Bail (Electronic Monitoring) Amendment Bill

Members, the House is in committee on the Bail (Electronic Monitoring) Amendment Bill. We start with Part 1. This is the debate on clauses 4 and 5, “Substantive amendments”. The question is that Part 1 stand part.

I just thought I’d make a couple of opening remarks. This is, you know, a little bit unusual for Parliament to be bringing through urgent legislation to correct a practice that has been undertaken for the last 10 years or so, whereby we’re talking about people who are on electronically monitored bail. These are people that haven’t had their court case or been sentenced and they’re awaiting their trial or their sentencing. Because there is serious concern around public safety, they’ve been put on electronic monitoring. The majority of people in this circumstance—there’s about 2,000 at any given time; in fact, right now it’s 1,859 people—are there for serious violent offences, and that is why they’ve been put on electronic bail.

A number of people have made the point that there’s a lot of people on there. And, yes, that is a symptom of delays for justice and that is why one of the primary focuses of our broader justice policy is to speed up the processes of the courts: so less people are waiting for so long to get their things sorted out. That is the broader sort of context.

What we’re trying to do with this legislation is to make it clear that corrections staff have the ability to deal with exemptions so that they can go to a doctor’s appointment or something like that without having to go back to the court. There’s been recent sort of indications from the court that it does need to go back to the court, and if that was followed for all these—there’s been, on average, 30,000 a month—then that would seriously clog up the court system, which we’re wanting to avoid and that’s why this legislation is before us.

Thank you, Madam Chair. Obviously, here we are under urgency, and the Minister of Justice will know that, not three hours ago, I put some questions to him whilst he was in the Chamber at the first reading. This bill, of course, it being under urgency, hasn’t gone to select committee, so I’m hoping that we’ll get the indulgence. It would be a little bit different from a usual committee stage, and we can have some wider policy discussions around the bill. If I had had the opportunity to quiz officials at select committee, I would certainly have asked them how it was that we got here.

I understand that it was about 2013 when the management of electronic bail was given to Corrections. There were only about 400 people on electronic bail then, and now, obviously, it’s grown. I asked, actually, whether there had been a particular court case that gave rise to this, because if this is unnecessary legislation, I’d like to know that. The Minister has, I think, said something along the lines of—or at some point it’s been said that—the courts have raised concerns. I really want to know in what forum that happened. Was that a court decision? I’m aware that there is, quite appropriately, a liaison between the Minister and senior judges, and that may well have been where it was raised. It would be good to know that. I guess the other thing is that I think it would really be appropriate—if he’s not going to hand over the Crown Law advice, which would be really nice—to get a much more fulsome explanation of what the advice was. I’ve taken the time to sit down with the Bail Act and try to get my head around it. I’d really like to hear that.

In terms of the substantive question, or the wider policy question, I think there’s a danger that—let’s face it; let’s just get it right—Corrections have done something illegal, right? They’ve breached the law; they’ve been acting outside of the law. There’s a risk, in this piece of legislation, that we simply look at what they’ve been doing and say, “The problem is you’ve been acting illegally. The fix is to permit it retrospectively.” That’s a topsy-turvy kind of way to approach a problem. If the problem is—and I think I just heard the Minister say—the courts do not have the resources to address every variation of an electronic bail condition, the next question is: how much should be delegated? Not: give them what they’ve been doing. It might be more—I don’t know—but it might be less. I suspect that if you sat down and did a good policy process around this proposed amendment, you would draw a very clear line between the role of the courts in outlining and framing electronic bail and the role of the electronic monitor assessor.

It might be that the Minister is going to table an amendment—I’m sure he will; he usually does: he doesn’t usually get it right the first time around—to frame up exactly what the distinction is, but, at the moment, it looks like the court can, essentially, delegate 100 percent of its role to a crew in Corrections who manage bail. I’m not sure that that’s actually good.

Rima Nakhle didn’t give a long speech, but she said a couple of things, and one was the importance of protecting victims of crime. We want to make sure that these decisions that assessors make correctly weigh up the considerations, including looking after and protecting victims of crime. Are we just validating everything that’s gone on, or has there been independent thinking? I think there were three questions in there, and I hope you’ll have a crack at all three of them. Thank you.

A couple of things happened that led to this change. Firstly, there was an operational review by the Ministry of Justice conducted to simplify the language used in bail notices, and that work gave rise to questions as to whether the standard practice, which was Corrections approving defendants as being absent, was clearly enabled under the Bail Act. That was a ministry review.

Since late 2024, some judicial decisions have also raised questions as to whether this common practice was clearly enabled under the Bail Act, and in some cases, the courts imposed conditions that required the defendant to seek specific authorisation from the court for each absence, instead of using the practice in place since 2013 of defendants asking Corrections to approve absences. I’m not going to name the specific cases, because a Minister shouldn’t comment on matters before the courts, because there may be appeals.

Thank you, Madam Chair. Thank you to the Minister of Justice for those responses. Just following on from the previous speaker, the Hon Dr Duncan Webb, around this, I think it is important, in lieu of a select committee process and the fact that we’re doing all of this in one day in the House, that some of the framing around this bill is teased out. Again, like the previous speaker, we didn’t get a chance to talk to officials or get any sort of advice.

I think, from what I’m hearing, in terms of from the Minister, there was an operational review by the Ministry of Justice and they suggested simplifying the language and standardising the practice. Then the Minister mentioned some judicial reviews in 2024. I think my first question for him, from that, in terms of the judicial review—which does raise a concern—is: despite that, and despite the fact that there might be some recommendations from the judicial review, why does the Minister or the officials feel the need to do this under urgency, with the same level of speed that we’re doing now? I think, again, I’m just interested to hear, from the Minister’s response to the previous speaker, around exactly what the advice was that the Minister was given, potentially from the Crown report, on the need for urgency.

If this is something that we’re seeing simply as an operational review and for simplicity, etc., we could actually have had a select committee process, or taken the standard process as a result of that, considering that the practice is already in place. Was it going to create a legal conundrum as a result of judicial reviews for the court system, for the corrections system? Where is the issue that is currently there, for us to be doing this under urgency? Again, we are putting through a bill, as a legislature, that we have no context for, other than that it is the standard practice. Again from a legislature perspective, as lawmakers, that’s very disconcerting.

In terms of some of the other questions we’re looking at, on the broader context—and, again, just to provide, I guess, specific examples of what the previous speaker was also asking for—at this stage, what is the scope of Corrections’ ability to grant some of these absences under the current practice? For example, if we’re looking at something that is already in the existing legislation, without the amendments, it talks about, for example, specifying the purpose or purposes. Is this a case where the court will allow for an absence and give a broader, I guess, allowance, and then Corrections go and deal with some of the nuances, in terms of potentially changing it? I really want to focus on the idea of “purpose” or “purposes”, which implies that, whether it is the court system or whether it is the Corrections system, they’re currently able to provide those sorts of absences for multiple, I guess—maybe it’s in one single block of leave, but for multiple events, so to speak.

