Sentencing (Reinstating Three Strikes) Amendment Bill

I present a legislative statement on the Sentencing (Reinstating Three Strikes) Amendment Bill.

ASSISTANT SPEAKER (Greg O’Connor): That legislative statement is published under the authority of the House and can be found on the Parliament website.

Hon NICOLE McKEE: I move, That the Sentencing (Reinstating Three Strikes) Amendment Bill be now read a second time.

This bill gives effect to the Government’s coalition and manifesto commitments to bring back the three-strikes sentencing law as a key priority in our work to restore law and order. Reinstating the three-strikes law sends a clear message to offenders that there will be significant consequences for serious repeat offending and that we denounce their actions. It recognises the harm to victims and communities that result from violent crime and makes it clear that this will not be tolerated. I also note that keeping these repeat offenders off the streets will contribute to this Government’s commitment to 20,000 fewer victims of violent crime by 2029.

In broad terms, the bill will reinstate a three-stage sentencing regime with the offender facing increasingly tougher penalties at each stage. It will have the same overall structure and essential features as the previous regime. In general, offenders will be warned of the consequences of reoffending at their first strike and will not be eligible for parole at their second strike. For a third strike, offenders will have to serve their maximum penalty for the offence without parole.

The bill has now been reported back to the House from the Justice Committee, and I would like to thank the Justice Committee for its careful consideration of the bill, and the submitters who shared their views with the committee. In response to public feedback during the select committee process, Cabinet agreed to propose two changes to the bill for the Justice Committee’s consideration. I welcome the committee recommending that these significant changes be made to the bill. I note that although these changes involve substantial drafting, they deal with clear situations.

The first significant change lowers the qualifying sentencing threshold to above 12 months’ imprisonment at stage-1. Lowering the qualifying sentence threshold at stage-1 addresses public feedback to make sure the regime properly targets serious offending so serious violent and sexual offenders face appropriate consequences. While this lower threshold means more offenders will receive first warnings, there will continue to be the higher threshold of above 24 months’ imprisonment at stage-2 and stage-3 that must be met to trigger the regime’s mandatory sentencing consequences. The Government considers this approach addresses public feedback and strikes an appropriate balance by ensuring the regime continues to be workable in practice and does not capture low-level offending.

The bill also contains additional technical and procedural changes relating to these amendments. These other changes mainly address when an offender has a conviction overturned or receives a new sentence above or below the qualifying sentence threshold after an appeal. For example, depending on their exact situation, an offender could either be given or lose a warning. These changes also address when an offender with a first warning reoffends and meets the threshold of above 12 months’ imprisonment for a first warning but not the higher threshold of above 24 months’ imprisonment that triggers mandatory sentencing consequences. In this situation, an offender will be given an additional first warning to reinforce the mandatory consequences they could face if they reoffend.

The second significant change to the bill involves reactivating warnings issued under the previous regime. This change addresses public feedback about making sure previously warned offenders face further consequences if they reoffend. The Government considers this change is appropriate to make sure offenders’ warnings still count and are included where appropriate in the new regime’s consequences. However, the bill provides that previous warnings will be reactivated only when they meet the qualifying sentence threshold.

I consider that this supports a consistent approach in how the new regime treats serious offending, even where that offending occurred during the previous regime. The Justice Committee also recommended further amendments to the bill to give effect to this change. These amendments set out how previous warnings will generally be treated under the new regime. For example, an offender’s previous first warning will be a first warning under the new regime if their sentence is above 12 months’ imprisonment. The bill also provides for exceptions to this general approach. For example, an offender’s previous final warning could instead become a first warning under the new regime. This could occur when an offender’s previous first warning does not meet the qualifying sentence threshold.

Additionally, the bill confirms that reactivated warnings are valid and not affected by how an offender was originally warned. The bill’s existing appeal provisions also apply to any appeal against a reactivated warning. For clarity, I note the bill’s mandatory penalties will continue only to apply to sentencing for offences committed after the new regime comes into force. Any offences committed between the previous regime ending and the new regime beginning will not be captured by the new regime.

In addition to the significant changes I’ve outlined, the bill has also been amended to reflect other recommendations by the Justice Committee, and I wish to briefly highlight three such amendments. Firstly, the guidance for the judiciary about applying the manifest injustice test has been clarified. In particular, the bill now expressly states that a court remains able to consider the mitigating factors in the Sentencing Act when assessing whether manifest injustice applies. Secondly, a person loses a warning when, in accordance with the bill’s stipulations, they are granted a pardon for an offence they got warned for. Removing a person’s warning is appropriate where a miscarriage of justice has occurred.

Lastly, the bill also clarifies how the new regime interacts with post-conviction orders granted under the Criminal Procedure (Mentally Impaired Persons) Act 2003. A court cannot issue any order that would replace an offender’s sentence of imprisonment when the offender is facing the regime’s mandatory consequences at either stage-2 or stage-3. In regard to commencement, there is a six-month implementation period before the regime commences to make necessary operational changes.

ACT campaigned to reinstate the three-strikes regime, and this forms part of our coalition agreement, supporting this Government’s commitment to restore law and order and to keep our communities safe. The bill, as reported back, ensures there are tougher consequences for serious repeat violent and sexual offending. I believe this supports the public having confidence in the new regime and enables law-abiding New Zealanders to feel safer. I commend this bill to the House.

The question is that the motion be agreed to.

Thank you, Mr Speaker. When this bill was introduced, we considered it to be probably one of the most poor, unfounded pieces of legislation imaginable, and then Minister Nicole McKee managed to outdo herself by putting in an Amendment Paper requiring the Justice Committee to incorporate amendments that made it even worse.

I could not believe it when I heard her on Radio New Zealand saying that she had had a flood of emails into her office asking her to change it to make it so that it included previous strikes, so I asked her. I used the Official Information Act and said, “Show me those emails—that flood of emails you referred to on Radio New Zealand. Where are they?” She sent me some emails to her office which were obviously prompted by an email to her supporter base, and do you know how many emails were actually addressed to her? Three.

Hon Member: Three?

