Bail (Electronic Monitoring) Amendment Bill

We come now to Part 2. This is the debate on clause 6, “Other amendments”; and the Schedule. The question is that Part 2 stand part.

Oh, I was expecting the Minister of Justice to have a bit of a yarn about this. Look, this does appear to be fixing up things that have been done wrong already. I have one question in particular that I’m sure the Minister is expecting, because, in his legislative statement, he refers to “social workers and others” who have made these decisions.

Now, one thing is clear: that social workers and others—and I’m very keen to know who the others are—are no longer authorised. You know, people who are not actually employees of Corrections are no longer authorised and those people—and it may be that there’s only two or three of them; that would be helpful to know. From my reading of the Schedule, Part 2, the actions of those social workers and others—non-employees of Corrections—are not validated. You’ve got people who might be living their lives and they’ve got a routine to their life—might even be going to work—and, come Royal assent or a day thereafter, that will come to an end. Now, it may be that Corrections has in place a system where they’re going to kind of get a corrections officer to almost rubber-stamp those decisions to make sure that there’s not a gap.

I’m interested: have I got that right? That because, going forward, they’re not going to be permitted, the validation of them doesn’t exist either. If so, what is the plan to address the people whose authorisations to leave their bail premises are expired? It’s just a really simple, but I think quite important, question, Minister.

CHAIRPERSON (Greg O’Connor): The Hon Dr Duncan Webb.

Oh, thank you, Mr Chairman. If the Minister isn’t going to answer that—I hope he does; I’m very happy to just have a pause to let him do that.

I guess I’m also interested to understand exactly how this is going to work because you’ve got this general rule in new clause 9 which says the amendments in Part 1 are only forward-looking. Then you’ve got the fact that new clauses 10 and 11 apply in other circumstances—apply to “pre-commencement authorisations.” Now, this, I guess, is where it really bites, because the question I have is: how are you describing pre-commencement authorisations? It can’t be “any pre-commencement authorisation”.

There’s a real risk here because it’s sloppy. I mean, I don’t mean to be rude to our hard-working parliamentary counsel, because they’ve done this clearly in haste, but, really, I’m genuinely asking for an—you just get up and say, “Oh, here’s how it works. Read this, then go here and across there.” That’s what we’d be doing in select committee. Our advisers would be really helpful in doing that. For me, for the committee, and for the general public, can you just work through exactly how this works? It seems to me that there’s no really good definition of an authorisation that occurred under the old law, because it can’t be just that—it’s got to be more than that. Although you’ve got a definition section there, I can’t see—I mean, the old law means section 30M as in force. Well, that’s not going to work because that’s exactly what was being breached.

So, Minister, if you could just walk us through that, because at the moment, it seems that an authorisation under the old law could be anything, no matter how flawed, whereas we’re actually looking at a much narrower clause. If the Minister could—[Time expired]

A question was asked about the approvals by Corrections “and others”, and who might that be. My advice is that they’re small numbers, but, for example, it could have been the staff at a residential treatment facility in the past, but going forward, only “EM assessors” from Corrections will be able to approve absences. They’re validated for 60 days, and the conditions will be replaced in that time.

Point of order. Thank you, Mr Speaker. My apologies, I seek leave to ask for my no vote to be recorded in the previous vote. My apologies, I was too busy reading something else and missed the call for my no vote.

OK. That’s the end of Part 1—that Part 1 stand part?

💬 Mariameno Kapa-Kingi: Yes.

CHAIRPERSON (Greg O’Connor): Leave is sought for that purpose. Is there any objection? There is no objection. The vote will be so recorded.

Thank you, Mr Chair. I have a question for the Minister of Justice, similar to the previous speaker’s but kind of coming from another perspective. I’m looking at clause 9 of the Schedule—the new Part 3—and how it interacts with clause 10. I have to say that we have seen—and I think the previous speaker also stated—a number of transitional arrangements made under various schedules as part of bills, but I have to say that this one is one of the more peculiar and obscure ones.

In clause 9, it talks about amendments generally applying “only to post-commencement authorisations”. My understanding—and, again, this is why I am seeking clarification from the Minister—is that the amendments apply to authorisations after commencement even if the following occurs, i.e., if there is a varying or substituting or imposing electronic monitoring condition after commencement as something for pre-commencement. Either we’re varying an electronic monitoring condition or substituting or imposing an electronic monitoring condition. How does that work in the context of clause 10(2)(b), which talks about authorisation that occurred under the old law?

