Bail (Electronic Monitoring) Amendment Bill

I present a legislative statement on the Bail (Electronic Monitoring) Amendment Bill.

💬 SPEAKER: That legislative statement is published under the authority of the House and can be found on the parliamentary website.

I move, That the Bail (Electronic Monitoring) Amendment Bill be now read a first time.

From the outset, this Government has been clear about its commitment to an efficient and effective justice system. Electronically monitored bail is an important tool for managing defendants on bail. It enables the court to restrict the movements of higher-risk defendants in the community, under Corrections’ monitoring.

A defendant on electronically monitored bail is restricted to their address, and they can only leave for specific reasons or for a purpose specified by the court, such as attending medical appointments. Any unapproved absence will alert Corrections, who notify Police when they suspect a condition has been breached. Corrections and the court have a safe and well-established approach for allowing a defendant subject to electronically monitored bail to be absent from their address when appropriate—for example, as I said, a medical appointment. Under this approach, the courts specify the purposes for which the defendant may be absent from their address. Corrections make the day-to-day assessments and approvals necessary to give effect to what the court has agreed.

Concerns have been raised that the current law may, in fact, require the courts to approve each and every absence for the roughly 2,000 defendants subject to electronic monitoring. This would place an untenable burden on the courts and justice agencies, and it would be less responsive to the circumstances of the defendant, with consequences for public safety. For this reason, this bill makes a targeted change to align the legislation with the practices of agencies and the courts for more than 10 years. It does this by amending section 30M of the Bail Act and inserting several new sections to codify the usual practice taken by Corrections to enable the efficient and practical management of the large population of defendants on electronically monitored bail.

The bill does not affect the core elements of the electronically monitored bail regime that are there to ensure defendants are actively monitored. It will continue to be the case that any unapproved absence will alert Corrections, who notify the Police. The court will continue to be able to set the purposes for absences and other details as appropriate. It can also continue to authorise or deny any specific absences, where it considers it appropriate to do so. I’m confident that these amendments will support Corrections to continue doing its job, while maintaining public safety and supporting the management of defendants.

The bill applies the new provisions to all authorisations for absences that the court makes after the bill commences. It also validates conditions made by courts that provided for Corrections and others to approve absences. This is to avoid the need for most of these defendants, currently on electronically monitored bail, under these conditions, to come back to the court to vary these conditions. In a small number of cases where conditions involve parties other than Corrections, the validations will last only 60 days after commencement. This is because, going forward, the court will only be able to enable electronically monitored assessors, who are currently Corrections staff, to approve absences, not other parties. The 60 days provided will allow time for the conditions to be replaced.

To conclude, I want to thank members for accepting the need to pass this bill rapidly through all stages. It’s critical for the safe and efficient management of defendants on electronically monitored bail that we make these changes and update the law as soon as possible. I want to emphasise, again, that the bill is in keeping with more than 10 years of practice by agencies and the courts. These amendments will enable Corrections to continue to manage these defendants in accordance with the purposes specified by the court, and they will avoid any negative impacts on the courts, to ensure a practical, safe, and efficient practice going forward. I commend this bill to the House.

Thank you, Mr Speaker. As was mentioned by the Leader of the House, we’ve had an opportunity to see the bill for a short period of time and, look, we are going to support this bill going through the House, but I’m concerned that it has been drafted very hurriedly, and I think it actually needs amendment.

I know that I want to put one particular amendment around absence for voting into it, but much more critical—I’m looking at this. The framework is this. The practice that has emerged is that the court says that, yes, we can have electronic bail, and then we have these electronic monitoring assessors, who do the fine tuning. It might be for work, it might be for childcare, it might be for joint custody pick up, or whatever, and when those things change, as they always do, the electronic monitoring assessors then can say, for instance, “Yes, OK, you can change your day from Tuesday to Wednesday for picking up the kids from preschool.”, or whatever it might be, which is all perfectly sensible.

The problem is that these electronic monitoring assessors don’t actually have the power in the current Bail Act to do what they’re doing. The practice has emerged, but the kind of practice has got ahead of the law, and, in fact, the law is pretty clear that only the court has the power to impose electronic bail conditions.

Now, there is actually an important question about how much power you want to devolve down. One policy question in here is to what degree should that power to, essentially, dictate electronic monitoring conditions be given to a corrections officer—fundamentally a bureaucrat—rather than it being a judicial decision? That’s a really important question.

