Courts (Remote Participation) Amendment Bill

I present the legislative statement on the Courts (Remote Participation) Amendment Bill.

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

I move, That the Courts (Remote Participation) Amendment Bill be now read a first time. I nominate the Justice Committee to consider the bill. At the appropriate time, I intend to move that the bill be reported to the House by 31 July 2024.

The court system is currently experiencing significant delays, particularly in the criminal and the family jurisdictions of our busiest court, the District Court. The drivers of court delays are complex and have been exacerbated by unpredictable events like pandemics and cyclones. This Government is committed to speeding up court processes so victims and other participants can move on with their lives. We see enabling more use of audiovisual technology as one part of our work to reduce court delays. This bill contributes towards the fulfilment of one of the Government’s 100-day plan commitments: to enable more virtual participation in court proceedings.

To enable more virtual and remote participation in court proceedings, we need to make three targeted changes that can be implemented quickly. These changes involve allowing a victim and their support person to watch a criminal trial and sentencing remotely. This provides a safe option for victims to attend court, helping them to avoid re-traumatisation and intimidation that can sometimes happen. I anticipate that some victims will want to attend court in person, and they still will be able to do this.

The bill allows the use of audio links such as teleconferences for appropriate court proceedings, and it will be making permanent what was a temporary change to the law made during the pandemic that clarified remote participation in criminal proceedings is consistent with open justice. These changes strike the important balance between providing alternate ways to participate in court proceedings, fair trial rights, and the important constitutional principles of judicial independence and open justice.

In 2024, we’re living in a virtual world where audio and video technology is part of daily life. This bill has the potential to increase access to justice and the efficiency of our courts, as well as providing a safe option for victims to participate in court processes. Audiovisual links—or AVL—for defendants in custody reduces the possibility of violent incidents either in court or while they are in transit.

This bill cements the lessons learnt during COVID and affirms them in law. However, we need to recognise that it may not always be appropriate or even possible for technology to be used in court proceedings. For example, remote observation would not be appropriate if the victim has yet to give evidence in their proceedings. Proceedings that apply to vulnerable parties—for example, those under mental health legislation where a determination as to whether the party needs to be compulsorily detained and treated—are exempt from the audio link provisions in this bill.

It is also critical that defendants can participate effectively in proceedings that affect them, particularly when evidence is being heard in those proceedings. The threshold is higher for the use of AVL technology when the defendant’s guilt or innocence is being determined. Judicial officers are best placed to decide on a case by case basis whether remote participation is in the interests of justice. Currently, audio technology, such as teleconferences, is already widely used in the courts, but it is not used for proceedings that defendants attend—and this will continue to be the case under this bill.

As I have mentioned, it is critical to the delivery of justice that defendants can engage effectively in proceedings that affect them. However, in some cases, judges will need to be able to actually see the defendant during a court case to make sure that they understand what is happening and to determine their credibility. In this regard, the bill maintains the important constitutional principle of judicial independence and it recognises that judges must be able to control the conduct of court business in their courtrooms.

The targeted amendments in this bill will improve and clarify the law around remote participation in court proceedings. The changes allow victims and their support people to watch a criminal trial and sentencing remotely, reducing the stress and the anxiety that victims often experience.

This bill is an initial step in advance of an upcoming first-principles review of the Courts (Remote Participation) Act. This bill is just one step towards the wider goal of enabling more virtual participation in court proceedings. I just mentioned that we’re about to undertake a more comprehensive look at the Courts (Remote Participation) Act so that we ensure it is fit for purpose into the future. Because the Act has not been substantively reviewed since it was passed in 2010, there have also been considerable advances in technology and the use of technology since the Act was first developed.

