Sentencing (Reinstating Three Strikes) Amendment Bill

Members, the committee is currently considering the Sentencing (Reinstating Three Strikes) Amendment Bill, and the question we are debating on is Part 1: clauses 3 to 12, “Amendments to Sentencing Act 2002”; and Schedules 1 and 2. The question is that Part 1 stand part.

Thank you, Mr Chair. Last night when we finished up for the evening, I was asked a question by the member Tom Rutherford around the changes to new sections 86J to 86X, which is clause 7 in the amendment bill, and I’d just like to take some time to answer his question around some of these changes.

In section 86J, the qualifying sentence threshold at stage-1 has been amended to 12 months, from 24 months. We also have put in there that if an offender has earned a first strike but wins an appeal and gets, say, home detention, then the record of that first strike will be removed because it’s no longer imprisonment.

At section 86M, we have said that if, on appeal, the court issues what becomes a qualifying sentence, then a strike warning can be issued if indeed it does qualify at appeal. We also, at section 86M, are noting that if an offender is not before the appeal court when the decision is made that would give them a strikable offence, then the offender must be referred back to the original court in order for that court to provide the offender a warning.

At sections 86P, 86R, and 86S, we are removing the words “in writing”. The reason why we are removing those words, “in writing”, is because we believe that the oral indication to the offender that they are receiving a warning is the official warning that they receive, and that to have it in writing will be to confirm that the offender has received that oral, verbal warning by a judge directly, and gives them a record of it.

At section 86T, we are removing section 102 from matters that apply to section 86T, aligning with the wording used in the Sentencing Act 2002. It clarifies that section 86T does not prevent consideration of any mitigating factors. At section 86U, we are allowing the court to revoke a warning when a pardon is granted.

While I’m on my feet, I think it’s an opportune time to speak to my own Amendment Paper and the reasonings for why I am bringing it to the committee. The Amendment Paper that I have submitted amends Schedule 1 of the bill, which reactivates previous warnings that meet the relevant thresholds under the new regime. The paper ensures that when a previous warning is not reactivated, a previous final warning could be reactivated as a first warning under the new regime. This will happen when the previous final warning meets the threshold of above 12 months’ imprisonment, including sentences of above 24 months’ imprisonment. As it was returned from the Justice Committee, the bill as currently drafted did not reactivate a previous warning in certain scenarios for a sentence of more than 24 months’ imprisonment, so I believe that this Amendment Paper is necessary.

To give an illustration: an offender may have been sentenced to 10 months’ imprisonment for a previous warning, and, say, 27 months’ imprisonment for a previous final warning. In this scenario, the offender’s previous first warning will not be reactivated, because it didn’t meet the threshold, because it’s 10 months, not over 12. Only a final warning for a sentence of more than 12 months’ imprisonment, but then up to 24 months, will be reactivated, but not for sentences above the 24 months, so that offender’s final warning would not be reactivated. I hope that that explains my Amendment Paper that I’ve put forward.

Thank you, Mr Chair, and thank you for that explanation, Associate Minister of Justice McKee, albeit I am surprised, after what the Minister said yesterday about consistency, that we’re seeing an Amendment Paper today.

I want to kind of pick up on what the Minister was just saying before—two things the Minister was saying before. I want to go back—

CHAIRPERSON (Teanau Tuiono): Just to clarify, this showed up last night.

Dr LAWRENCE XU-NAN: Thank you, Chair. I want to pick up on what the Minister mentioned before, and I’m still also waiting for a response from the Minister regarding my earlier question: when a court issues a warning, warning the offender of the possible consequences, whether that particular warning of the consequences of getting a warning will be given to the offender later on—after, for example, the offender has served their sentence—because of the fact that, after you’ve gone through the whole process, people might forget and potentially may need a reminder. That is a clarification, if the Minister wouldn’t mind giving it.

When it comes to what the Minister said before, and this is specifically in relation to new section 86M(2), inserted by clause 7—I’m at the “administration” element of this new section. Now, although it says, “if the court is the court that first sentenced the offender”, and “if the court is not the court”, they have to go back to a previous court, and this is what the Minister said before. I wanted to check with the Minister whether there’s been any consideration of the potential court backlog around this, which is one of the concerns of some of the submitters, the additional administrative burden. If the Minister wouldn’t mind just clarifying whether she foresees that there will be an administrative burden or, potentially, that she has a rough estimate of how many cases this would entail, it would be quite nice to have that reassurance.

Now, the other thing that the Minister was talking about—and the other question I have—is around new section 86N, which is around the notice of possible consequences, etc. One of the things we brought up in the select committee, and we couldn’t have a definite response from the officials, is around the fact that we do see a high level of dyslexia or neurodivergence within the whānau population, particularly with those who offend—on whether that has been a consideration given when a warning is issued, to check in terms of the comprehension. The Minister before mentioned quite a lot in terms of, “Well, if you’re this, then this doesn’t count; if you’re this, then this doesn’t count.” That is complex even by the standard of a legal expert, let alone someone who is offending or with dyslexia or neurodivergence. My final question is: whether the Minister has considered how to ensure that offenders fully comprehend and understand what they are doing and the warning and what that’s going to entail.

Those are three questions: whether the consequences of the warning will be given to the offender later on; clarification around the number of instances that it will have to go back to a previous court under new section 86M(2)(a) and (b); and also whether dyslexia and neurodivergence have been factored in when a warning is issued.

Thank you for your questions there, Dr Lawrence Xu-Nan, the member from the Greens. In answer to those: we’re not really worried about the backlogs; we are working on backlogs within the justice system. Part of the reason of having a six-month implementation is to make sure that the system will be efficient when it goes through.

