as the Government doing right by the people of New Zealand.

In particular, I’d like to point out that we know, through written parliamentary questions, that the Ministry of Justice has not undertaken, commissioned, or received any research about the impact of section 27 reports on reoffending. So, given the fact that there has been no evidence base to demonstrate that what is being done through this passage, surely that warrants a slowing up of the passage of this legislation. Surely, as part of a fair, democratic process and as good lawmakers, we should have some understanding about the impacts that this law will make in our community. How can we even possibly understand what that impact is when the very ministry responsible for doing this work has come back and publicly stated, through the written parliamentary questions system, that there has been no research done to demonstrate what the impacts of section 27 reports are on reoffending.

So, for that reason, I think it is really important that we hear from the Minister what the pressure is here, what the huge rush is to make this bill law immediately, to bypass public submissions, to bypass any kind of thorough or rigorous assessment as to what it’s going to do. It kind of looks like it’s just a tick box for the 100-day plan. It kind of just looks like this Government wants to look tough and say they’re doing some stuff. But, really, when you go to that next level and say, “Why are we bypassing a public submissions process? Why has the ministry not had the ability to do any rigorous research or assessment of the impact of this law change?”, it does kind of look like window dressing to me. So, really, for the Minister to speak to the point as to why this bill is being pushed through so quickly under urgency—why is it being enacted 14 days after the Royal assent? And what is the rush to bypass some of the fundamental facets of our democracy?

Thank you, Mr Chair, and for the contributions of the two former Ministers. We’re debating the clause about when this Act would come into force, which will be 14 days after the bill is passed. That is to give people some notice and to have a process for applications or requests for approval for funding for these reports to be approved by the commissioner before the two weeks, so that people have some time to get the applications in, if they are currently under way, and they can be approved up until two weeks from when this bill is passed. So that’s the two-week period.

In terms of people being prepared, well, I’m sure all members of the House are conscious of the fact, when we talk about democracy, that this was something that was very well flagged during the election last year and throughout the year—widespread concern about the increase in money being spent on this, going from $40,000 to $7.5 million in a short period of time. Mr Webb suggests that we should never bring in the commencement of this legislation—and that doesn’t surprise me, in terms of a Government that was prepared just to sit on their hands while all this money was spent, and other legal aid meantime struggled.

In terms of the debate, it isn’t about the urgency in the House, or the select committee process, but I would make the point that the cultural reports were introduced in the early 2000s, about 20 years ago. They were supposed to be oral reports. At some point, around six years ago, a change occurred and they started to be funded out of legal aid. There was no select committee process or Government decision around that change—it just occurred—and the funding went up very, very substantially. So that is why we are keen to make that change in a timely fashion in order to deal with the issues that we are concerned about in this bill.

Thank you, Mr Chair. Thank you very much for the opportunity to make a contribution. My colleague the Hon Ginny Andersen talked about the next layer, which, thankfully, the Minister actually touched on, which was the sorts of practicalities of it starting within two weeks—sorry, making sure that the Royal assent is 14 days, or two weeks after. He said for those people to get their application in in that time, before that period ends. My question to the Minister, with respect to that, is: is there flexibility, or is the Minister and the department of a mind, where there are unforeseen circumstances within those two weeks, or, where there is a known backlog in a District Court, whether or not those who are affected by that backlog have some grace here to make sure that they get their application in in respect of the time line that the Minister has just described?

I think that’s important. We know that in many of our courts around the country, there are significant challenges there. There have been backlogs, and we just want to make sure, for absolute clarity from the Minister, given the fact that this hasn’t gone to a select committee and we need an opportunity to flesh out a number of the matters—and I pick up on the words that the Minister has just used in his contribution, saying that those people can get their applications in within the two weeks and that the commencement date is 14 days after the Royal assent. Given that he said that people can get their applications in before then, we’re seeking clarity here—just a bit more clarity—about whether or not that impacts on those who, for whatever unforeseen circumstances, can’t get it in in that time or, through a court process, it’s delayed, and whether or not there will be any flexibility given to the consideration of their application within what would have normally been the 14 days before the Act comes into force.

Then, of course, without crystal-ball gazing, there are challenges that happen in certain places. We’ve had a bad bout of weather here in Wellington yesterday, which I thought was going to shut the city down.

But there are these kinds of occasions, and the second part to my question for the Minister is whether or not there’s any flexibility here, because, obviously, once this goes through, that’s that—that’s 14 days. That’s where I agree with my colleague the Hon Dr  Duncan Webb about whether or not we can come up with an agreement to buy some time here for those who are currently in the system and—what I expect, and as the Minister said—for those to put their applications through. I suspect there’s going to be a flood of them. I suspect there’s going to be plenty of them, and will there be enough time to process them, with the strict 14 days that we are debating here in this particular clause? That’s my question to the Minister.