The Ministry of Justice is also working on initiatives to address delays, including improving case management, reducing adjournments, and increasing the use of text messaging to ensure participants turn up in court. But we’re not doing this alone; the police and the judiciary are also focused on court timeliness. We intend to develop a modern and fit for purpose regime that enables an increased use of remote participation in courts, and also upholds core constitutional principles, including the separation of powers and the defendants’ fair trial rights. This work will require the involvement of the justice sector and other relevant agencies as well as the judiciary. We will be working together to make sure the legislation works for the justice sector as a whole.

I look forward to the Justice Committee’s consideration of this bill, and I note that the Courts (Remote Participation) Amendment Bill is the last legislative item on our 100-day plan. I commend this bill to the House.

Thank you, Madam Speaker. The enthusiasm with which the Minister for Courts congratulated herself for having the last piece of the 100-day plan tabled a little under two hours ago is a little concerning. I’m standing here having to express my party’s view on the Courts (Remote Participation) Amendment Bill, having had only less than two hours to look at it, and this isn’t something that should be rushed. The idea that we should be using technology to assist the courts goes without saying, but the balance to be struck between fair trial rights and the expediency at which the court system can churn through its workload is actually really, really important.

I’ve read the bill once, having spoken on an earlier bill today, and much of it seems to have merit. Certainly, allowing victims to observe proceedings through audiovisual or audio-only links is a good initiative, and I congratulate the Minister on that, because we know that being in the same room as an offender, perhaps at a sentencing or trial, is problematic, but, at the same time, the victim’s choice to be part of the proceeding is an important one that may be important to that victim in their own journey. Again, the suggestion that there is use of technology in civil proceedings—important, deserves examination, but clearly doesn’t quite reach the same threshold when it’s someone’s liberty at stake.

As someone who has practised law over a long period of time, I’m always cautious about the substantive procedural distinction. The idea that technologies can be used because it’s only procedural is kind of an easy escape, because all we are considering is whether or not to admit a piece of evidence “It’s procedural.”; “It’s just a routine question.”. Lawyers take those procedural points because cases stand or fall on them, and, in many a case, it’s really important that the defendant is there in person with their lawyer, providing instructions and giving context, for many reasons but also for the pretty fundamental reason that the right to a fair trial and the right to open justice is one that is very hard to translate to the virtual sphere.

Let’s be honest. Let’s just understand what “virtual participation” means for an accused—and I’ve seen it; I’ve been to Christchurch Men’s Prison and seen where they do it. It means sitting in a little cubicle with a screen in front of you, where the camera is pointed, usually, at the person who’s speaking. Now, if you’re in a courtroom and you’re looking around, you can see a whole lot of things and understand a whole lot of things. You can see the Crown lawyer raise an eyebrow in disbelief at an argument that’s being made, and that’s important because it enables you to understand what’s going on. You can hear the sigh of a judge whilst the Crown prosecutor is speaking, and it tells you what is going on in the courtroom. Now, I just want to be clear: I’m not saying that this is a bad thing, but we’ve got to be really, really cautious because we are dealing with open justice and the right to a fair trial.

So, yes, we want to look at this. We absolutely want this to go to a select committee—absolutely. But I just want to express here in the House that we want to make sure that the balance is struck between an absolutely fair trial, the right of a defendant to be an active participant, and the pressing need—and I’m glad the Minister recognises it—to address the backlog of cases in both our Family Court in particular, and our criminal courts. Because justice delayed is justice denied, and justice at the present time is absolutely and most certainly delayed. Thank you, Madam Speaker.

I was supposed to say at the beginning of the Hon Dr Duncan Webb’s speech that the question is that the motion be agreed to, but I’ll say it at the end, and I’ll call Tamatha Paul.

