Sentencing (Reinstating Three Strikes) Amendment Bill

Right, members. The House is in committee on the Sentencing (Reinstating Three Strikes) Amendment Bill. We come first to Part 1. Part 1 is the debate on clauses 3 to 12, “Amendments to Sentencing Act 2002”; and Schedules 1 and 2. The question is that Part 1 stand part.

Thank you, Madam Chair. In terms of Part 1, we’re going to go clause by clause. I want to start with, and ask the Minister, I guess, about the most fundamental bit. Let’s start with clause 3. Now, I have a number of amendments for this bill overall because of the complex interaction between the Sentencing Act 2002 and this particular bill.

My first question, only looking at clause 3—there are a number of issues in here, and I think a number of inconsistencies with various parts, and we’ll go through those. Overall, as we’re going through this bill and as we have completed the select committee stage—with additional insertions and additional amendments being made by select committee—I want some, possibly, reassurance from the Minister that consistency between the Sentencing Act 2002 and also with this particular bill has been met.

Now, the other reason I mention that is because within the Sentencing Act and also this particular bill, there are numerous instances of requirements for minimum term of sentencing. Particularly, in some areas—and I don’t know the section of the Sentencing Act off the top of my head—it specifies that when you’re looking at the maximum term of sentence, it can’t be less than 10 years, but there are a number of issues in here which don’t quite add up. That’s just to give a very, very brief example. Again, I’m happy to find the exact section number and come back to the Minister for specific points. Overall: has there been a consistency check between the two, and particularly with regards to the new section?

The other thing I want to go on to—other than clause 3—is starting with clause 4, and I want to particularly address clause 4(2), in terms of the definition of “permanent court record”. I had a look at the Criminal Procedure Act 2011 and the definition and the use of “permanent court record” in that particular Act. What is different over there is the fact that in the Criminal Procedure Act, I would have read “permanent court record”, in those contexts as specified in that Act, as indeed permanent but in the context of this bill, we can see in certain cases a warning being retracted. That kind of defeats the purpose of “permanent”.

I have an Amendment Paper on this particular part—if the Minister wouldn’t mind considering it—which deletes the word “permanent”, purely on the basis that there are instances where such a record would not be permanent. Also it’s to acknowledge that—

CHAIRPERSON (Barbara Kuriger): Dr Xu-Nan, it would be helpful if you could reference the number of your Amendment Paper as you speak to it.

Dr LAWRENCE XU-NAN: Sorry—it’s a tabled amendment, so I don’t know if there is a particular number.

CHAIRPERSON (Barbara Kuriger): Sorry, I’ve just found it—I understand it doesn’t.

Dr LAWRENCE XU-NAN: Yeah—it’s the first one: to delete clause 4(2) and amend clause 7, new section 86K(2)(b).

CHAIRPERSON (Barbara Kuriger): OK. The first one. Thank you.

Dr LAWRENCE XU-NAN: In this case, it also acknowledges and reflects that the warning system and standard criminal proceedings are also fundamentally different. Those are the two questions I have for the Minister to start. Thank you.

Thank you. Thank you to the member for your questions. In regard to your tabled amendment to delete clause 4(2) and amend clause 7, new section 86K(2)(b), we’ll not be supporting that, and the reason why is because the term “permanent” is consistent with other statutory language used about the court record. Warnings are given into the official court record.

Thank you, Madam Chair. Before I get into the detail of this legislation, I want to give the Minister an opportunity to, on the record, address her motivations for directing the Justice Committee to alter its approach and make it retrospective and change the first-strike threshold.

I am really concerned that she went on Radio New Zealand and said that there was a flood of emails—they weren’t her exact words, but that was certainly the inference. If the Minister’s going to go on and say that there’s a flood of emails, I’m going to ask for them. She provided a number of emails, only three of which were actually addressed to her. Many were forwarded to her, some were to her colleagues in the ACT Party, some were to her colleagues in the National Party.

Here’s one—the quality of them was this: “Item 1 Offenders who commit murder at second or third strike will receive an appropriately lengthy non-parole period. Not good enough. What does appropriate mean? One year, up to 20 years? Why not state a minimum sentence of, say, 10 years?”

I mean, if that is the kind of evidence that this Minister takes into account when instructing a select committee—which she shouldn’t do because she’s the executive and we’re Parliament—then I’m really concerned. If she is going to change tack, as she seemed to in her public statements, and say, “No, it was the burden of evidence before select committee”, does she not think it’s the select committee’s job, of which the Government has a majority, to sift through the evidence to determine what the appropriate changes are?

Now, I am really concerned that the Minister, when she said she had a flood of emails, either she did not provide all the emails she referred to when she responded to my Official Information Act request, or when she was speaking to Radio New Zealand was not being fulsome. Really, what she was referring to was the fact that, at select committee, the Sensible Sentencing Trust had hundreds of form submissions—and, in fact, that’s what she was responding to.

I think the Minister has an obligation to respond; to say, “In fact, this is why—”. Now, if it was her own policy work, a bit like Casey Costello; perhaps she had a document she found on her desk.

Tom Rutherford: Relevance?

Hon Dr DUNCAN WEBB: Pardon?

CHAIRPERSON (Barbara Kuriger): Get to the bill, please.

Hon Dr DUNCAN WEBB: Well, no, this is about the major change of direction—

CHAIRPERSON (Barbara Kuriger): Oh no, I accept all the questions you were asking to that point.

Hon Dr DUNCAN WEBB: The point is this: halfway through the consideration of this bill, we made a significant shift of direction, and I want to know what the basis of that shift of direction was—whether it was the three emails actually addressed to her, or whether it was the form submissions from the Sensible Sentencing Trust, or whether it was something else.

Thank you, Madam Chair. Thank you to the member for asking me this question, because it allows me to correct the misinformation that has been pushed across this Chamber with reference to a radio interview that I did.

I did not at any stage refer to a “flood of emails”, as the member continues to say in the Chamber. I referred to the fact that I had received emails and that I had also received other correspondence. The fact that this member actually wants to stand up and litigate over and over and over again the fact that the emails numbered three, using—[Interruption]

CHAIRPERSON (Barbara Kuriger): If the members on this side could just let the Minister speak, please.

Hon NICOLE McKEE: —words that were not actually used by me, then I think that will speak to the quality of the debate ahead.

Thank you, Madam Chair. I thought I’d try and bring the debate back to the actual bill and the clauses in Part 1 that we are supposed to be debating.

I did want to address Dr Webb’s point. I recall he was there at the Justice Committee throughout, but the committee made a decision after considering the evidence and also receiving the Associate Minister of Justice’s views on whether or not the committee should support some changes. The committee thoroughly considered those thoughts, and we reviewed the evidence and we reviewed the submissions, and the committee voted to make some amendments to the bill, at which point the bill came back to the House and the House also endorsed those amendments. I think that should clarify that for Dr Webb, in case he couldn’t remember what the process was.

I wanted to just very quickly get us through into the actual bill. Part 1, of course, starts at clause 3 and goes through to clause 13, I think, and the first couple of clauses—I just want to check that the Minister agrees that they, essentially, summarise what parts of the principal Act are amended and a very short interpretation section, and then we can, hopefully, move on to some of the substantive content in the bill.

Thank you, Madam Chair. Following on from the previous speaker, James Meager, I think one of the key things we also need to address here is that, regardless of what people will say, on the majority of the select committees, the Government does have a majority, which is what we are seeing in the introduction of this particular bill, where it says “a majority”.

However, also, as part of my second reading speech, I would like to fundamentally remind this committee that, as a legislature, our role is to scrutinise and provide checks and balances for the executive. It will be imperative for governing members on that select committee to also thoroughly consider the bill itself rather than being led by the Minister.

CHAIRPERSON (Barbara Kuriger): Now, that’s a bit of a bold statement, and it doesn’t line up with what Mr Meager just said, so we won’t go down that track.

Dr LAWRENCE XU-NAN: Well, it is the majority and the majority did agree to it, but I do agree with you, Madam Chair. It’s undeniable that the majority of the Justice Committee are Government members and how they interact with their Minister is not for me to comment.