I think the intent of this bill is, actually, for the court to be able to delegate a very substantial amount of power. I think that’s the intention, but here’s the thing, Minister: I’m not sure it actually does that effectively, because in this new section 30MB, the closest it comes is to say the court should “enable an EM assessor to approve, in their discretion,” but the section before says, essentially, that it’s the court’s job. You’ve got a kind of bit of a disjunct.

I think we need a very clear legislative statement that’s saying, “With the court’s authorisation, an electronic monitoring (EM) assessor has the power”. You kind of need a declarative statement that the EM assessor is empowered to make these decisions, not a kind of weak, “The court must enable an assessor”, because it’s Parliament that’s conferring this and we need to have that in the legislation.

I think we need—and it shouldn’t be for me; I’m sure there are drafters who are much better than me—to make sure we have that empowering statement very clear. But that’s just kind of a first read, going to the first hurdle, saying, “Does it actually do what it intends to do?”

Now, I get why it’s under urgency, because if the power’s not there, then today and tomorrow the Department of Corrections will be in a bind.

I’d really appreciate it, Minister, if you would let the House know what the court decision which prompted this is, because I haven’t actually been able to find it, but I understand there must be one out there. It would be really useful to see that legal analysis as well. Essentially, put everything on the table. We know you’ve got a Crown Law opinion, and that’s privileged. You can waive privilege—or the Government can waive privilege; it’d be nice to see that too. When we see this under urgency, and we want to do our job well, we want to give this a good working over because, clearly, it’s actually about liberty—it’s an important part of our role.

Yes, we support it. We actually think that the idea of people on bail being able to maintain connections with their communities, and being as flexible as possible, as consistent with kind of human rights and good lawmaking as we can, is a good thing. But we do think there’s work to do on this piece of legislation. Minister, I’d love it if you could, when we come into the second reading soon, address some of those issues. Kia ora.

Thank you, Mr Speaker. On behalf of the Green Party of Aotearoa New Zealand, we also support the Bail (Electronic Monitoring) Amendment Bill, in its intention. Also, like the previous speaker, the Hon Duncan Webb, has mentioned, some of the need for urgency and the concern right now that the Department of Corrections is operating in a less than legal manner is very real. I think it does warrant us to review it in more scrutiny, understanding that this is a bill that is planning on going through all stages of the House today, without select committee and also with only a committee stage. As we are going through this process of first reading, second reading, and also third reading, I think there is definitely scope for us to discuss with the Minister of Justice further some of the nuances around this bill, as we get into that committee stage, in lieu of a select committee stage.

I think, overall, in terms of the intention of this bill, it is, like the previous speaker has highlighted, predominantly to do with defendants who are remanded in custody while waiting for the conclusion of their criminal charges, and the fact that they do have electronic monitoring (EM) and can be placed on EM bail if the court considers EM bail restrictions will mitigate the risk they will otherwise pose in the community. On balance, the reason that the Green Party is in support of this is the broader scope, which I’ll touch on later, but I think, in terms of the specificity, I do share some of the concerns that the previous speaker has mentioned in terms of the newly introduced sections 30MA, MB, and MC. I think we’ll have more scope and room this afternoon to discuss that further.

I think, in terms of its core function, we do see that, in practice, Corrections is currently doing a lot of this work when, legally speaking, it is the court who has the mandate. In practice, some of this covers things like medical appointments, meetings with lawyers, appointments with Government agencies, or even just to shop for essential household supplies—it is very much a humane and a rational and a common-sense thing to do. I also think that, through this bill, what we’re seeing is this broader idea—and I think it’s really important for us to put it on the table as well, the broader issues and scope when it comes to our current remand system.

In terms of electronic bail itself, one of the things that usually would be of concern for the Green Party is the fact that this is retrospective in nature. In fact, this is a practice that Corrections has been doing for a little while. I see that the departmental disclosure statement did state that there is supposed to be advice being provided by the Attorney-General around consistency with the New Zealand Bill of Rights Act, but I think, at this stage, as far as I can see, I couldn’t locate it on the Ministry of Justice website. It would also be good, like the previous speaker suggested, if there is any additional material that will help the House with the discussion and the debate that we are going to have today—it will actually be really helpful to get the bigger picture around the reason for some of this history and the context of some of this, and also the reason for its urgency.

