Sentencing (Reinstating Three Strikes) Amendment Bill

Kia ora, Mr Speaker. Well, this bill is about choices and values, and this Government chooses window dressing over substance. It chooses rhetoric over outcomes.

We know that three strikes doesn’t work. We absolutely agree that we want to see a reduction in offending and a reduction in the number of victims, and we want to see reoffending reduced as well. But this reheated policy flies in the face of all of the evidence. The Minister’s own officials have said that there is no consistent pattern to changing crime from three-strikes regimes. The officials have made it absolutely clear that this proposal will do no good whatsoever—in fact, quite the reverse. Not only that but every other jurisdiction in the world, more or less, where these regimes have been introduced have been rolling them back, have been watering them down, or have been getting rid of them entirely. This regime will have no impact on reoffending, will not keep communities safer, will cost $10 million a year, and will see around 90 people in prison who wouldn’t otherwise have been in prison.

Well, look, the fact of the matter is that we do think that, where there is serious offending, there should be a serious sentence. In fact, we think a rule that says that a judge “must impose the maximum penalty prescribed for the offence [where] the offending is within the most serious cases for which the penalty is prescribed, unless there are circumstances [which make it] inappropriate;”—we think that would be a good rule. It sounds a bit like this legislation, except it’s not; it’s actually section 8(c) of the Sentencing Act. So the fact of the matter is sitting there right now in the Sentencing Act is a provision which says a judge must give the most serious sentence to the most serious offending. This bill is simply taking New Zealand backwards. It will have an absolutely disproportionate effect on Māori as well. We know that, under the last regime, of the people who were subject to a third strike, 81 percent of them were Māori. Let’s be clear. The Minister has been clear here that this is intentionally disproportionate sentencing. The punishment, by definition, doesn’t need to fit the crime. That is extraordinary. The idea that we are in a modern, First World country where the legislation itself says even if the sentence is disproportionate, that is not an extraordinary circumstance.

It’s true that this bill is not as terrible as the former legislation. It does things like raise the bar to make it a two-year imprisonment sentence as the triggering offence. And then we have a perverse section in there as well, a section that says to a judge, “Sentence as if you didn’t know that was the case. Ignore that.” Well, the way the justice system works is that people take into account all of those factors when they come to litigate a case. The prosecutor themselves will know what the consequences of a strike sentence will be. The prosecutor has a very significant role to play in what sentence is sought. It’s often the prosecutor who undertakes plea negotiations and makes submissions on sentence indications. So those kinds of statements or provisions in the legislation which say “Don’t take that into account when sentencing” are largely meaningless.

Not only is this a vile piece of legislation in the sense that it’s intentionally imposing disproportionate sentences; it’s entirely unworkable. The provisions setting out how judges should impose sentences simply won’t work. They take no real account of how the justice and sentencing system works, and they will have no impact on the safety of communities or the number of victims. Kia ora.

Tēnā koe, Mr Speaker. Well, welcome to an era of mass incarceration, which has been brought in by Minister McKee and their misguided, unimaginative approach to dealing with the very real harm that is happening in our communities.

Let’s be straight up about what we’ve got in front of us. We’ve got a concept of three strikes that we have imported from the United States, of all countries—the country with the most incarcerated people in the world. That is the country that our Government has chosen as an exemplar for our justice system. And where did they get that idea from? They got it from a game of baseball—a game of baseball—where it’s three strikes and you’re out. But this is not a game, and if the Government actually put some effort into basing their law and order policies on evidence, rather than a game where there are winners and losers, maybe our communities would get the safety and the peaceful way of life that they deserve.

But we’re playing games—we’re playing games with people’s lives, and it’s not just the people that we’re sentencing that suffer; it’s their entire families and often their communities too, because children of people in prison are nine times more likely to go to prison. And now, thanks to the new young serious offenders category, they can go into prison even earlier! That’s the approach of this Government to law and order. It’s a game of how many prisons can we build and how many beds can we fill with poor, disabled, brown people before the public rejects this failed logic. Locking people up and punishing people does not lead to the safe communities that the public deserves.

At the rate we’re heading, we are going to need a new prison every few years. The billion dollars—

💬 Simon Court: Don’t worry; we’re building them.

And it’s shameful. It’s unimaginative. It’s a waste of money when the Government could be putting that money into housing, into education, into job opportunities, into livable benefits, into the public health system—but, no, let’s build more mega-prisons! That is the sum ambition of this Government. They’ve scrapped prison population reduction targets, they’ve removed Treaty provisions from the corrections bill, and they have made it easier to lock up children, with the young serious offender category, because that is their ambition and they think they can just lock people up and that’s going to solve the issue. Well, it won’t, because it’s a failure, just like three strikes was a failure.