I guess, again, I’m just trying to get a sense in my head of the broader scope of what the current practice is within that, and what has Corrections been doing instead of the court. What has the court been doing, and does the court even match up with Corrections? That’s one of my questions. And, again, the first question I had for the Minister was: why do we need to have urgency if it is simply something that is part of a review, and who then would be at fault if it were not being done under urgency?

Thank you, Madam Chair. I’m a little alarmed at the idea that cases which are actually likely to be public cases wouldn’t be discussed in this context, because, as people have pointed out, we absolutely need to understand the practical implications of this situation. I have a couple of questions for the Minister of Justice. One is, with regard to the operational review, when did that first come to light? When was that question first asked? And when was he first aware that that was an issue?

But also my understanding is we’re talking about case law in late 2024, which isn’t very long ago. What I want to know is: at which court were those issues at play? For example, I would like to know, really, what the circumstances are in that situation. I’m actually going to be able to look up the case and I’d be pleased to do that. I want to know in which court has this arisen as an issue, because it gives me an understanding as to the degree of harm that might have been involved. I really want to know much more about the context for this change in discretion.

I also am keen to know what the wraparound is, in terms of auditing. What’s happening here? We’ve had an illegal act for a long time. Has anybody done an audit of it in terms of which situations this discretion has been used and what the context is in terms of who’s been given that bail for how long, for what purposes, and what the possible complication is there? If we are looking at a retrospective law, it’s really important we know that that is a reasonable request and a reasonable ask in terms of what we are doing here. I very much want to know what’s the case, what happened, what was the problem that was pointed out to the judge? Was it once? Was it more than one? I got the understanding from the Minister that he was actually talking about more than one case.

I’m also concerned there’s a pattern in our system of, when we’ve got a problem, simply appealing—simply burying the problem and appealing and appealing and appealing when we actually know there’s a problem. I want to know: was this a case which was appealed, despite that, because that bought some time and delayed it and perhaps there was a hope it would go away? Was it something that went from a lower court to an upper court? Forgive my ignorance on this particular case and whether it went forward, but I would really appreciate and value the enlightenment of the Minister who’s in the chair. Thank you.

Look, I was just going to give some more context. All participants in the criminal justice system have been acting in good faith and on a shared understanding that the courts could ask Corrections to approve absences for electronic monitoring defendants.

The system’s been in place since 2013. It has worked well for more than a decade and ensures timeliness for defendants and the courts, and it’s pragmatic. Corrections, Police, and prosecutors, in preparing materials for the court to consider when they issue an electronic monitoring bail order, have recommended that the Corrections’ electronic monitoring bail team approve the absences. Corrections have been ministering orders as they have been imposed by the courts. This has had the benefit of defendants having an accessible way to seek a necessary absence. It also ensures court time is not used for the day-to-day task of such things, and courts can focus on more substantive matters. That’s been the practice for 13 years.

As I’ve said, questions have arisen over the last few months as to whether the legislation actually sustains that. The question is: why are we doing this with urgency? We’re doing this with urgency because the proposed amendment is narrowly defined to allow a longstanding and efficient practice to continue and to validate electronic bail conditions that permitted parties, other than the courts, to approve absences. Quick action will minimise any negative impacts on the courts. I’ve already said that there’s been around 30,000 a month of these. And so, if we went through a normal 12-month process, there’s a lot of activity. It could minimise negative impacts on the courts, agencies, and/or public safety because another alternative would be a much broader set of exceptions, which would have an impact on public safety.

Thank you very much, Madam Chair. I just had a couple of questions for the Minister of Justice. I know there’s been some discussion about how we can’t talk about what’s before the courts, but it would just be really interesting to understand what brought this particular issue to the Minister’s attention, if we’re able to know. Was it a smart person in the Crown Law Office doing some extra hours work who just happened to stumble across it in a bill somewhere, or was it by something going a bit wrong that was picked up later on? It would just be interesting to know. We’re all voting for it, we’re all pretty much happy here, but you always do things better if you understand kind of where things weren’t picked up initially. Is there any information that the Minister might want to share or be able to share on what triggered the haste of this passage of legislation under urgency today, and how it kind of came to light?

We know that there’s been things in the past under both Governments—whether it’s stuff to do with holiday pay or Corrections is a common one that comes up—where there’s been an oversight in terms of what the legislation sets out to do and what is practically operating and what’s happening in the real world. It’s always wise in this committee that we are aware of those issues and how they’ve come about so that in the future we can try and turn our eye to all these details. Any information in that space that he’s able to shed light on would be good.

My question in relation to the bill is about that relationship now between the person who’s getting electronic monitoring on bail (EM bail) and their Corrections person they’re engaging with, their bail person, because what this bill kind of does is it devolves a range of responsibilities that typically sit with a court. They would be setting bail conditions about where someone would reside, who they can associate with, whether they can work, maybe they need to be supervised by somebody, maybe they need to not take drugs or alcohol. There’ll be a range of things in that space. It’s not clear—so maybe he could point me out to the part in the bill—as to exactly where that line sits between what the court sets up and what the corrections officer can have a bit of leeway over in terms of changing.

I guess the point I’m getting to is that a lot of that kind of comes down to the relationship that the person on EM bail will have with their corrections officer. If they’ve particularly got a great relationship and they talk and they get on great and there’s good compliance, does that mean that that person on EM bail gets a bit more leniency to be able to change conditions slightly, and change it here or there, or do something different to what the court might have initially intended, and is that all OK under this bill? Then the flip to that would be if they don’t have a great relationship, if they do not like each other and the corrections officer considers this person is continually not doing what they should, and the person on EM bail feels like the corrections officer is not giving them a fair crack, does that mean that they will have an overly punitive approach?

I guess what I’m looking for is a level of reassurance from the Minister that the devolution of this power away from courts into the corrections space is still going to deliver the kind of community safety outcomes and rights of people on bail that we feel are necessary. It is a bit concerning what has been happening in the meantime without that clearly stipulated in law, and maybe that goes back to my first point: were there some instances where this hasn’t been working quite so well, and is that what has called for this urgency motion today?

Thank you, Mr Chair. I think, while the Minister of Justice is waiting and getting some advice for those questions—because I think some of those questions are really, really important for us to answer—I want to go back to something the Minister mentioned before, in terms of the process. My understanding from what the Minister is saying is that, look, this is a practice that’s been happening for 13 years, it’s working—

💬 Hon Paul Goldsmith: 10.