In answer to your question about how the warnings are given, as I just mentioned when I was last on my feet, the warnings are given originally as an oral warning, face to face, followed up with a written warning. There are two avenues there for a person to receive and understand not only the warning that is given to them, because it will be face to face, but also the written follow-up as well. There will be no excuse for continuing to offend by saying that they did not understand that they had a warning in place, when it will be delivered in two ways.

Thank you, and it’s so good to be here and to give this the scrutiny that it deserves. I would just comment that last night Associate Minister of Justice McKee did stand up and say, “We will be voting”, and went through a number of tabled amendments. I just thought it was a little disrespectful of the process of this House. She has one vote; she is a member of the executive. She doesn’t speak for the House of Representatives in which we sit today.

Anyway, the other point I’d make, in respect of my tabled amendment I’m going to talk to now, is really reflective of the speech that the Minister just gave this morning—the first speech she gave—when she went through all the complexities of this piece of legislation. What she has managed to develop, through the original bill and her Amendment Paper 237, on the Table, and through the amendments she requested/demanded that the select committee take on board, is one of the most complex and unworkable pieces of legislation I’ve seen, with differing strikes, having to go back and revive previous strikes but not all of them, and, even then, sometimes, in a different order.

Then we’ve got new section 86KA, in clause 7, which deals with the situation where someone has been given a first-strike warning and then commits another offence and is sentenced to a period of imprisonment which meets the first-strike test but not the second-strike test. Now, we have a most bizarre—Kafka would be proud—situation where you get a second first warning. I mean, that’s a nonsense statement that you’re on your first strike, you’re sentenced, and you get another warning, but it’s not a second warning; it’s a first warning. I get what’s trying to be addressed here. What’s trying to be addressed is the risk that, in respect of the first offence, there is an appeal against conviction or sentence which reduces the first offence to below the strikable standard. You’ve got a kind of belt and braces two first warnings so that, if one first warning falls away, you’ve still got a second warning.

It’s absolutely a nonsense to give someone a second first warning. That’s why I proposed the amendment, essentially, replacing the section and calling it what it should be: “New first strike warning where original warning cancelled.” You don’t give two first-strike warnings, because that’s an impossibility, and it’s just tortuous language; what you do is you wait and see. If there is actually a change in the status of that first warning and it falls away, then there is no warning. You can give another warning which can properly be called a first-strike warning. One of the problems here is that to give two warnings is actually really confusing.

It troubles me that sometimes our policy makers and drafters pride themselves on these really complicated so-called solutions, but we don’t put ourselves in the shoes of the people who are affected by it. Now, I know the Minister doesn’t really have a great deal of time for offenders and isn’t concerned, but I’m actually concerned that we make it clear to them what’s going on. If they have two warnings, they’re going to think they’re on their second strike, when they’re not. Let’s wait until the first warning is cancelled before we give them another first warning, and that’s what my proposed section 86KA, “New first strike warning where original warning cancelled”—there’s some simple language for you, Minister—would do. I would like her to revisit her statement that she is voting this amendment down.

Thank you, Mr Chair. I wonder whether or not the member the Hon Dr Duncan Webb is speaking to his amendment that was tabled this morning.

Hon Member: Last night.

Hon NICOLE McKEE: Last night’s one. Sorry, just checking.

Hon Member: I will get there.

Hon NICOLE McKEE: OK. That’s all right, because I’ve already actually spoken to that, so I’m not prepared to speak to it again.

What I will say in relation to what the speaker had asked—there is one point that I would really like to make, and that’s in regard to the comments that were made about the policy makers and the drafters, of whom I have the utmost respect for the work that they do and the hours and time that they put in to make sure that we have right legislation that is fit for purpose and that looks after and addresses the community’s concerns on public safety. In that respect, I think that our policy makers and our drafters actually deserve a round of applause and a thanks for the work that they do.

Tēnā koe, Mr Chair. Tēnā tātou katoa e te Whare. Just in closing last night, I did recall the Minister standing and speaking to—or reading, which is not quite the same as speaking and thinking one’s thoughts through oneself. Just reading off a paper and landing with the same old “I won’t be dealing with this” or “I won’t be voting for it” is, I think, more than a disrespect; it is a neglect on the Minister’s part.

To that end, the Minister talked about rehabilitation. The assumption about rehabilitation is that there has been “habilitation” in the first place, which, if you know what you’re talking about on the subject, you will know that that is just not the case. It is a myth to suggest that rehabilitation can even occur when one doesn’t truly understand and know the issues that exist in this context. That was just to help you out, given my own training in this space, on which it seems most have a gap of knowledge in this regard.

The other thing that I do want to draw to the Minister’s attention in my amendments, on which, of course, clearly, she regurgitated her boss’s kōrero—which is, you know, “Māoris and Te Tiriti and all of that stuff has no place.” I want to ask the Minister to explain whether she understands the concept of hohou te rongo. That’s referred to when I talk about—just to help her understand in English—restorative justice.

The concept of that is a very old and important concept in action that might be missing; there might be a gap of knowledge. I can assure you that what is now called restorative justice—which you should know—originates from family group conferencing, which originates from whānau hui, which originates from the Children, Young Persons, and Their Families Act 1989. All of that work, that Māori intelligence and work, was provided—to nail the point—in what the mainstream calls restorative justice, but the essence of it comes from hohou te rongo.

I’m curious that the Minister might know what that is, and I’d be interested to see if she can explain that in the context of her rejecting outright amendments which—I know that her party think that way because, sadly, it shows up in their majority of racist rhetoric. Thank you.

Point of order, Mr Chairperson. I think we can fairly take—well, I personally think that’s a fair place to take—offence, when you hear someone say that final comment from the member.