In clause 9(2), it says the exceptions are clauses 10 and 11, and then in clause 10, you have the exception that means anything with authorisation that occurred under the old law stands and is validated, but clause 9(1), paragraphs (a) to (d) invalidates all of the conditions and authorisations that were mentioned before. Are the authorisation under clause 9(1) invalidated or not? I think that’s my first question—if the Minister wouldn’t mind clarifying.

Thank you, Mr Chair. A couple of things—first of all, in Part 2, in the Schedule. The Bail Act refers to Police and Corrections, and I understand that the Minister of Justice—that’s you—after consultation gets to choose whether it’s Corrections or Police who administer electronic bail. Part 1 was in fact quite neutral—it didn’t actually refer to Police or Corrections—whereas here in Part 2, you’ve kind of locked in that it’s Corrections that does it. It’s an important point, because we do drafting at committee stage. When you refer to—for example, in new section 11(1)(b)(i) of Schedule 1AA, inserted by clause 6—the employee or agent of the chief executive of the Department of Corrections, it should arguably also refer to Police. That’s the first thing—that you’ve got a Corrections-focused amendment when, in fact, it should be Corrections and Police, because that’s what the Bail Act itself does. There’s a mismatch.

The second one I touched on in the debate on Part 1, but this is where it really comes up. The Act itself talks about electronic monitoring (EM) assessors, whereas in new section 11(2) of Schedule 1AA, you refer to the “Department of Corrections EM bail team”. Now, there’s a real question here about—[Change of Minister in the chair] Oh, upgrade.

💬 Hon Matt Doocey: Oh, thanks, mate.

There’s a real question here about whether you can in fact, under the principal Act, refer something to a loose class of people who are loosely authorised to be assessors. To say that the authorisation need not specify precisely and may refer only generally—that may be OK for certain validated authorisations, but you haven’t done the job. It needs to apply to all authorisations, because the Department of Corrections will continue to write on their bail application forms that their nominated assessor is the Department of Corrections EM bail team. That’s something which needs to be addressed.

Thank you, Mr Chair. While, I think, a number of us are still waiting for a response from the Minister for Mental Health or their adviser, I would like to ask another question. This is to do with new clause 11(1)(b), which is to be inserted into Schedule 1AA of the Bail Act by clause 6(a) of this bill.

I think, first of all, there was something that the Minister mentioned before in terms of some of these employees being currently—and please correct me if I’m wrong or if I misheard, because it’s very important. Currently, there is a small number of employees from residential treatment centres who are granting some of these bail leaves in the capacity of some of these electronic monitoring (EM) assessors, but I’m just checking: is a residential treatment centre employee an employee of either the Department of Corrections or the New Zealand Police? Those two are the only two that, unless there is another agreement that we don’t know about, because there’s been no definition that I can see—again, please correct me if I’m wrong—of what is the current criteria for approving an EM assessor. I’m just checking—no, I can’t see anything at this stage.

Please correct me if I’m wrong as to whether the residential treatment centres are either the employee of the Department of Corrections or the New Zealand Police. How do we actually then determine an EM assessor? I think that those are my two questions.

My third question is around the definition of an employee under clause 11(1)(b), because it says here: “an employee—(i) of the chief executive of the Department of Corrections; and (ii) not authorised under section 30E(2).” Now, I had a look at section 30E(2), as well as the adjacent section 30E(1), which is “the chief executive of the Department of Corrections.” and “the Commissioner of Police:”. What we’re seeing here is that it has to be an employee of the chief executive of the Department of Corrections and not authorised by the chief executive of the Department of Corrections, so which one is it? Is the person meant to be or not meant to be authorised by the Department of Corrections? Thank you.

Tēnā koe, Mr Chair. Just a couple of queries. We’re in extended hours so it’s always a little bit hard to get the feel from our constituents, our groups that help determine our kōrero and whakaaro around Te Pāti Māori, but we have managed to get some questions from our external rōpū. So one of the questions that’s come up is whether the use of discretion will be equitable—i.e., that Māori will not be discriminated against by the electronic monitoring assessor. Is there a breach of Te Tiriti rights? Corrections or Police, or there have also been known as private companies or private security groups, are in these assessor roles; we must remember that private security are not Crown and therefore it’s a breach of Te Tiriti. We’d like to just know where the Minister for Mental Health stands on this, and is this bill Tiriti-centric?