I will, however, ask a follow-up question to Associate Minister of Justice McKee, and this is to do with clause 5 of the bill. I also would like to see if the Minister—and I will double check the clause as well—has any comment on my first question around checking for consistency between the Sentencing Act and this particular bill in light of the additional amendments post select committee and if the Minister can offer any reassurance to this committee as well.

In terms of clause 5, one of the things we see throughout the bill, with regard to the term “manifestly unjust exception”—I’m curious to know from the Minister, when we are looking at the definition and particularly when we’re looking at the exception, using what is considered manifestly unjust, what is the Minister’s intent when the Minister states “nevertheless regard the offence as worthy of a stern sentencing response.”? What does “stern” imply is the expectation of the court in this particular case?

I think that overall—and I would like to speak to my tabled amendment to delete clause 5—when we are looking at if a stern sentencing response is required, as suggested in section 8(2), in clause 5, then it actually defeats the purpose, in a way, of what is considered the manifestly unjust exception in the first place.

I would ask the Minister to remove this particular provision and particularly when we’re looking at section 8(2), in clause 5 of this particular bill, because I think the manifestly unjust exception is clear enough without having the need for subsection (2) to confuse the whole clause 5 with the “stern sentencing response”.

Thank you, Madam Chair. Thank you to the chair of the Justice Committee for his question, which was looking at Part 1 and the first few clauses within it.

What’s very apparent is that the old three-strikes regime did not work in a way that benefited those that were caught up within the system. We need to make sure, as a country, that we have significant consequences for those that commit serious crimes. The changes that we have made are mostly seen within Part 1 so that we can still make sure, or ensure, that there is consequence and that it is serious enough and that we keep repetitive criminals out of our society when they continue to create harm and fear within it.

Now, as an example of this, under the old regime, there were over 20 people—I thought there were 24; someone else had mentioned earlier tonight there were 27—serving a third strike. What I do know is that of those people, they averaged between them over 70 convictions each—70; seven zero. We are talking about the worst of the worst here. What we need to make sure that we are doing, and we’ve done this within Part 1, is ensure that those that have committed those serious offences are taken out of society so that our communities can be safe, feel safe, and go about their daily lives. The changes that we have made in clauses 5, 6 , and 7 actually speak to that.

What became apparent in the old regime is that people were caught up with lower-level offending, even though they committed crimes within the 40 serious crimes for which they were eligible to be sentenced, and so making the changes that we have made in Part 1 was to ensure that that lower-level offending was not going to be captured and that we really did make sure that we only caught those people that were recidivist violent criminals that were not learning their lessons.

To the member from the Greens, Dr Lawrence Xu-Nan, in respect to your tabled amendment to delete clause 5, and your question about the manifest injustice, I will not be supporting your amendment. The three-strikes regime will actually override the Sentencing Act. This ensures that the offender will still face serious consequences for offending that meets the three-strikes threshold. In regard to your question about consistency, I have absolute support for the officials who would have ensured that the consistency was there when bringing this paper.

Thank you, Madam Chair. I’m interested in Associate Minister of Justice McKee’s opinion on Lawrence Xu-Nan’s tabled amendment to clause 6, new section 82A(1), replacing “must” with “may”.

When I refer to the bill, in clause 6, inserting new section 82A, it proposes, “Additional consequences for certain repeated offending must not be taken into account in determining length of sentence”. I’m interested in the Minister’s opinion: does the proposal by the member to change “must” to “may” provide the necessary deterrent to people who consistently commit offences—as the Minister said, 70 or more, Mr Xu-Nan—

Dr Lawrence Xu-Nan: Doctor.

SIMON COURT: Dr Mr Xu-Nan. Does the Minister agree that Dr Xu-Nan’s proposed amendment to change the legislation from “must” to “may” provides the necessary deterrent when “the length of a sentence of imprisonment to be imposed on an offender for a stage-3 offence [of] murder, a stage-2 offence, or a stage-1 offence, the court must not”—Dr Xu-Nan—“take into account the consequences … the offender [might] face”? That is because, Minister, I might presume, the offender should face the full force of the law, Minister.

Thank you for that question about the tabled amendment to clause 6, new section 82A(1), replacing “must” with “may”, that has been lodged by the member Dr Lawrence Xu-Nan from the Greens. We will not be supporting that tabled amendment. The reason for that is because “must” is “must”. We are talking about New Zealand’s most serious violent and sexual community, and they are out there creating harm in our communities, and it’s going to stop. It must stop. It not “may” stop; it “must” stop. When we are talking about these people, these people have committed crimes that fit within a regime of what will be 42 offences, serious violent offences. We want this requirement, and we’ll ensure that this requirement is there in all cases.

Thank you very much, Madam Chair. I’d just like to get some further information from Minister McKee in relation to Part 1.

There’s new sections in there that specifically provide for first warnings and the qualifying sentence imposed for a stage-1 offence. It also spells out that the first warning is to be given if a sentence of imprisonment between 12 and 24 months is imposed for a stage-2 offence. I think it’s really important, because we were a bit confused at the Justice Committee when we asked these questions of officials, so we’d be really grateful if she could shine some light on it. What actually happens, operationally, in a courtroom when there is somebody who’s been charged with an offence that qualifies as a stage-1, as specified under Part 1, clause 7—it’s the new section 86K(2)(a). Someone who is up now for that, they qualify for that, but what if they had a previous first strike, or what if they had previously had two strikes?

I would like to understand, first of all, whether the administrative records that are kept are able to accurately show that they’d previously received one or two strikes, and whether there is sufficient information in a courtroom, whether it be the police prosecutor or the courtroom administration staff, to have access to that information to know that that person had actually previously had a first or a second strike. The reason I ask that question is that when this regime was introduced the first time, there was a real problem with implementation, and some of the questions we were asking in select committee seemed to indicate that this same problem could rear its head with this set up the way it is here.

The problem we had when this was first implemented was that, when a person appeared before the court and was being charged with a strikable offence, unless the Crown prosecutor was notified that that in fact was a strikable offence and that, when making the case to the judge, they had to say, “Your Honour, this person’s up for a strikable offence”—if the Crown prosecutor failed to do that—that person walked off without receiving a strike on their record. That was problematic. There were sometimes strikes being missed because there was not an adequate integration between the Ministry of Justice, the courts, and the New Zealand Police in order to accurately capture that. There was a running tally we would have to keep of how many strikers had got away, and then we had to draw straws about who told the Minister.

I would like to know, given the added complication that this situation now provides, which is this retrospective legislation reactivating all of those prior strikes, how can we be reassured, and how can the public be reassured, that there is an adequate integrated data set that captures that information in a way that a person who is going to be held accountable under this legislation is informed of that and is aware of that when they’re seeking legal advice, when they’re presenting their case before the judge? I’d like to know who informs the accused that they’re up for whatever strike they are—how that information is conveyed. Secondly, how do we know that there’s an accurate capture of that information?

It’s incredibly important because I would like to know from the Minister if there is a comprehensive list of all of those people who previously received a first, a second, or a third strike; and if they have contact details for all of those people; and if her ministry intends to reach out to all of those people and to give them the information, in order to deter them from committing any more crime and creating some more victims.

Finally, I’d like to know, what if they had a third strike? Do they go back to one again? Is it start again, go back to go, don’t collect $200—is that the case? If they’ve had three strikes, do they go back to one, or are they just getting another strike? Is it continual strikes? Are they always eligible for that maximum part?

Thank you very much, Madam Chair. I’ve read through the tabled amendments that have been lodged by Dr Lawrence Xu-Nan—25 related to Part 1; almost all of them related to clause 7. I’m keen to understand Associate Minister of Justice McKee’s position on whether she will be supporting those amendments from Dr Xu-Nan or not, and, if not, then we can return to the substantive parts of the legislation that we’ll be continuing to progress through. I’m keen to understand from the Minister whether she’ll be supporting the 25 amendments put forward by Dr Lawrence Xu-Nan.

I’ll go through the member Dr Lawrence Xu-Nan’s tabled amendments that have just been referred to by the member Tom Rutherford, especially the ones that relate to clause 7. There is the tabled amendment to clause 7, replacing “18” with “25” in new section 86J. I will not be supporting this, because it already matches existing law with regard to sentencing. It’s the same as the previous regime.

