Sentencing (Reform) Amendment Bill

Members, we now come to our final debate, clauses 1 and 2. This is the debate on clauses 1 and 2, “Title” and “Commencement”.

Thank you, Mr Chair. I wanted to talk, first, about the title. Of course, the idea of the title is that it captures and gives good indication of the content of the bill. There’s one word in there that really shouldn’t be in there, and that’s “Reform”, because what a reform does is it changes things for the better, and, Minister, you have changed things for the worse. I’m not sure what the opposite of “Reform” is. Perhaps “Retrograde” or some such word would be appropriate, but this, certainly, is not a reform bill. We have not reformed sentencing law. What we have done here is we have, essentially, made it substantially worse by reducing—the centrepiece of this bill, across all of its provisions, is to reduce the discretion of the court to impose a sentence which is fair to both the victims and to offenders and answers to the community’s demands in terms of its reprobation, its signalling of the unacceptability of the conduct in question. That’s why I’ve suggested that we should, as in my amendment, just call it the “Increased Sentences Amendment Bill”, because that’s all it is.

💬 Rima Nakhle: Reformity for victims. Reformity for people in South Auckland.

It’s just “What should we do about crime and justice? Increase sentences.” We can hear people harping away, saying that’s a good thing, but the fact of the matter is that all of the work done, so-called work done, in law and order is having no effect. Violent offending is up, and the gangs are doing a thriving trade in meth. And this kind of thing is having no effect. It’s taking us backward. It’s a retrograde, not a reform, bill, and we should call it what it is: the “Increased Sentences for No Particular Purpose Whatsoever Bill”.

As we come to the concluding stages of this bill, it surprises me that you’ve got a bill that you’ve had the audacity to call a reform bill when all of the advice that you’ve got from your officials is “Don’t do it”. The Chief Science Advisor has said it doesn’t work; it doesn’t reduce crime and, in fact, has the opposite effect, because if you’re going to impose penalties which are excessive—and by your own pen, you’ve agreed that, because you’ve only said that there’s an out if it’s manifestly excessive; you’re quite happy with excessive penalties. If I recall rightly, in this Chamber, you actually said words to the effect of, when asked at question time, “That’s the point.”

And so here we are. We’ve got a “Minister of Injustice”, a Minister who is, in fact, intentionally imposing sentences which he knows are excessive. So call it what it is; it’s a rubbish bill. Call it a “Sentencing (Increased Sentences) Amendment Bill”, but don’t call it a reform bill, because it’s not reforming anything. It’s taking New Zealand backwards. The short-term and long-term effect will be more people in our prisons, which is a Petri dish for crime and criminal behaviour and gang membership. Maybe you should call it the “Sentencing (Helping Gangs Recruit New Members) Bill”, because that’s effectively what you’re doing. We will pay the price for this for many years to come. It’s ridiculous to call it the Sentencing (Reform) Amendment Bill because it’s not; it’s doing the opposite. It’s taking us back decades.

When we look back, decades into the future, at the harm that this will be doing through tying the hands of judges so that they can’t do the best for New Zealand in the long term, using the skills and expertise that they have, it’s a sad day for New Zealand law.

Thank you, Mr Chair. I want to start by going to clause 2, “Commencement”, which says, “This Act comes into force 3 months after Royal assent.” I want to check first with the Minister of Justice whether the Minister would consider my amendment that would change “3 months” to “6 months”, which is in line with other bills that we introduce of a similar nature—for example, the review of the three-strikes legislation. The rationale for that is mainly the fact that in Schedule 1—very similar to when we discussed the three-strikes legislation—in subclause (1), what we’re seeing here is a retrospective penalty, and, in this case, it is a retrospective penalty for young people, because, in fact, what you are telling them is that if they have a previous criminal conviction, it means that that would stand and the youth mitigating factor would not apply.

That is a retrospective penalty, and there has been no part of the discussion that we’ve had in this committee stage that has given us any reassurance that either the court or the Minister has had any advice on how they’re going to be able to reach out within the three-month period to those young people who will be told “By the way, if you offend again, you are not going to be entitled to the youth mitigating factor.” That is not being made very clear, so I think that if we are looking at moving it from “3 months” to “6 months”, then it might actually, possibly, give the system just a little bit of extra time for them to contact those people, or even find out who they are, as opposed to saying, when they offend again, “By the way, sorry, you’re no longer eligible.” I think that is a very cruel way of dealing with and a very cruel way of looking at the young people who do offend in our criminal justice system.

But going on to the title of this bill, I wholeheartedly agree with the previous speaker the Hon Dr Duncan Webb in his analysis that this is not a reform. There are many other words that start with the prefix “re” that we should be using. I think that “retrograde” is a good one. “Retrospective” is another good one. “Repugnant”, possibly—because this is what this bill does. This bill, against all the advice from the officials, is not going to actually help reduce our crime.

It is fearmongering and virtue signalling—and, by the way, I would like the Minister to consider that particular amendment to the title. It is a virtue-signalling and fearmongering tactic, and it does not work. We have seen that it does not work. Globally speaking, from an OECD perspective, we, in Aotearoa, have one of the highest incarceration rates in the OECD countries. We have seen punishment and further punishment in the US criminal justice system, but that has not brought down their crime rate.