Broadly speaking, I think it’s really important to note that often when we’re looking at things that are retrospective, section 26 of the New Zealand Bill of Rights Act is very clear in terms of retrospective penalty, but I think, in the context of this, one of the things that we wanted to highlight once again is the fact that, when we are looking at this particular bill, it’s retrospective. However, it doesn’t necessarily construe a penalty for the offender itself or for the defendant who is remanded in custody. One would assume that being in remand is actually in itself a violation of the New Zealand Bill of Rights Act, but that is a conversation for later readings.

Overall, the Green Party is supportive of this bill. It’s understanding of its urgency, but we also have additional concerns and additional, I guess, curiosities that we have for the Minister around the scope and the circumstance and the history that meant that this bill has been brought into this House under urgency. Like I said before, the New Zealand Bill of Rights Act test for section 26, in this case, does hold, because we do not consider it, in our opinion, as a retrospective penalty. We look forward to further discussions in the second reading and beyond.

Thank you, Mr Speaker. I rise on behalf of ACT to speak in support of the Bail (Electronic Monitoring) Amendment Bill. As we’ve heard from the Minister of Justice, this bill will make some adjustments to the Bail Act 2000 to do with electronic monitoring conditions for when a defendant is on bail in the community but under electronic monitoring conditions.

As we’ve already heard, the courts impose particular authorised purposes from which a person can be absent from specified addresses, such as medical appointments, appointments with lawyers, shopping, childcare arrangements, etc. What this bill really is doing is just codifying the current practice at the moment, where Corrections can make adjustments to the timings around some of those absences. This has been occurring for quite some time, with Corrections making sure that the community remains safe while these people are being electronically monitored, but it’s practical, so they can actually attend to these specified appointments, etc., that the court has authorised.

We will be supporting this, as we do not want to disrupt the important work of both the courts and Corrections by imposing any unnecessary burden on those organisations. ACT will be supporting this bill. Thank you.

Mr Speaker, thank you. I rise on behalf of New Zealand First to also speak in support of the Bail (Electronic Monitoring) Amendment Bill. I commend the Minister of Justice for taking the proactive approach in this space to rectify an issue where common sense and practice may have moved faster than the legislation. It’s about correcting something that is just addressing a risk where there may be an anomaly. I hope that, as we debate this in the House, we manage to actually stick to the details of this very tight piece of legislation that is rectifying a process. It is not changing our justice system, it is not offering penalties that don’t exist, and it is not about changing how we manage remand prisoners generally. It is about electronic monitoring.

To go back, electronic monitoring has been a really important tool in addressing the safety and vulnerability of victims who have gone through the process and where the defendant may have been given bail, it was able to address the sense of safety and security that many victims felt during the court process. It’s been an incredibly important tool that will continue to be an important tool. But, as with any tools, they need to be adjusted and modified to meet with the changing environment of our justice system, and it has been a changing environment. We are wanting to ensure that those that are on remand still have the ability to go about the necessary activities for their lives whilst we still provide the victims an assurance.

This is a practical process, whereby we are not being forced to put defendants back towards the court and clog up our court system, allowing a practice that is in place to continue to operate effectively and address the minor amendments and changes and concessions that need to be made on electronic monitoring. Again, the Minister has outlined what will actually be the outcome of this. I think it’s been a very proactive piece of legislation. I appreciate the support across the House to ensure we can get this moving as quickly as possible to provide the surety for those hard-working individuals who work within the remand process, which is a very fluid and demanding environment. We have, on behalf of New Zealand First, no hesitation in commending this bill to the House.

Tēnā koe e te Pīka, otirā tēnā tātou. E tū ana au ki te whakapuaki i ngā whakaaro o Te Pāti Māori mō te pire e kīia nei ko te Bail (Electronic Monitoring) Amendment Bill.

Ko tā mātou, kāre mātou i te tautoko i te kawenga ohorere o te Whare o ngā ture whaitake i roto i te ao o te ture. Me te mōhio anō hua noa atu, hua noa mai, ko ngā tikanga o Te Tāhuhu o te Ture o tēnei whenua, ka tāmihia tonutia te iwi Māori. Nā konā ka whakaara ake ahau ki te tuku i ēnei whakairo.

[Thank you, Mr Speaker, indeed greetings to all of us. I stand to express the opinions of Te Pāti Māori regarding the bill known as the Bail (Electronic Monitoring) Amendment Bill.