CHAIRPERSON (Teanau Tuiono): Speaking to the point of order, Dr Duncan Webb, and I am just getting some advice on that.

Thank you, Mr Chair. This House has explored allegations of racism and the extent to which they can be made at some length in this House, and it’s very clear that in terms of—

Hon Matt Doocey: The member said he takes offence. Sit down.

Hon Dr DUNCAN WEBB: There’s a convention that points of order are taken in silence. The—

Hon Matt Doocey: Yeah, the Standing Orders—when he says “take offence”, you accept it, not debate it.

CHAIRPERSON (Teanau Tuiono): Let’s hear this point of order in silence.

Hon Dr DUNCAN WEBB: The fact is that it’s well established that criticisms of policies and positions and legislation may be called racist, whereas allegations of that nature directed against a person are out of order, and that’s a well-established convention.

I’m going to just take some advice on this. My understanding is that Dr Duncan Webb’s assessment is correct, but I am just getting some advice on that and I would like to continue, and then we will come back to this. I will ask members to focus their contributions on specific clauses. I’ve been going through the notes from last night and there was a rich debate, from what I can see, and a number of points have been raised and a lot of analysis has been had. I do want you to be specific to clauses in terms of your responses to the Minister. I’ll take the next call.

Thank you, Mr Chair. To the member from the Māori Party, when I’m reading, especially when it comes to Amendment Papers or tabled amendments which have no reference and are totally out of scope of this bill, I will ensure that I do read, because from this position it is important that we are accurate and have our wording correct. There is a need, when there are a number of Amendment Papers, to make sure that we address the paper itself and what it is that needs to be read out. The member understands that they are well out of scope and should probably look to the bill and how the bill is read in itself.

In regard to rehabilitation, as I had mentioned last night in one of my speeches, the rehabilitation is still available to prisoners, including education, so I’m not quite sure what the member is on there.

In regard to the debate that that member keeps bringing up, saying that the party or the Government is racist, I think what the member needs to do is have a look at the bill and realise that the bill is not based on race; the bill is based on bad behaviour. The bill is based on those that create the most serious violent and sexual crimes, not on race. [Interruption]

Order! Order! Taihoa—taihoa. I don’t want people talking to each other across the Chamber. I do want that to stop.

Just to the point of order and the counter - points of order in terms of what can or cannot be said in terms of referring to something racist, you are able to infer things to the Government or to policies but not to an individual person. We were talking about rhetoric that can be something that could relate to the Government or to an individual, so it’s incredibly contextual. If I could ask members to refrain from using that term in terms of the way that it might relate to the individual, that will help in the order of the committee. Also, I do want to hear specific interventions on clauses.

Thank you, Mr Chair. I’m just seeking also some clarification from you, Mr Chair. It might just be that I’m still quite new, but I didn’t think that the Associate Minister of Justice was able to consider, herself, whether Amendment Papers were in or out of scope. I would just like some clarification.

Also, one of the things—and the reason why we’re coming back to rehabilitation and coming back to talking about this again—is that we still haven’t heard from the Minister yesterday. I think multiple members asked this and we didn’t hear a response: how is the Minister going to address the fact that, under the old system, 81 percent of people who received a third strike were Māori, which is disproportionate to their population? What are we going to do about that? And, going to the specific point that the Hon Duncan Webb mentioned before, in terms of having two first warnings, we’re still waiting to hear a response from the Minister regarding that.

I want to point to a specific clause that that may affect, which is clause 7, which inserts new section 86U(2). Now, in this particular section, it says, “an offender ceases to have a record of first warning in relation to a stage-1 offence or a record of subsequent warning in relation to a stage-2 offence or a stage-3 offence”, but, as we see from the new section 86KA, you can have a first warning in a stage-2 offence. If you can have a second first-warning during the stage-2 offence stage but this section only addresses subsequent warnings in stage-2 provisions but doesn’t address first warnings in a stage-2 provision, what happens when a person has a first warning at a stage-2 level? Does that then mean new section 86U(2) no longer applies to them? And what happens to these people if it is no longer applicable?

One other thing I want to touch on, in terms of what the Minister said before—and I do appreciate the Minister responding to my earlier questions, particularly around ensuring that offenders do get an oral and a written warning—is that that also makes an assumption about the comprehension of the oral and also the written warning. My question was very specific—and I have been listening to the Minister very carefully: will they check to see whether the offender comprehended and understood fully what that warning means, rather than just delivering an oral warning and a written warning?

Again, just for clarity, my questions were around how the Minister is going to ensure that, this time round, we’re not going to be seeing an overwhelming number of Māori who are going through the strikes system, like we were seeing earlier, which was disproportionate to the population; and around what happens in new section 86U(2) when a person has a second first-warning but it is applicable in the stage-2 stage but is not referenced in this particular provision as an example. My last question is checking on the comprehension of the warning and whether the warning will be understood. Thank you.

Just in terms of the clarification that was sought, I will be determining what is or isn’t in scope, but also noting that the Minister has, in her interventions and her contributions, addressed certain issues. I am listening carefully to see whether issues have been addressed or not.

Thank you, Mr Chair. I wanted to address the points made around the Associate Minister of Justice not supporting particular amendments, which we have covered off in a lot of detail.

I remind Dr Webb that, last night, we indicated that we also didn’t support the amendments, and I’ve checked with my colleagues in the ACT Party and New Zealand First, and they won’t be supporting the amendments either—just to give Dr Webb some assurance that this side of the Chamber won’t be supporting the amendments the Minister has already well and truly covered off. Also, I’ll give the Minister a chance to address Dr Webb’s tabled amendment from this morning—whether or not the Minister can indicate if she thinks that that amendment should be supported. I have reviewed it and I didn’t think it was one that we would support, and I want to get the Minister’s view on that as well.