Hon Dr DUNCAN WEBB: There were three. There were a few to Paul Goldsmith, a few to other ACT Party members, but to her the flood of emails that she relied on in putting in an Amendment Paper that makes this bill retrospective was three. She had the gall—the audacity—to go on Radio New Zealand and say, “I’m listening to a flood of public opinion in my office.” I don’t know what you’d call that, but I know what I’d call it.

Here’s the other thing. Actually, the close of her speech said a lot, because the real thing she referred to, the real reason for this bill, is the coalition agreement. She went on the hustings and she said, “We’re going to bring back three strikes.”, just like they do, and that’s what she’s doing.

I’ll tell you the other reason why she’s doing it—yeah, exactly. There is no other reason because there is no evidence that this is better for victims, there is no evidence that this is better for offenders, there is no evidence that this is better for the justice system, and there is no evidence that this is better for society.

What we have is a doctrinaire and dogmatic party which has got the National Party, which doesn’t really believe in this, to do its bidding, and—

Hon Matt Doocey: You can’t say that.

Hon Dr DUNCAN WEBB: Yeah, you should be ashamed of yourself.

Hon Matt Doocey: You can’t say that, because—

Hon Dr DUNCAN WEBB: I can say that.

Hon Matt Doocey: You can’t say that.

Hon Dr DUNCAN WEBB: Well, you take a point of order, Matt Doocey. If you don’t like it, you take a point of order, because under that coalition agreement your party is doing the bidding of the ACT Party across the board.

Hon Member: Shameful!

Hon Dr DUNCAN WEBB: Yep, that’s right. For the baubles of office—the baubles of your office—this is the price that New Zealand paid.

We sat through select committee and we listened to a lot of thoughtful submissions—submissions from the Children’s Commissioner, submissions from the New Zealand Law Society and the Law Association, submissions from across civil society—and none of them thought that this was a good idea. And do you know what? The most offensive thing about this is that we repealed the three-strikes regime that was in before and we wiped that slate clean, and so all of those people who did have a strike are currently, as it stands today, on zero strikes, and under this regime they will retrospectively have those strikes reinstated.

Now, retrospectivity in some situations is pretty rugged, pretty problematic, and you look at it carefully, but in the criminal law, when people’s liberty is at stake, to go backwards in time and say that things which happened in the past—and it’s in the New Zealand Bill of Rights Act. The New Zealand Bill of Rights Act says that when you come to sentencing, if there are different sentences in time, between when you committed the offence and previously, you’re entitled to the lower of those sentences, and that is for good reason.

Here’s the other thing: all of those people out there who think that they’re clean-slated, that they have zero strikes, what are we going to do to tell them that things have changed? This bill, flawed as it is, is about deterrence. This bill is about people knowing they’re on strike number one or number two and altering their behaviour, so we’d better tell them that their strikes have been reinvigorated—that they’ve been returned. What does the bill say about that? Nothing. The so-called deterrence effect is zero, because they won’t even know. I don’t think they’re watching, right? That is really, really offensive because, all of a sudden, you’re worsening people’s position substantially, and it’s not my theory; it’s your theory—the theory that offenders take into account the consequences, the increased penalties, that they might face. Now, if you believed in that theory, you would actually tell them that the consequences just got worse, but they won’t—they won’t do that—and it makes the whole bill incoherent.

The other thing is this: this bill is a significant change to our sentencing structure, and the process—the bill itself, when it was introduced, was sent to the select committee in haste. We had a truncated process, and then here we are now, in urgency, before Christmas, late at night. We’ve got the committee of the whole House stage next, and I see the Minister has put an Amendment Paper, possibly more—I don’t know—on the Table because she hasn’t yet got it right, and do you know what? Maybe doing it right and following good procedure would be a good idea, but this Government isn’t interested in good procedure. It’s not interested in getting things right. It’s not interested in the New Zealand Bill of Rights Act; it’s just interested in getting into office and actually making sure that it has the baubles of office.

Of course, the other thing is this. If you look at the advice—I mean, the Government is not actually interested, and I put this to the Secretary for Justice the other day. This Government has passed numerous Acts to date which make the position of Māori worse off, and here we go again. The regulatory impact statement again made it clear that this was not consistent with the Treaty of Waitangi, that it would have a disproportionate impact on Māori, and that it was not recommended. I mean, the Ministry of Justice thought this was a bad idea, but this Government is not interested in that. It’s not interested in evidence; it’s just interested in dogma.

I guess the only redeeming factor is that this bill isn’t quite as bad as its predecessor, but the fact is that having a two-year sentence as the triggering factor will be distortionary in and of itself. There’s this fatuous section in the bill which says that a judge should not have recourse to and should not take into account the fact that there will be a strike imposed—as if a judge can take something out of their mind.

The bill is flawed, it has no evidence, it’s retrospective, it breaches constitutional principle, and it’s an ACT Party bill with a National Party covering. It’s a shocker.

Thank you, Mr Speaker. There are so many issues that are wrong with this particular bill on multiple fronts, but I think I will start with the very foundation of our political system and in terms of the Westminster system and Western democracy and the concept of the separation of power.

We have that for a reason. We have checks and balances between the legislature, the judiciary, and the executive for a reason. We have the principle of comity that the Hon Shane Jones likes to talk about a lot in this House for a reason, but this bill fundamentally goes against all of that. This bill is an overstep of the executive power into the judiciary. And a number of experts have identified that in their submissions: the New Zealand Bar Association, The New Zealand Law Society, and, let’s see, the South Auckland Bar Association. These are people who are experts in the field of legality and judiciary, and all of their submissions unanimously said, “We oppose this bill.” Why? From the judiciary’s perspective, who have to put up with the consequences of this bill, it was awful for them. It was terrible for them to have to manage it the first time around.

In one of the submissions, in terms of what the judiciary said, they said that when it comes to providing deterrent in the case or talking about the three-strike law in the case of R v Campbell, the court commented, “It may seem very surprising that this consequence could be required by lawful and defence of this kind. But that is the law and I have no option but to enforce it.” That is an overreach; that is not conforming and not respecting the principle of comity.

That’s not the only issue we have with this particular bill. We have seen it in case law over and over again in terms of the violation that this legislation, the first time around, had on our fundamental New Zealand Bill of Rights Act (BORA) in Aotearoa. In the first time around, we saw numerous instances of the violation of section 9 of BORA, which is the right not to be subjected to torture and cruel treatment, and that was particularly evident in the Supreme Court’s ruling in the 2021 case of Fitzgerald v R.