10 years. It is working; there seems to be some sort of agreement. I think the issue, again, that we have here is: if that’s the basis for us to do that under urgency, there is a general concern that even when we’re looking at things like the regulatory systems bills, when we are looking at improvements on the current system, it still requires us to go through the entire process, including all of the readings and select committee. We may not always get the most number of submissions on a regulatory systems bill, but it is still an important part of our legislative process for us to have all of that.

I am concerned that the Minister says that if it is something that’s already working, is not broken, we will just introduce a bill and then get it all through. I guess, you know, that is something that if the Minister wouldn’t mind considering as part of future bills when we are looking at something like this.

The question I have is picking up on possibly the relationship point that the Hon Ginny Andersen mentioned before, but I think, here, one of the things that I want to specifically focus on is actually new section 30MB(2)(b)(i). We understand that the way that the bill is laid out is you get the court that can still specify that. You get the court enabling an electronic monitoring (EM) assessor to do some of that, which is what you see in 30MB(2)(c). Then you get this weird middle ground, like in 30MB(2)(b), where the court is able to specify some details of an authorisation, and the assessor will fill in the blanks and do some of the other ones, which in itself—possibly—is something that could work. My first question to the Minister on that is how does the communication work, again, between the court and the EM assessor when they are knowing what details to fill in, where one is missing some?

I think the more interesting part is when he does say it is not inconsistent, under new subsection (2)(b)(i), with the details specified by the court. I’m just trying to think of a hypothetical situation here. My understanding is the court can provide some details—for example, let’s say time or times of any day during which a defendant may be absent. And then the EM assessor is like, “I will provide some of the other details”—for example, the purpose and purposes—“but the time that the court mentioned is wrong and is inconsistent with what we know.” In those kinds of cases, then, does the EM assessor actually trump the information provided by the court? How is inconsistency in the detail resolved?

I guess my three questions, broadly: is this something, like the regulatory assistance bill, that the Minister considers does not need to go through a full process because it’s something that’s already working, in which case there are concerns; and would the Minister then also consider introducing other bills for systems that may be identified as already working, and let’s just put that all through under urgency? On the more specific questions, around 30MB(2)(b)(i), how does the communication go between the court and the EM assessors, when some will give some details and the EM assessor will give other details, and how are inconsistencies in those details resolved?

Just in terms of the timeline, Ministers were made aware of the issue in late 2024. We were formally briefed on 20 February this year, and agreed to drafting a Cabinet paper, which was completed before introducing this bill. We moved swiftly when the issue was raised.

In terms of the devolution of power to the Department of Corrections, the court still has to set purposes and it can set other parameters when it comes to absences. Defendants can also still go to the court to request an absence. I just wanted to make that point.

Thank you, Mr Chair. Just two things, really. Firstly, I’m really perplexed. If this was a select committee—and it’s the closest we’re going to get to a select committee—I’d ask for the clerk to provide advice. In terms of not referring to the decision, which would be really informative to have the words of a judge to know that a judge has worked through the Act and said, “Oh, here’s the problem and here’s how it works. Here’s the practice of it and here’s my reckons on it.”—a little more fancy than that, but a scholarly and thoughtful exposition of the problem. The Minister of Justice said, “Oh, I can’t refer to a judicial decision in the House.” I understand the principle of comity, but you can refer to a judicial decision in this House and people frequently do.

The relevant Standing Order is Standing Order 116, which is very clear—and I was trying to find the further Speakers’ rulings but I didn’t get a chance. It says that “(1) Matters awaiting or under adjudication in, or suppressed by an order of, any New Zealand court may not be referred to in any … debate, or question,” etc., etc. It may be that the Minister does want to take some advice on that, because if, from what I’m hearing, there is a concluded case where the matter is closed and the judge has reached a conclusion on the law, and the conclusion is, “You’ve been doing it wrong.”, it would just be helpful for the record. I mean you’ve obviously got it there at your fingertips, so please hand it over, metaphorically speaking. Just please do that.

The other thing is this—and you’ll see that although you haven’t got tabled amendments in, I have. One of them is actually one that really is important and it relates to the voting rights of people who are on electronic monitoring. Mr Meager referred to it before. It suggests an amendment to section 30L(1)(b), which actually lists things that you’re automatically allowed out for—you don’t need permission, you’re automatically allowed out—such as to attend scheduled court appearances, to seek urgent medical treatment. I propose that seeing as we’re looking at the very question of when you’re allowed out from your electronic monitoring, we should add to that “to vote in a general election or referendum by attendance at the nearest voting place”.

Now, you can say, “Oh, you can telephone vote or you can get a special vote.”, but the fact of the matter is that if you’re going to make voting accessible to people who are on electronic bail who aren’t convicted of an offence, then they should be allowed to walk to their nearest voting place and cast their vote. A lot of them don’t know about telephone voting, quite understandably, and I don’t know who’s on electronic bail. I only knew this was a problem because I knocked on a door of someone who was electronically monitored on election day and she said, “I’m not allowed to vote.” And I said, “Well, surely Corrections has helped you out.” She said, “No.” So I asked Corrections, “What assistance do you give to people on electronic monitoring?” And they said, “None.” These are people who have a vote—these are people who have a vote—and Corrections do nothing.

What we need is when you’re on electronic bail—have you heard of innocent until proven guilty? Have you heard of not depriving people of rights who’ve yet to be convicted of a crime? Well, I wonder sometimes with the attitude of that Government. Letting people vote in a general election is a fundamental right. Not putting this amendment in would be a fetter on one of our most precious and fundamental rights. It’s an easy fix. We’re here today. The Labour Party’s giving this bill a good going over, because that’s our job as Opposition, but fundamentally we’re cooperating with the Government on fixing this legislation. We’re here to make it better. This amendment would be another improvement to the legislation that falls within the very question of when a person on bail should be allowed to leave the monitored premises. It’s a good amendment and it’s something that’s an easy fix and should be done. I hope the Minister will give it proper, fair consideration, just like we’re considering his bill.

I want to thank the Hon Dr Duncan Webb for raising that issue. I have given it full and fair consideration, but it is a separate policy issue, because this bill is amending only section 30M—it doesn’t amend section 30L, which is a separate policy issue. To the point he himself has made, it is already possible to undertake a vote from home, but that is an issue that’s not been covered by this bill.

Thank you very much, Mr Chair. I just had a question in relation to new section 30MA in clause 5. In that section, the court must specify the authorisation’s purpose or purposes, and, in particular, the defendant is able to be absent from an address, so it does kind of relate to the point made by my learned colleague Duncan Webb. Under new section 30MA, the court has to “specify the purpose or purposes for which the defendant may be absent.”, and so I would like to understand, in practice, when this is going to be put into operational guidelines for Department of Corrections staff. What changes need to happen to make sure that those Corrections staff who are going to be operating under this change—do they need operational instructions to make sure that they are doing this correctly?