It’s good that Dr Webb spent some time doing some homework last night. I also did some homework. I spent a good couple of hours after the session last night just reviewing what we’d gone through, because I was wanting to come to the Chamber this morning and make some substantive contributions on the clauses in the bill that haven’t actually been covered off. We had Dr Xu-Nan yesterday covering off clause 3 around inconsistencies and his questions around permanent records, and Dr Webb also touched on the manifestly unjust provisions in clauses 5 and 6. Both Dr Webb and Dr Xu-Nan and members and also Ginny Andersen then spoke at length on clause 7, which is the operative clause around how the three-strikes system works.

Then, of course, the Minister this morning gave a very fulsome answer to that. I wanted to thank the Minister for providing, I think, some quite detailed answers to questions. Some of the calls are quite long, and I found it hard to discern the questions from them. Over five minutes, it’s hard to find where the questions have come from, so, hopefully, the shorter and sharper the calls, the more detail we can extract. Obviously, the Chair does a great job of picking out where the questions are, and that’s why he’s in the Chair and we sit over here on the benches.

The new material I wanted to raise, given that we have covered off all the trajectory, all the material in clause 7, is just heading now towards clauses 11 and 12. I just want to get the Minister’s confirmation that my understanding is correct in that clause 11 amends Schedule 1AA, and that is to do with the reactivation of previous strikes, which Dr Webb covered off last night in quite an amount of detail, and clause 12, which inserts new Schedule 1AB, set out in Schedule 2. That, of course, lists the qualifying offences that will be provided in this scheme, which Dr Webb also covered off in quite an amount of detail last night.

If I can just get the Minister’s confirmation that that’s my understanding of how those two clauses operate and that the Minister is comfortable that she addressed the questions to those Schedules posed by Dr Webb last night. Then I’m very much looking forward to continuing on into Part 2 very shortly.

Thank you, Mr Chair. There’s a bit there for me to unpack, so please bear with me. I’m going to start with the Green member’s contribution and see if I can clarify, again, in a way that is more helpful to the member. In regard to new section 86U(2), the questions that the member asked me are actually covered by new section 86U(2A). It covers the additional first warnings under new section 86KA.

In regard to re-warning people after they have left prison, the intention is not to do that, but I can assure the member that should a person be in prison and they commit another crime, they’re likely to receive another warning and they’ll be told about it again at that stage. In regard to the court impacts as well, which the member had mentioned, new section 86M(2) is the reference that I will give you. It will be infrequent that a person will have to go back to court, but there will be a few cases expected. It could be where the court omits to give the warning, and judicial education and the six-month preparation for the implementation of this law will help with that because that’s where the training of court staff and the judiciary will be undertaken.

There, of course, will be the other exception where, say, a person appeals a decision to the Court of Appeal, it is usual—not the only way that it occurs but often a judgment is reserved and delivered later. Therefore, the offender is not always in court at that time. This means that the offender will have to go back to the original court in order to receive the sentence or the warning or, as the case may be, have the warning removed. It will need to be done face to face and the person will need to be recalled, if the appeal is successful or not.

The warnings will be communicated to the offender, and the court can use whatever words they wish to use to be able to help that individual understand what’s happening. It’s not like they’ll be reading from a script. They’ll actually be able to understand the scenario that that individual will be in.

Thank you, Mr Chair, and thank you, fellow members—thank you, members from across the Chamber, for taking the opportunity to summarise and school us on what we should and should not be asking, or what we should or should not have comprehended from what the Minister has chosen to answer to date. Whilst the members from across the Chamber may think that the questions have been well traversed or well answered, they’re as clear as mud in some cases, so they will continue to be asked.

The Minister has said that the whole purpose of this bill is to provide a consistent and certain consequence, which I think is a little bit ironic, given the state of affairs in this committee of the whole House stage, where we have pre-emptive explanation and explaining going on, where we have a Minister refusing, essentially, to engage in some debate and arbitrarily just ruling it out of scope if it doesn’t suit her purposes.

I’ve still got some genuine questions because I don’t understand the logistics of how some of this is going to work. When the Minister says, for instance, “the strikees will have received and therefore understood a warning”, there’s a huge assumption—and the word “understood” is doing a lot of heavy lifting there. It’s not OK for a Minister to sit in the chair and just say that the court staff, after a brief period of six months of preparation—in which time, all of the IT, all of the training; there’s an awful lot going on in a six-month period, to have logistical preparation for an efficient and effective system to be carried out. And during that period of time, they’re able to use some words and, therefore, people will understand?

My colleague from the Green Party asked some legitimate questions about individuals’ capacity to have sufficient understanding to understand what is an incredibly complex warning system. Having sat through the select committee process and having the opportunity to ask experts, officials, direct robust questions about stepping us through the complexity of this, sometimes the answers provided made it less clear, rather than more clear. You can only imagine standing in a courtroom being told that you’re getting a second first warning about something.

What I really want to know is, whilst an awful lot of work has gone in to amending and rewriting, and all of the focus has been from the impetus of the court or the Minister or the party in the legislation, what work has gone into ensuring that there actually is some understanding, or testing understanding? Do people leave the dock, leave the courtroom, and have to sign something to say that they understood? What happens when an oral warning is given, and then it’s assumedly backed up by a written confirmation: if one or the other doesn’t happen, how does that impact on the one that does?

I agree with my colleague the Hon Dr Duncan Webb that there’s torturous language throughout this, and high anxiety in the context in which all of this is supposed to actually operate on the ground. I think there are still questions that need to be asked, and still questions that need to be answered—without flippancy, as if the questions are an inconvenience or as if they are on purpose being silly to slow proceedings, because they’re not. This whole process has been fraught with misunderstanding, and this is the only chance we get now—whilst the rest of it happens during urgency—to actually ask those questions. We didn’t choose to introduce this horrible bill, but some of us would prefer that it at least went out in as good a shape as possible on our watch. I don’t begrudge the fact that we are able to ask questions.