That was not all. We have said that when we received the departmental report, when this bill first came to select committee, the departmental report said that, “Well, you know what? At least it’s not retrospective.” Well, guess what? The select committee, despite the advice from the officials, despite the advice from the public, despite the advice from some members on that select committee, decided to introduce retrospectivity, which, again, is fundamentally against section 26 of the New Zealand Bill of Rights Act.

This is no small matter. We have seen this Government violating the New Zealand Bill of Rights Act—our fundamental bill, one of the fundamental documents in Aotearoa New Zealand—over and over again. Some may say, “Look, this bill is different. This bill has changed. We’ve introduced some safety valves that potentially will manage it.”—but not in some of the cases I have just listed. In the case of Fitzgerald v R, if you’re looking at Schedule 2 of this bill, clause 135 on indecent assault, in terms of whether it’s severe or not, it’s still one of the 42 qualifying offences, which is what got the Fitzgerald v R case the way that it is in the first place.

That is from the perspective of legality, and that is from the perspective of theory. Maybe some people are like, “Well, what’s the big deal? What are we going to see in our communities?” Not a lot—not a lot as a result of this bill. This is not going to be helpful. You know, in many of the submissions we have seen from lawyers, from experts, from community leaders, they said this bill will not help in terms of driving down crime. Even the statistical modelling that we have seen from the previous sessions suggests that this provides no significant deterrent for reoffending crime. What we will see is that we will see an increased number of prisoners in our prisons.

Hon Matt Doocey: That’s right, and then they can’t commit crime.

Dr LAWRENCE XU-NAN: Well, you know what, to the honourable Minister, it’s not so much about increasing—well they can’t commit crime, you’re right, but you are kicking the can down the road. You know what else is the problem here? We have seen the previous time that introduced it—[Interruption] Take a call and use your full 10 minutes, Government members. The last time this was introduced, at stage-1, 63 percent of offenders were Māori; at stage-2, 82 percent of offenders were Māori; and at stage-3 level, 81 percent of offenders were Māori, and this Government wonders why we say prison is the only housing policy they have for Māori.

This is not the only issue, though. Increasing the number of prisoners is only one part. We are also going to see a backlog in the courts if you’re going through the bill. As we go on to the committee stage, we have a number of amendments on this bill because the back and forth that the court will have to do to determine various levels of warning and various levels of appeal is convoluted to say the least.

What is the support to our already struggling court system? Yes, there is a bill currently going through the House on increasing our District Court judges by one, but that is not going to add any help to the staff and to the people who are currently working in the court system. It’s not going to add any help to the already struggling legal aid system that we have in Aotearoa. In fact, we are actually going to see more people potentially on remand as a result as well.

Another point that we’re seeing is in terms of community, and I will talk about other submitters as well, but I want to first speak from the perspective of the offender. The Green Party of Aotearoa believe that the best form of rehabilitation is if we have a restorative justice system, where those who do offend—our prison whānau—feel like the society still wants them to be a part of it. This bill does nothing to address that. What is going to happen to an offender, Minister for Mental Health, when we are seeing that they have a sense of neglect, when they feel let down by society, when they feel like, “You know what, the society is against me anyway; screw it, I’ll just do whatever, I don’t really mind.”? That’s not how we reintegrate people into our communities.

Finally, we also heard submissions from those who have been victims of this, and crime is never OK, and we are always going to be speaking for our victims. However, when we asked them how they know, by evidence, that this bill is going to help drive down the crime, and what evidence they have of that—other than maybe make them feel like crime is going down—there was no response, because this is not the way to do it.

Finally, the Green Party will not be supporting this bill. This bill fundamentally undermines the constitutional arrangement of Aotearoa New Zealand. It also does not provide any form of safety for both the victims and offenders, and we will be gladly debating a lot of these points in the committee stage to come.

Thank you, Mr Speaker. It didn’t take long for the tone to change, but here we are. I want to start my contribution by indicating that the National Party, obviously, supports this bill and will support it through its passage tonight or maybe tomorrow morning—let’s say tonight, all going well. Because we are going into the committee stage after this, and once we vote in favour of the second reading, I think it would be an opportunity for all in the House to have a good look at the bill and to make a contribution and to try and explain to the public what we’re trying to do here.

While members opposite do make some good points around the purpose of the justice system—part of that is rehabilitation, and part of that is deterrence—part of our criminal justice system is detention. Part of it is taking bad people, dangerous people, harmful people, off the streets and keeping members of the public safe, albeit for a limited time and albeit for limited purposes, but part of the reason we have a criminal justice system in this country is to detain people and to keep people safe, and that is what this bill tries to address.

There are other pieces of legislation and there are other policies out there that, over the course of the next three, six, nine, 12, 15 years—who knows?—will address other issues in the criminal justice system: bills like the Corrections Amendment Bill, now the Corrections Act, which introduced rehabilitation for prisoners on remand; bills like the sentencing reforms, which will limit discounts on sentences; other bills around social investment and the Social Investment Agency, which will create a world-leading environment where we invest early, we invest often, and we prevent these harms from happening in the first place. But those bills are for another day.

Today is where we are talking about the three strikes legislation, a great piece of legislation from this coalition Government, led by the able Minister Nicole McKee. I’m looking forward to the committee stage where we can address these issues, where we can put the case to the public, where we can vote on the bill, where we can move forward to the third reading, and we can vote it into law so that we can keep New Zealanders safe.

I had carefully put together notes to provide a logical and supportive argument for this bill, and then I listened to some of the contributions across the House. After we’ve just finished talking about this need to pass legislation to protect victims, how it’s so important that we intervene and we provide greater protections, and we’re so keen to pass laws to make more protections available—but sometimes, when bad people do bad things, they need to be punished. Sometimes, when bad people do bad things, they do them again and again, and while you stand up there across the other side of the House speaking about the rights of offenders, yet again we hear crickets around the rights of the victims. If you want to hear about protection for Māori, then protect them from Māori who are offending. That is the point of this bill.