What would also be interesting to know from the Minister of Justice is whether they need any additional training in order to be able to make sure that this is carried out adequately. We’ve already understood that there will be an ability for corrections staff to have a bit more leeway in saying when this would occur or not, but surely this will need to be accompanied by some sort of an equivalent to what is in the police instructions manual, or the operational instructions that officers need to be clearly aware of so that they are following the letter of the law in this space, and given the fact that it does appear that they haven’t been doing this—hence the requirement for this legislation—is this an area where he is concerned that there may be some other areas where there’s not been a clear delineation in terms of what the court has determined around what’s happening with electronic bail monitoring and what corrections officers are, in fact, doing?

If we are in a situation where we’ve got an increasing population either on remand in prison or on electronically monitored bail—if that population is growing, it would seem to put a greater impetus on the requirement to get the operational instructions very clear for corrections officers. This is also in light of the fact that there’s been an increase in the number of our corrections officers. There’s been a recruitment campaign and additional pressures put on workers in that space, and always when there’s an intake of new officers, it must be essential for operational instructions, training, and guidelines in terms of how the day-to-day management of electronically monitored bail is actually going to play out in that space.

Under that new section 30MA, which is enabling them to, for example, be absent from the address that’s been specified—for areas like that, it would be really helpful to understand from the Minister whether there is a change to corrections officers’ operational instructions; secondly, is there a training programme designed to make sure that front-line staff are fully aware of all of the legal framework that they need to comply with; and, thirdly, what undertakings is the Minister able to provide so that the new intake—the additional corrections officers that have been brought on board recently—have also had the appropriate training and information to make sure that the legislation is complied with?

Thank you, Mr Chair. Thank you, Minister, for your response in terms of some of the clarifications around new section 30MA, particularly on the fact that courts do specify the purpose and purposes. I think that is very helpful, but I think the Minister of Justice hasn’t really responded to my question around what is the current process and procedure for when the court and the electronic monitoring (EM) assessor—the details that are provided are inconsistent. Who then prevails in those kind of circumstances? This is new section 30MB(2)(b)(i)—for the Minister’s ministerial support.

When it comes to that—and I think the other thing I want to mention while the Minister is potentially getting some advice on this from his advisers—the next part I want to sort of mention is around new section 30MC(c). Now, admittedly, part of this bill is pulling on the existing section 30M and sort of basically—like you see in clause 4—repackaged a little bit, including other things. In the existing Bail Act 2000, you do see some of the things being included like “the time or times of any day during which the defendant may be absent:”—this is new section 30MC(a). But some of the other things are included as well, such as the “place or places”, which is not in existing legislation.

Also what I’m more interested in and hoping to get some clarification advice from the Minister is new section 30MC(c), “any other requirements that the defendant must meet that the court, or an EM assessor, decides to specify under [section 30MB](1) or (2).” There are some examples of other requirements here, including authorised modes of transport from authorised places or routes. I just wanted to check if there are other examples for other requirements, because now we’re seeing some of the things that are very, very specific in terms of what would be deemed to be not so much “time or times” or even “place or places” or even “purpose or purposes”.

My sort of two primary questions are still: how does the EM assessor and the court resolve inconsistency? And the second question, which is new section 30MC(c), which is: what are some of these other requirements other than the examples that are given? Surely, by the very nature of the examples that are given, we are seeing that the court must have some sort of elucidation or advisers as well.

I think I want to just finish in terms of going back to what the Minister mentioned before, and this is one of the Hon Dr Duncan Webb’s tabled amendments and this is a tabled amendment on adding a new section 30L(1)(b)(vi) to the principal Act. I do actually think that this is something that the Greens will be supporting, but I also think that if this is something that the Minister considers that is not actually, for example, within the scope of this bill, we are looking at the Minister introducing something like this. One of the things that was concerning to me before, when the member who proposed this tabled amendment was speaking on this, was that we were hearing members from the Government parties laughing. I genuinely think that for someone to be granted the fundamental right and their civil and political rights under our international governance is actually no laughing matter.

What I’m hearing from the Minister before is that the Minister may consider this out of scope but did not rule out considering this particular amendment. I would very much encourage—and this is something that you will find that we will support—the Minister that if it’s not being introduced as part of this bill, that it is considered at a later date.

Just quickly, in relation to the first question about who prevails when there’s inconsistency, the court prevails.

I move, That debate on this question now close.

Thank you, Mr Chair. That was the most ridiculous contribution from Hamish Campbell I’ve heard. Here we are in urgency—in urgency—dealing with a bill about people’s liberty, and Mr Campbell would have us truncate it.

I think this is now the time to drill down a bit, and I’ve got two questions which are a little bit detailed. I’m sure the Government will scoff that we take an interest in whether the words used in the bill actually have the effect and make the bill workable, but the relationship between amended section 30M, inserted by clause 4, and new sections 30MA and 30MB, inserted by clause 5, is dictated by section 30M(3), which says, “An authorisation under this section”—which is a court authorisation to vary bail—“is subject to ‘sections 30MA to 30MC’.”

Now, what those latest sections do is not kind of ameliorate it, they wildly change it, so I think “subject to” is entirely the wrong thing to say, because it doesn’t limit the scope of section 30M—which is what “subject to” means: it means you can do all this except what it says there—the latest sections extend substantially the powers of electronic monitoring (EM) assessors. So “subject to” is just the wrong phrase. An authorisation under this is “further extended by”, it’s not “subject to” at all. In fact, it’s the opposite: it doesn’t limit it, it extends it. I’m actually worried that the linkage between those two sections—created by those two little words “subject to”—is deeply problematic.

The second thing is the interrelationship between the words of the Act and how it seems to work. It seems that there is a group of people in Corrections whose job it is to run the bail stuff, right? In the Act, they’re identified as these electronic monitoring officers. One of the questions we have is whether the court, when it is talking about a particular person’s bail, has to talk about a particular electronic monitoring assessor, because the definition of electronic monitoring assessor in the principal Act is “a person authorised under section 30E to act as an [electronic monitoring] assessor”. If we go to section 30E, it talks about the responsibility for management of electronically monitored bail. It says that the Commissioner of Police or the Department of Corrections can then nominate a person or persons for the management of electronically monitored bail.

The danger is this: that all of those words add up to saying, “When someone is given electronically monitored bail, they are given an electronically monitored bail assessor.”—a named person. As I understand it, that’s not what happens. In fact, they say, “The Department of Corrections will sort it out.”—the electronic bail team at the Department of Corrections will make all those decisions for you.