One of the things that, again, remains completely unanswered is going back to new section 82A, in clause 6, in so far as the “Additional consequences for certain repeated offending must not be taken into account in determining length of sentence”. As was mentioned last night, but not sufficiently answered, that sentence in and of itself does a lot of heavy lifting. It’s absolutely assuming that because it’s written down somewhere, therefore that will occur. You can’t unknow what you don’t unknow. It’s like asking someone not to think of polar bears and then of course that’s all they can think of. There are means by which, in other fields—[Time expired]

I’m just going to carry on with my answers to the questions that James Meager had asked me in regard to clauses 11 and 12, which relate to Schedule 1 and Schedule 2 of the Act. Schedule 1, in clause 11, is relating to the old regime and it’s providing definitions to clarify that offending under the old regime does not use the definitions of the stage-2 and stage-3 offences in the new regime.

In Schedule 2, in clause 12, there is a list of the qualifying offences which have been increased by two, so it has moved from 40 to 42, and it is outlining those qualifying offences which are deemed to be some of the most serious violent and sexual offences that a person could commit. Of course, every single one of those is punishable by imprisonment of over seven years, and that’s why they are included. It also assists with the lower-level offending that was caught up in the last regime that we do not want carried over into this new regime.

In regard to the member’s question about the tabled amendment to clause 7, inserting new section 86LA, that was tabled this morning at 8.46 a.m. by Duncan Webb, I will not be supporting that amendment. I will take note that there is a six-month commencement period in order for the courts and judiciary to prepare for implementation. As I mentioned last night, the Ministry of Justice operational staff are working on ways to ensure that the offenders are aware of how they are affected by carrying over those previous strikes. Of course, this will have some logistical and privacy issues for those individuals, which is why it’s important that we do have that six-month implementation.

I move, That debate on this question now close.

Dr Lawrence Xu-Nan: Mr Chair?

Dr Duncan Webb.

Thank you, Mr Chair. Yes, my Green colleague did have a turn just before, and I’ve got a number of tabled amendments that I haven’t got to, including the one the Associate Minister of Justice just alluded to. Unlike Mr Meager, I didn’t stay up late last night; I got a jolly good night’s sleep, and so I’m here ready to go.

In respect of my proposed new section 86KA, this goes to the deterrence effect, because the Associate Minister of Justice is retrospectively reviving former strikes and yet, I mean, the offenders who had those strikes, and will again have those strikes, won’t know about them. If the purpose of this bill is premised on the assertion, flawed though it is, that if people know the consequences for further offending are greater, they are less likely to commit that offending—that’s the fundamental theory underpinning this. If that’s the theory, then you’ve got to tell the people who are affected that the consequences of further offending are greater than the norm, they are disproportionate, to use the words of Paul Goldsmith.

My proposal is that the people who are having their strikes revived, if you like—reinstated—are told that that is the case. They are informed in writing, because that’s the only way the whole theory can actually work. There’s a kind of natural justice issue in here as well, isn’t there? They’re subject to something, a change, which they have no knowledge of, and if they don’t have any knowledge of it, it clearly can’t affect their behaviour. That’s that tabled amendment to clause 7, inserting new section 86LA, that was tabled today, although I prepared it yesterday afternoon, just for James Meager’s goody two-shoes benefit.

Then, the other tabled amendment that I’ve got there is to remove the words “if the offender is before the court at that time” in clause 7, new section 86M—I’d be interested in the Minister talking about this, because it’s actually quite an interesting point. Throughout the bill, it talks about recalling an offender to the court if the sentence was imposed at a time they were not in court. Now, I find that very unusual, because, by definition, it’s a sentence of imprisonment that is being imposed. I’m perplexed as to the circumstances in which a person is sentenced to imprisonment and isn’t before the court. I would’ve certainly thought that in those cases, you shouldn’t be sentencing someone to prison unless they’re there in front of you.

I know the Minister’s keen—and, in fact, she’s had the cooperation, to a large degree, of this side of the House—on audiovisual link (AVL) to assist some of the court backlogs. It may be that that’s an allusion to the fact that there’s, conceivably, situations where there’s sentencing by AVL and you actually want it to be genuinely face to face, not across AVL. My tabled amendment that was filed at 12.48 p.m. yesterday—to remove the words “if the offender is before the court at that time” in clause 7, new section 86M—actually addresses that. I do think that if you’re going to sentence someone to prison for a strikable offence, then they should be in front of you, and it shouldn’t be a case that you sentence them in their absence, which seems bizarre to me, and then you get them back.

That’s the other thing in terms of getting them back, to summons. You’ve just sentenced someone to imprisonment and then you’re issuing a summons or, stage-2, a warrant for their arrest, but you’ve just sentenced them to imprisonment. This is the kind of gobbledygook that is throughout this piece of legislation, which makes it very hard to follow. I’m really concerned, as my colleague the Hon Ginny Andersen said: in practical terms, is it workable?

I’m very interested in those two things. You’ll see I’ve done two of my tabled amendments in one hit, the one being the notification of strikes and the other one on the offender being before the court at the time of the sentencing and warning.

I move, That debate on this question now close.

Thank you, Mr Chair. I want to thank the Associate Minister of Justice for answering my previous question, and I want to point to a new section that I haven’t spoken to in the committee stage yet, which is new section 86V, in clause 7, around “How cessation of record affects later sentences”. My question to the Minister is a point of clarification.