Kia ora. Tēnā koe, Madam Speaker. Oh, it’s so nice to be able to stand up and support one of the bills going through the House this week; it’s been a really long week. And it’s really simple and straightforward for the fact that, as the Green Party, and having had the very first Minister for the Prevention of Family and Sexual Violence, we know that we have a justice system that often fails the needs and the rights of survivors. To me, this bill goes a way to centring those rights of survivors and their safety and their experiences within the justice system. It makes complete sense that we would make the justice system more accessible for survivors and that we wouldn’t contribute to re-traumatising those survivors. Just this morning, at the Justice Committee, we heard from survivors about how traumatising it can be going through the justice system and having to prove the harm that has already been caused to them and that contributes to that harm. This goes some way to creating some slightly more positive experiences within our justice system.

I think, just to wrap up, this bill is good because it shows that that side of the House is capable of thinking about and implementing justice policies and laws that centre humanity and empathy. I just wish they would do it a little bit more often. So I encourage this approach, and in the same way that I believe in the potential of people to change their behaviours—and, you know, I would encourage that we took that view for people who have committed crime and caused harm in their communities—I believe that everyone of us in this House can take humane and empathetic responses and approaches towards where harm has been created in our community. So I commend this bill to the House. Kia ora.

A justice hat trick—we look forward to considering this bill in the Justice Committee; I commend it to the House.

Thank you, Madam Speaker. I rise on behalf of New Zealand First to speak on the Courts (Remote Participation) Amendment Bill. This bill enables more virtual participation in court proceedings, and it will contribute to the Government’s objective of improving court performance generally. What I’d like to say is this bill will help victims, and helping victims and supporting victims through the court process is something that we all should want to achieve. We all realise there are delays in our court systems at the moment, and when we have delays, we have costs. And those costs are something that this Government wants to be more efficient on. Allowing participation by virtual means is a way of delaying delays, and it’s also reducing the cost of court proceedings. It’s also about giving justice to our victims. On that case, New Zealand First will support this to the Justice Committee, and I commend this bill to the House.

Tēnā rā koe e te Pīka, otirā tēnā rā tātou e te Whare. Ae e tika ana ngā kōrero a tōku tuahine i konei, koinei te pire tuatahi e tautokotia ana e te Pāti Māori mō tēnei Kāwana, heoi anō e mōhio ana au kei te huri te ao. Koinei tētahi āhuatanga e āhei ana ētahi o ngā tāngata ki te kuhu mai ki runga i tētahi matahiko hei akiaki i a rātou i roto i te justice system. Ēngari mēnā e tiro ana mātou ki te whakapapa o tēnei pire, e mōhiotia ana e te Pāti Māori ko ā mātou wawata ko ā mātou tino maruāpō nui kia whakatūngia tētahi o ā mātou ake Māori justice system. Hei aha? Hei whakatinana i tō mātou tino rangatiratanga.

[Thank you, Mr Speaker, and greetings also to the House. Yes, what my sister here has said is correct, this is the first bill by the Government that Te Pāti Māori supports. However, I understand that the world is changing. This is one of the ways in which people are able to join in via technology to support them within the justice system. But if we look at the origin of this bill, Te Pāti Māori understands that our aspirations and our dreams are to establish our own Māori justice system. What for? To implement our true sovereignty.]

To take self-responsibility—that keeps getting directed over to this side of the House. That is what we want. So, i roto i tēnei pire, ae e tautoko ana Te Pāti Māori [yes, this bill is supported by Te Pāti Māori], but when we look at the whakapapa of this bill, I think the issue, though, is that, yes, this Government is going to need a faster system—to its victims, but more so that they can lock Māori up. So I think that with the different bills, with the different laws that are being particularly impacted on Māori, it is so that they can do it faster.

Ae e tautoko ana mātou i runga anō i te mea, mō te remote participation pire. Heoi anō, ki te wherawhera i tēnei o ngā kaupapa, ko te wawata nui kia whakatū a Te Pāti Māori i tētahi Māori justice system.

[Yes, we support it because of the remote participation bill. However, if we inspect this matter closely, it is Te Pāti Māori’s wish to establish our own Māori justice system.]

Nō reira, tēnā koutou katoa.