This particular bill, in terms of the title, is fundamentally against the intention and purpose of this bill. Just on a serious note, I would agree that maybe the Minister should consider something that actually speaks more to the bill itself, which is on one of my amendments, which is the “Sentencing (Discount Path and Other Matters) Amendment Bill”, because, essentially, this is not about a reform. What we’re saying is we are putting in a cap of 40 percent as part of the mitigating factor of discount when we’re looking at sentencing. That was the crux of this bill, and, again, that also goes against all of the advice that we received as part of the select committee process, that goes against the advice that we have heard here in the committee of the whole House, and that goes against the advice of the submitters that we have seen, whether they were lawyers, whether they were from the Law Society, or whether they were from Community Law. So I think—[Interruption]

💬 Hon Dr Duncan Webb: Point of order, Mr Chairperson. The member across is walking around and yelling, and it’s well out of the Standing Orders to leave your seat and heckle.

💬 Rima Nakhle: That’s right—sorry, my apologies.

CHAIRPERSON (Teanau Tuiono): Yeah, if the member could be seated, that would be appreciated. Please continue, Dr Lawrence Xu-Nan.

Thank you, Mr Chair. So, for me, I would like to see if the Minister would consider making an amendment to the commencement date from “3 months” to “6 months” to give more time to actually let young people know that there is going to be a retrospective penalty coming their way. I would ask if the Minister would also consider, on a more serious note, I guess, my amendment to the title that is more true to what the bill is about—if that is something that the Minister would consider.

Just briefly in response to the member Lawrence Xu-Nan’s question about if I considered changing the commencement from three months to six months: yes, I have considered it, and I’m not going to do it.

In response to the changes of the names, I think they’re all just cheap, political shots and I won’t be responding.

Thank you very much, Mr Chair. I’d just like to speak in support of the amendment that is being discussed presently, put forward by Lawrence Xu-Nan in terms of extending that commencement date from three to six months, and specifically in relation to the additional training of the judiciary for such a substantive change to the way that our sentencing will occur. I note that the Minister of Justice has just responded by stating he did give consideration to extending the commencement date of this particular piece of legislation but he did not furnish it with any further information as to what he weighed up and how he arrived at his decision not to extend that period. For such a substantive change in terms of how judges will now be operating, once this legislation comes into action, there would need to be significant changes in the way that judges are trained in terms of enabling them sufficient time to be able to provide the warnings, to be able to notify those in front of them.

I would like to understand from the Minister exactly how he’s arrived at not extending this to a significant period, given the extensive change this will make to how judges now operate and how it curtails judicial discretion. There will no doubt be instances coming if this is just steamrollered through and put forward in a three-month period. I think it is incumbent upon the Minister to explain what due process has been undertaken through the Ministry of Justice and also through working closely with the judiciary, to understand if they are fully on board with the changes that have been pushed through with this legislation.

From my understanding and experience, both from working within the Ministry of Justice and also being a Minister, changes like this require a significant change programme in order to have the reassurance that legislation will be able to be rolled out and enforced in a way that makes sure that that it’s working properly, as intended by this House when passing legislation.

We know that in the regulatory impact statement there have been significant concerns raised by officials right through this process, including the select committee process, that it actually impedes judicial discretion and stops judges doing the very job that they are put in there to do. So I think there needs to be some considerable consideration about whether this can be effectively implemented in just a three-month period. There seems to be a recurring theme with this Government that we have officials fronting up at the Justice Committee saying that longer is required to effectively implement legislation and make sure it has the intended consequences.

So there are some quite big concerns at the rate of things being done, simply as a tick-box exercise to demonstrate that this Government has done what it said it would without actually really looking at the detail of how it will be implemented in practice. So I think it is incumbent upon the Minister to give this committee a level of reassurance that there has been a work programme developed, that there has been a level of engagement with the judiciary, and that there is an ongoing understanding of how this legislation will in fact operate in courtrooms once it becomes law.

Stakeholders quite clearly advised the Justice Committee that the limitations on judicial discretion would potentially have unintended consequences. I think it is important that the Minister at least demonstrates to this committee that he is aware of what the potential unintended consequences are of this bill and how he has taken those into consideration when engaging with the judiciary, and whether or not he is fully confident that a three-month implementation period is sufficient to make sure that this bill will actually do what he hopes it will.

I move, That debate on this question now close.

The question is that Dr Tracey McLellan’s tabled amendment to clause 1 be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 1, replacing “Sentencing (Reform) Act” with “Sentencing (Discount Cap and Other Matters) Amendment Act”, be agreed to.

Dr Lawrence Xu-Nan’s tabled amendment to clause 1, replacing “Sentencing (Reform) Amendment Act” with “Sentencing (Fearmongering and Virtue Signalling) Amendment Act”, is out of order as not being an objective description of the bill.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 2, replacing “3” with “6”, be agreed to.

Madam Speaker, the committee has further considered the Sentencing (Reform) Amendment Bill and reports it with amendment. I move, That the report be adopted.

Motion agreed to.

Report adopted.

The bill is set down for third reading immediately.

Third Reading