Now, in new sections 86V(2), (2A) and (2B), it makes references to what an appropriate court is despite the fact that we see the mention of “appropriate court” in new section 86U(5). I was curious to know particularly around why new section 86V(2A) came about, because I wasn’t actually part of the select committee stage when this was being discussed.

New section 86V(2) mentions “High Court”, section 86V(2A) mentions “If [it] … is not the High Court, … by a higher court”, and then section 86V(2B) is “District Court”. I guess the question is: why separate out the High Court from “not the High Court” and from “District Court”? The rest of A and B is exactly the same. Presumably if you have section 86V(2) just say “High Court and above”, it would cover off both subsections (2) and (2A) quite nicely?

My understanding is that you get the High Court, you get the Court of Appeal, you get the Supreme Court, and below the High Court, you have the District Court. What I wanted to check is: does subsection (2A), in fact, factor in another court that would have this power that is beyond the current higher courts of District, High, Court of Appeal, and Supreme? If it doesn’t, wouldn’t it be better and less confusing or convoluted to have sections 86V(2) and 86V(2A) together?

I move, That debate on this question now close.

Thank you, Mr Chair. I think we’re almost a quarter of the way through my tabled amendments.

The next tabled amendment I’d like to talk about is the amendment to clause 7 to insert paragraph (d) into new section 86M(2), filed at 12.46 p.m. This is the summons to an offender to attend to get their warning. I must say, if you put yourself, if you can, in that situation: you’ve just been sentenced to 12 months in prison, you’ve been on remand for 14 months, so you walk out the door with time served. Then they forgot to give you your warning whilst you were before the court, and then you get a summons. Now, you’re not going to be over the moon about that, right?

There is a challenge there, because a lot of these people may be distant. They may have been convicted in a court which is in a different city, because there’s this rule that you’ve got to go do your sentence in court in a different city from where you’re actually living. Whilst, if you are arrested, the constabulary will no doubt assist you with your transport needs, that’s not the ideal solution. My tabled amendment notes, or suggests, that where there is a summons—not a warrant; a summons—then the offender should be given all necessary assistance, including travel by the most convenient means, and that’s not a paddy wagon; that would be an aircraft if it’s a long distance, because they’ve got to get there, right? Certainly, if a witness is summonsed to the court, the person summonsing them has the obligation to pay the travel costs. I think that’s actually a really important thing, because these are people for whom travel is often not easy. It’s not going to be easy—even if it’s just to get into court in Wellington from Upper Hutt, it’s still a challenge. That’s that tabled amendment.

The next tabled amendment I’d like to talk about is the amendment to clause 7 to insert paragraph (c) into new section 86M(2), filed at 12.45 p.m. This, again, relates to warnings not being given at the time. As it currently stands, new section 86M provides that the court can, essentially, go back and give that warning indefinitely. They forget—and this is the point Ginny Andersen made about the court systems not being good; we know they’re struggling in there—they don’t give the warning, two years pass, and then they’re like, “Oops, let’s recall this person so we can give this warning.” Well, that kind of oversight isn’t acceptable, and there has to be a time which is no longer reasonable.

My proposed amendment inserts paragraph (3)(c), and it simply says that “In no circumstances is a warning to be administered more than six months after the offender has been sentenced.” It gives a grace period which I think’s quite reasonable, but if the court hasn’t got its stuff together within that six months, you don’t have this hanging over your head indefinitely. There is a situation where you could get two warnings late, right? All of a sudden the court realises they’ve missed a warning and then they go back and look and see that they’ve missed two warning—so you go from zero warnings to being on your third strike. That would be outrageous and would entirely undermine the purpose of this bill, which is actually to let people know the consequences of further serious offending.

That’s that amendment, and I’m trying to get through them because I know that kids on the other side are getting a little bit grumpy.

Hon Members: Oh!

Hon Dr DUNCAN WEBB: Because I’m still on warnings—I’m on still warnings.

CHAIRPERSON (Teanau Tuiono): It’s a bit early.

Hon Dr DUNCAN WEBB: Yeah, ha! The next tabled amendment, the amendment to clause 7 to insert subsection (6) into new section 86M, filed at 12.49 p.m. yesterday—the Minister said something that I was quite concerned about in relation to warnings. That was that the judge can use any words they like because it is really important that the warning is clearly expressed. In that situation, what we need—

The member’s time has expired..

Thank you, Mr Chair. I just would like to address the questions from Dr Lawrence Xu-Nan, the member from the Greens, about new section 86V(2A), inserted by clause 7. Section 86V(2A) allows the Court of Appeal to take the necessary actions if they feel that that is appropriate, and subsection (2B) is also reflecting that, in some cases, the District Court may have taken the actions relating to the earlier warning ceasing, while the later qualifying sentence may relate to an offence that the District Court does not have jurisdiction to deal with. For example, if the latter sentence was for murder or a stage-3 offence that required the High Court or above to deal with it—so a category 3 or category 4 offence must be heard in the higher courts; whereas categories 1 and 2 are heard in the District Courts.

When it comes to the Hon Dr Duncan Webb’s amendments, I feel that I have addressed all of those yesterday evening, and I stick by what I said at that stage.

Before I take the next contribution, many of the tabled amendments that were filed were discussed last night. My understanding, just going through some of the notes, is that many of those have been addressed. The way forward for me and for the committee would be that, if you’re referencing those, you preface your remarks with a question—a question, in particular, that the Minister has not addressed. Of course, there are other amendments on the Table.