I am standing in support of the Courts (Remote Participation) Amendment Bill. The bill seeks to address issues in the court process that will facilitate the process. We, currently, in the Justice Committee—after having multiple hearings in respect of how the process of justice begins from when an accused is brought to court, through the court process and into corrections—have found that the time element that a case goes through from when an accused is brought to court is so long and protracted. There are many issues behind why the court process takes such a long time. The bill seeks to address that process and to facilitate the time involved.

One of the main issues that we see is the difficulty that victims are faced with in terms of coming face to face with an offender, an accused, in court. Understandably, there are many situations where a victim would hesitate and could be re-traumatised by having to go through that process of being there in the presence of the offender. A lot of the detail of the court process is very confronting, and being face to face is understandably difficult and a huge hindrance for victims and witnesses to be ready and willing to go through the court process.

The bill wishes to provide an avenue of safety to witnesses and victims so they may be present, even if they’re not actually face to face. That, undoubtedly, will facilitate more readiness and willingness to come into the court process. Doing so, and allowing victims and witnesses to be present and to participate, and to actually, essentially, be present without the face to face with the offender, will facilitate the process. There will be less hesitation; there will be more willingness to do so. The effects of delay in the process are felt throughout the system. The courts are just a part of that, and the whole justice system, all the way to remand and corrections, where the accused have to be in remand waiting for the court process to finish, is, itself, another issue that demands the process of the courts to be facilitated and move more quickly.

The bill also wishes to address the fact that the victims must be given and provided with some level of comfort to be able to face the people that they have suffered an injury or pain from. This will give them that confidence to be able to come and be there and go through the process themselves, without hindering the timing of the process. This is a very worthy amendment bill. We in the Justice Committee are very pleased to see this now in the House, and to go over it in due course, and we commend this bill to the House.

I would like to first of all congratulate Nicole McKee on her ministerial role. I just haven’t had that chance to do that formally yet. And it was an interesting contribution because it showed a lot of thought in terms of the balancing of this. Those assurances met the contribution from the Māori Party today, where there was a real concern about what that would mean in reality. I think that’s a very natural tension that happens over legislation. I remember when there was a movement towards community care for mentally ill people, and that was seen as a very ideologically pure thing, but there was a real concern that it would become something that was done, because it saves some money. And there were consequences, when it was used to that end, that were not good for our community. So it is always a case of moving with the times and doing things differently. There is nothing wrong with moving in this direction, except if we are not mindful of the negative use of it.

I guess my experience is not in these arenas but in employment law. But I even became aware of it when we moved to mediation that was remote. It did exactly what Duncan Webb has talked about. It was very difficult to read the signals of people. It meant that it was easy to be dismissive when you were trying to move people, and they needed to trust each other. So there are limits to the use of this, but there’s also a great opportunity for even—and I don’t think we should be ashamed of it—getting rid of some of the delay in our systems. The delay in our court processes and the cost of them is very real and very hard on ordinary people. And I can see the use of this, with regard to victims, as having that plus, so long as it is safeguarded by the ability of the victim to take a different course if they want it.

So I would love to see this, again, teased out in as cooperative a way as possible in a select committee. I think there’s a lot to discuss here. I am interested in this idea of the trial that actually took place during COVID. There were lots of things like that that happened in COVID, where rules got set aside and things got done in a different way, and we really do need to make sure that we make the most of what was a traumatic experience but was also one where people were innovative, because they had to be. So I’m not at all opposed to this, but I share the concerns that have been raised by my colleagues in the House, and I think those are very much ones that have been made in good faith. I don’t think anybody is trying to be destructive in this situation.

I think the issue about consulting with the legal profession is one I’d raise. The Minister and I share a friend, actually. I was in a chambers with two defence attorneys who taught me a lot quite quickly about the difference in that area between what they were doing and what I was, and how important it was to safeguard the rights of defendants in that situation, and how delicate it was and how different it was because of the conditions that people were living in, often, who were the defendants in those cases. So it’s a very different thing if you’re in a salubrious house in Devonport with a pool if you’re being put on home detention, from if you are in a very small space, sharing with others.

