Judicature (Timeliness) Legislation Amendment Bill

Members, we now come to Part 2. Part 2 is the debate on clauses 10 to 29, “Amendments to other legislation”, and Schedules 2 to 4. The question is that Part 2 stand part.

Thank you, Mr Chair. Thank you again to the Minister for a very informative response to questions on Part 1 around the Senior Courts Act.

In terms of Part 2, I think I’m going to start with the first half of Subpart 1, which is amendments to the Criminal Procedure Act 2011 and move on to the Coroners Act 2006.

Starting with Subpart 1, I note that clause 12 is probably the most significant clause with the management of pre-trial processes if the defendant is charged in respect of two or more offences in different District Court offices. I just want to check with Minister. In this case, particularly when we’re looking at section 156A(2), it does say, “A District Court Judge, on the Judge’s own initiative or on the application of the prosecutor or the defendant, may direct that the pre-trial processes in respect of some or all the proceedings be managed in one of the offices of the District Court”.

Can I just get a clarification from the Minister. With that, when you’re looking at two different District Court judges, is this to do with when a defendant is charged with the same crime in two different areas or with two different crimes in two or more areas? That’s my first question to the Minister.

In terms of the second question I have for the Minister, what I’m finding that’s quite interesting in terms of subsection—

CHAIRPERSON (Teanau Tuiono): Can you just repeat that first question?

Dr LAWRENCE XU-NAN: Sure—OK. When a defendant is charged with two or more offences, two or more offences means that the offences—each—will have to take place within the jurisdiction of a different District Court—so one offence in one District Court, one in the other one? Or does it mean two or more offences that cross District Courts? That’s my question to start off with, which may provide some clarification for further questions. I wasn’t clear as to section 156A(1)(b) when it says that “proceedings in respect of the offences have been commenced”; it doesn’t necessarily clarify the charge itself.

My second question is around what we see in terms of section 156A(3), particularly when we’re looking at paragraphs (a) and (b). I think that paragraphs (a) and (b) are a very important inclusion to ensure that if any sort of pre-trial processes are being shifted between different District Courts, the timeliness and interest of justice is still a core part of it. I just wanted to check with the Minister: how would that look in terms of the process itself when a judge makes that determination?

Before I answer the member’s questions, I’d just like to clarify even further an answer to a previous question, which was about when the first strike-out order is made and what happens with that. When a judge makes the first strike-out order, they must inform the litigant of the potential for automatic restraint to apply if they bring future proceedings that abuse the process. This means that people will have a fair warning of the consequence of making abusive applications. Decisions for strike-out may also be appealed. If overturned on appeal, the strike-out decision will not count towards restraint—so that’s further to member Tamatha Paul’s question about that.

To the member Lawrence Xu-Nan’s question: when someone is accused of multiple offences, charges can be filed and proceed in different District Court office locations. This means that the defendant can have court appearances at several locations, and that can add to delays and inefficiencies within the court system. Having the ability to bring them into one actually is not only efficient for the courts but it’s probably efficient for the person, because it means they don’t have to go to several different jurisdictions and can have everything heard in the one place—efficiency all around.

Thank you, Mr Chair. That clarifies my question on that part. Thank you, Minister. I just want to now move on to new section 319A, inserted by clause 13, and this is, I think, my last contribution for Subpart 1—I’m just going to check one thing—and yeah, then I’ll move on to the Coroners Act.

In terms of new section 319A, I think this is a really interesting section in terms of the ability to ease the workload of the Court of Appeal and the High Court and the more efficient and timely determination of the District Court of Appeal. I’m curious to know, because this section specifically says “applies to a first appeal or an application”—in terms of the processes, you make the first appeal under this part of the District Court, but what happens if, for example, it goes to the High Court and then gets bounced back? Are you able then to make a second appeal, which the new process under new section 319A would not be available for someone making subsequent appeals?

I’ll speak to the intent of the bill and what the new section 319A, being inserted into the Criminal Procedure Act by clause 13, actually does. The provision is about enabling a single judge of the Court of Appeal to remit certain appeals and applications for leave to the High Court for determination.

This new provision is limited to appeals and applications for leave to appeal under Part 6 of the principal Act, for which the Court of Appeal is the first appeal court for decisions of the District Court. The provision is enabling a single Court of Appeal judge to remit cases for which the Court of Appeal is the first appeal court to the High Court for determination.

Appeals relating to most District Court jury trials, and some District Court judge-alone trials, are currently heard by the Court of Appeal as the first appeal court. This is enabling some first appeals to be remitted to the High Court, which will mean that these cases are determined by one High Court judge instead of three judges in the Court of Appeal. This will ensure more efficient use of judicial resource while retaining the Court of Appeal’s oversight of the appellant jurisdiction in criminal cases.

That’s the whole intent and purpose of that particular clause. The member was asking questions about second appeals, but it actually has to flow in how the courts themselves appeal. The intent, really, is to just outline the fact that we shouldn’t have to have three judges to refer a case back to the High Court because it’s automatically gone to the Court of Appeal. We’re basically saying: bring the High Court back in and allow one judge to make that decision.