If you’re going to authorise a group of people—not an EM assessor, but electronic monitoring assessors generally, which is an identifiable closed group—then you better say it, because at the moment, you don’t have the authority. If you just sort of loosely point to the electronic monitoring team at Corrections and say, “You guys can sort out the details of the kiddie pick-up at kindy or travel to and from the tangi.”, then you’re in trouble because you haven’t identified an electronic monitoring assessor. That’s actually quite problematic. It’s a detail, but you’re going to find yourself back here very quickly, doing the same thing again, unless we get it right here.

I move, That debate on this question now close.

Thank you, Mr Chair. I am increasingly concerned that I just don’t have, as somebody who has picked up this Act, enough understanding of the actual context that we’re dealing with—[Cellphone rings]

💬 Tom Rutherford: Electronic monitoring!

💬 Hon Paul Goldsmith: Have you breached your conditions?

CHAIRPERSON (Teanau Tuiono): Call an assessor!

My friend was just talking about that problem—about understanding who is making these decisions. I take my friend the Hon Ginny Andersen’s point here—that she was talking about that close connection. It really is a very different thing giving a court, which is off at a distance—there is an element of impartiality about that system. That is what the legislature thought it was doing—it was giving that power to a judge who was once-removed, who had no skin in the game, and now we’re giving it to who? I simply don’t know. Are we giving it to a small cabal? Are we giving it to a group of people with some form of skill? Are they going to be close or removed from the person that they’re dealing with? I simply don’t know. I’m not sure if the Minister does know, but if the Minister of Justice does know, I think it’s really information I need.

I think that’s the kind of thing where, if we had the name of the case that was being dealt with, we might understand better, because then we’d be able to see it. Now, I just cannot, for the life of me, agree that this is not the kind of information that the Minister is able to share. It is absolutely able to be shared—that information—because that’s why we’re here, by the sounds of things. There’s been a series of cases where this has been problematic. Surely, we need to know, in those circumstances, was it a little cabal dealing with the bail in a way that was objected to and went to the court? I just don’t know. Was there a disastrous outcome as a result of something?

I absolutely take the point made by the Hon Ginny Andersen—that there is a significant difference here in the capacity to abuse a situation. Now, that doesn’t mean that I don’t have every faith in the Corrections department and those officers and look at them and think they’ll be acting in good faith, but it’s also the sort of thing I need context to understand. I need to know whether this is the appropriate change to the law or whether, in fact, there should be further checks and balances in this case—none of which I know.

Now, I appreciate I didn’t practise in this area of law, but neither did the New Zealand public that’s relying upon us to put through this law in a way that makes sense and is transparent. For those watching today, I’d ask whether you would expect that they would understand what is going on here. It’s our job, as the Opposition, to ask you these questions, but it’s also your job, Minister, to answer the questions when they are reasonable. There was a case, I presume—there may have been several. What is that case? I would like a further understanding of why the Minister won’t share those cases with this place, which has the obligation to make a decision like this, particularly when we are talking about retrospective legislation. It is not a frivolous matter. I would ask that. Thank you, Minister.

I agree wholeheartedly with the previous speaker, Helen White. It’s not a frivolous matter, and nobody would say that it is. What we’re essentially trying to do is enable people who are on electronically monitored bail—these are people that have committed a serious offence; well, they are being accused of a serious offence and are awaiting trial or sentencing for, in most cases, serious violent offending, and the courts have decided that public safety requires that they are not put in jail on remand but put on electronic monitoring (EM). What we’re trying to do is come up with an efficient system to deal with the very frequent—like, 30,000 times a month—instances where a decision needs to be made about whether they should go to this or that thing and be able to do it without breaching their conditions.

We had what everybody thought was an efficient system with decisions being made by EM assessors with Corrections, and the concern is that all those decisions, individually, will have to go back to the courts, which would gunge up the system. Now, we’ve talked about the cases, but the advice that I’ve had was that bail decisions had been made orally in list courts, so they didn’t provide the full reasoning of the court. There were three instances, and then there were two in Christchurch which are not finally concluded. That is, they’re under appeal, and that is why I do not want to be referring to them.

My question to the Minister of Justice relates to gaining a better understanding as to the nature of the retrospectivity here. Does this legislation retrospectively put into electronic bail conditions a discretion that allows, in the future, those electronic monitoring conditions to be varied in the way that is set out in this bill, including delegation from a judge to some other person—an EM assessor, I think is the term that’s used in the legislation?

I can understand, then, if that is the case, that that is the Minister’s desire not to have to go back to the court for all of the extant electronic bail conditions that have previously been imposed, which now perhaps need that clarity of condition going forward, or is an addition to that retrospectivity a retrospective validation of the decisions that have already been made without that power?

The bill will validate existing and historic conditions that authorised electronic monitoring on bail (EM bail) assessors to approve absence of defendants from their bail addresses. It will validate those existing and historic conditions that were imposed by the assessors. This will prevent the need for those conditions of approximately 2,000 current defendants on EM bail to have to go back to the courts to have to be remade once the bill passes into law.

Thank you, Mr Chair. I think this is probably a point that the Hon Dr Duncan Webb may also want to address, as well as the Hon David Parker, because I think the Minister of Justice has just given us some additional pieces of information that is very interesting in the context of this bill on why this bill has been introduced in the House under urgency, and that is to do with the potential concerns around those who are currently on bail having to go back to the court in terms of some of the conditions and also some of the issues that this bill is hoping to address.

Maybe others will have more specific questions, but my broader question is: if this is a genuine concern for both the Minister and also for the current judiciary system, particularly in light of the judicial review that the Minister mentioned before, what are some of the repercussions that we’ll see if this bill isn’t being done in the way that we’re doing it now, essentially? From my perspective, it sounds like there are genuine concerns around not so much the legality of it but, from a judicial-review perspective, the ability for people to challenge previous decisions. I think that might be a key thing to discuss here and the need for that retrospectivity. But, because, again, we haven’t had a chance to ask the officials about this specifically, I’m not seeing, I guess, the repercussion of that judicial review for those people who were granted absence as part of that bail. Now that they are all void, despite the fact that they were granted by Corrections, would that be a challenge that we’re looking at here? I’m not really sure what the Minister means in terms of taking it back to the court.

One of the traditional rules against which we judge the proprietary nature of retrospective legislation is whether it is conferring rights or taking rights away from people. Upon that basis, I’m interested in hearing from the Minister of Justice in response to the question that was put by Helen White as to whether the rights that a person currently or previously—prior to this legislation being passed—had to have their case for an exception being made to their electronic bail requirements to enable them, for example, to go to a funeral or some other event that might be deemed appropriate; whether there is any instance where rights are being taken away compared with the status quo?

My second question thereunder is whether there is any risk that a person on electronic monitoring now who will, effectively, have their electronic monitoring (EM) assessor assessing their requests for an exception to their electronic monitoring—whether it is possible that the EM assessor may apply their reasoning in a way that might have been more strict than a court would have done before the passage of this legislation?