Hon Dr Duncan Webb: Point of order. Thank you for your guidance on that. I do think it’s really important that this is a committee for debate, and whilst I accept that there’s a question and answer aspect to what goes on under the more recent convention, what the Minister has done is stand up and say, in pretty cursory terms in many cases, “I don’t like that.”, “I won’t be supporting that.”, and so on. There is an entitlement to speak to Amendment Papers, including of other members, to make the case that the Minister should adopt them, and the Minister can’t peremptorily say, “That’s not the case because I’m not supporting it anyway.” I just want to make sure that you didn’t suggest—

That is my understanding, but I’m sure you’ll be able to preface your comments with questions which would help to illuminate the committee.

Thank you, Mr Chair, and also thank you to Associate Minister of Justice McKee for the response about new section 86V, inserted by clause 7—that was very helpful and actually was very clear.

I would like to discuss a new clause, and this is clause 10, amending section 104, which I believe has not been particularly discussed. I know that some of the other members, and particularly some of the Government members, have discussed clauses 11 and 12, but I want to specifically focus on clause 10 in terms of the list of circumstances under section 104(1A), and understandably those circumstances, I believe, are some of the most concerning that we do see in our communities, particularly from the perspective of premeditation. I’m wanting to specifically ask the Minister some questions around subsection (1A)(j) with regards to: “any other exceptional circumstances that exist.” I want to check with the Minister whether the Minister would consider hate crime as one of the criteria within this particular list.

Now, for my community, for the ethnic communities and for migrants of colour, for Pasifika, for groups with certain religious affiliation—it could be any religious affiliation—the idea of hate crime or violence or even murder as a result of hate crime is a significant factor, and it may not meet the threshold of what you see in subsection (1A)(f) in terms of being “committed as part of a terrorist act”, which we know very well. I wanted to check if, specifically in the context of hate crime, it would be something that the Minister would be open to as part of the exceptional circumstances that exist beyond what is listed here in section 104 (1A), in clause 10.

Thank you for that question. There is no law on hate crime as such right now, but what we do have are 42 qualifying offences. One would think that in exceptional circumstances where one would think it is hate crime, it would actually—if it’s a serious violent crime—come under the auspices of one of the 42 serious offences that are already there. We do not have a reference to hate crime as such in our legislation. Therefore, we will be sticking to the 42 offences listed in Schedule 2.

Thank you, Mr Chair. I haven’t had the opportunity to take a call on this bill, so I thought I would do that, seeing as I was listening to the debate last night and also this morning, and I didn’t have the opportunity to take part in the select committee that considered this bill. It’s not one that I think anyone in the committee is unfamiliar with, because of the history of three strikes and the politicisation of this particular piece of criminal law in terms of the way that it’s being implemented. I do have some questions for Associate Minister of Justice McKee, specifically in relation to the clauses in Part 1.

Just for context, I wanted to prepare for my contribution as I hadn’t been in the select committee, to make sure that my comments were relevant to the debate and also relevant to the discussions that had gone on by a number of other people. I was struck, really, by the report from the select committee, especially in relation to the number of parties who disagreed with the Minister’s approach. That is a question that I want to ask the Minister. The reason it’s relevant to Part 1 is because Part 1 is the operative part of this bill, which, essentially, sets in place the new change in relation to the three strikes.

Just to briefly put into context for the Minister before I go to my questions, the Ministry of Justice in fact didn’t think that there was a lot of evidence for introducing this bill and said they preferred the status quo. The Children’s Commissioner opposed the bill. The New Zealand Bar Association opposed the bill. The Law Society opposed the bill. The Pacific Lawyers Association opposed the bill. The Human Rights Commission opposed the bill. Te Hunga Rōia Māori o Aotearoa opposed the bill. The Law Association opposed the bill. There is a significant amount of opposition to this bill, and it is based on the evidence, Minister, from my assessment of this proposed legislation, that it actually doesn’t work in furthering the passionate objectives that she has put forward in this committee stage, in the sense of making sure that violent offenders are not on the streets. I’m sure everyone in the committee agrees that people who are a danger to society should not be out on the streets, but it appears that the experts in this field that participated in the select committee process do not agree with her assessment.

We have traversed the reason for an even worse change in my view, the retrospectivity change that takes into account previous warnings, and I think she’s received—I think we’ve had it agreed, but she may want to comment on this—at least three emails on that point. If there is this weight of opinion against this bill, which is operative in Part 1, what and who is she relying on to make sure her ambitions and her noble objectives of keeping New Zealanders safe will actually be furthered by this bill? Did she consider, in fact, looking and talking to some of those organisations who did participate in the select committee process, to ask them what they believe would actually keep New Zealanders safe, as opposed to bringing back a piece of legislation that doesn’t work, based on evidence, based on independent assessment, and based on the fact that there is very little evidence worldwide that more serious sanctions result in fewer pieces of offending? That is something that is a principle that has been looked at worldwide and with many different, more harsh penalties than this. That is an overall question that I have for the Minister in relation to Part 1, and I wondered if she could address that.

I also wanted to ask her, when there is a warning put in place and when she has put in a complicated regime where the “manifestly unjust” provision can be taken into account by the judge, what, in her mind, is evidence that suggests that judges are not able to make that assessment currently when imposing a sentence? As she has outlined in Part 1 in the proposed new section 86T, inserted by clause 7, in this bill, there is a provision here for it to be manifestly unjust. Now, I think we have an excellent impartial judiciary in New Zealand. I think they get out of bed every day and they do a hard job and they do the best job that they can, and my view, from what I’ve seen of the criminal law, and I’m not as experienced as some members in this House—but from what I’ve seen, they do a fantastic job at weighing all the evidence—[Time expired]

Thank you, Mr Chair. In relation to the last member Camilla Belich’s comments, there were 749 submissions, of which 188 submitters were opposed to the bill, and the member listed off quite a number of them. However, there were 515 submitters who either supported the bill or they didn’t support the bill because they wanted the bill to be harsher and, therefore, wanted it gone so that they could have an even stronger bill, including reinstating three strikes as it was in its old regime. In regards to new section 86T, inserted by clause 7, I did speak to that extensively this morning.