I’ll now look at the tabled amendment to clause 7, replacing “12” with “24” and “24” with “36” in new section 86J, and I will not be supporting this one. This is in relation to new sections 86J(a)(i) and 86J(b)(i), inserted by clause 7—I will not be supporting this. We think that the existing thresholds already strike the right balance.

In regard to the tabled amendment to clause 7, deleting text from the definitions of “record of first warning” and “record of subsequent warnings” in new section 86J—it’s quite a big one, so I won’t go through all of it, but it’s about Schedule 1 and clause 7. We will not be supporting this one. We think that the existing thresholds, again, strike the right balance.

In relation to the tabled amendment to clause 7, inserting “physical” into the definitions of “record of first warning” and “record of subsequent warnings” in new section 86J, we will not be supporting this tabled amendment. We believe that the member actually misunderstands this is about the legal court record. New section 86N, inserted by clause 7, requires the offender to receive a written notice of the warning.

In regard to the tabled amendment to clause 7, amending new section 86K and 86M to specify that warnings must be given in person, we will not be supporting this, because the offender must already be before the court to get the warning.

In relation to the tabled amendment to clause 7, amending new section 86K and 86L to add the word “determinate”, we will not be supporting this one. We just believe it’s unnecessary.

In relation to the tabled amendment to clause 7, deleting new section 86KA, 86U(2A), and 86U(2B), we will not be voting for this one either. The additional first warning is necessary if a first warning falls away on appeal and to reinforce consequences for the offender.

In relation to the tabled amendment to clause 7, amending new section 86L to remove reference to stage-3 offences, we will not be voting for this. New section 86L, inserted by clause 7, refers to “stage-3” to ensure offenders get an additional subsequent warning if they commit another third-strike offence. We need to keep reinforcing these consequences.

In relation to the tabled amendment to clause 7, amending new section 86M(1) to replace “that” with “the”, we are voting this one down.

Hon Dr Duncan Webb: Any reason, Minister?

Hon NICOLE McKEE: Well, the reason why is because—it says, “In clause 7, new section 86M(1), delete ‘that’. … new section 86M(1), after ‘before the court at’ insert ‘the’.”—I don’t think it’s necessary. There’s no comment for that.

In relation to the tabled amendment to clause 7, amending new section 86M(3AA) to replace “12” with “24” and “24” with “36”, we will be voting this down. The current thresholds, we believe, strike the right balance.

In relation to the tabled amendment to clause 7, amending new section 86M(5) to require a judge to check that offenders understand the nature and consequences of warnings, we will also be voting down. The courts will be doing this anyway.

In relation to the tabled amendment to clause 7, amending new section 86N(3) to delete paragraph (b), we will be voting this down. The oral warning is the primary warning that the offender receives. The written notice is a written reminder and it also reinforces to the individual that they have received that warning.

In relation to the tabled amendment to clause 7, amending new section 86O to replace “24” with “36”, we will vote this down. We think the existing thresholds in the bill, again, strike the right balance.

In relation to the tabled amendment to clause 7, deleting new section 86O(2) and 86R(3), we will not be voting for this. Offenders should face serious consequences for repeat offending. There is a “manifest injustice” exception.

In relation to the tabled amendment to clause 7, replacing new section 86P(2), we will not be voting for this. The bill provides that offenders who commit murder face appropriately lengthy sentences.

In relation to the tabled amendment to clause 7, amending new section 86R(6)(a) to replace “2” with “3”, we will not be voting for this. It’s a misunderstanding, we believe, of the provision. Preventative detention remains available in the usual way, the same as the previous regime.

In relation to the tabled amendment to clause 7, amending new section 86S(2) to replace “18” with “12” and “20” with “17”, we will not be voting for this. The bill provides appropriately lengthy sentences for murder at stage-3.

In relation to the tabled amendment to clause 7, amending new section 86T(2)(c) and inserting new paragraph (d), we will not be voting for this. We believe it’s unnecessary because the court can already do this.

In relation to the tabled amendment to clause 7, amending new section 86V, we will be voting this down. It’s not duplicative; these are about something different.

In relation to the tabled amendment to clause 7, amending new section 86X to delete subsection (2), we won’t be voting for this. It’s the same as the previous regime and provides certainty.

In relation to the tabled amendment to clause 7, inserting a new section 86Y, we will not be voting for this. It’s unnecessary and can be covered by the “manifestly unjust exception”.

In relation to the tabled amendment to clause 14, replacing paragraph (b) and inserting a new paragraph (c) of subclause (4), we will also be voting this one down, because we believe it is unnecessary. This is adding items to the list that are already covered.

In relation to the tabled amendment to subclause (6) of clause 16, we will be voting this down. The court already has discretion in deciding about the qualifying sentences.

Finally, in relation to the tabled amendment to Schedule 2, we’ll be voting that down. These are both serious violent offences with high maximum penalties. Section 234 of the Crimes Act, for robbery, for example, gives you 10 years. All of the qualifying offences have at least a seven-year minimum sentence.

I’ll take a call from Dr Lawrence Xu-Nan, given that the Minister’s just given responses to the amendments.

I raise a point of order, Madam Chairperson. I just thought, given that very last comment, Madam Chair, it’s pretty important that we clarify. I did find it surprising that the Minister pre-empted all of the decisions on those, and I just want to make sure that you’re not suggesting that it’s not open to a member whose amendment has been dismissed in a sentence by the Minister to debate the amendment that they have taken the time to put on the Table.

I’m not ruling out any debate, Dr Webb. The member now knows the Minister’s reason for saying that she’s not going to support this amendment. I’m not ruling out any debate.

Hon Dr DUNCAN WEBB: Thank you for that clarification.

Thank you so much, Madam Chair. Phew! What a breath of relief to know that Associate Minister of Justice McKee has done her one hour of reading, as well as other members in this Chamber! I am most impressed—particularly when it comes to Simon Count—I mean, Simon Court—who has so clearly articulated—

CHAIRPERSON (Barbara Kuriger): You two need to learn each other’s names.

Dr LAWRENCE XU-NAN: —my amendment to clause 6, new section 82A(1) around “must” and “may”.

Now, first of all, I would like to respond to the Minister who responded to my amendment around “must and “may”. The reason I put this together is merely for the fact that in other justice-based bills that we have been debating in this House, and in this particular case—when we are looking at a particular verb being used in the positive—the verb “must” has been used in the positive. But in the negative—at least in the bills that I was looking at—consistently “may not” is used to imply “must not”. I do rarely see the term “must not” being used in a particular bill.

To the other members in this House, this is more of a case of consistency of semantics, where “must” and “may not” are essentially equating to the same level of strength, but one in the positive and one in the negation. I would like to clarify that first. After all, my background, and particularly my doctorate, is in arts and humanities—and particularly cognitive linguistics.

I would like to address something else that the Minister has mentioned. The Minister has clearly stated where her position is. However, the Minister has not mentioned the reason and the rationale behind some of these—particularly when we are reading it in conjunction with the regulatory impact statement—and also what was originally proposed as part of the bill, or even what was presented by her very own officials.

One of the reasons I mentioned the removal of what is considered “a stern sentencing response”—and we were looking at the “manifestly unjust exception”—is particularly to do with some of the court cases I have mentioned before. Let’s say, in the context of R v Campbell and in the context of Fitzgerald v R [2021], ruled by the Supreme Court, how is the Minister intending on reconciling some of the issues of illegality, particularly against the New Zealand Bill of Rights Act, when it comes to someone who is not able to serve the full sentence? That was a key ruling of that particular case in Fitzgerald v R.

If the Minister isn’t going to be allowing a certain part—when we’re looking at clause 5 and also in terms of my tabled amendment to delete clause 5—I would like to hear from the Minister how she’s able to work around the violation of section 9 of the New Zealand Bill of Rights Act.

CHAIRPERSON (Barbara Kuriger): Could I please ask Dr Xu-Nan to just explain those cases that he mentioned, for the benefit of some of us that actually are not aware of the specific questions around those, please. Just briefly, if you would. Thank you.

Dr LAWRENCE XU-NAN: Sure. I’m happy to talk about that. In the particular case of Fitzgerald v R—

Hon Member: Google it.