New Zealand First believes that we should go stronger; that sometimes—sometimes—you have to ensure that people—that society—are protected. When you have been to the situation where you have seen the victims who have been victimised by those who have just got out of prison, who are continuing to offend, who have no empathy or warmth for the vulnerable in our society, who have the sense of entitlement that the punishment means nothing, then sometimes you have to make tough decisions and not just continue to pass more legislation that tinkers at the edges. We have to commend the Associate Minister of Justice the Hon Nicole McKee for having the integrity to stand up and say enough is enough.

Now, we don’t say this is the solution to end all crime. There is a range of initiatives that need to be dealt with. It is the improvement of education. It is getting the scourge of methamphetamine out of our societies. There is a whole range of things around housing that this Government will deliver and is delivering, but right now we have more and more victims. After six years of increasing violent crime, after six years of victims being created left, right, and centre in this country, finally we’re standing up and going, “We will stand up for Māori. We will make sure that victims are not being made by those who care not an iota.”

That is why the three-strikes legislation is important—because sometimes the grown-ups have to stand up in the room and go, “Bad people do bad things, and sometimes the victims have to be put first.” New Zealand First completely commends this bill to the House, and we look forward to the committee of the whole House stage.

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 pō nei. E tuku mihi, e tuku aroha, e whakaaro nui ana tō mātou pāti ki ngā whānau, ngā tāngata kua pēhia e ngā tūkinotanga o te wā.

[Thank you, Mr Speaker, indeed greetings to all of us in the House. I stand to give voice to the statements of Te Pāti Māori this evening. Our party sends our acknowledgments, our compassion, and our thoughts to the families, the people that are oppressed by recent abuses.]

I want to extend our absolute aroha to any victim and whānau of victims—period. Even more so, I want to mihi to the police and to the many police officers whom we’ve been in constant communication with—local police commanders, officers—even in a bipartisan, bi-party approach, too, in those different hui, in finding a way and a solution to make sure that they and our whānau are safe in our communities, and what this looks like, moving forward, with this legislation.

I thought it would be ideal to take my two cents’ worth on being a rangatahi Māori being profiled and what those experiences are, and I reflect hugely on question time today. In this House, I asked Ministers on the huge impacts of how the police enforce their gang legislation, as we have seen recently in Wellington and Auckland, where rangatahi Māori have been profiled and arrested at gunpoint on the suspicion—suspicion—of gang affiliations that were never proven, and this relates purely to this bill because there is no denying that our criminal justice system is institutionally racist and unfit for Māori in Aotearoa.

Māori suffer unequal outcomes at every level, and we are more likely to be stopped, searched, and arrested and convicted than anyone else. I want to speak to my own experiences as to why I asked that question today in question time.

ASSISTANT SPEAKER (Greg O’Connor): Well, as it relates to the bill.

HANA-RAWHITI MAIPI-CLARKE: As it relates to the bill.

ASSISTANT SPEAKER (Greg O’Connor): And with frequent references to the bill.

David MacLeod: First strike!

HANA-RAWHITI MAIPI-CLARKE: Really? See, this is what I’m talking about—this is actually what I’m talking about. I can say “hakuna matata” and this House will get—

ASSISTANT SPEAKER (Greg O’Connor): That reflects—if you can just say that reflects on the member that made that comment and leave him to reflect on that himself, but you reflect on the bill, please.

HANA-RAWHITI MAIPI-CLARKE: I will carry on. Can my time be stopped? Despite being 20 percent of the population, Māori are 37 percent of the proceeded-against by police, 45 percent of people convicted, and 52 percent of the people in prison. In 1988, Moana Jackson’s groundbreaking report He Whaipaanga Hou exposed the deep root of racism at the foundations of our criminal justice system.

That is precisely how the Ministry of Justice summarised the strikes in its regulatory impact statement: “Reinstating a three strikes regime would exacerbate the overrepresentation of populations which are already disproportionately represented in the justice system.”

I get so emotional sometimes around how it feels being a rangatahi Māori and having firsthand experience of racial profiling, and today I was so flabbergasted at the fact that it was being gaslighted as if it doesn’t exist. Then I reflected and realised that, no, they wouldn’t even know what it feels like.

They don’t know what it feels like to be a 12-year-old rangatahi going to the movies and actually being called up by the police for doing absolutely nothing. They wouldn’t know what it feels like to be stopped every so many weeks because you are in a community in Huntly and not in Wellington. You don’t know what it feels like at a non - gang-affiliated tangi to have five cops turn up for absolutely no reason—and even to the point where I’m questioned before entering this House whether or not I’m even an MP. Many people actually have told me, “But you might not be ready for Parliament.” Well, guess what: Parliament wasn’t ready for me.

This is what I’m talking about—the racial profiling that we experience. We’re not criminals, but we are overrepresented by the justice system. So I think it’s finished, but I’ll be carrying on.

Tēnā koe e te Māngai. Otirā tēnā rā koutou katoa. I stand to oppose the three-strikes legislation. I, like my teina Hana-Rawhiti, struggle in this area because we have lived experience in racial profiling, having experienced it myself, too, as a young person. You’d be just casually hanging out in town, then you’d get taken home by the police, and yet you were doing nothing.

You see, three strikes is an imported system from the US, a country that incarcerates more people than anywhere else in the world. That’s what we’re hanging our hat on, as New Zealand. We’re importing someone else’s system, instead of looking at the fact that there are other ways to rehabilitate and restore a sense of connection by looking at the back story of those who are incarcerated, considering that they may suffer from mental health addictions, or they may have been victims of abuse, family violence, disability, literacy and numeracy issues—the list goes on. And they’re Māori in prison—we can’t ignore the facts. The three-strikes legislation is putting more Māori in prison. That’s our MMP—more Māori in prison—because this is a noose. This is an āhere.

To hear that this is going to be retrospectively implemented and to know that for 12 years—through the 12 years that this was in place, it’s going to come back, and it’s going to bite our whānau in the tero, because they should not have to bear the burden of that period now, in 2024. It’s outrageous to think that now we have legislation that the Crown officials have already recommended that we don’t implement because there’s no evidence base to show that this is actually going to work and because it’s so punitive that it’s tūkino. It’s going to hurt both the offenders and the whānau. The ripples are large, and yet we have the select committee saying, “Hey, not only go forward, but also make it retrospective.”