Thank you, Mr Chair, and thank you. I haven’t asked a question yet because I’ve been listening with interest in so far as what the Minister of Justice’s responses were going to be. Because, as noted, this is under urgency, this stage of the process is our only real opportunity to uncover and to pick up potential problems that may not have been spotted before through the Minister’s own process or through the officials’ process. It is incumbent upon us to ask questions, be they big ones or little ones.

My question to the Minister stems from the fact that I don’t feel as if I’ve heard a sufficient answer to a question that was posed earlier about the procedural training aspects. I understand it’s operational, but it is important to this process because it potentially has an impact on the successful implementation, so to speak, post this process. I’ve just had a look at the job descriptions of the people that we’ve been talking about in this Chamber, the electronic monitoring (EM) assessors—and noting the fact that the Minister had previously said that there is something like 30,000 decisions a month about changes to those conditions or variations into the way things work, which is quite a lot. Obviously there’s a context to that, because I don’t know off the top of my head how many EM assessors there are, but it strikes me that therefore, when you look at the role itself, it could make up a reasonable proportion of someone’s professional work duties to undertake these decisions.

Therefore, can the Minister tell us a little bit more about what thinking has happened or what considerations have taken place to ensure that these changes don’t require, in line with my colleague the Hon Ginny Andersen’s previous question, not just a change in the way personnel at Corrections may operate their duties, but actually, possibly even, given the custom and practice and given its 12 years, some sort of change management process. And, if that is the case, then how would that impact on their ability to continue to do the thing that they’re already doing, but now with the legitimacy of that within their industrial relations sphere? I’m sure that that’s been thought about in terms of an operational frame, but if the Minister had any further information about that, that would be fantastic.

Just in terms of training, it’s been the practice for more than 10 years. Updated material will be provided to corrections staff as soon as the bill is passed, but my advice is there is not a need for updated training.

In terms of nobody’s taking any rights away to use the court system around this if people desire to, the point I’d make in terms of the current arrangement—the current arrangements are that there’s about 2,000 people—well, 1,859—on an electronic monitoring bail. The average absence requests approved each month have been 32,000 a month; the average declined has been 1,123. People can make a judgment about whether that is too lenient or not. That is a reasonable policy issue, but it’s not fundamentally being dealt with by this legislation.

What this legislation is attempting to do is to be clear in the law about the current practice that the courts are able to rely on electronically monitored assessors to make these decisions, rather than each individual one having to come back to the court. As everybody knows, the court system is under enormous pressure, has large backlogs, and a huge focus of this Government is to reduce those backlogs so that people can get on with their lives and have access to timely justice. If we don’t do this, and if we take 12 months to consider this through the normal select committee process and all that, then a lot of time and effort in the court system will be taken up dealing with these often very routine matters. That will make it more likely that people who just want to get on with their lives and get an outcome in the court process will have to continue to wait longer to do that. That’s not what we want to do.

Thank you, members. Before I take the next contribution, if I could ask members to really focus in on the scope of this particular part. Members have made very good contributions to date around the authorisation and the need for that authorisation. I acknowledge that, but the Minister of Justice has been systematically addressing each of those issues, so I’d like to hear new material.

It’s brand spanking, shiny new, Mr Chair—thank you for the call. I’ve got two points and I’ll try and squeeze them both in.

The first is that, when rights are affected by what’s, essentially, an executive decision, there’s almost always a right of review or appeal, right? You’ve got a corrections officer here, who’s part of the executive—and my first question to the Minister of Justice is a really easy one. If they make the wrong decision, what right of review or appeal do they have? If they say, “No, you can’t go over to your ex-partner’s house every Tuesday and spend time with your kids.”, because you’ve fallen out with the corrections officer and it’s a capricious decision, what right does the person have? It may be that what we need in this—because we’re authorising a delegation down to the pretty nitty-gritty level, we need to make sure there’s a right to go to the court if necessary and say, “I would like to see this reviewed.” I’ve read it; I’ve read the bill. I’ve had a good—or decent—read of the bill in the time available and I can’t see that.

Now, if you’re in prison and you are refused a particular right, you actually do have a right of review within the prison system. Where is it here? I think that’s actually really, really important because you’re affecting people’s liberties, and you should want to have their liberty determined by an application of the law. If it’s gotten wrong, particularly by a low-level corrections officer—I respect their work, but they’re not decision makers usually—what’s the right of appeal?

The second point, I think, goes to the very heart of this bill. It’s one of my tabled amendments there—they’re not numbered. It’s the one relating to new section 30MB—I don’t think you’ve got it in this bill—and I referred to this in my first reading speech: you are attempting to empower electronic monitoring (EM) assessors, but you never do it. I mean, if you’re going to confer a power, you need to have power-conferring words. All you sort of say loosely in section 30MB is that a court can enable. It doesn’t even say “delegate”; it uses really loose, untidy, and fuzzy language.

My new section—which, knowing you and your previous record, you’ll take it away, tidy it up a bit, and call it your own—is headed “Electronic monitoring assessor may be empowered to approve authorised absence”. Subsection (1): “An electronic monitoring assessor is empowered to approve an authorised absence. This power is subject to subsection (2).” Subsection (2): “An electronic monitoring assessor may approve an authorised absence only to the extent that he or she is enabled to do so by the court under section 30MB(1)(b).” It’s doing what you need to do—you need to use those words in a piece of legislation. You can’t sort of loosely wave to the intention to give someone this very significant power to either expand or limit the liberties of a person on electronic bail. You actually need to use words that say, “We are creating this power, and the power has this extent, and it’s limited this way.”

If you are not going to either adopt my tabled amendment or put one up of your own that looks a bit like it, please explain to me how the words “the court must … enable an EM assessor to approve, in their discretion, the defendant to be absent from the EM address”—how does that actually confer a power? The court can do that if the power exists, but you haven’t actually done what a section needs to do. It should say, “Here’s this officer recognised by the law, and here’s the power we want to confer, and that’s what we’re doing.” That’s what my tabled amendment does. Honestly, if we don’t get this right, if we find out that we still haven’t properly fixed this—and this is the problem with haste: we haven’t properly fixed this—we’re going to find ourselves back here when some judge who’s cleverer than you and I points out that there’s a hole in this legislation. I’d really appreciate it if you would explain how the power that you’re giving to these officers, these assessors, is actually conferred. This is a central part of this bill, and I don’t think it works.

Thank you, Mr Chair. I think we are now getting to the crux of this particular bill, which is whether the restriction that is being granted by Corrections is more strict than the restriction that would be granted by the court, as some of the previous speakers have been asking.