Dr LAWRENCE XU-NAN: I mean, I am googling it, in fact. Do you know why? Surely, for the Minister—who’s a Minister of the Crown—she would undoubtedly have all of these cases in her head. I shouldn’t have to explain it—

CHAIRPERSON (Barbara Kuriger): She may have, but I can’t judge if she’s answered the question if I don’t know.

Dr LAWRENCE XU-NAN: —but I am happy to enlighten it. In this particular case, the summary is that the majority of the Supreme Court in Fitzgerald v R found that the three-strike regime—the previous version—is subject to section 9 of the New Zealand Bill of Rights Act. In this particular context, what has happened is that the fundamental right cannot be limited.

For the case of Fitzgerald, it was found, particularly due to the mental capacity of Mr Fitzgerald, that after the third strike it was deemed to be unworkable in terms of the fact that he was not in charge of his full mental function to be able to realise the kind of law that he’s breaking but was still being charged to the full amount. In those kinds of cases—[Time expired]

Hon Members: Madam Chair—

CHAIRPERSON (Barbara Kuriger): Lawrence Xu-Nan—I’m just letting him finish his explanation.

Dr LAWRENCE XU-NAN: Thank you, Madam Chair. In those kinds of cases, the court is able to have the leeway of using “manifestly unjust”—unless the Minister thinks that that is also the incorrect use of it, in which case I would like the Minister’s enlightenment on what is the correct use for someone who is mentally unaware or is unable to understand what they’re committing and whether the fact that they received the third strike of maximum sentence is in line with that particular element. Of course, in those cases, the court found that they could have gone to a lower court and—particularly when you’re looking in the Crimes Act—use section 135 as an alternative.

The court will be using alternative ways to address this, like they have done previously. I would like to know then, from the Minister—in the context of some of the existing rulings—how is she going to reconcile that with the stringency in this bill, this particular legislation that, despite the fact that she says it’s different from the previous, is the same as previous.

Now, my other question—Madam Chair, if I may—is around new section 86J(1)(a) and (b), in clause 7. The original intention of the bill has a starting point of 24 months, but it was dropped to 12 months post select committee. One of the biggest concerns raised by submitters on this particular area is the fact that 12 months, or even 24 months, is going to be too short and too low a threshold. I would like to know from the Minister what the rationale was for dropping it down from 24 months to 12 months, and thus creating a much harsher punishment and creating more ways for people to enter into that first strike. Thank you, Madam Chair.

Thank you, Madam Chair. I’m just going to address some of the questions that the member the Hon Ginny Andersen from Labour asked me earlier regarding new section 86KA, in clause 7, reactivating prior strikes. She was asking me how it was going to work. I will point out that the member incorrectly said that all strikes will be reactivated; that is incorrect. They will not automatically be reactivated. Only those previous strikes that meet the new threshold will be reactivated.

The member was asking what happens, because there are sometimes two first strikes that are given. For those at home who are watching who do not know the complexities of this bill, in order to get a first strike, a person needs to commit an offence from one of those 42 serious violent offences which are imprisonable by over seven years’ imprisonment. When the person commits an offence and is sentenced to over 12 months’ imprisonment, they are eligible for a first strike.

In order to be eligible for a second or a third strike, they must still commit an offence in one of those 42 offences but their term of imprisonment must be for 24 months or over. Now, if they get a term of imprisonment that is between 12 and 24 months, instead of getting a second strike, because it does not meet the threshold, they will actually receive another first strike. It’s another warning to that individual, which is better than what we did in the last regime. It means that the person is still committing a serious violent or sexual offence whereby the judge has decided it is not serious enough to be over two years’ jail but it’s still serious enough to fit within this regime. The individual will be given an oral indication that they have received another first strike.

The member asked, “Well, what if a person has three strikes? What happens to them then?” Now, if the person who has three strikes under the old regime then goes on and commits a serious offence and is imprisoned for what would be more than 24 months, or two years, their previous strikes, if they fit within this regime, will be reactivated. If a person has received strikes where they have done three terms of imprisonment over 24 months, there is no passing go; it’s straight to jail, and it’s at the maximum penalty, third strike, no parole. We make no apologies for that.

Speaking to the member from the Greens and his question about section 9 in the New Zealand Bill of Rights Act, the Crown Law Office had advised the Attorney-General that the bill as introduced did not appear to be inconsistent with the New Zealand Bill of Rights Act. The Attorney-General approved this advice. Two key reasons why the bill did not appear to be inconsistent with the New Zealand Bill of Rights Act are that an exception will apply to all mandatory sentencing elements of the regime to avoid manifestly unjust outcomes, and a qualifying sentence threshold will ensure that less serious offending is not subject to the regime. The bill does not vary penalties or retroactively punish anyone who offended before the regime came into effect. While warnings will be carried over, the regime is triggered by new offending, and only warnings which meet the qualifying sentence will be reactivated.

Thank you, Madam Chair. Firstly, just in response to Associate Minister of Justice McKee’s comments, that the Attorney-General’s report was made before the Minister changed and made the bill’s provision retrospective, so it’s a little unhelpful, to put it kindly, to put an outdated report in front of the committee.

The Minister criticised me before in respect of her statements on Radio New Zealand when I said it was a flood of emails. They weren’t her exact words, but that was the inference. That’s what I said. Here are her exact words: “We’ve heard from many people, especially through emails to my office, which have stated that the new regime has not gone far enough.” She said “many emails”; three’s not many.

What I actually want to talk about is the “manifestly unjust” provision. You’re not allowed to say “less shit” provisions of this bill, but that’s basically what it is, I imagine. The “manifestly unjust” provision is one of the ameliorations of this bill, which makes it not quite as bad as the last one.

Now, in terms of what “manifestly unjust” is, I think it needs clarification, because, I mean, it’s a strange thing in the law when you can have something that’s a little bit unjust, that’s permitted, or even quite a bit unjust, but it’s permitted, but it has to be manifestly unjust and then the judge can intervene. I was concerned to see the Minister of Justice talk about this bill, and I think it was in the House when he said that she—referring to the Minister—has talked about the, I think, distorting effect of the Act, and it leads to disproportionate sentences. Well, hold the phone, people. That’s the exact point of this legislation.

When we talk about the sentencing impact, we’ve got one Minister saying disproportionate sentences are exactly what we’re after. Disproportionate sentences are sentences which don’t match the crime. Now, if the Government is saying sentences, as they stand, don’t match the crime and we want to adjust them, that’s one thing. If they’re saying sentences do match the crime and we want them to not match the crime, that’s something quite different. The Minister of Justice saying that it leads to disproportionate sentences—hold the phone, people—that’s the exact point. It suggests that the Government is intent on imposing disproportionate sentences.

If we’re looking at what “manifestly unjust” is, I would like the Minister to look at this. We’re going to go through all of these amendments, so the Minister might want to preface the debate, but we are going to go through them. One of mine there was lodged at 12.15 today, the tabled amendment to clause 4(2). It suggests that we actually clarify that “manifestly unjust” means unjust or disproportionate to a significant degree, taking into account all of the factors of the offending—and I think this is important—including the impact on and the views of the victim.

I don’t think that’s usefully expressed in the Sentencing Act at the moment; it’s not strong enough—but, also, the age of the offender, the behaviour of the offender, after the charges had been laid, including the conduct of the defence. I think that’s an important factor as well. We talk about early guilty pleas, but the conduct of the defence is much more than just an early guilty plea—so, taking pre-trial applications which are vexatious or looking for further evidence on grounds which are, essentially, oppressive and re-victimising the victim.

They’re all things that can happen within a criminal trial, and that’s just a tiny sample. I’m not a criminal lawyer; I don’t know the full details of it, but understanding how the defendant behaves actually is reflective of whether they recognise the gravity of their offending, and also tacked on there, on that amendment, and other recognised matters of aggravation and mitigation. What it does is it says you’ve got this concept which goes throughout the whole of this bill, “manifestly unjust”, and it really fleshes it out. I think that’d be really useful just to make the bill a little more thoughtful and, basically, workable. I’d be interested in the Minister’s views on that.

Thank you, Mr Chair. I’ve already spoken to the member Duncan Webb about his tabled amendment to clause 4(2) and explained that we were not going to be supporting that.