Our mauhere are people. Our mauhere—those are our prisoners—have a back story, and we are building mega-prisons. We are going bigger; we are going better. That’s what we’re doing, because that is the new industry for housing Māori. It’s building the mega-prisons. MMP—more Māori in prisons—kia ora tātou.

We have to go back and look at what the Crown officials said. They said that “on every measure, the reintroduction of three strikes will exacerbate existing issues including the over representation of Māori, Pasifika, and young offenders in the justice system.” How is that right? How is that OK? Actually, you’re getting advice from your own officials, who have the evidence base, who have the understanding, and who have the policy background, saying “Kia tūpato.”, engari kāhore e whakarongo ana [“Be cautious.”, but you’re not listening]. You’re not listening, because the officials are telling us, clearly, “Kia tūpato.” [“Be cautious.”]

If we were to look at a system where we had more opportunity for the judiciary to exercise their own discretion in terms of the way that they exercise their powers, that could actually be quite good, rather than saying, “Chop—strike one. Chop—strike two. Chop—strike three; you’re out.” If we look at the history of it, 81 percent of those who were impacted by three strikes during the 12 years of legacy of what it was for 12 years were Māori, and Māori were nine times more likely to receive the first strike. I’m a Māori; there are a few Māoris around here. We’re likely to get the first strike too, above anyone else, and we’re 18 times more likely to receive the second strike, because that’s on our shoulders—you don’t know the story.

You don’t know what it’s like to be in town, just hanging out with your mates, and then, next minute, you’re the one getting asked questions like “What are you doing in town?” “Well, I’m in town with my mates.”, but, next minute, you’re being driven back in the police car, and you’re getting in trouble with your parents because, somehow, you must have done something wrong.

The police have been profiling our people for ages. Even this year, the police missed their own deadline. They were meant to delete the thousands of photos they took of our youths, but they didn’t—they missed the deadline. It’s sitting on their cellphones. They’ve been sitting there, taking photos of our people for years, and yet we have a Government that has said, “Na, we’re going to do this to you, and it’s going to be ’three strikes and you’re out’, because we’re putting more Māori in prison.” He ture mōrikarika tēnei. [This is a horrible law.] “Mōrikarika” means horrible. It’s ruthless, it’s vile, and it’s tūkino, and what we stand for, as Te Rōpū Kākāriki, is fairness and justice.

Thank you, Mr Speaker. This is another example of this coalition daring to deliver on its election promises. This has been well signalled. This three-strikes reinstatement has been well signalled.

On 27 October 2022, Paul Goldsmith, National’s justice spokesperson, said that he would reinstate the three-strikes law, and then in June last year, Stuff reported that National had announced it as policy, with Mark Mitchell saying that the return of the three-strikes rule would stop offenders from reoffending.

He had reason to say that because the New Zealand Herald reported that after the Labour Government had repealed the Act—at that time—13,400 people had been convicted of the first strike, 744 people were on strike two, and 26 criminals had three strikes to their name. It was 13,000, 700, down to 26—does that sound like a deterrence policy working? I commend the bill.

That was a riveting speech from Cameron Brewer—thank you so much! It’s a privilege to be able to take a call on the Sentencing (Reinstating Three Strikes) Amendment Bill.

I think it’s important that we talk about the process of this bill, because it has been a fascinating process. I was quite struck when we started getting submissions at the Justice Committee and we had one particular group who gave a lot of submissions, and that was the Sensible Sentencing Trust. They gave submission after submission after submission. There were so many; they sort of had a template, and we got flooded. We had to decide how we were going to deal with so many at one time. When I started taking a look at the submissions that we’d received from the Sensible Sentencing Trust, they were all opposed to the bill because they didn’t think it was strong enough. In fact, they thought it was a weak bill that had been watered down. In particular, for people who had already received a strike under the previous regime, they wanted those strikes to be reinstated. They also wanted a widening of, I guess, the catch of who would be captured by a strike.

I can remember thinking, well, that’s pretty embarrassing for the ACT Party, and probably National as well, that their sort of flagship “be tough on crime” policy has an advocacy group such as the Sensible Sentencing Trust sending in form submissions telling the Government and the Associate Minister of Justice that it’s just not strong enough; it’s a watered-down, weak piece of legislation.

It’s very interesting when we go and look at the Cabinet papers that are now online, the different ones, and the different Cabinet papers being brought and the changes that the Minister then brought the Cabinet after the select committee process had concluded. It’s after the select committee process concludes that changes are then made to make this legislation retrospective and to, effectively, reinstate strikes that were received under the previous offence.

None of the other submitters had the opportunity of submitting on that change, and it seems to be quite a common theme, particularly with that Minister, that small groups who get the ear of the Minister are able to dictate specific Government policy and bypass a democratic process. That is what is most concerning about this bill, that the Minister was so persuaded by one lobby group and was embarrassed by the fact that the Sensible Sentencing Trust thought it was a weak bill, that she went to Cabinet and she changed the recommendations by making this bill retrospective. Therefore, a whole lot of people who don’t even know that they were going to have their strikes reinstated will have that done.

One of the most, I guess—I dare to call it a comedy moment, but it was actually pretty sad when we had officials explaining to us how those people who had a strike but now don’t will get informed that they’ll get it back again. They won’t find out, I understand, until they’re actually back in front of the court. When they’re in court and they’ve done a strikable offence, the judge is kind of going to be like, “Surprise! You’ve got three now—ha!” That, in terms of rights, in terms of the New Zealand Bill of Rights Act—there’s a bunch of people out there right now who, probably, ACT and National could do a great comms strategy on. You could find them and do some flashy tiles on social media and say, “Hey, guess what? If you got stung under the last one, it’s back again. You need to know this if you’re going out there.” If you’re wanting the deterrent factor of this legislation to be effective, I’d be really interested to know whether you’re going to undertake a comms strategy of informing those people that they’re up for a second or third strike already.