Thank you, Mr Chair. I want to endorse all the other contributions that members on this side of the Chamber have made in this section of the debate, and I want to talk to a few new points. I see that the Minister is taking some advice there, so I just do want to make sure that he picks up on the points that I want to make around the commencement date.

I fully endorse the comments that have already been made about reasons and concerns and questions that they have about the commencement date. What I want to focus on, in particular around the commencement date, is that this legislation is being rushed through under urgency; it hasn’t had the benefit of a select committee process. I know from reading numerous reports that there are many organisations who are opposed to this proposal by the Minister, who have not been consulted, and who have not been given an opportunity to participate in this debate on the proposals that are being put forward here. This is not good lawmaking, and I would just point out that the New Zealand Law Society, the Māori Law Society, the Bar Association, and several defence lawyers are all seriously criticising this move by the Government and the Minister.

Now, what I want to identify, in terms of commencement, is how ready the justice system is for what are going to be the, perhaps, unintended consequences, although I think that the Minister should be aware of the potential consequences of this, because I’m reading from the Newsroom article about this proposed change. Now, why I’m saying that we need to consider a delay in the commencement of this legislation is because, I ask: are our prisons ready for the number of people who could potentially have longer sentences, with more going into prisons in the first place and for longer? Because we simply do not have the information; the departmental disclosure report and the regulatory impact statement are bereft of this information.

However, what I want to point to in the Newsroom report is that officials carried out data analysis in December to estimate the added costs of incarceration. I don’t want to focus on costs; I want to focus on the number of beds. We know that our prison system is already stretched. It said, for example: “For those currently serving a sentence of over two years’ imprisonment, an additional 136 beds would be required. For those serving a sentence of two years’ imprisonment or less, an additional 120 beds would be required. And for those currently serving a sentence of home detention, 124 beds would be required.”

My questions to the Minister are: is he confident that our prison system has the capacity and the resources to be able to deal with an increase, which is the likely effect of this decision that he is making today, and which this clause proposes is ready to go—up and running—in 14 days? So can the Minister please stand and explain to us that he is confident that the corrections system, the prison system, and the justice system are going to be able to deal with these types of projected numbers? Can he confidently say that to the committee this afternoon?

I have a further contribution, but it is different to this issue, and I would like to have a response from the Minister on this particular issue before I move on to my next point on the commencement date and the ability of the judiciary to do their job in such a short time when he is fundamentally changing their processes. So I would like to take a call on that, once I’ve had answers to those questions.

I’m happy to tell the member that, yes, I am confident that the corrections system will be able to handle this change.

Thank you, Mr Chair. I’m glad the Minister of Justice was able to stand here and say he is confident that they are going to be able to provide these additional prison beds for those who are likely to have different sentencing outcomes in the absence of this report.

The second point I want to make, and question I want to ask, is: is the Minister confident that the judiciary is prepared for these changes, which are proposed in this section to be implemented, to commence in just 14 days? Now, the reason I ask that is that what we have heard from several who have commented on these proposed changes is that the lawyers and the judges still have an obligation to have this information but they would have to get it in more painstaking ways. They anticipate the filing of Oranga Tamariki, medical, school, police, national intelligence application records to detail a defendant’s deprivation, harm, and disadvantage, and so they’ll have to engage cultural experts, psychologists, alcohol and drug therapists, as well as engage with whānau and family who may have literacy deficits and are intimidated by the courtroom. Counsel will need to spend more time obtaining data, and the courts may be given raw data which is voluminous and time-consuming to review. My question to the Minister is: is the judiciary prepared for this change to take effect in just 14 days’ time? Retired District Court Judge David Harvey agreed, saying, “judges had an obligation under the principles of the Sentencing Act to consider relevant background factors, so would have to source information previously found in [the] section 27 report[s] in different ways.”

My question to the Minister is: what consideration has he given to those judges who are required under the legislation to give consideration to these things, without the very tool that provided that to them in a more efficient, effective, and fair way? That is what we are debating this afternoon. Can he stand up and please give us, the committee, the confidence that he has given consideration to that, that he believes that the judiciary are going to be able to efficiently and effectively, and in a way that upholds justice for all, deliver on their responsibilities under the legislation. What retired Judge Harvey is saying is it leaves the “question mark over the quality of rehabilitation, given that [this is] a large focus of the section 27 report. The fact of the matter is … as a result of all of this, the courts are going to be deprived of information which they could rely on in the past that would assist in a proper rehabilitative [and a] proper sentence that fulfils the purposes and principles of the Sentencing Act.”