In regard to the “manifestly unjust”, on this side of the House, we believe that it’s right that these offenders face serious consequences for their offending, even if it feels like or seems to be disproportionate, because what we have done within this legislation is create the “manifestly unjust” for the courts to be able to determine. Hence, this is why we have put in a threshold in the first place, because there was not one there earlier.

It’ll be up to the courts to decide how they are going to apply that exception of “manifestly unjust” in individual cases, but we’re providing principles to them to help guide the courts in applying the exception. Part of that guidance reflects section 9 of the New Zealand Bill of Rights Act, which protects against disproportionately severe treatment or punishment. Courts have found that “disproportionately severe” covers treatment that is grossly disproportionate to the circumstances, but it does not cover treatment that is simply disproportionate, and the wording in the bill aligns with that position. I think that clearly explains that position.

When talking earlier about carrying over previous strikes, making the bill retrospective, I need to make it quite clear for those members on the Justice Committee who didn’t understand as they were going through the bill, the new regime will still only apply to offending committed after the bill comes into force. The bill does not create retrospective offences or retrospective penalties, as the member had been saying. Existing sentencing legislation already requires the court to consider an offender’s previous convictions, and this is similar to that.

The changes also don’t apply to offences committed in between the repeal of the previous regime and the new regime coming into force. So it’s very, very clear, and I would have hoped the member would have realised that as he went through the process.

Tēnā koe e te Tūru. E tika ana te kōrero i ō tātou tūpuna Māori “Whakarongo ki te kupu pono, ki te kupu tika. Poipoia te kākano kia pūāwai”.

[Thank you, Mr Chair. The words of our Māori ancestors is true, “Take heed of the true word, the right word. Nurture the seed so that it flourishes”.]

“Nurture the seed and it shall flourish”. This is a whakataukī that I think of when I’m reading new section 86J, inserted by clause 7 of this bill, which speaks to stage-1 offences and the qualifying age of offenders.

Our Governments, successively, have released numerous reports and briefings which outline that a “young person” is aged between 18 and 25 years. If we are to regard this as correct, as is done so in the Ministry of Health briefing “Overview of youth health”, from August 2024, which defines young people and youth as between the ages of 12 and 24, then we must, too, recognise that this proposed bill also includes young people as offenders of stage-1 offences. I would like to seek clarity on what regard has been given to medically peer-reviewed articles and psychological scientific evidence which tells us that young people’s cognitive development continues through until a person’s mid-20s.

A person who is aged 18 years of age, I would like to know, may not have been considered when drafting this bill, as I cannot understand how we would disproportionately allow young people to be treated in the same way as a fully cognitively developed and maturated adult. I wonder, and would like to seek clarity from the Associate Minister of Justice Nicole McKee, about any alternative pathways that seem perhaps more balanced in regard to young people and youth who have not fully developed their prefrontal cortex in such a way that they would be also sentenced as a stage-1 offender as an adult.

My question is: how has the neurological stage of development of people under the age of 25 been considered, and is there value in pursuing evidence-based community supported rehabilitation interventions for young people under 25 as an alternative to the heavy-handed criminalising under this proposed bill? Thank you.

Mr Chair, thank you. Thank you to the member Benjamin Doyle. This is the first question I’ve received from him in the House, although what I will—

Hon Dr Duncan Webb: Point of order, Mr Chairperson. Sorry to the Minister, but I do want to take a point of order. A photograph was just taken in the Chamber. A photograph was taken in the Chamber by a member. I’m aware that that’s inappropriate, and I wonder if you, as Chair, might direct that person to delete that photograph.

CHAIRPERSON (Greg O’Connor): Did a member just take a photo of the member when they were speaking?

Cameron Brewer: I took the photo. I will delete the photo, because I’m conscious that members on the other side of the House do not take photos. Thank you.

CHAIRPERSON (Greg O’Connor): You’ll also withdraw and apologise for doing so.

Cameron Brewer: I was merely taking a photo of my colleagues, sir, and I will withdraw and apologise if my colleagues are offended by that.

CHAIRPERSON (Greg O’Connor): Well, then, you weren’t taking photos across the Chamber?

Cameron Brewer: I was taking a photo of Mr Bates.

CHAIRPERSON (Greg O’Connor): All right—OK. Well just—

Shanan Halbert: The photo was of Ben.

CHAIRPERSON (Greg O’Connor): We’re at a heightened state of sensitivity here all around, so can we just all be aware of that during this debate. Thank you. The Minister may carry on.

Hon NICOLE McKEE: I’ll start again, and I thank the member for the first question that I have received from him.

We are looking at the rule of law here. Those that are aged 18 and over are responsible to the laws of this land and therefore are eligible to the consequences should they break the laws of this land. Those that are aged under the age of 18 are not eligible for the three-strikes regime. What I think is probably most important is that when we look at how three strikes actually works, the first strike is a warning that they are now on the pathway of the three-strikes regime. The second strike will mean that they have committed an offence which is eligible for imprisonment of over seven years, and when they do get that second strike, they will not be eligible for parole at that stage. When they commit the third strike, it’s a maximum penalty with no parole.

One would expect that at the age of 18, if a person commits an offence where they are then convicted under the three-strikes regime, they will possibly not be under the age of 25 by the time that they get to their third strike, because they would have had to have served their sentence with no parole. Of course, there are always opportunities for rehabilitation while they are incarcerated.

Thank you very much, Mr Chair. I’d just like to thank the Associate Minister of Justice Nicole McKee for her answers before. There was one answer that I’d just like a bit more information on. The way I understood it in terms of how the regime will work—she stated that only those strikes that meet the new threshold are the ones that are going to be revisited or up for another one. When they’re revitalising the ones that are gone, there will have to be a process somehow of ascertaining those first strikes that meet the new threshold under this legislation that then qualify for being reconsidered for a second or a third strike.

My question to the Minister is: who holds that information, what database holds that information, who is doing the exercise to establish which offences fall into that area that meet the new threshold, and is there any ability or possibility that there could be a mistake made, as there have been in the past in the implementation of this legislation? Is there any ability for someone who had an offence that was strikable under the previous regime, and potentially in or out of this one—who is doing that work to analyse? Is that a computer? Is that a human? Is that a database? Who checks it? How does that information find its way to the courtroom?

I really appreciate the fact that we’ve been given information about how the first strike and then the second first strike and then the oral notification of the second first strike, how that works—might need a good comms campaign to get that one out of the gate, but I get it. I think the thing that we want to understand is: where is the central point where that data is held, and is that held by Police? Is that held by Justice? Is that held in courts? Is that paper-based; is that computer-based? Who holds that information in order to make sure when an offender is before the courts, there is correct information in order for that strike to be made in a way that is correct in terms of what their previous history was?

There is a real history here in New Zealand of there being multiple different databases, multiple different systems, Crown prosecutors operating in a different way from what the courtroom might be aware of, and room for confusion. I think, if we’re introducing a new system, it is paramount, at this point of the bill, that we all have a crystal-clear understanding of where that dataset sits and who’s responsible for checking that it’s right, and who is held accountable if there are mistakes.

I would also like to know from the Minister—the regulatory impact statement (RIS) that accompanies this and goes to some of the key parts of Part 1 makes some really good sort of points in relation to research underpinning it. I just wondered if the Minister had read the regulatory impact statement and whether she’d like to comment on some of the research that has shown that perceived early certainty of apprehension was most consistent when deterring white-collar offences such as fraud with tax violations—other than violence, not violent offending. The research, which was “The Empirical Status of Deterrence Theory”—it’s in the RIS—shows that it doesn’t really work for violent offending, but it’s real good for white-collar offences such as fraud and tax violations. I just wonder whether she was wanting to catch more tax evaders with this legislation, or was she after violent criminals, because it seems to work for the first lot.

Also, it’s interesting to note that when the analysis is done against the criteria, the Ministry of Justice actually quite strongly recommends the status quo, rather than the new three-strikes regime. Primarily, the number one reason is that there’s a lack of evidence that the proposal will be effective at addressing repeated serious violent offending or sustainably improving public confidence in the justice system. This is the Ministry of Justice advising the Minister that there is a lack of evidence that her proposal would effectively address repeated serious violent offending. I’m interested to know from the Minister where she’s getting her reckons from, if her own officials and research demonstrate that this doesn’t work.