There are three main reasons why this bill didn’t work the first time, and those reasons haven’t changed when it comes back a second time. The first is that it’s based on the principle that a deterrent factor works when all research shows it does not work. In fact, when this bill was brought in the first time, by the ACT Party again, back in the early 2000s—oh, no, it was a while ago—the Ministry of Justice, in 2018, in an evidence brief recorded the crime rates for the three highest-volume three-strike offences, which were serious assault, sexual assault, and robbery offences. They did that from 1996 to 2014, and, based on the trends in the recorded crime rates at that time, it was concluded that there were few changes that could be attributed to the three-strikes law.

The last time this bill was enacted and working in New Zealand, it had not reduced serious offending at all in any way that could be demonstrated by the analysis undertaken by the Ministry of Justice. Quite simply, the idea that there is a threat of a bigger punishment coming does not register for criminals. If this Government, who wants to talk about really strengthening victims’ rights—if this was a Government that was serious about having fewer victims in our system, if this Government was actually serious about reducing reoffending, they would look at the evidence that demonstrates reducing reoffending and evidence that demonstrates people being revictimised. None of that evidence points towards a deterrent factor. It’s only the fact they get to look tough in the media and on TV, and that’s what they like. It appeals to the voter base that they look like they’re doing something and ticking a box when in reality there’s absolutely no evidence it actually reduces victims in our system.

Secondly, the main reason is it stops the judiciary from doing their job, something this Government quite likes to do—it happens quite often. Under three strikes, judges have got a curtailed ability to be able to do the job that they’re there for, and that is a real concern. Courts already have the ability to impose sentences equivalent to those under a three-strikes regime. Preventative detention would be one, for serious repeat offenders. Public protection and extended supervision orders would be another. Minimum periods of imprisonment, another one; maximum penalties, up to life imprisonment. Those already exist.

The third reason why this is a stupid idea is that it disproportionately represents Māori, as we’ve already heard tonight. Māori are already significantly overrepresented in our prison system. Under the last regime, of the 23 offenders who did receive a third strike and got that maximum penalty, 81 percent were Māori—81 percent of those 23 third-strikers were Māori. What this does is it further entrenches inequities in our society, it further causes repeat offending, it causes more victims in our community, and it actually does nothing to address the root causes of crime in our community. In a country where methamphetamine consumption has doubled in the past year—

Tim van de Molen: Point of order—point of order. Thank you, Mr Speaker. Now, I just wanted to take a moment to find the correct Speaker’s ruling before I raise this. I’m taking a point of order. The member in her contribution just a couple of moments ago talked about the Government having been dictated to with its policy by an outside body. Speakers’ ruling 55/5 makes it quite clear that it is not in order to suggest that the Government is dictated to by an outside body. That is a clear breach of the Standing Orders, and I’m sure the Speaker would wish to uphold that by having her withdraw that comment.

ASSISTANT SPEAKER (Greg O’Connor): A long bow, Mr van de Molen—a long bow. Carry on.

Hon GINNY ANDERSEN: Getting back to the point—

Tim van de Molen: Point of order.

ASSISTANT SPEAKER (Greg O’Connor): I’ve made a ruling.

Tim van de Molen: This is a new point of order. Yes, I’m seeking your clarity on whether you are directly ruling out the current Standing Order that specifically uses the language that the member used that I have just referred to you. Are you making a new Speaker’s ruling overruling the current Speakers’ ruling?

ASSISTANT SPEAKER (Greg O’Connor): What I’m doing is putting things in perspective. What I do in the Chair is listen to what the speakers are saying, and when they do get near the edge of what is permitted, that is how I rule in this way. Therefore, if I were to go to the letter of the law on all of these, we would be stopping all the time. I admire the member for his ability to follow these things in detail, but I’m ruling that in the context of it, I’m happy for it to continue. But thank you for your observation.

Hon GINNY ANDERSEN: Thank you, Mr Speaker—

ASSISTANT SPEAKER (Greg O’Connor): The clock was stopped for that.

Hon GINNY ANDERSEN: Thank you, Mr Speaker. Well, let’s talk about things that we know that do work, because that’s quite interesting. The alcohol and drug treatment court: that would be one example that has worked under both Governments, that’s got demonstrated results, that actually works and turns around people’s lives, stops victims from becoming revictimised, and stops offenders from offending again and again, because it gets to the root causes of crime.

Te Pae Oranga justice panels: 24 funded under the past Labour Government, that goes to what is the early on offending, particularly offending for Māori communities, and how can we address that offending early on to stop those people coming back to the justice system again and again and again. How do we stop that wasteful spending in terms of taxpayers’ money on imprisoning people, and how do we stop those people going on to commit more crimes and revictimise people?

The bill we are doing today does the opposite to all of that good work. It does the opposite to that. It is hung up on looking tough and making it look like there’s actual work being done when the reality is it sweeps it under the carpet. It revictimises people. It is detrimental to Māori communities, and it actually causes more victims in New Zealand.

That is what gets me the most: the fact that we have a Government that stands up and says they are for victims’ rights, they want to do this in the name of strengthening those protections, but they introduce legislation which all evidence demonstrates they are doing the complete opposite to what they are preaching. The reason why they stand up and take points of order is they don’t like to hear the truth.

I’m elated to stand up and speak in support of this bill, the Sentencing (Reinstating Three Strikes) Amendment Bill. The reason why I use the word “elated” is because I’m reflecting on one of the submissions that was made when we were listening to submissions from the public on this bill.

There was an associate professor from one of our universities. She submitted, and—since the Labour Party are pontificating about how many submissions were against this bill—this associate professor, Dr Donna Cormack, in her oral submission added that she is of the view that all prisons should be abolished, and I found that quite curious. She adds this in every submission she makes, so I asked her, in all seriousness, “Dr Donna,”—and I’m paraphrasing—“if all prisons were closed tomorrow, would you be OK with this?” Her answer was “I would not be OK; I would be elated if all prisons were abolished tomorrow.” This is the calibre of some of the submissions that the Opposition are really proud about—that all prisons should be abolished.

I think about Gurdeep Singh in Papatoetoe, who was attacked by someone. That was their 15th offence when their hammer struck his body all over and he was trying to protect his family. I think of Gurdeep Singh when I think of the fact that we need laws like this. I commend this bill.

Just before I call the next speaker, and with a little bit of retrospectivity to Ms Andersen and that last comment. Given that you had been the beneficiary of what I’ll admit was a marginal call, possibly it was not in the best taste.