Our opinion, we do not support the urgent progression of the House of the meaningful legislation within the legal sphere. And we are aware that however they be produced, the practices of the Ministry of Justice of this land will continue to oppress the Māori people. That is why I rise to offer these thoughts.]

Whilst the bill is presented in a positive light and it’s an addressing of a systems glitch, if you might want to put it that way; a legal loophole being closed; administrative improvements to make things more efficient; and so on and so forth, we can’t help but express our dismay at the fact that given that the justice portfolio and the justice reforms being promoted by the Government at this time have unequivocally—all of them—had official advice saying that they will disproportionately impact Māori negatively. Although this is a relatively simple set of changes and it is aimed at fixing what is a congestion problem and making things more efficient, the haste with which it is being put through the House in one day denies any Māori group—not Te Hunga Rōia Māori o Aotearoa, or any other Māori legal group—the opportunity to provide some commentary on the potential impacts on te iwi Māori, and in a country with a Parliament and a constitution founded on Te Tiriti o Waitangi, where two equal constitutional partners agreed to work together, we just can’t bring ourselves to openly endorse it.

This is just a reoccurring theme. A reoccurring thing we have to deal with is how readily and easily dismissed the Māori opinion and view on lawmaking is in our country. I rise time and time and time again to raise it as an issue and, regardless of the select committee processes and our raising things in those areas, the concerns never see the light of day, and neither do the concerns of the many legal groups that come to the select committee process and present, who all unanimously advise the Government that these swift actions and the limiting of Māori input into the devising and generation of laws for the country continue to entrench the disproportionate nature of the Māori presence in the justice system in Aotearoa. We know without a shadow of a doubt that it’s born out of institutional racism, systemic racism, attitudinal racism, which are all things that have been long investigated, commented on, published in this country by our own justice systems—by the police, by the Ministry of Justice themselves—and yet here we are, doing it again.

We really are just bewildered that the only solutions the Government has to offer are ones that entrench Māori overrepresentation in the country’s justice system—a set of conditions that has been prevalent since the 1980s, when the late Moana Jackson began his investigations into that justice system. I know that the Government hasn’t bothered to have a look at any of that work, and that’s why we keep coming back to here—keep coming back to here. We do not support the bill. Tēnā koutou.

I rise to support the Bail (Electronic Monitoring) Amendment Bill on behalf of the National Party. This bill allows the practical, safe management of defendants on electronically monitored bail; therefore, I commend the bill to the House.

Thank you, Mr Speaker. Thank you for allowing me the opportunity to talk on this bill, the Bail (Electronic Monitoring) Amendment Bill. As has been suggested and talked about by colleagues, this bill addresses an urgent issue, hence the fact we find ourselves in urgency. I do also acknowledge the fact that that is the way these things have to happen. There are consequences if it wasn’t to happen in this particular way, but it may just require that little bit of explanation for anybody listening at home as to why this in particular is so urgent.

The bill addresses an urgent issue that Crown Law have advised that the conventional practice where Corrections are authorised to approve absences for defendants on electronic monitoring and it’s not compliant with section 30M of the Bail Act. As has been noted, this is a matter of custom and practice, essentially, that has been operating in this way for quite some time. It’s just a matter of fact, really, that the operational, procedural logic behind doing it this way hasn’t kept up with—well, the legislation certainly hasn’t kept up with that evolving mechanism.

These absence requests allow defendants to attend things like weddings, funerals, tangihanga—any other important life event which naturally occurs inside a Corrections facility, as it does any other facility, and therefore must be accommodated. I think there is something like 30,000 requests for such absence requests per month, which is, I think, a lot bigger number than most people probably would have assumed. You can only just imagine the logistics that go into all of those decisions.

The bill has been introduced also, it should be noted, to not just retroactively make compliant the existing practice of Corrections but also acknowledging that without this change there would be significant impact on both courts and defendants as the courts themselves would have to therefore take up that mantle and make those absences approved in some sort of other process-orientated way. It doesn’t take too much thought to just imagine how the court process would become even further clogged up than it already is.

The bill will, as I said, retroactively validate existing authorisations—existing authorisations as well—made prior to this bill so that defendants don’t need to seek approval a second time for absences which have already been approved. That just streamlines that. Obviously, on this side of the House, we’re absolutely thoroughly interested in anything that prevents further delays to the courts. That’s why we will be supporting this as a necessary thing to do. We fundamentally support the use of electronic monitoring and ensuring that, where possible, people can stay connected to their communities in whatever way is still applicable to them.

