Courts (Remote Participation) Amendment Bill

Members, we start with the Courts (Remote Participation) Amendment Bill. We come first to Part 1. This is the debate on clauses 3 to 8, “Amendments to Courts (Remote Participation) Act 2010”, and Schedule 1. The question is that Part 1 stand part.

I am pleased to be here to speak on the Courts (Remote Participation) Amendment Bill, and I’d like to acknowledge the parties across the House for their support of this bill.

This bill forms part of the Government’s core priorities for this quarter. Improving court performance and access to justice is in the interests of all New Zealanders. The use of technologies to make the court more efficient and accessible will help us to achieve this goal, and this bill reflects one step in that direction. Remote participation can reduce travel time and costs for participants in the community. Remote participation of defendants who are in custody reduces the risk of violent incidents by high-risk defendants occurring during transport or in court. Remote participation can also reduce transport and security costs for Corrections and Police.

This bill improves and clarifies the law in relation to remote participation while preserving the ability of the judicial officers and the court registrars to control court proceedings. For instance, it enables the court to impose conditions to protect the integrity of the court process. We will begin today by turning our attention to Part 1 of that bill. Part 1 contains two targeted changes to the Courts (Remote Participation) Act, to enable greater use of remote participation in court proceedings.

The first of these changes will allow victims to observe criminal trials and sentencing remotely if suitable technology is available and they wish to do so, with the ability for a judicial officer or court registrar to direct otherwise if they consider that this would not be in the interests of justice. Remote observation will not be appropriate or available in all situations. For example, natural justice requires that where a victim is also a witness in their trial, they cannot hear the testimony of other witnesses before giving evidence themselves. This amendment will give victims more options for how to choose to engage with the court process and help avoid the re-traumatisation that is often felt by victims in the courtroom. Importantly, victims will still be able to attend in person if they so wish. This amendment will come into effect six months after Royal assent. This additional time is needed to allow for the development of new court processes and supporting material.

The second change allows the use of audio links such as telephone conference calls for criminal proceedings that defendants do not attend, and for appropriate civil and Family Court proceedings. The Act currently authorises the use of audiovisual technology only. This change will expand the number of people who are able to participate remotely, and many people in the community who are involved in court proceedings do not have access to audiovisual technology. With this change, they will still be able to avoid the time, cost, and effort of travelling to court for short procedural hearings. Audio links will be able to be used only when the judicial officer or registrar is satisfied that the parties will be able to effectively comprehend and participate in the proceeding. Audio links would usually not be appropriate for participants who are vulnerable due to their age, cognitive ability, or language comprehension. In addition, audio links will not be permitted for mental health proceedings that determine whether a person needs to be compulsorily detained and treated if the affected person is required to attend.

Thank you, Madam Chair. I’m pleased to stand in this committee stage and recognise the good work that this bill does and recognise our spokesperson, Greg O’Connor, as well, who’s had a number of things to say on this. With the indulgence of the Chair, I don’t intend to drag the committee stage out, but I do hope to make some general observations before we move on.

Firstly, remote participation is very much supported as a useful tool, but we do need to make sure—and the Minister may wish to comment on these things—that the technology being used is reliable, because there are plenty of instances where court proceedings haven’t worked because, at one end or the other, the resources haven’t been put into the technology there. This bill sits alongside, I imagine, Te Au Reka, which is the digitisation programme of the Ministry of Justice. We’d really want to be aware that everyone needs to be on board with that: judges, lawyers, trial participants, and we want to make sure that the potential for disruption really is minimised in the case of any access disruptions there.

We are concerned that the courts are being asked to do this with $31 million less in this Budget than the estimated expenditure was in 2023-24. This is once again the Government saying, “Do more stuff but we’re not giving you more money to do it.”, and that’s a concern. On a more principled basis, this bill, we think, has struck the right balance, and we commend the Minister on that, but we do want to express some concerns if this is the first step. We certainly don’t want virtual participation to become a default position or to hinder access to justice. In that sense, the concern is scope creep, that over time, either by law or by practice, there isn’t a genuine option for victims or for offenders to attend in person.