The concept of continuing to repeat failed experiments is the definition of insanity. Three strikes was a failed experiment. It’s a policy that has, according to advisers, limited evidence that it reduces serious crime. Officials weren’t even able to identify any quantifiable benefits for this bill. And that’s because there is none. There are no benefits from reintroducing three strikes. The evidence also shows that judicial discretion is better than mandatory sentences, because it allows for the circumstances of each person to be taken into account. And that matters when you look at who’s actually in prison: more than 90 percent of people in prison have a lifetime diagnosable mental health or substance abuse issue; more than 75 percent of people in prison have been victims of violence. I know the Government loves to talk about victims of violence. How about that—that a majority of people in prisons are victims themselves? It’s a false dichotomy to make it out like there’s a difference. They are victims too. Around 71 percent of people in prison have significant literacy issues, and one in three people who were in State residential care between 1950 and 1999 ends up serving a prison sentence.

Prisons should never be the only answer, yet they have become the only answer because that is the sum ambition of this Government and of the Minister. They choose to ignore the strong evidence about the failure of three strikes. They continue to restore failed policies. Until they wake up and realise it doesn’t work, we will get no better outcomes in this country.

Thank you, Mr Speaker. It snuck in there at the end, didn’t it? The people getting locked up are the victims—that’s what we heard—they’re the victims; they’re the ones we should be worried about. It’s mean; it’s mean to put serious offenders behind bars. Well, actually, I don’t support that. I don’t believe that, and that’s why we’re here; that’s why we’re passing this legislation.

I hear the call that says this isn’t the only way to deal with it, and that’s why we have a social investment approach in this Government, targeting those resources early where they can make a difference, but where there is serious offending and where there are victims that are seriously impacted by this, there has to be consequence, and this bill does that. It brings backs consequence.

There is still the out provision for where it’s manifestly unjust, unless of course it’s murder. It has to go to the senior courts for that third strike but there has to be guidance that ensures there will be serious consequences for serious offenders in the right circumstance. That’s what this bill does; it just needs to be read. I commend this bill to the House.

I am floored that we just heard a diatribe about using imagination. This is not about imagining; this is about fact. This is about looking in the eyes of victims and saying, “We hear you and we will make you safe.” This is not about rhetoric and clever phrases; this is about practical actions to make our communities safer and ensure that serious offenders know there will be consequences. We will not continue down the path of taking mercy against an offender who has inflicted harm. This is not a programme that’s in isolation; this is a wraparound social response. But, at one end of the spectrum, there has to be an ability to make sure they will not create further victims. We will ensure that happens. We will ensure that they know there is a consequence. I fully commend this bill to the House.

Tēnā rā koe e te Pīka, otirā tēnā rā tātou e te Whare. E tū ana ahau ki te waha i ngā kōrero mā Te Pāti Māori i te rangi nei, ā, e kaha whakahē ana i tēnei o ngā pire kua tae mai ki rō Pāremata i tēnei rangi.

[Thank you, Mr Speaker, indeed greetings to us all in the House. I stand to give voice to the statements of the Māori Party today, and we strongly oppose this bill that has arrived in Parliament today.]

Te Pāti Māori is deeply concerned about this Government’s decision to reinstate the three-strikes regime. Our principal concern is this legislation will only worsen an inherently biased and racist criminal justice system. These issues have been well articulated and documented by the great minds, like Dr Moana Jackson in The Maori and the Criminal Justice System: A New Perspective—He Whaipaanga Hou, and more recently by movements and organisations like JustSpeak. Further still, in its own advice to Cabinet and through its regulatory impact statement, the Ministry of Justice explained that “Reinstating a three strikes regime will exacerbate the over-representation of populations which are already disproportionately represented in the justice system. While there are options to modify the regime which would minimise the overall impact on Māori, Māori would continue to be disproportionately represented in the relative terms, perhaps even more so than under a broader regime.”

Public commentary, including by Criminal Bar Association vice-president Annabel Creswell, also raised doubts about the legislation: “Criminal justice policy has to be based on evidence, and there’s no evidence that three strikes either reduces crime or assists the rehabilitation,”. Evidence briefs from the Ministry of Justice explained that there’s no evidence of three-strikes policy reducing crime or having a serious effect on crimes at all.

What we do know about three-strikes legislation is that during the time it was in place here in Aotearoa, Māori and Pasifika received over 50 percent of the strikes, and 63 percent of those with a second strike were Māori. Three strikes in its short term had unjustly perpetrated racism and caught Māori with no evidence of reducing crime.