Thank you, Mr Chair. In answer to the question about who is holding the information, the courts hold the judiciary’s information on the courts system. The Ministry of Justice will be working with the operational staff on how they go about implementing that.

The member will know that this is an operational matter, but part of that is extending the implementation date from three months to six months in order to allow for that to occur. I think that really does answer the question about where it is. In regard to mistakes, there were mistakes in the old regime, but they got fixed pretty quickly—found and fixed fairly quickly. The Ministry of Justice are confident: not only are there no mistakes in the system; they don’t expect there to be any mistakes in the system going forward—not with the six-month implementation that they have.

In regard to bringing in other forms of three strikes, actually this is sending a very clear message to our communities that we back them, that we support them, that we don’t like them being intimidated and being attacked by sexual and violent offenders time and time again. I’ll reiterate the point that I had made earlier: those serving a third strike had, on average between them, over 70 offences per person. Now, getting them out of our community, and getting them into a system where they can get rehabilitation and education under the corrections system, actually allows our communities to get on with their life in the law-abiding way in which they should be able to live. It’s as simple as that.

We will take note of the fact that New Zealand has said, when they went to the polls, that they wanted a system that was going to respect them; that they wanted law and order from crime and from criminals; and that they wanted to feel safe in their beds at night, without Opposition parties giving millions of dollars to gangs so that they can continue to conduct their illegitimate business.

Thank you, Mr Chair, and I appreciate the call. We’ve all been trying to engage in the debate quite constructively, and I want to thank the Associate Minister of Justice Nicole McKee for answering the questions in quite a significant amount of detail and without a lot of politics, actually. It’s been quite good, I think, tonight.

I just want to speak to one small point that Dr Webb raised. He claimed that the Minister made changes to the bill at the Justice Committee. Of course, the select committee made the changes to the bill that came through the House. The Minister didn’t vote on the changes. Actually, the only person who voted on the changes at select committee was Dr Webb and the Labour Party and the Greens and Te Pāti Māori and ACT, New Zealand First, and National—because the proposed amendments were passed unanimously. I would assume that suggests that Dr Webb was happy with the content of the bill coming back to the House, and possibly didn’t want to have any further amendments.

I just wanted to touch on those amendments before. It was very helpful that the Minister addressed Dr Xu-Nan’s amendments. I’d like to reiterate that we won’t be supporting those amendments either. I’ve talked to my colleagues on this side of the Chamber and we won’t be supporting the member’s amendments, too, sadly.

That brings me to—Dr Webb mentioned a couple of his amendments, and I wanted to draw the committee’s attention to the stapled compendium of amendments in Dr Webb’s name. There are 21 out of 24 that relate to Part 1 of the bill. I just wanted the Minister’s view, likewise with Dr Xu-Nan’s, as to whether or not she intends to support any of those amendments. I think it’s been helpful to outline that the Minister wasn’t going to support Dr Xu-Nan’s amendments, because it means we can move on and we can actually debate the substantive parts of the bill that were unanimously supported by the committee. Similarly, with Dr Webb’s tabled amendments—the first one is to clause 4(2) and they end at the amendment to clause 7, to insert new section 86Z.

I just wanted the Minister’s view on whether or not she intends to support any of those amendments, so hopefully we can get to the meat of the bill, which is in the later clauses.

Thank you, Mr Chair. Thank you for that question. I think it might be easier for me to go through those amendments tabled by the Hon Duncan Webb one by one, as I had done previously for the Green member. I have already mentioned that I do not support his first amendment, the tabled amendment to clause 4(2). My response to that is that the existing bill strikes a balance and it provides guidance but does not overly prescribe what “manifestly unjust” means. Courts will already consider these factors, but they may want to consider others.

In relation to his tabled amendment to new subsection (2) of clause 5, I will not be supporting this either. The proposed amendment would detract from the intention, which is to denounce serious offending even where the “manifestly unjust exception” applies, and that is based on case law.

In relation to his tabled amendment to clause 6, inserting new subsection (3) into new section 82A, I will not be supporting this. Judges need to know about an offender’s criminal history in order to sentence them appropriately. It could lead to unnecessary court delays.

In relation to his tabled amendment to clause 7, new section 86J, I will not be supporting this either. We think the lower threshold of more than 12 months’ imprisonment strikes the right balance.

In relation to his tabled amendment to clause 7, to replace new section 86KA, I will not be supporting this amendment. Additional first warnings are necessary to reinforce to an offender the consequences of repeat offending and avoid a gap arising where they lose their first warning.

In relation to his tabled amendment to remove the words “if the offender is before the court at that time” in clause 7, new section 86M, I will not be supporting this paper. This is about warnings, not sentences. The bill requires that an offender can only be given a warning when they are before the court.

In relation to his tabled amendment to clause 7 to insert paragraph (c) into new section 86M(2), I shall not be supporting that paper. Offenders should not avoid getting a warning just because of an omission by the court.

In relation to his tabled amendment to clause 7 to insert paragraph (d) into new section 86M(2), I will not be supporting that paper. This is not unique to three strikes. I believe it’s out of scope and unnecessary.

In relation to his tabled amendment to clause 7 to insert paragraph (c) into new section 86M(3B), I will not be supporting this. It’s not unique to three strikes, and I, again, think that this is out of scope and unnecessary.

In relation to his tabled amendment to clause 7 to insert subsection (3C) into new section 86M, I will not be supporting that paper. This section is about when a court imposes a “qualifying sentence” on appeal, so the offender will need to get a warning. It’s not about the oversight by the court.

In relation to his tabled amendment to clause 7 to insert subsection (6) into new section 86M, I will not be supporting that paper. The bill allows the court to use a form of words it considers appropriate. This allows the court to adapt the language as needed and it reduces appeals.

In relation to his tabled amendment to clause 7 to insert subsection (6A) into new section 86M, I shall not be supporting that paper. The warning is required to set out the possible consequences already.

In relation to his tabled amendment to clause 7 to replace subsection (3) in new section 86N, I shall not be supporting that paper. The oral warning is the primary warning. The written notice is a written reminder of the consequences for the offender.

In relation to his remaining tabled amendment to clause 7, new section 86N, I shall not be supporting that paper. The bill is consistent with case law on the previous regime. Written notice is already mandatory under new section 86N. The bill sufficiently provides for when the written notice must be given.

In relation to his tabled amendment to clause 7, to insert subsection (5) into new section 86O, I will not be supporting this paper. Loss of parole at stage-2 is a key feature of the bill. “Manifestly unjust exception” provides the ability to impose a lesser penalty when the test is met.

In relation to his tabled amendment to clause 7, new section 86R, I will not be supporting this paper. The purpose of the regime is to provide consistent and certain consequences.

In relation to tabled amendment to clause 7, new section 86T, I will not be supporting that paper. It’s unnecessary, in my view—the court can already consider these matters when applying the “manifestly unjust exception”.

In relation to his tabled amendment to clause 7, to insert paragraph (d) into new section 86T(2), I will not be supporting that paper. The court can consider these matters already when applying the exception.

In relation to his tabled amendment to clause 7, to insert new section 86UA, I will not be supporting that paper. It’s unnecessary, in my view, as the court can take into account the time elapsed when considering “manifestly unjust exception”.

In relation to his tabled amendment to clause 7, to insert new section 86Y, I will not be supporting that paper. The offender has to be present at sentencing already and has to be before the court to receive a warning.

In relation to his tabled amendment to clause 7, to insert new section 86Z, I will not be supporting this. I believe it’s unnecessary. The Ministry of Justice is already doing a post-implementation assessment within four years of enactment.

Thank you, Mr Chair. Thank you also to the Associate Minister of Justice Nicole McKee for setting a challenge, as she seemed to suggest that, at first blush, she doesn’t support any of my amendments. I’m sure that, on reflection and after we go through them in detail, she will, but there is one thing I’d say first. My friend the Hon Ginny Andersen mentioned the fact that, in fact, deterrence of this nature does work with “thinkers’ offences” like fraud, and that’s one thing—that’s a really good argument.