That is the sort of thing that I would love to see taken into account, and I think that you might get a rich contribution from the lawyers in this situation who are defending people, and actually also from the victims’ organisations. Those are the places I’d love to see contribute. I’d love to see victims given a very special place in that process, because the harm that has been done often means that they are quiet; they don’t necessarily even want to participate. So I would love to see some encouragement of those voices in this situation, because being heard is so important to the healing process. Thank you. I commend the bill to the House.

Thank you, Madam Speaker. I rise to speak to this bill that we’re having a conversation about today, the Courts (Remote Participation) Amendment Bill. It’s been interesting experiencing what we have this afternoon, where for one of the first times since some of us newbies have been in the House, there’s a kind of basic agreement across the House, and it’s really lovely, actually. So thank you to Helen White, the member just before me, and thank you, Tamatha Paul, and Dr Duncan Webb, for what you shared, which was that, yes, you will support this bill to select committee, and then we can have those deeper conversations—

💬 James Meager: Great committee—excellent committee.

—excellent committee with an excellent chair, my mate here: James Meager—about the concerns that you rightfully raised. Dr Duncan Webb is not in the House right now, but we really appreciated what you added as well.

💬 DEPUTY SPEAKER: Sorry, the member’s not allowed to refer to somebody who’s not here.

I’m not allowed—that’s right, yes. Yes, thank you. I tested you—you passed the test!

💬 DEPUTY SPEAKER: I’m still listening.

So we really appreciated those concerns you shared, and I’m looking forward to having deeper conversations about those during the select committee stage. Now what I will say—Madam Speaker, I’d like to add, if I may—is that as a student when I was studying law, I also worked in the Magistrates Court in Sydney. I remember very distinctly what I’d observed with victims—with witnesses that just felt physically sick because they had to be there in person in court. The anxiety was real, the dread was real, and, like I said, they talk about feeling physically sick.

So with victims of crime that do have to go through this process—and we want it to be a fair process—this helps to alleviate some of those feelings of anxiety that they do find themselves in when they’re going through the court process.

To the Hon Nicole McKee, thank you very much for bringing this to the House—it’s important. There’s three main changes that we want to make, which we’re proposing, and as a Government we agree about these. But, as I said, we will discuss them more deeply during the select committee phase. As I said, it’s great to stand here and find some form of consensus around the House. I commend this bill.

Criminals hate going to court. It’s a place that when they are messing around or committing crime, they actually, in the process—the thing that they are most scared of, it’s often not going to jail, it’s often not going to the police cells; it’s going to court, because that’s the one place where it’s all on display, where what they’ve done, they are called to account for it.

Now, I’m always wary of anything that takes what is the centre point of the criminal justice system, which is the court, out of being the centre of that very thing. I’ll give you a really good example of that. In about 2012, the then National Government instructed the police to reduce the number of entries into the criminal justice system by 19 percent over 12 months. The police were very successful. They brought in a system called pre-charge warning, and whereas before, people who were picked up on the street would end up having to go to court on Monday or Wednesday morning—number one court—and face it, that stopped happening and all of a sudden that consequence was gone.

Police embraced it. It went to 25 percent very quickly, and the behaviour changed over time. I coined a phrase then, “tag and release”, which it became, because you would get the police going around on a Saturday night picking up people, putting them in the cells, but they would go out and there was no consequence; they didn’t have to go to court on that Monday or Wednesday morning. That has affected behaviour of a new generation of criminals coming through who are never called to account by standing in court.

So, while I’ll be supporting this, and we’ll be supporting this to select committee, we have to be very wary, at the same time, that we’re not, for the sake of maybe cutting down the number of people we will need, the number of buildings we will need, that we’re actually not taking away the essence of the criminal justice system.