Our grave concern is that this legislation will result in unjust sentences which will only deliver mass imprisonment to Māori and Pasifika people nationwide, and that this House is setting into place a regime held up by a lack of evidence and by racial bias that should shock all peoples who called this place their home. Te Pāti Māori insists on intelligent policy and rehabilitation; rather, this legislation strengthens the race-based system of colonisation that continues to deliver race-based outcomes. The evidence shows that tangata whenua are more likely to be treated unjustly at one or all of these stages in the criminal justice process. The extent of the racial bias within the criminal justice system means that we must do everything we can to stop the pipeline to prison.

Finally, advice put to the Ministers also notes that regarding the three-strikes legislation, claims before the Waitangi Tribunal are possible, including the live and existing Waitangi Tribunal claim Te Rau o te Tika: the Justice System Kaupapa Inquiry, Wai 3060. Article 3 of Te Tiriti o Waitangi means that until outstanding justice inequities between Māori and non-Māori are resolved meaningfully, no justice system in Aotearoa will ever be just, in Te Tiriti o Waitangi.

We encourage tangata whenua and tangata Tiriti allies everywhere to utilise every tool, pathway, and process available to advance the transformation of the criminal justice system here in Aotearoa.

Nō reira koinei aku koha ki tēnei o ngā pire. E kaha whakahē ana Te Pāti Māori i tēnei pire. [And so that is my contribution to this bill. The Māori Party strongly opposes this bill.] We oppose this bill. Tēnā rā koe e te Pīka.

If New Zealanders weren’t already on notice that this is a Government committed to restoring law and order in this country, well, they are now. Along with this excellent piece of legislation, the Government, today, also announced strengthening of our sentencing laws. On the weekend, the Prime Minister, along with the Minister for Children, Karen Chhour, announced new serious youth offender categories. And, of course, there are new cops hitting the beat as we speak.

As chair of the busy and effective Justice Committee, we look forward to considering our 16th bill for this Parliament. We will look forward to the robust and strong exchanges amongst committee members. I commend the bill to the House.

Thank you, Mr Speaker. Thank you for that lengthy and detailed contribution from the Government! So this is an interesting bill. One thing that strikes me is that I often wonder why this Government keeps implementing legislation that has absolutely no evidence to back it. I mean, it’s a sensible question. You can see that we might not see eye to eye on a lot of heartfelt issues, but you would think if you’re going to do some decent analysis, check some facts and figures, to actually go through and look at history as to what works and what doesn’t work. Why is it that, particularly in the space of law and order, this Government continues to implement policy and decisions that have zero evidence to back them up? It’s a legitimate question, and I think the answer is that they don’t really care about the outcome. They want something that looks good, that ticks the box of getting a vote, that keeps people happy here and now and makes it sound OK, but they have zero vested interest in the long-term benefits to New Zealand. That’s what really bothers me.

This legislation first came to New Zealand way back in 2010. It was a coalition agreement between ACT and National when Rodney Hide was a member of the ACT Party. At that point in time, I was working within New Zealand Police, and what happened at that point was that we were tasked to try and figure out how to implement this new system across three different computer systems in the justice sector. There was no consideration the first time this came in as to how it would be implemented. There was someone—namely me—who sat and had to watch three databases for when we got a striker. And when we got a striker who was eligible, we had to call up the courtroom and tell the person who was prosecuting in the courtroom that they had to call out to the judge and notify them that there was a strike. If that didn’t happen, that person got away without a strike. We had to draw straws on a weekly basis over who fronted up and told Judith Collins how many strikes had got away that week and how many strikes had got away that month.

This goes to my point that there was no interest in how this was actually going to be implemented and monitored. There was no investment in the system of how it was actually going to work because all that was wanted to be achieved—the only thing that was to be achieved—was that it looked good. It looked good and it ticked the box, and it is no different now. This is something that we saw during scrutiny week which was very interesting. In scrutiny week, Nicole McKee, as the Associate Minister of Justice, fronted up to the Justice Committee at scrutiny week, and Nicole McKee openly stated that the first time three strikes was introduced, it didn’t work. We had ACT on record in scrutiny week, stating that the first bill didn’t work, because she had received advice from the Ministry of Justice that demonstrated the first time—

💬 Hon Nicole McKee: So why are you talking about it? We’re on to the second version now. Time to move on, Ginny.

We’ve got it on record, Nicole; it’s there—you said it had problems and it didn’t work properly at all. So the reason why they had to peddle it back was because the advice came through from the Ministry of Justice officials that it had zero deterrent effect on criminal offending. It had no impact on reducing the number of victims and it had no impact on actually making a meaningful difference in our justice system. That’s what the advice is.