So, I repeat again, my questions are: do you believe, can you tell us that you have confidence, that in just 14 days’ time, the judiciary and our justice system are going to be able to provide fair access to justice for all and proper sentencing in accordance with the principles in the Sentencing Act? I mean, the whole driver behind this Government’s push for the removal of section 27 cultural reports is costs and funding—I’ll get to that when we debate that in another section. This is about whether the system is ready for this change to take effect in just 14 days, given it’s being passed under urgency, that there’s been no consultation with major organisations and bodies that have known opposition to what is being proposed. We have those who have served in the judiciary, saying it’s particularly unworkable, going to be more time-consuming, and cost more. So can the Minister please answer those questions?

Very happy to answer the question. I am confident that in the 14 days after this bill is passed and before the Act comes into force, the—I cannot speak on behalf of the judiciary, of course, but what I can say is that they will continue to have many tools available to them to understand the background of offenders, and within 14 days. That is sufficient time for this change to be made.

Thank you very much, Mr Chair. Just in relation to the commencement of this bill, I note that in the very brief legislative statement that we have received, it specifies that this bill supports the Government’s priorities to restore law and order. I was just wondering if the Minister of Justice would like to say: is he relying on this bill alone to be able to restore law and order to New Zealand, or are there some other things that he’s doing? In particular—

CHAIRPERSON (Teanau Tuiono): Can I ask the member to relate this to the commencement date, please.

Yes. Yes. So is he expecting law and order to be restored to New Zealand 14 days after the commencement of this bill?

I’d like to ask the Minister of Justice about the practical implications for those involved in these cases, because you’ve not only got the judiciary but you’ve also got lawyers involved in the cases, who, if you’re bringing this in in 14 days, have already been well on the way down a case. So what they will have done is made decisions about how they’re going to run that defence or that case or that plea. This presents a situation, from what I can see, where the information’s still relevant to the court finding, but the written report, that they would usually use as the way of achieving this, won’t be something that is available to them unless they’re willing to pay or their client is willing to pay for that. So they will have to look at other means and they will have to structure that. What I would expect the Law Commission, the Law Society, and the various law societies to do is to actually talk about the role that the judges and the lawyers would play and the way they would do this in a structured and fair way to everyone. So everybody needs this time to adjust to a different system because they still need to take into account these factors.

Now, one of the concerns I have is that it seems like we’re replacing a report, which is seen as expensive, with oral evidence. Oral evidence is not cheap. It is often something that is going to require costs on behalf of the witness—it may be an expert witness, which is going to really blow out the costs. You also have to consider the cost of the judge themselves and the staff around that, because they’re going to have to consider it in the way that the case is being heard, and they’re going to have to decide how involved they get. So, in many of the jurisdictions, the courts will take a more active role if, in fact, that isn’t being done by anyone else.

So has there been any consideration of running a trial in this, where you could just do this in one place and set it up against the other system and look at the consequences, so there weren’t unintended consequences. What I’m concerned about is the blowout of cost, the delay, the impact on the various players—including, actually, the victims of this. Because what we have, very clearly, in the provision itself, is an issue over really looking at that rehabilitative nature—what is the situation like for that individual? It’s not just about culture in the narrow sense; it’s about community, it’s about the placement of those people, it’s about the chances of reoffending in those alternatives.

So, if, in fact, we’re going down this pathway, has the Minister considered doing a trial—which I’d be in favour of a lot of legislation doing—extending out this for a little while, while that trial took place? I’m sure you could get more cooperation across the committee to look at that kind of scenario. So, like, do a trial of this—don’t do the whole thing—and measure those consequences, but also give a chance for the lawyers themselves, and the psychologists perhaps, who are involved in this work, and the judiciary to make plans as to how to provide justice in the situation where these reports are no longer relied upon. Thank you.

Thank you, Mr. Chair, for the opportunity to ask a question about the commencement date to the Minister of Justice—and I thank him for his engagement on this clause with my colleagues. But this is a significant clause of the bill because it is so swift to make a change which will have a deep impact on people’s access to justice, particularly access to justice for Māori, who are most impacted by the section 27 changes that the Minister is proposing.