Thank you, Mr Chair. Thank you, Minister; that also clarifies my question so I’m going to move on to a new section now. I’m now looking at Subpart 2, in Part 2. We’ve now moved on from the Criminal Procedure Act into the Coroners Act. I’m looking at clause 20, inserting new section 65A: “Coroner may close inquiry despite initial decision”. Now, one of the things that was brought in as a bit of a concern was the retrospectivity of this particular section and the fact that it would apply to inquiries open before, on, or after the bill’s commencement date, and I—have lost my place.

I wondered if, for example, in the new section 65A(7A) that is being introduced as a part of this, where the coroner decides to close the inquiry and someone requires them to provide information about it, how would that interact with the retrospectivity of clause 20? I guess, in some ways, when we were at the select committee stage, we could see the intention behind that retrospectivity, particularly in terms of some of the outstanding cases, but I just want to engage with the Minister in terms of some of the Minister’s thoughts around this area and the retrospectivity for the closure of an inquiry. That’s my first question.

My second question for the Minister—and I guess this crosses over another bill that is currently going through as well, which is the Regulatory Systems (Courts) Amendment Bill. I want to check with the Minister if there are any thoughts around how this particular bill interacts with clause 31 of that bill and the way that the consistency can be matched between sections 64 and 94 of the Coroners Act. In this case, when we’re looking at clause 31 of that other bill—which also has a section around, I guess, a clarification of clause 31 of the Coroners Act.

I guess the first question I have for the Minister is: what are the Minister’s thoughts around the retrospectivity elements of this? My second question is: how does the Minister foresee this bill, and particularly this clause, interacting with sections 64 and 94 of the Coroners Act, which is currently going through under the bill in the House?

Sorry, Mr Chair, the Minister is just getting some advice, I hope. While I’m waiting for the Minister on those two particular questions, I might move on to clause 21, which is section 83 amended, and this is to do with the appointment of specialist advisers. I want to check with the Minister on this particular section. When it was discussed in the Justice Committee it also was one of the ones that we would have thought would be quite obvious as something that should have been included. I guess for something like that, I wanted to check with the Minister because the Minister was also the Minister in the chair when we did the statutes bill and was hugely informative and engaging in that. For something like this, would that be considered something that could also have been brought through as part of the statutes bill instead of having been brought into a separate bill altogether? That’s my next particular question.

My three questions to the Minister are: clause 20—what are the Minister’s thoughts on retrospectivity? What are the Minister’s thoughts around the interaction with another bill that’s currently going through, particularly that also has implications to the Coroners Act? In terms of clause 21, section 83 amended, is that something that could have been introduced or been brought into another bill, in particular like the statutes bill or a regulatory systems bill?

Thank you, Mr Chair. I’m going to apologise to the member, because I’ve missed quite a bit of what the member has said. I did pick up some of the beginning part of what he said. What I might do is, actually, in speaking to clause 20, which is the new section 65A that the member was talking about—if he bears with me while I actually refer to Vanushi Walters’ tabled amendment timed 9.08 p.m., I think that might actually end up answering some questions for him. It’s about the coroner’s consideration of section 63 matters when they’ve decided to close an inquiry, which is what the member was asking about—the closing of an inquiry.

In considering whether an inquiry is no longer appropriate, a coroner will cast their mind back to the reasons they initially opened it in the first place. The reasons for opening the inquiry under section 63 are actually quite a non-exhaustive list. They will not all have been relevant to the decision that the coroner made to open an inquiry in every case. I recognise that the decision to close an inquiry, as the member mentioned, can have quite an impact on families and friends. The changes in new section 65A(3) of the bill require the coroner to notify interested parties of the proposal to close the inquiry, and they must provide the reasons for doing so. The notified parties will then have 15 working days in which to make submissions to the coroner on the proposal to close the inquiry. This consultation will, by its design, involve a discussion about what led the coroner to open the inquiry in the first place and also why they since decided that it was unnecessary to prolong the inquiry any further.

There are a whole lot of conversations that will be occurring. They won’t just say, “That’s it, we’re going to deny it.” In fact, if I recall in legislation, if the family are really adamant that there was, say, some foul play, then a judge will take that on board in their consideration. The purpose of them being able to close the inquiries was when it became quite obvious that a person had, for example, died of natural causes. Once an inquiry has been opened, the inquiry must go through all of its processes—even when the coroner and all people understand that, actually, the person died of natural causes. This is allowing them to be able to close the inquiry when everybody determines the same outcome. At the end of the day, the judge will make the decisions, but the coroners that I know are quite empathetic to the families, and they do work with them. They’re not going to go about trying to close off inquiries unless they do actually have an understanding that there is a reason for doing so.

The question is that Vanushi Walters’ tabled amendment to clause 20, replacing new section 65A(1), be agreed to.