The other thing is the fact that there are serious offences that the Minister didn’t include, and I did consider putting an amendment in to kind of recognise that. For example, sex trafficking is not in, slavery is not in, treason, piracy—the list goes on and on of those offences that aren’t in. You’ve got these offences which are a hell of a lot more serious than indecent assault, which is in and of itself serious, that aren’t in there. I’d be interested in the Minister’s comments on that.

I think it’s a bad bill—full stop—so I didn’t put that amendment in, but I did want to talk to one of my tabled amendments, which relates to clause 5. There’s a strange clause in there, and it’s kind of back-of-an-envelope drafting. I’m always a bit cautious about criticising parliamentary counsel, but when the “manifestly unjust” exception is used, there’s a direction to the sentencing judge to still sentence it in an appropriate manner, and the words used are kind of weird: they should “nevertheless regard the offence as worthy of a stern sentencing response.”

It’s kind of old-fashioned language, right? What does it mean? Whilst “manifestly unjust”, which is used elsewhere—you know, you could do better, but it is a principle for overturning sentence on appeal, whether it’s manifestly unjust or not. What we’ve got here is a totally new concept being introduced into sentencing law. A sentence that is “worthy of a stern”—it kind of is reminiscent of being told off sternly by an uncle or something, and it actually doesn’t really have any meaning.

If what she means is that the judge should take into account that this is a strikable offence but, for whatever reason, it would be manifestly unjust to impose the strike sentence, but a sentence of a gravity which is appropriate to reflect the strike-full nature, even though it isn’t at the strike tariff, should be imposed—well, let’s use words something like that, rather than this kind of very loose wording. I’m really surprised—I’m assuming this was the Parliamentary Counsel Office’s—parliamentary counsel used the words “worthy of a stern sentencing response.” It’s actually just kind of pejorative but nothing else.

That’s my amendment proposal for clause 5. The words that I propose are actually relatively simple, which is that rather than saying, “worthy of a stern sentencing response.”, just say, “apply the principles set out in this Act in respect of sentencing to ensure that a sentence of appropriate gravity is imposed.” I think that that’s what the Minister was intending when she put that in the bill. I’m aware of the principles of this debate, and so I won’t use my full time, but I’ll just let the Minister respond to that, and then I will move on to my next tabled amendment.

I’ll just repeat for the member the Hon Dr Duncan Webb, because I’ve already said it once and I’m sure the member understands what case law is—and, of course, it is based on case law.

Camilla Belich: Yeah, he’s a professor of law, so I’m sure that he does.

Hon NICOLE McKEE: Well, I have mentioned it. I had said it before, but I’m still being asked the question from your colleague, so I think I need to repeat the answer to what I had previously, just recently said. The proposed amendment would detract from the intention, which is to denounce serious offending, even where the “manifestly unjust” exception applies.

Thank you, Mr Chair. I’ll move to my next tabled amendment. I know that the Associate Minister of Justice Nicole McKee has said, “Oh, I told you once that I don’t like it, and I’ll tell you again.”—and there is a certain, you know, strikable echo there—and I won’t take long on this one, because it’s not a hard one.

The provisions of the bill say that, if a judge is sentencing someone, they’ve got to disregard the strike status of that person, because you’ve got this threshold problem, right? So, you’re on first strike, the judge is thinking about sentencing for a serious offence, and they’re wavering. They’re saying, “Should it be 18 months or should it be two years or should it be 25 months?” The bill says you’ve got to disregard the strike status of the offender. Now, if you’ve got the court records in front of you and you can see they’re on the first strike and you know that, by the intention of this bill, to give them a second strike would impose a mandatory non-parole period, which is pretty much by definition disproportionate, it’s impossible to take that out of your mind.

If you’re going to do that, you really need to make sure that judges don’t know the strike status of the offender, which is why I’ve suggested a new subsection (3) be inserted in new section 82A, in clause 6—which is the same section—which provides that “The Judge considering sentencing must not be informed of the ‘strike’ status of an offender, and if they are aware of the ‘strike’ status of an offender they must recuse themselves.” It’s an absolute fiction to suggest that a judge—they do a great job, but they are not superhumans. They can’t go in and say, “I am not going to know.”—and even if they say, “I’m not going to take account of it.”, it’s a little fictitious.

If the Minister actually wants a workable piece of legislation where judges genuinely don’t take into account strike history, if you like, then the only way to do that is to have, essentially, a closed file when you’re sentencing someone and to only open that when you come to determine whether there is a strike or not, which would be after the sentence is imposed—because it’s simply not possible. That’s a simple question, and can I just comment that I’m grateful for the Minister responding to each of my questions—it’s a really useful thing to do—and although she has once said she didn’t change her mind, I will never give up hope that she will change her mind.

Tom Rutherford—oh sorry, Minister; I didn’t notice. It’s getting late.

Thank you, Mr Chair. I’ll repeat to the member Duncan Webb what I said about his tabled amendment to clause 6, inserting new subsection (3) into new section 82A, that judges need to know about an offender’s criminal history in order to sentence them appropriately. There are some similar requirements in legislation that require judges not to take into account certain factors when making a decision—for example, section 82 of the Sentencing Act 2002 requires that pre-sentence detention must not be taken into account in determining the length of sentence. We think this is important to make sure that sentences that the courts impose reflect Parliament’s intention and are not influenced by the consequences of the regime. If a judge were to take into account the consequences of the regime in determining the sentencing length, the Crown could appeal the sentence where it is appropriate. I think that we are fine where we have landed.

I call Laura McClure.

Thank you, Mr Chair. I appreciate you—

Hon Member: “You may remember me.”

LAURA McCLURE: —getting my name correct. Yes, you may remember me as Laura Trask.

I’ve got a question for Associate Minister of Justice McKee in relation to some of the tabled amendments from the member Mariameno Kapa-Kingi—in particular, the one to clause 6, inserting new section 82A(1A) requiring courts to give consideration to tikanga Māori-based restorative justice. I’m just going to read it out to you. It says, “In clause 6, after new section 82A(1), insert (1A) “In determining the sentence for an offender under this regime, the court must give consideration to tikanga Māori-based restorative justice processes where applicable and agreeable by the offender.”

My question would be: what about the victims? Should any restorative justice be victim-centred? I’m asking the Minister what her thoughts are on this, and what her thoughts are on all the other amendments in Mariameno’s name.

Thank you, Mr Chair, and thank you to the member Laura McClure for her question. The victims of crime—serious violent and sexual crime—are at the forefront of our minds, of this Government, as we reintroduce law and order back into New Zealand and give our communities a safe space to be in.

In regard to the tabled amendments by the member from the Māori Party, I’ll go through them one by one, as they are in my hand. The first one mentioned by the member was the tabled amendment to clause 6, inserting new section 82A(1A) requiring courts to give consideration to tikanga Māori-based restorative justice, and, again, I will go through them by their timing. We will not be supporting this amendment. We believe it’s out of scope and it’s not specific to the three-strikes regime.

In relation to her tabled amendment inserting new clause 4A, we will not be supporting this paper. It is out of scope and not specific to the three-strikes regime.

In relation to the tabled amendment to clause 6, inserting new section 82A(1A) requiring courts to consider the potential for disproportionate impacts on Māori offenders, I will not be supporting this amendment. There is no intention to treat offenders differently solely on the basis of their ethnicity.

In relation to her tabled amendment to clause 7, inserting new section 86XY relating to Treaty Impact Statements, we will not be voting for this paper. It is out of scope. This bill deals with sentencing, not alternatives to sentencing.

In relation to the tabled amendment to replace clause 2, we will not be supporting this amendment. There’s no need to delay the commencement for consideration of options that are not specific to three strikes.

Thank you, Mr Chair. I would just like to address what the Minister was mentioning before, and I think it’s one of the key things about the committee stage that, you know, we would love to talk about victims and victim protection, but it is outside the scope of this bill since it’s not part of this bill. I feel like if we were debating the Corrections (Victim Protection) Amendment Bill, we would be talking more about victims.

I would like to actually apologise and correct myself for what I said before about “manifestly unjust”, because I actually agree with the Hon Dr Duncan Webb saying that I have shaped or taken a definition of that. The Hon Dr Duncan Webb is absolutely correct in that there is actually no definition, and I made an assumption on that definition. I think that clarification would be very much appreciated.