My question about the date is: has the Minister considered transitional and savings provisions in this bill that relate directly to this very fast commencement date? The Hon Peeni Henare touched on this earlier: there is no provision in this bill that the Minister has proposed, and so it relates to the commencement clause because it would be inserted, usually, after a commencement clause, and that is when an amendment would be relevant there. For example, with changes to the extent to which the disbursements are incurred in relation to a report or a statement, whether they are written or oral statements presented in court, of a person called by an offender under section 27 of the Sentencing Act—if there are those in train now, can the Minister give the committee some assurance that those will remain in train and that those will be funded? How many of those are in train now? How many witnesses or expert witnesses do we have appearing at the moment who will be affected in the next 14 days? And is it relevant to create a transitional provision to save those processes which are before the courts now, that are sub judice, that are being considered now and should therefore be saved?

Also, has the Minister considered extending the commencement date specifically for those situations which are already in train now, where reports are being written, given that those are something which a judge has overseen, has had an involvement in asking for, that counsel have also been involved in asking for, that Parliament should respect the convention of not interfering in? And given that those have already potentially been ordered, does the Minister know how many there are that are in train, and will he make a provision for those that exist now, so that Parliament isn’t unduly interfering in business before the courts that exist currently?

No, I haven’t considered extending the period beyond 14 days. But what will happen is the two-week time frame is to allow for legal aid providers to be advised of the change. Requests up until commencement could still be approved by the commissioner. Requests approved before the date will then be paid in the date. So requests that have been approved by the commissioner within the 14 days will be paid. Requests can be considered up until the 14 days.

Just for members’ awareness, we are starting to drift into debates which could be better placed in other clauses. So I’ll take another call, but I’d just remind members to stick to this particular clause.

Kia ora. Thank you, Mr Chair. I do hope, in terms of notifying legal aid providers within 14 days, the Minister’s not using New Zealand Post, because that might not quite work. That’s probably for the Minister for State Owned Enterprises.

I do want to talk about commencement and that 14-day period because, as the Minister has just pointed out in terms of that, within that period the legal services agency will have to formulate the notice and what it means for various providers and send it out. This is the point I want to make about the commencement date: providers will have to adjust their practice accordingly, and, in particular, legal aid providers are generally very busy criminal practitioners, and they will want to do right by their clients, and this will create an enormous bulge of work. The reason for that is that what, essentially, legal aid providers—lawyers—have been doing is subcontracting this bit of evidence, saying, “We need cultural report evidence; I’m really busy, it’s not really my area of expertise. Please can you find out about the family circumstances, the cultural background, the victim’s circumstance and what the relationships are, and get back to me and I can present it to the court.”

Now, these practitioners with 150 criminal files on their desk will have to do that themselves. That’s not something they’re geared up to do within 14 days. These are cases where the reports haven’t been commissioned yet and won’t be commissioned yet. These are cases that are in train; might not yet have gone to trial so a sentencing report isn’t appropriate yet. What will happen is that the burden of this work which will fall upon them will mean they can’t possibly satisfy all of their clients and do right by them. So, Minister, in fact, the kind of impact of this, the ripple effects of this will be felt in the legal profession in terms of how they properly serve their clients for six, nine, 12 months, depending on how quickly you can sort out the court backlog. The lawyers can’t just say, “Oh look, I’m too busy, I can’t possibly do your sentencing report. You know, I can’t possibly talk to your mum, talk to your brothers and sisters, talk to your kaumātua about what your cultural background is.”, and do all of that work, and then get all of those bits of evidence in a presentable form—

💬 Helen White: Call the witness.

“Call the witness,” as my friend Helen White said; call the witnesses orally, if necessary, perhaps get letters from them to present to the court because informality is generally OK in those situations. That’s all work that this commencement provision doesn’t allow for. This is going to be a bomb of work that lands on these practitioners because there’s no phasing out. It’s just a guillotine where the funding for these reports is stopped but the need for them doesn’t and these hard-working criminal practitioners, and I must say the Crown as well—no Crown solicitor I have spoken to thinks this is a good idea because they also want to see this done; they want to see this evidence. So it may well have an impact on the Crown’s work as well.

I know the Minister came to the Justice Committee and said you want to work on the backlog. This is going to exacerbate it because we don’t have a transitional phasing in; it doesn’t commence in a period of time for practitioners and judges, prosecutors, and defence lawyers to have time to adjust their frameworks to it. So I’m interested as to whether you’ve talked or thought about that bottleneck of work that will hit the legal profession as a result of the quick commencement.

I move, That debate on this question now close.

The Hon Duncan Webb’s tabled amendment to clause 2 is ruled out of order as referring to an indeterminate in length and not providing sufficient certainty.