I just want to recognise that, even if the law says they can, the way in which that option is presented sometimes can make it very difficult—whether that might be in a corrections setting, “I’m sure you don’t want to attend, do you?”, with a clear indication that it wouldn’t be good for relationships if you do; or the kind of dismissiveness that we sometimes see, and should never see, but we do sometimes see, of victims: “I’m sure you don’t want to turn up and confront the perpetrator.”

That brings me to another point, which is that it is important that victims have the choice—always have the choice. We certainly would be cautious or very concerned if there was any suggestion that sentencing perpetrators could be remote in any kind of serious offending where there is a victim involved, because victims have a right and should always have a right to confront the perpetrator in person, in the courtroom, should they choose to do so. And the reading of victim impact statements is one example of that, but that’s not the only example. Simply being there and seeing a sentence handed down and the judge knowing that victim is in the courtroom and, essentially, participating by their presence is really, really important. So victims always need to have the option to be in court with the accused at the same time.

I’m just going to cite Chief District Court Judge Jan-Marie Doogue, who notes “Sparing a defendant the emotional discomfort of being confronted by the presence of their victim”—in remote participation, that is—“runs counter to three purposes of sentencing in the Sentencing Act 2002. The effect on the delivery of a victim impact statement within the provisions of the Victims’ Rights Act 2002 is also a consideration that may [weigh a court] against the use of AVL”. That’s the kind of really important victim-centric approach that needs to be taken into account. Those are my comments that the Minister may or may not wish to respond to.

Thank you, Madam Chair. Thank you to the member, the Hon Duncan Webb, for your questions; they are really good questions and deserve an answer, I think, straight away. I’ve tried to capture as much as I could there, so I’ll just work through some of those issues that you’ve raised there.

One of them is about the technology and whether or not it’s going to work. We are aware in some cases where there have been issues—one of the things that has been made very clear in this bill is that there needs to be a few days of advanced notice given so that technology can be tested to make sure we’re not in a situation where people are in court or not, they are remote, and the technology fails. It’s very important that all parties to the use of audiovisual or just the audio technology do make their intentions known to the court registrars or the judiciary officers that that is their intent so it can be sorted. This bill is making permanent what was brought in under COVID-19 and adding to it the ability to have the audio technology, because not everyone does have access to audiovisual.

In relation to victims, they most definitely have a choice. I think we must always respect the fact that victims have a choice, but we also have the ability, by using this technology, to make victims feel safer and not feel re-victimised and not feel that they have to appear in situations where they feel vulnerable. But it is important, as you mentioned, that they have the choice to be there. My understanding is that with the delivery of victim impact statements, if the victim actually does not want to be in court but wants to deliver such a statement, they could do this potentially through VMR, which is a virtual meeting room. That will be hosted by the court. The guests will be the participants and the lawyers, and it can be streamed to observers to make sure that those ethics of open justice are available as well.

I think on top of all of this is looking at the review, which is a first-principles review of how this is working and will be undertaken as well over—well, it’s already under way. This is going to look at the costs, it’s going to look at the effectiveness, and it’s going to look at how we can make it better for all users, including the courts, the victims, all participants. Really, what we’re looking at doing is making permanent what had been in place over COVID-19 that was going to expire in November—adding to it the audio as well and having that first-principles review about how we make sure that we do it right and continue to do it right and make changes if we have to in the future.

Kia ora, Madam Chair. I stand on behalf of Te Rōpū Kākāriki to again support this bill, but adding on to my colleague from the Labour Party, just to query a couple of further parts to Part 1, acknowledging that we are expanding and providing the opportunity for both audio links and audiovisual links to be provided. As someone from Te Tai Tokerau—mindful of travel distance, mindful of our capacity for Wi-Fi reception across the rohe. Hearing from the Minister, also, that there’s an opportunity for us to maybe have like a hub-and-spoke approach where a victim might be able to go to a place such as Kaitāia, and Zoom-in using their technology to a hearing in Whangārei is really good, because it provides that ability for us to stay within our kāinga in the Far North, but be able to participate using better technology than what we might have in Hokianga or somewhere like that.