I would like to ask the Minister about something that the Minister said before in terms of Crown Law’s advice—and this is still with regard to new sections 86J(a) and (b)—because I understand that Crown Law’s advice in paragraph 18 is indeed saying that there were safety valves, but that was also before the threshold was increased. I want to check with the Minister whether the Minister has received additional advice from Crown Law or the Attorney-General since the new amendment has taken place post - select committee, because, as we know, any major amendment should have a subsequent New Zealand Bill of Rights Act (NZBORA) report being conducted, regardless of its consistency with NZBORA or a section 7 report.

The other thing I would like to address—that the Minister mentioned when the Minister was talking about Crown Law’s advice—is that Crown Law’s advice in paragraph 47 was also very clear: basically, that there is no retrospectivity in this law. Again, it’s a piece of advice that was given before changes were made during the select committee process. I’m a little bit confused—and I would like clarification from the Minister—around retrospectivity, because the Minister said that “there is no retrospectivity”. I would like to point to the new addition in “record of first warning” and “record of subsequent warning”, which has a new section that states, “(including, without limitation, a relevant reactivated warning under clause 19 of Schedule 1AA).”

If we go to new clause 19 of Schedule 1AA, inserted by clause 23, it does have a specific point around the fact that—for example, in Schedule 1AA, under clause 16, under the definition of “current”, it says in paragraph (b) “would not have ceased, or have been cancelled, under that section if it were in force—(i) on and after”, which for me implies that those old warnings were in fact reactivated. Wouldn’t that then constitute a form of retrospectivity? Clarification would be very much appreciated from the Minister on what she meant by “there is no retrospectivity”.

However, I would like to move on to a new part, and this is new section 86K(2)(a), inserted by clause 7, and this is to do with “The court must—(a) warn the offender of the possible consequences if the offender receives a further qualifying sentence”. Now, my assumption for this clause—and please correct me if I’m wrong, Minister—is that this happens during the time of sentencing. However, if, for example, a person in some way is serving a stage-2 sentence—anything that is longer than, let’s say, 12 months or 24 months—is there any provision or consideration that’s been put in place on whether the offender upon completing their term of imprisonment will be re-warned of what warning they are on and the consequences, because it’s all very well to warn someone at the beginning, but what happens years down the track? Are they going to be re-warned?

Those are my questions, which are around Crown Law advice—whether there’s any new advice on retrospectivity—and new section 86K(2)(a).

Thank you, Mr Chair. To the member: I missed the beginning of your question, so I hope that this answer helps. In regard to lowering the threshold and reactivating previous strikes, it looks like you asked about advice that we had received.

Dr Lawrence Xu-Nan: It’s whether you got any advice from Crown Law or the Attorney-General post amendments.

Hon NICOLE McKEE: Thank you. Any advice that may have been obtained from Crown Law would be privileged, and if we did receive advice, the fact that we did would also be privileged. In relation to the retrospectivity and the warnings, it’s not a punishment that we are retrospectively bringing back into the regime. They are warnings. The punishment is the sentence delivered by the court. This regime is the warnings, and if they fit the new criteria of the new regime, they will be transferred over. It’s not a punishment, and also there is no retrospectivity between the end of the last regime and the beginning of this new regime.

If anyone has committed crimes between the end of the three-strikes regime, regardless of whether or not they had received a strike or had actually had a strike placed upon them in the new regime, then they are very lucky because there is no retrospectivity in that respect.

Thank you very much, Mr Chair. We’ve had a good discussion already, and the Minister has been clear that people need to feel safe in their beds and that that’s important—and we agree with that completely—but, on the point of rehabilitation to stop people from reoffending and to stop them from creating more victims in New Zealand, I would be interested to know the Minister’s views on how this new reinstated three-strikes regime impacts upon rehabilitation.

The reason I ask that is that there has been some work done and some concerns were raised with the previous three-strikes regime that it was potentially negatively affecting offender rehabilitation or access to it, and in fact, during the Justice Committee process, we had some quite good submissions that raised concerns about the lack of parole eligibility, especially for those who are on a third strike. It would be good to know whether she perceives that there is a disincentivising of offender rehabilitation, as rehabilitation programme access is generally prioritised only for those offenders who are eligible for parole. Would it mean that there is not access to that rehabilitation for some of those hardcore offenders who might benefit from that?

Evidence does indicate, in the regulatory impact statement quoted here by the department, that individuals in prison are more motivated to engage in rehabilitation programmes as their completion is often a prerequisite for parole. You’ll get people to do it if they know they’re getting parole. In the previous regime, we saw that there was no incentive for rehabilitation to be taken, and it’s also noted, and I think it’s worth pointing out, that research shows that New Zealand’s managed release system results in lower rates of reoffending than limited supervision at the end of a sentence, and this is, in fact, supported by international evidence, which shows that offenders released without supervision are more likely to reoffend than those released under parole supervision. If there is some good evidence there, I’m wanting to know whether the Minister has turned her mind to it.

The second point I would like to ask the Minister about—the first one being on the impacts on the rehabilitation of offenders—would be the impact on justice outcomes for Māori. We’ve already had a bit of a discussion around this, but there is some great work done by the Law Commission specifically on three strikes. I just wanted to draw the Minister’s attention to data from the previous three-strikes regime that provides quite a reliable indication of the likely impact of the planned reinstatement of this on Māori. As of, I believe, March 2022—and the Minister might have more recent figures—just prior to the repeal, approximately half of first-strike offenders were Māori. The 21 offenders who received a third strike—in fact, 81 percent of those—were Māori. Over 2018-19, and then 2019-20 combined, Māori were nine times more likely to receive a first strike than those of European or other ethnicity, and in fact 18 times more likely to receive a second strike.

These figures do illustrate that Māori offenders and their whānau were strongly impacted by the previous regime, and there is a strong view that what this legislation does is, in fact, compound existing inequalities within our justice system and entrench those further. I would be interested to hear from the Minister, given the research that Māori are 18 times more likely to receive a second strike, whether that potentially would impact upon any obligations under the Treaty of Waitangi if there is not access to rehabilitation, access to be able to provide connections and opportunities to turn your life around, particularly given the fact that Māori are disproportionately represented by quite a significant amount.

Thank you, Mr Chair. To the member the Hon Ginny Andersen, who was looking at the rehabilitation side and the question on the loss of rehabilitation opportunities, the member will be pleased to hear that offenders will be able to access certain rehabilitation programmes when they are nearing their release date, even if they’re not eligible for parole. They will also have ongoing access to other activities such as education programmes.

In regard to consistency with the Treaty of Waitangi, I do recognise that some Māori will be subject to longer sentences because of this bill. However, the bill does not discriminate based on race. The bill is there for those that commit the crimes, and it’s important to note that Māori are also more likely than non-Māori to be that victim of crime. On that basis, a policy that takes a tougher approach to sentencing, I would say, is of benefit to Māori. Māori are, of course, equally entitled to be free from crimes, yet Māori are more likely than non-Māori to be the victims of crime, and I recognise those victims and denounce those who offend against them. I intend for this bill to help protect Māori victims by incapacitating and deterring offenders.

Thank you very much, Mr Chair. It has been fantastic for the Minister to be engaged as we talked through the 21 amendments from Dr Duncan Webb, the 25 amendments from Dr Lawrence Xu-Nan, and the four amendments from Mariameno Kapa-Kingi, and for her to outline her position that she wouldn’t be supporting those amendments and to provide the context as to why that would be the case.

I’m keen to come to the substantive part of the legislation that we’re actually here to debate, and particularly clause 7, inserting new sections 86J to 86X and cross-heading, because this is the really substantive part of the bill. I believe the Minister would like to speak to parts involved with that part, and then once we’ve done that, I’m ready to move to Part 2 and the other part involved with the legislation.

I’m keen to understand from the Minister around the interpretation aspect at new section 86J, inserted by clause 7, and then new section 86K, “Warnings: first warnings to be given if qualifying sentence imposed for stage-1 offence”. A short sharp call so the Minister can respond to that, and then I’m ready to move to Part 2.

The time has come for me to leave the Chair. The committee will resume at 9 a.m. Have a good night, everyone.

Sitting suspended from 11.55 p.m. to 9 a.m. (Friday)