Now, criminals sitting at home, I can just see it now—“I was at court, I appeared, and I was sitting there with a joint sitting next to me.” It will become a joke because there will be other people sitting there watching, sitting and standing—or, more importantly, standing in front of a judge in number one court is a very important point. We put the judges at the centre of our system too, and we give them the authority—incredible authority—to take people’s freedom away, to take their bail away. So having to front up at court and be part of that system is an incredibly important part of this whole system.

So I know this bill is going to be about enabling more work to be done remotely, but I just say: be very careful, because it will work fine for about one or two years, but, all of a sudden, in five years, like we did with the tag and release, we will actually start to regret this. So, yes, use the system. You’ve only got to be part of the court system to see that it is pretty primitive. The paper-based system is only just moving on to electronic, because one of the problems with that, of course, is you’ve had to have the judges, you’ve had to get the lawyers, you’ve had to get the police, and even now you’re going to have to get the criminals involved in the electronics, and someone, a flash salesman from an IT company will come and tell you that you can join all these things up, and will call it INCIS, but it’s very hard to make it happen. So having now another player in putting these three, now four parts of the system together electronically, and still keep the essence of an important part of the criminal justice system—it’s not that easy.

So I’m quite happy that we will support this, but I’d encourage particularly those members of the Justice Committee who’ll be hearing this to take a wider view of this and see how this will look, how this will change behaviours. It’s a short-term measure. It will certainly, hopefully, make the process a little bit cheaper and maybe less courts, less people will be needed, but just think, as a Justice Committee—and I know there are lawyers who will be on that Justice Committee who may end up standing in number one court again at some stage. They will see the impact of these behaviour changes that will come about as a result of more electronic use of the court system. They will see those changes. They won’t see them instantly; they will see them in about five years’ time.

So never take that number one court on a Monday morning out of being the centre point of the criminal justice system, and make sure, as I said at the start, that criminals don’t want to go there and they will think twice before doing some of the things they do. I’ll support this to select committee. Thank you, Madam Speaker.

I also stand in support of the Courts (Remote Participation) Amendment Bill. Why don’t we just dial it back a bit? It certainly seems to have been engaging a few of the Labour Party here, but let’s have a look at the purpose of this bill. I might have to dial it back. The bill makes targeted legislative changes, designed to boost remote participation in court proceedings, including the ability for victims to observe a criminal trial and sentencing remotely.

💬 Hon Grant Robertson: If only this member was remotely participating.

Reducing court delays is a key priority for this Government, Mr Robertson—it’s a key priority. As our justice Minister Goldie—colloquially known as the Hon Paul Goldsmith—says, justice delayed is justice denied. As Derek Cheng from the New Zealand Herald said not so long ago in an interview: 500 days for a jury trial, 18 months for victims of serious crime before they get their day in court.

So this Government is very, very focused on addressing the court delays. It’s one of the priorities for our justice Minister. This sits amongst six law and order priorities in the 100-day plan. The Hon Dr Duncan Webb asked, “How many points do you have in your 100-day plan?” Well, there are six law and order points. And I know that you’re always keen for me to keep focusing back to the bill, so as well as the Courts (Remote Participation) Amendment Bill, this Government has introduced legislation to ban gang patches as one of its law and order priorities. As well as the bill we’re discussing now, we’ve introduced legislation to give police greater powers to search gang members for firearms. As well as this bill, we’re stopping taxpayer funding for section 27 reports.

💬 Hon Andrew Bayly: This is a great speech.

We’re extending the eligibility for remand prisoners to access rehabilitation, Mr Bayly. We’re introducing legislation to crack down on serious youth offending, and we are now introducing legislation to enable more digital participation, remote participation, in court proceedings. I commend this bill to the House.

The question is, That the

Motion agreed to.

Bill referred to the Justice Committee.

Instruction to Justice Committee