I did want to follow up, though, in terms of resourcing and acknowledging that there will be a review of the system. With the resourcing, thinking about both the hardware available in the courthouse but also the ability for staff to be allocated—knowing that we’ve still got the funding shortages within the department—and the relevant trained staff who are able to dedicate their time, because this might be a request that comes up more often than not, now—with providing the opportunity for this remote connection into hearings, we could see an increase in volumes of requests to utilise this technology.

There is a question around resourcing, capacity, and capability, but acknowledging, certainly, that this is a good step in the right direction for us to all be able to participate according to our tikanga, particularly from a victim perspective. I am mindful, too, that of course—as we’ve heard previously—for a victim to be able to participate in front of the offender is also a part of that journey. Having the audiovisual opportunity, you can then not have to undergo, sometimes, the whakamā or the intimidation that might occur in the courthouse when you are engaging face to face with your offender and those that might be his supporters.

That’s my basic question; it’s around resourcing, capability, and capacity. If we do get increases in requests for utilising this technology or this option moving forward, does she have confidence that we will have the manpower and dedicated staff that can execute these requests? Kia ora.

Thank you, Madam Chair, and thanks to that member for the questions. Again, really good questions.

We currently have available audiovisual technology in 136 of our courtrooms and 55 courts and tribunal buildings as well. That’s the audiovisual technology—some of it’s old, some of it’s on trolleys, some of it’s quite modern. This is why it’s so important that we introduce the audio side as well, because regardless of where we go, if we have that reception we can at least listen in if not always view.

Also, when it comes to our victims being able to watch—where they are spectators—it’s a one-way vision. Only they and their support person can see into the courtroom. The defendant cannot look out and watch them being watched, so to speak. They can still participate and be protected. What I really like about this bill is them having that ability—like you say—to be close to their whānau, to their own rohe or motu, and be able to have their support person directly with them. I think that’s going to be beneficial for everybody.

While we do not have everybody operating in an ideal way, this is what the first-principles review is going to be looking at: what is working, what’s not working, where do we need the upgrades.

In answer to your question about the court staff, they’re already utilising this. I just believe that more training will be required when we start implementing new technology, should that indeed occur after we’ve had the first-principles review.

Thank you, Madam Chair, and thank you, Minister, for joining us this afternoon. I’ve just got a couple of quick questions, and maybe you could tease it out a little bit further as to the cost of attending courts, and the member from the Greens illuminated that point just now, about how some of the geographical distances for people that have to go to a hearing are substantial. How do you see this teasing out in terms of the cost savings that would be afforded to participants in this process, and where do you see it landing in terms of accessing justice and natural justice, both for the victim and the offender, in this instance? I would ask what does that look like, given that there’s a significant backlog in the courts currently. Will this technology—the audio technology and the remote participation—expedite better outcomes and reduce the backlog in courts, as well?

Thank you for the question. This is going to make a huge difference to participants, especially the victims. If they have to travel from Hokianga down to Auckland, as an example, that’s a lot of travel, and we have these huge backlogs in our courts at the moment. Not only are people on edge, especially our victims, about having to get to court, but actually being in the same room at the same time with the perpetrators—the cost is more than financial. The cost to them actually goes straight to their hearts and their wellbeing.

I believe that this is a way for those participants to be able to interact and feel like they are a part of the process, without being revictimised. So the costs to them are definitely relieved—and I’m sorry to you, but I’ve forgotten the rest of your question, so I’ll sit for now.

Part 1 agreed to.

Part 2 Amendments to Criminal Procedure Act 2011