I want to refer to—now finally uploaded with the correct link—the consistency report with the New Zealand Bill of Rights Act. To be fair, I am a little bit disappointed that section 26 of the New Zealand Bill of Rights Act was not touched on in the report. I want to refer the Minister of Justice to paragraph 6, which states, “If the Act is amended as proposed, it is likely to improve the speed and suitability of authorisations.”—which is fine—but “If Judges are required to set the conditions for absence … they may find it necessary to make a more generous allowance than is required.” Although it does not specify that it is required, the point here is that the New Zealand Bill of Rights Act report seems to indicate that, if this was taken by the court, the decision would be more generous—in terms of what is allowed under 30M and 30MC, around maybe, potentially, “time or times” or “place or places”—than it is in the hands of Corrections.

Can I just check with the Minister: is that, then, a restriction on what legally is allowed right now, putting aside what the current process is? Under the current legal requirement, is the restriction in accordance with section 18 of the New Zealand Bill of Rights Act on freedom of movement if the court may give a more generous response? That’s my first question.

I want to pick up on something the Minister mentioned before, which is around new section 30MC(2)(b)(i), that any inconsistency we’re looking at is determined by—the ultimate decision maker if there is an inconsistency would be—the court. One of the things the Minister mentioned is to avoid potential future instances of judicial review, etc., but I wanted to check with the Minister whether the inconsistency can be trumped by the court. Would that actually avoid the situation that the Minister is referring to right now, in terms of judicial review, whereas, for example, someone says, “We actually don’t agree with what Corrections has been saying. We are going to apply for judicial review, because we think that it would be inconsistent with a court ruling”, and the Minister has just said that the court is still, basically, the power holder of some of those inconsistencies and that what they say goes. Would that actually negate the concerns that the Minister has right now, in terms of that judicial review level?

Those are my two questions: (1) if we can get clarification: in the current law setting, would a more generous allowance be given for absence; and (2) in the sense of inconsistency, would it actually mitigate the issues we have with judicial review? Thank you.

I move, That debate on this question now close.

Thank you, Mr Chairman. One of the difficulties that we have with legislation passed under urgency is that we are rushing to catch up, in the Opposition, with the actual drafting of the legislation and so the questions occur to us as we are in the debate; this is another one of those.

I asked the Minister of Justice as to whether he’s confident that the language in new section 30MB(1)(b) works in combination with new section 30MB(2). I’m just worried that it might be a little bit circular in that the discretion that’s given to the court is that the “Court must specify”—in the heading—“all details of authorisation or enable EM assessor to approve authorised absence.” And then subsection (1) says, “the court must—(a) specify all details of an authorisation; or (b) enable an EM assessor to approve, in their discretion, the defendant to be absent from the EM address in line with an authorisation’s—(i) specified purpose or purposes; and (ii) details specified under subsection (2).”

Then it gets a bit confusing because subsection (2) has three options that are set out at (a), (b), and (c). The first is “to specify all details of an authorisation.”, (b) is “specify some details of an authorisation”, and then the assessor can do things that are not inconsistent with the details that are specified, and, then, (c) says to enable the assessor to set out all of the details. Now, if the assessor is, under (c), specifying all of the details, how can the language be right in (1)(b), which says that the assessor is authorising, “in their discretion, the defendant to be absent from the EM address in line with the authorisation’s— … (ii) details specified under subsection (2).” Maybe that does work. I’m just trying to get my head around as to whether there’s more than one meaning of the details being specified. I mention that as a note of caution about rushing through these things without the benefit of select committee scrutiny.

My second question relates to the fact that the Minister quite rightly says that we don’t want to clog up the courts with administrivia, to be honest, and repetitive statements of conditions. I suspect that if we looked at the thousands of people that are on electronic monitoring, there will be a standard set of conditions that normally apply as to the exceptions that are always approved. If that is the case, why doesn’t this legislation save everyone a lot of time by setting out that list of the standard conditions and then say to the court, “Well, the court can just adopt the standard conditions, or it could vary the standard conditions, but it doesn’t have to restate them all the time.”, because nine out of 10 times—or I suspect even more than that; it’s probably 95 out of 100 times—the standard conditions are applied by the court. But, each time, they have to be stated. This repetition seems to me to be undesirable. Was any consideration given to drafting some standard conditions which would enable the court to do this a lot more efficiently, whilst retaining the ability of the court to override those in a special case?

The question was raised around the ability to appeal the decisions that were made, and the advice is that the defendant could bring a judicial review or can simply go to the court to request an absence if they’re not happy. Complaints are—my advice is—relatively rare, in terms of the decisions that are made around that. In terms of the drafting of the words and whether it is strong enough, the bill permits the court to enable Corrections to approve absences, and the drafting—you know, all the advice I have is that it is sufficient for the task, which is to clarify what everybody understood to be the correct practice for last 10 years.

Members, the time has come for me to leave the Chair. The committee will resume at 7.30 p.m.

Sitting suspended from 5.58 p.m. to 7.30 p.m.

Right, good evening. The House is in committee on the Bail (Electronic Monitoring) Amendment Bill. We are on Part 1.

Thank you, Mr Chair. I’ve had a very fruitful dinner break. I’m sure the Clerks will assist soon, but I’ve tabled an amendment to assist the Minister of Justice and his hearty advisers, because this is an administrative action.

I took the time to go and look at the Legislation Design and Advisory Committee guidelines on administrative action and, essentially, what they say around rights of appeal and review, which are the same. They do say “that legislation should provide a right of appeal if the rights or interests of a particular person are affected by an administrative decision.” And this is bang on, right? The officers here—the electronic monitoring assessors—make very significant decisions about the rights of people on electronic bail. The guidelines there—I’m sure the Minister knows them well—run through what you need to consider. It does then go on to say, “The value of an appeal must be balanced in the particular circumstances against a consideration of the … costs, implications of delay, significance of the subject matter, competence and expertise of the decision-maker”—which here is quite low, by the way, by overall standards—“and the need for finality.”

Now, can I just say that I have looked at this, and in fact this decision would be—a decision of the assessor would be, at least technically, appealable under section 42(3) of the Bail Act, because it’s a decision about bail. In fact, section 42(3) deals with decisions about bail conditions. In fact, we don’t want appeals, because they’ll clog up the court, Minister—this is your whole big point. What my proposed new section 30MB(3) and (4) says is that in the event that the defendant is dissatisfied with the decision of an electronic monitoring assessor, he or she has the right to seek a review of that decision by a person authorised by the chief executive of Corrections or the Minister of Police to conduct such a review. The review should consider the merits of the decision in fact of law, as well as the procedure used to reach that decision. It’s a full review. It’s not just “Did he get a fair hearing?”; it’s “Was the right decision made?”