Kia orana, Mr Speaker. Well, look, we’ve been here before, haven’t we? This is almost as if we’re back on retread, because this is a piece of legislation that was introduced previously, it had been struck down, and here we are with it back on the agenda again. Yet another example of a Government on a backtrack and in the wrong direction.

What will this bill actually do? Let’s remind everyone. Someone who receives a second strike will, effectively, be required to serve the full sentence that the judge imposes upon sentencing. Someone who gets a third strike will serve the maximum penalty under the law, regardless of the circumstances or the context that is given.

This is a policy that, yes, actually has been proven—it has been proven that it does not work. Throughout the select committee process, the information that was received is that this is a policy that does not work. Yet this is a Government that seems intent on progressing it none the less.

Why are they doing it? Why are they progressing this policy? Well, because they want to put in place these harmful, retrograde policies on the basis of their coalition arrangement with one of their minor parties, rather than on the basis of actual evidence in terms of lawmaking. This is an unworkable policy, and this is something that was received through the select committee process.

Now, I’m not a member of the Justice Committee, but I have read the committee’s report. I note that there were a large number of submissions, but I also note that it was a truncated select committee process as well, which is unfair. However, we have hope that when we do get on to the committee stage this evening and tomorrow, the chair of the select committee has said that he expects all members to be up taking a call to “put the case to the public”.

Glen Bennett: Hear, hear!

TANGI UTIKERE: Well, “Hear, hear!” indeed, because we are going to finally hear from members opposite, as part of the committee stage process, every single aspect that they believe needs to be said, rather than sitting like a bunch of kookaburras like they have been for the last few hours. What we look forward to is actually making sure that they are ensuring that they are contributing in that. We all look forward to the contributions that they will have.

I want to reflect on the many submissions that we received, but some of the individuals that—the previous speaker, Rima Nakhle, kind of just ruled them out as if they had nothing sensible to say. The position of the Government is that they’re wanting to basically indicate that the views of the Children’s Commissioner are not important, the views of the New Zealand Law Society are not important, the views of the Pacific Lawyers Association are not important—and they say that this will create perverse outcomes from Pasifika and Māori communities. I look forward to hearing, when we get to committee stage, the contributions from members of the Government’s Pasifika caucus in terms of how this will have an impact.

Hon Member: Who’s that?

TANGI UTIKERE: Who’s that? Oh, I forgot they don’t have anyone over there from the Pacific caucus. Well, they need to reflect on—

Hon Member: Not one.

TANGI UTIKERE: Not a single person—not a single person—not one. And that’s not even rounding up.

What they need to do is consider the submissions that have been received from all of these organisations: from the Human Rights Commission; from Te Hunga Rōia Māori o Aotearoa, the Māori Law Society; the Law Society. They are all singing a very similar tune, and it’s that this is a bad policy, this is a bad idea. And so I invite members opposite to consider that.

To add some, I guess, salt to the wound as part of this process, I was absolutely astounded to hear from Dr Webb in his contribution that the Minister’s late additions by way of these Amendment Papers, these fantastical changes that she seems to be spouting about, came as a result of direct intervention with her office. Tahi, rua, toru—we don’t go much further than that; three is the number of emails that the Minister received that suddenly changed her mind around this as to why you needed to, half-way through a select committee process, basically turn it on its head and change it all up. That is an absolute disgrace in terms of that consideration. This is a select committee process that should be open to everyone. To have the Minister respond to three emails and use that as a justification for her change—a significant change in terms of looking back, a retrospective approach for it—is just astounding.

We look forward, on this side of the House, to hearing the multiple contributions that members opposite will make, but at this stage, this is not a bill that we will continue to support.

Thank you, Mr Speaker. The Sentencing (Reinstating Three Strikes) Amendment Bill restores the three-strikes regime. What that does is it allows for the justice system to issue a strike when a sentence is given, after a conviction has been arrived at over a person who has been charged. The committing of the crime results in the charge and conviction and the sentence, and at the sentence the strike is given. The strike is given to people who are repeat, serious, and violent offenders each time that they commit an offence, so it’s not the law that puts the person in jail without reason—a crime is committed, a person goes through the process and is convicted and sentenced, and the strike is issued. I commend this bill to the House.

Thank you, Mr Speaker. If there was ever a bill that was the epitome of taking New Zealand backwards, it most certainly is this one, in so many different ways: it reintroduces a policy that we already know doesn’t work, it’s shallow, it’s vacuous, and it creates this dichotomy, or this contrast, that you can’t somehow be out there protecting the rights of victims and yet still want to do something to get to the root of why crime exists in the first place. For me, listening to a Minister of the Crown not being able to get the difference between those two positions makes me feel very fearful about what’s going on on that side of the House.

It is rhetoric, and you can forgive people who don’t work in this building, people whose job isn’t to make legislation, people whose job isn’t to think about the big picture, for going, “I feel some dissonance. I feel uneasy about the concept of crime and criminals. I don’t know what to do about that.” Then someone comes along and says, “Why don’t we just lock them up? Three strikes is fantastic.”, and they go, “Phew! Thank you—problem solved.” Now, it doesn’t do anything; it doesn’t solve the problem. I can forgive people for thinking that that is a genuine thing to happen. What I can’t forgive is that there are actually members who sit in this Chamber—there are members and Ministers of the Crown—who also believe that that is true. It is, again, vacuous, it’s lazy, it’s rhetoric, and I feel that people should feel quite embarrassed about themselves.

This is an example of a Government implementing, as we’ve heard, a policy on the basis—only on the basis—that it suffices a coalition agreement, and what a shaky ground on which to put something into legislation, something that we know didn’t work last time, that we know won’t work this time. We understand the Minister has made some changes, but it’s still lipstick on a pig. We know it won’t work, and yet that is why we’re doing it. We repealed three-strikes last time we were in Government, and rightly so, because the evidence was incredibly clear that it simply didn’t work as a deterrent, nor did it make the public feel any better. You’ve got two ends of the continuum: does it work as a deterrent; does it make the public feel any safer? Those are both genuine things that need to happen, but when this doesn’t do either of those things, it is a complete waste of time.