I move, That debate on this question now close.

Brand new points still in their wrapping paper.

Yes, thank you, Mr Chair. What I propose to do is to go through these tabled amendments pretty quickly. I could do them one at a time in a couple of minutes, but I propose to just see how many I can get through, and then the Associate Minister of Justice can respond to them.

The one I want to start with is about the centrepiece of this legislation, which is the warning itself. I was about to say, before I was sat down before, that I’m concerned that judges aren’t given guidance as to what the warning should be because the understanding on the part of the offender is the critical point of this piece of legislation. My tabled amendment to clause 7 to insert subsection (6) into new section 86M says this: “The Attorney General”—and the Minister might think someone else would be better, but I thought the Attorney-General was not bad—“may provide wording for warnings administered under this act. Where [the] words are used in making a warning [this] warning is irrebuttably presumed to be accurate and clear for the purposes of the preceding section.”

It’s, basically, a safe harbour. Use these words, and they’re considered irrebuttably. Now, you can use other words if you want, but if you do that, if you get it wrong, if you stumble over your words, or even if it’s just not clear, then you run that risk. That ties in with the next tabled amendment to clause 7 to insert subsection (6A) into new section 86M, which says: “In the event that the warning is not accurate or did not accurately communicate the possible consequences if the offender received a further qualifying sentence, then the warning is of no effect.” That is actually really important.

I guess my question to the Minister is this—and I think the Minister can actually add meaningfully to the operation of this bill in answering this—if a warning is administered in a way which is in some way not accurate or is communicated in a confusing or complex manner, even though it’s technically accurate, does she agree that that warning would be of no effect? In this House, we inform the way judges apply the law, so that question and answer is actually an important one. If there is an error—it’s got two parts—in the warning, is the warning of no effect; if the warning is not comprehensible to the offender, is the warning of no effect? I see that your officials are assisting you, and it would be good to get an answer to that.

I move, That debate on this question now close.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 4(2) be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to delete clause 4(2) and amend clause 7, new section 86K(2)(b), be agreed to.

Mariameno Kapa-Kingi’s tabled amendment inserting new clause 4A is out of order as being outside the scope of the bill.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to delete clause 5 be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to new subsection (2) of clause 5 be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 6, new section 82A(1), be agreed to.

The question is that Mariameno Kapa-Kingi’s tabled amendment to clause 6 inserting new section 82A(1A) requiring courts to consider the potential for disproportionate impacts on Māori offenders be agreed to.

The question is that Mariameno Kapa-Kingi’s tabled amendment to clause 6 inserting new section 82A(1A) requiring courts to give consideration to tikanga Māori-based restorative justice be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 6 inserting new subsection (3) into new section 82A be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendments to clause 7, new section 86J, be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 7 replacing “18” with “25” in new section 86J be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 7 replacing “12” with “24” and “24” with “36” in new section 86J be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 7 deleting text from the definitions of “record of first warning” and “record of subsequent warnings” in new section 86J be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 7 inserting “physical” into the definitions of “record of first warning” and “record of subsequent warnings” in new section 86J be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 7 amending new section 86K and 86M to specify that warnings must be given in person be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 7 amending new section 86K and 86L to add the word “determinate” be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 7 deleting new section 86KA, 86U(2A), and 86U(2B) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 7 to replace new section 86KA be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 7 amending new section 86L to remove reference to stage-3 offences be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 7 inserting new section 86LA be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 7 amending new section 86M(1) to replace “that” with “the” be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to remove the words “if the offender is before the court at that time” in clause 7, new section 86M, be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 7 to insert paragraph (c) into new section 86M(2) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 7 to insert paragraph (d) into new section 86M(2) be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 7 amending new section 86M(3AA) to replace “12” with “24” and “24” with “36” be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 7 to insert paragraph (c) into new section 86M(3B) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 7 to insert subsection (3C) into new section 86M be agreed to.

The question is that Dr Lawrence Xu-Nan’s 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 be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 7 to insert subsection (6) into new section 86M be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 7 to insert subsection (6A) into new section 86M be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 7 to replace subsection (3) in new section 86N be agreed to.

The question is that the Hon Dr Duncan Webb’s remaining tabled amendment to clause 7, new section 86N, be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 7 amending new section 86N(3) to delete paragraph (b) be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 7 amending new section 86O to replace “24” with “36” be agreed to.

Dr Lawrence Xu-Nan’s tabled amendments to clause 7 deleting new sections 86O(2) and 86R(3) are out of order as being contrary to the objects and principles of the bill.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 7 to insert subsection (5) into new section 86O be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 7 replacing new section 86P(2) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 7, new section 86R, be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 7 amending new section 86R(6)(a) to replace “2” with “3” be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 7 amending new section 86S(2) to replace “18” with “12” and “20” with “17” be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 7, new section 86T, be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 7 amending new section 86T(2)(c) and inserting paragraph (d) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 7 to insert paragraph (d) into new section 86T(2) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 7 to insert new section 86UA be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 7 amending new section 86V be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 7 amending new section 86X to delete subsection (2) be agreed to.

The question is that Mariameno Kapa-Kingi’s tabled amendment to clause 7 inserting new section 86XY relating to Treaty Impact Statements be agreed to.

I just would like to remind members across the Chamber that we vote in silence. We need to hear what’s being said. We know some of these amendments are tensionable, but let’s just move on in silence with the voting. Thank you.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 7 to insert new section 86Y be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 7 inserting a new section 86Y be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 7 to insert new section 86Z be agreed to.