The next one’s quite important, because it says there is no right of appeal to a decision under subsection (3), under section 42(3) of this Act. The full-fledged right of appeal to the court that made the overall bail decision is actually clearly cut off, because you’ve got an internal review. It’s, essentially, right-sizing the review to the shape and size of the decision. If you don’t do this, there’s two things that happen. Either you have an actual right of appeal to the courts or a judicial review, or you have nothing. Neither of those is quite right. In terms of the decision-making power set out in—it’s, essentially, an authorisation set out in new section 30MB inserted by clause 5. We do need some sort of ability to revisit that decision, because just making the same application again and again isn’t actually going to do that. I’d be very interested in that.

The other thing I’d say, before I conclude this contribution, is urgency: you know, it is a little bit problematic. This is a bill that just on—I’ve only really started looking at it as it’s been tabled, and throughout today started digging into it. It would really benefit from a select committee examination and a tidy up. I’m sure Professor Dean Knight would agree with me, because he said so on LinkedIn—and he’s looking at this very bill now. He’s actually watching, or at least interested in, these proceedings. There’s a really good argument that once this bill is passed, it should immediately be referred to select committee, because there’s a lot of mechanics in it, there’s a lot of moving parts, and whilst the objective is simple, the operation of it is quite difficult.

So, Minister, two things: will you look at that right of review, that tabled amendment? And, secondly, will you refer this bill to select committee for post - legislative scrutiny so that we can make sure we haven’t made any mistakes or errors? Mr Chair?

CHAIRPERSON (Greg O’Connor): Dr Duncan Webb.

Thank you, Mr Chair. I’m sure my friends on the other side have some thoughtful and deep contributions to make.

The other point I’d like to raise is the fact that we need an immunity in this situation, because to date—and I touched on this briefly on a kind of policy basis, but I’m now referring to my tabled amendment, which proposes a new section 30ME to the principal Act, which details immunity from prosecution, because the people who have been going about their life whilst on bail and leaving their homes have been in breach of their bail. Bail breaches are a criminal offence under the Bail Act.

The new section 30ME, “Immunity from prosecution”, would actually address the issue. It would do it by saying that “where a person has acted in a way which was in breach of bail conditions because they reasonably believed that they were entitled to do so by virtue of an apparent authorisation by”, and then it lists them: an employee of the Department of Corrections; a constable; an employee of Police; or, and this is the weird one, a person who had been delegated to provide that authorisation by one of the above—that covers your social workers. Then “that person is immune from prosecution”—but it’s more than that—“and is deemed to have acted in accordance with the relevant bail conditions”. That “deemed to have acted” is important, because even though you’re not prosecuted, you still have committed a crime, right? You need to have the law say, “No, we’re going to have a deeming provision which says your conduct is deemed to be legal. No one can say that you broke the law.”

Now, the flip side of that is civil liability, because there’s a whole lot of people out there whose boss said to them, “You’ve got the ability to authorise these, essentially, leave applications”—applications to leave the electronically monitored premises—and they did it. They’re actually conceivably liable for any losses. If someone got prosecuted or even just got outed for being a law-breaker, when in fact they weren’t—or they shouldn’t have been, because they thought they were entitled to do it—then you’ve got a problem. My proposed new section 30ME provides immunity from civil suit “where a person is purported to vary bail conditions notwithstanding the fact that they did not have the legal authority to do so. They’re immune from civil liability, provided that they are one of these”—and then I go through those naming provisions again, and then I say, “and their actions were reasonable and within the authority that they’ve purportedly been given.”

This isn’t like just a usual agency provision; this is the delegation of a legal authority. There are people out there who’ve acted in good faith and honestly, but they’re actually now in real strife. We need to give them the protection that they deserve. Now, I think the Act, in some ham-fisted kind of way, does that, but this is what you get in urgency. There’s no clear speaking here, and the Minister hasn’t really referred to a lot of the material points, the flaws in the Act, that I’ve pointed out. It would be really appreciated if he could—you know, those two or three things. Appeals is a big one, post - legislative scrutiny, and the deemed not to have breached bail and civil immunity would be really useful.

In relation to the requirement for a review, the defendant can return to the court to obtain authorisation for their absence if they don’t like the decision of the authorised assessor. And if they go to the court and obtain an authorisation and they don’t like that, then they’ve got the right of repeal, and we think that is sufficient.

I move, That debate on this question now close.

Thank you, Mr Chair. Just picking up the points made by my colleague the Hon Dr Duncan Webb, in relation to people who may have unwittingly broken the law and have not known that they have broken the law. My question to the Minister of Justice is: what steps has he taken to communicate to those people directly that they did not break the law, so that there is an element of certainty? In doing this, I raise the principle of certainty, which is so very important in our legal system, jurisprudentially, not just for the so-called good, upstanding citizens but, actually, for all who fall under the rule of law.

It’s really important that those who have been caught in this conundrum, in this confusion—which could be seen as an operational confusion, and yet they have unwittingly broken the law—do need to have some certainty around what they can and can’t do. My question to the Minister is: what communication has happened to those particular people? How will they be able to know, in future, whether they can take the guidance from the said people that were referred to in the amendment by Dr Duncan Webb—certainly, I think it was the one before new section 30ME—and has there been any advice given by officials or by the operational staff, actually, as to what the impact has been amongst prisoners who have unwittingly been able to have some freedom, thinking they were following the letter of the law, found themselves to be in breach, now there’s going to be a retrospective change.

What impact is there on the ability for the system to be able to get those people to act with certainty? It just really feels like scrambled eggs; it feels like that to us. It’s retrospective, which is never a good principle, and the principle of certainty means that all people under the law need to be able to rely on that certainty. We know that those who would have been subject to this are amongst the most marginalised, and usually those who have the least amount of communication about what is going on.

I’d really like to know if the Minister has turned his advice to that, whether the officials have turned their minds to that, and whether, operationally, anything has been done: not to protect the rights of those people but actually to protect the rights of the public at large; to know that there is still a form of a social and legal contract with those who otherwise might think—there is a saying, Mr Chair: “The law is an ass”, and in order to be able to have stability in the legal system, we need all citizens to be able to be part of that social contract.

I move, That debate on this question now close.

The question is that the Hon Dr Duncan Webb’s tabled amendment to amend section 30L is ruled out of order as being outside the scope of the bill.

The question is that the Hon Dr Duncan Webb’s tabled amendment to insert subsection (3) in new section 30MB to clarify “Electronic Monitoring Assessor” be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to insert subsection (3) in new section 30MB to require the electronic monitoring assessor to provide details to the defendant be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to insert subsections (3) and (4) in new section 30MB be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to insert new section 30MD be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to insert new section 30ME empowering the electronic monitoring assessor to approve authorised absence be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to insert new section 30ME in relation to immunity from prosecution be agreed to.

The Hon Dr Duncan Webb’s tabled amendment to insert new section 30ME in relation to immunity from civil suit is ruled out of order as being the same in substance as a previous amendment.

Part 1 agreed to.

Part 2 Other Amendments