The bill we have now is a reheated version. It’s actually slightly less worse than the first one they fronted up in 2010. But it goes to the point that there’s no new ideas in the bucket. They’re just reheating old, failed stuff that still doesn’t work, and rebranding it in some kind of sad attempt to look tough and look cool. I’m afraid that it just doesn’t work. It’s sad to see this implemented once again. I am pleased to see that they’ve made some changes, including the manifestly unjust provision, which will go some way to mitigating the damage that this will do. It shows no faith in our judiciary, it shows no faith in our justice system, and it will have zero impact on reducing victims, even though those members opposite will continue to sing its praises and say it will fix everything. Only time will tell. As we’ve seen in the past bill, this will do nothing to reduce victims. It’s a waste of time. It’s a waste of money.

Thank you, Mr Speaker. What a great day for law and order in this country. What a great day for Upper Harbour. Look, I stand in support—full support—of the Sentencing (Reinstating Three Strikes) Amendment Bill. This Government is delivering on our commitment to introduce the revised three-strikes law as one of our key law and order priorities, after that lot repealed it in 2022. And did that help? No, no. What’s happened since 2022? It’s only got worse. This bill will help protect victims and communities by keeping violent criminals off the streets and by delivering justice for the victims of serious violent and sexual offending. I commend this bill.

Thank you, Mr Speaker. Thank you for the chance to make a contribution, as one does, to the Sentencing (Reinstating Three Strikes) Amendment Bill. I’m surprised by the previous contribution daring to bring up the concept of law and order on the North Shore, when it was only a couple of days ago—didn’t we learn?—that the harbour cops are being moved to the CBD to bolster the police presence there. But good on you for standing up for your communities!

As has been previously said, and we don’t need to go over it in too much detail, this bill simply isn’t needed. It’s not needed, because the law already says, as my colleague the Hon Dr Duncan Webb said earlier, a judge must impose the maximum penalty prescribed for the offence if the offending is within the most serious of cases for which the penalty is prescribed, obviously unless circumstances relating to the offender make that inappropriate. That is part of the Sentencing Act. So this rhetoric that somehow this Government, who is very light on evidence and very big on big noting and rhetoric, is somehow reinventing and rewriting the Sentencing Act is just nonsense. This is simply another means by which to introduce something that, essentially, does nothing. But, in this case, not only does it not do what it says on the tin, it actually does harm. It’s reintroducing a reheated policy that has already failed.

I note, as my colleague the Hon Ginny Andersen has just said now, that we acknowledge the fact that the first three-strike bill was terrible, as was the Act. This is less rubbish, but it’s not much less rubbish. Therefore, it kind of feels like it’s a little bit of a waste of our time. We know that there is absolutely no evidence that three strikes reduces reoffending, and that should be the Government’s goal. If the Government’s going to talk a big talk about being tough on crime, the only way you can be tough on crime is to reduce crime. Doing things that don’t reduce crime is a waste of our time. It doesn’t reduce reoffending. There’s plenty of evidence to suggest that it actually makes rehabilitation worse. It certainly doesn’t act as a deterrent. So if the goal in the long run is to not make things better, this is a step in the right direction.

As has already previously been also discussed, it removes judicial discretion, which I think is a slippery slope and that is not something that we should be doing. Also, when I suggested that it does harm, we know that it does disproportionately impact on Māori, on people with cognitive diversity or people with cognitive impairments; they absolutely bear the brunt of these knee-jerk reactions so that the Government can appear tough on crime. Ultimately, it’s just part of that ideology—the Government always claims it doesn’t have any, which is a misnomer in itself—that punishment leads to change. That doesn’t happen. The regulatory impact statement and several other sources have explicitly stated through cost-benefit analyses and various other evidence-based methodologies that we haven’t been able to see any significant quantifiable benefit in this policy.

Importantly, the provision stating—this is the part that I find quite interesting—that the courts must not take into account the additional consequences of the three-strikes regime when determining the sentence, therefore, makes it unenforceable and meaningless. What I mean by that is that lawyers and judges can’t unknow what they know. If they know there’s going to be a loss of parole eligibility at strike two, it’s going to change the way that they act. They will have that in their mind when considering sentences, and judges will as well. Judges will also know the impact of imposing a 24-month sentence as opposed to imposing a 23-month sentence. So, ultimately, it’s going to change those thresholds and it’s going to mean there’s some perverse sort of outcomes as people skirt their way around this—not to mention the fact that the New Zealand Bill of Rights Act obviously prohibits severely disproportionate sentences, and we know that this has the ability to do so.

So, at the end of the day, it’s a big price to pay, considering all the extra people in prison and all the extra costs that that incurs for the National Government to talk about the fact that they’re tough on crime. It has zero impact on crime. It has zero impact on reducing victims of crime. It’s a cheap and nasty way of the Government trying to send a message out there for people who don’t know any better.

Restoring three strikes is about restoring law and order. We on the Government benches make no apologies for taking action to crack down on crime, hold serious offenders to account, and make our towns and cities safer. 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