Hon Scott Simpson: Labour is soft on crime.

Dr TRACEY McLELLAN: It’s not about being soft on crime at all, because that is a vacuous comment, and you know it—you shallow, shallow person.

The select committee heard a large number of submissions against the bill, and we’ve heard about that from previous contributions: the Children’s Commissioner, the New Zealand Bar Association, the Pacific Lawyers Association, the Human Rights Commission, the New Zealand Law Society, the Māori Law Society, the Law Association, and many, many more. There is nothing—how would one say it? There’s just something special about the overconfidence of people who think they’re more expert than the people who are actually experts, sitting there grinning from ear to ear as if they’ve suddenly come up with this fantastic idea and they know more than the expertise of the experts.

The Law Society submissions stated, again, that there was “inadequate evidence to suggest that a three strikes sentencing regime provides [either a] general deterrence”—and we know that—“or increases public confidence”. That is a second submitter who said that. Official advice from the actual Ministry of Justice also opposed the bill. So on what basis was this going forward? It was just determination, wasn’t it? Absolute determination to talk to a certain voter base to say they’re tough on crime. Well, my goodness, do better.

The regulatory impact statement says, “the Ministry of Justice prefers the status quo rather than a new three strikes regime due to … lack of evidence that the proposal would be effective at addressing repeated serious violent offending or sustainably improving public confidence in the justice system”. What’s left? What are you achieving? It just seems silly.

Simon Court: Bad people locked up.

Dr TRACEY McLELLAN: And they get out and then they commit some more crime, and it doesn’t actually make any difference, because you treat them that way—because you treat them that way. Of the submitters—

Simon Court: That’s why we want to stop them—she gets it!

Dr TRACEY McLELLAN: No—because you treat them that way. We know it doesn’t work as a deterrent. As we heard earlier on, if people are retrospectively going to have a strike or two strikes and they don’t even know it, how can the deterrence factor be in play? It just doesn’t make sense.

The bill will heavily restrict judicial discretion, and I think that that is a slippery slope as well. It enables judges to consider individual circumstances of each case, and as we’ve heard, it will result in about 89 new prisoners per year. Some people may be surprised that that seems like a large number or a small number. They may be expecting that it was made fewer; they may be expecting that it’s way, way more—way larger. The point is that this is not an investment in addressing the root causes of crime.

The bill is not consistent with the Crown’s obligations under Te Tiriti. It will disproportionately impact Māori, and the regulatory impact statement again says that “the disproportionate impact on Māori would result in divergent effective rights”. That’s not something we should take lightly. It’s not something to scoff at on a Thursday night, to pat yourselves on the back and think you’ve done something wonderful for justice. You haven’t. The bill provides discretion in the case of manifest injustice; however, the whole purpose of the bill is to impose intentionally disproportionate sentences. And I just think it’s incredibly difficult to see how that wouldn’t be manifestly unjust in any case where the sentence is substantially higher.

As we’ve heard from previous contributions, the Minister herself, the Hon Nicole McKee, gets halfway through this process—literally halfway through the process—and, on the most flimsy of conditions, on the basis of no evidence whatsoever, going out to the media and trying to sell it as if she had been listening to people, trying to sell it by literally saying that via the select committee process she had decided to make amendments because that was somehow the will of the people. It turns out to be just rubbish: three emails—three unique emails—to that Minister from the Sensible Sentencing Trust, who the Minister clearly wanted to please, and on the basis of their being not in favour of this, on the basis of their thinking it didn’t go far enough, the Minister decides to impose an element of retrospectivity which was clearly not in the original intention.

Submitters didn’t get to comment on that. The process was already truncated and quick and cheap and dirty, just like this piece of legislation, and halfway through, a really, really significant change was made on the basis that the Minister received three emails. Do a little bit of thinking about the weight of that pressure. Do a little bit of thinking about the disproportionate nature of the weight of that advice or the weight of that feedback compared to all of the other feedback through the proper select committee process. It doesn’t make sense. This reflects an unprincipled approach to policymaking, and there’s simply no two ways about that, where the Minister introduced the bill and said we are ensuring the new three-strikes regime is not retrospective, that strikes from the previous regime will not be carried into the new regime, and then, on the most flimsy of bases, just makes that amendment based on three emails. The Minister should feel ashamed.

Once this bill is passed, there will be many people with one or two strikes, as we’ve said, who simply won’t know the conditions they now face. We’ve heard other bills go through this House this week where the issue of notification has been brought up, and in this piece of legislation, where the ramifications and the penalties and the circumstances that people may find themselves in are so grave, there has been no thought—not even a passing thought—for the fact that it may be the responsibility of the State to contact people to let them know that.

As I said at the very beginning, this is the epitome of a bill that is legitimately conceived of as taking us backwards. It’s vacuous, it’s silly, it’s single-mindedly determined to follow a coalition agreement rather than doing what is best for our justice system and to reduce crime.

Thank you, Mr Speaker. I’m very pleased to be the last—and maybe everybody in the House here is pleased that I’m the last—speaker in this second reading of the Sentencing (Reinstating Three Strikes) Amendment Bill.

As second reading debates are, it’s about the select committee process, and I do want to start by acknowledging the Justice Committee, a very hard-working committee. I understand that they’ve already reported 14 bills back to the House, with another 14 that are in process, including another member’s bill: so a very hard-working committee from across the House there. Also to Hon Nicole McKee for sponsoring this bill and bringing it forward—and I do note the amendments that have been made through the select committee process, as well as the amendments that have been agreed at a Cabinet level that have been brought before us.

Everybody’s keen to get through to the committee of the whole House debate, and I can see there’s plenty of questions gearing up around the House here itself. All I want to say is the criminal justice system—it’s about deterring offending. It’s about deterring reoffending. It’s about, also, providing reform, which I have heard on a number of occasions. I think that is actually a really important part of the justice system. Most importantly, it’s also about keeping our community safe. I commend this bill to the House.

The Sentencing (Reinstating Three Strikes) Amendment Bill is set down for committee stage immediately. I declare the House in committee for consideration of the Sentencing (Reinstating Three Strikes) Amendment Bill.

In Committee

Part 1 Amendments to Sentencing Act 2002