Thinking about this particular area, that prior to the election when the National Party were all very gung-ho about law and order and what they would do and what they wouldn’t do, I note that both Minister Mitchell and Minister Goldsmith were very vocal in calling for tighter restrictions on who would be eligible to receive electronic monitoring and those bail conditions and going as far as to label the existing system the epitome of soft on crime. Systems were inadequate, they called them, and they said that authorities often failed to respond quickly, so it’s quite surprising that, again, whilst we find ourselves here under urgency, very necessarily having to address this technical aspect, we haven’t heard any contributions from the other side of the House even go near what they might like to have also done in this area or why they didn’t necessarily take opportunities that were afforded to them during this process to make some of those big calls a reality. National certainly campaigned on stricter bail laws and tougher consequences for ankle bracelet breaches and a review of a whole swathe of bail decisions.

Again, we are more than happy to support this piece of legislation. We are a little bit bemused that it isn’t accompanied by or there’s no explanation of how that would have gone further, but we commend this bill to the House.

Thank you, Madam Speaker. I rise to support this bill to ensure that a longstanding and efficient practice for the management of defendants on electronically monitored bail continues, and I commend it to the House.

Thank you very much, Madam Speaker, and thank you for that really well-thought-through last response from the Government on this important bill, the Bail (Electronic Monitoring) Amendment Bill. This is an important issue, which is an urgent issue, and we know that from the fact that Crown Law have advised that the conventional practice where Corrections have authorised to approve absences for those defendants who are on electronic monitoring is currently not compliant with section 30M of the Bail Act. So we have a problem.

This is effectively a non-compliant practice, and it has been the way that Corrections has been operating the electronic bail system since back in 2013. It’s important that this House does vote to make sure that it’s corrected. They approve approximately around 30,000 absence requests per month, and so it’s a high-traffic area that we need to make sure is right in order to make sure community safety is paramount. These absences allow defendants to attend things like weddings, funerals, tangi, other important life events, and functions. What this bill effectively does is retroactively makes compliant the existing practice that Corrections undertake. Without this change, it’s really important to note that significant impacts both on courts and also on defendants would occur, because courts, in fact, would need to approve those absences.

The bill clarifies, quite rightly, that the court may authorise electronic monitoring (EM) assessors to approve a defendant to be absent from their EM address. An EM, or electric monitoring, assessor is, in substance, the person who has been rightly approved by either Police or Corrections to take up that role. The bill as it is will retroactively validate existing authorisations made prior to the enactment of the legislation we’re doing today, and that will mean that defendants don’t need to seek approval a second time for absences which have in fact already been approved.

As already stated, we will support this legislation. The changes that this bill makes already for the existing practices of Corrections and courts with respect to absences—this bill simply ensures that the practice is compliant with the Bail Act. We want to make sure that that does occur and that existing authorisations are valid, and that is the reason for the retrospective element to this legislation. We want to prevent further delays in the courts, and we know that there are some significant delays still in our courts presently, so it’s important that we avoid any further bottlenecks in our system.

Corrections does need to be able to continue to do what it’s done since the electronic monitoring system was established back in 2013. We support the use of electronic monitoring, ensuring, where it is always possible, that people can stay connected to their communities. That’s an important part of reintegration as well.

There are quite a number of people on bail. Many have not been convicted of a crime, and because of the presumption of innocence, they should not be confined or in any way restricted that is not consistent with community safety. There are others that are yet to be sentenced, but it’s important that we don’t mix up what is EM bail with home detention, and that is quite often done when these things are either covered publicly or discussed publicly. There’s quite an important distinction there.

Just to conclude, we know that there are thousands of people on electronic bail and thousands more on remand in our prisons. These are all people who are accused in cases currently before the courts who have not yet been convicted or acquitted or who have not yet been convicted but are not yet sentenced. It is important that the backlog the courts create is not made worse by this situation.

The Ministry of Justice here has estimated that the amount of time people spend on remand is expected to grow to an average of 91 days by 2031, and that means the average amount of time people spend on EM bail is also likely to increase, so we need to get this right.

Thank you, Madam Speaker. It’s a pleasure to rise in support of the Bail (Electronic Monitoring) Amendment Bill, and essentially, as we’ve heard throughout the course for this first reading stage, with this bill we’re joining common practice with the technical law. I commend this bill to the House.

This bill is set down for second reading immediately.

Second Reading