I just will remind the member that we’re on Part 2 and the Schedule, so questions in relation to this need to be related directly to the part that we are actually discussing. But if the Minister for Mental Health did want to answer that question?

I move, That debate on this question now close.

Thank you, Mr Chair. I thought that Mr Tom Rutherford was going to have a serious call, because we’re still waiting on the responses to all of our previous questions, but if the Minister for Mental Health isn’t going to respond or is waiting to respond or is still waiting for advisers, we are happy to keep going while we buy the Minister some time to seek advice. My next question for the Minister is around clause 11(3)—

CHAIRPERSON (Greg O’Connor): I’ll indicate that the Chair would be looking for the Minister’s involvement at some stage before any closure was to be entertained.

Thank you so much, Mr Chair—very much appreciate that. Also, to take a very small interlude and side track just to welcome back Tarsh Kemp. I assume this is probably one of your first features in the committee stage since you have returned—so welcome back to the fold as part of the committee stage.

My question is around clause 11(3), which is around the authorisation “is ended at the start of the 61st working day”. Actually, it’s a very simple question to the Minister: I would like to know the rationale behind 61 working days—i.e., I’m assuming a little over two months, but 61 is a very interesting and precise time—and whether that’s taken from an existing provision from other Acts or other bills, or is it something that is very specific to this bill? And how would that relate to what we see in clause 9? If the authorisation is ending at the start of the 61st working day, would that mean that the provisions and exceptions that we see under clauses 10 and 11 would be void but clause 9 would still stand? Thank you.

Thank you, Mr Chair—first time that I’ve been able to contribute to this committee stage. I just wanted to ask the Minister for Mental Health some questions in relation to the Schedule, which is listed in Part 3 but is empowered by Part 2, which we’re discussing at the moment. That’s just in relation to some of the definitions which are here.

I know that my colleague Dr Duncan Webb has already referred to the quite unusual definition of “old law”, which is defined in the interpretation section here. I think readers of this bill will note immediately that there isn’t a definition of electronic monitoring (EM) assessor in this bill. We’ve had a couple of questions around who an EM assessor can be, and I think those are valid questions which I understand remain unanswered. I did double-check with my learned colleague as to whether this was defined somewhere in the bill, because it’s very difficult to understand the bill without knowing that, and he referred me back to the primary piece of legislation, which does talk about EM assessors.

What I wanted to ask the Minister is perhaps whether he would agree to an amendment to include clarification that that same definition applies to this new bill, because it’s really fundamental to the work that has to be undertaken in this bill and, for me, in my reading of it, it isn’t clear that it does apply to that. When you look at the definition in the original Bail Act, it talks about section 30M. Obviously we are amending the Bail Act, but we are additionally putting in other sections. Perhaps the original Bail Act could be clarified to include that it does in fact cover the EM assessor references in this Act or the exact same definition could be included within this particular part as well. It’s just a relatively straightforward question following up on some other questions around definitions that I hope the Minister can address.

Thanks, Mr Chair. Just following up from Dr Lawrence Xu-Nan, who is ably leading the charge once again for the Opposition—holding them up for his persistent lines of questioning. He asks, “What does clause 9 and 10 do?” I’ve been advised that clause 9 is about how the amendments will apply to authorisation after the bill commences. Clause 9 does not invalidate anything. Clause 10 is about validation of past conditions; authorisations made before commencement.

The member Lawrence Xu-Nan also asked about residential treatment facilities, and whether the facility staff—employees of Corrections, and/or Police, if I understood the question right; residential treatment facilities are not employees of Corrections or Police. Going forward, only the electronic monitoring assessors who are currently from Corrections will be able to be enabled to approve absences.

Thank you, Mr Chair. Thank you, Minister, for the response to my questions.

Just to signal to the Minister for Mental Health that there were two other questions that I’m still waiting for response or clarification or acknowledgement of, and that is new clause 11(1)(b)(i) and (ii), because both of them refer to “the chief executive of Department of Corrections” and I don’t know what that section means when it says an employee that’s appointed by the chief executive of the Department of Corrections and at the same time not authorised by the chief executive of the Department of Corrections under (ii). So that clarification would be very much appreciated.

I think my question comes from, again, clarification from what the previous Minister, the Minister of Justice, was saying in terms of the fact that currently you do have electronic monitoring (EM) assessors who are not an employee of either of those two. I’m assuming that, in that case, those EM assessors would be covered under new clause 11(1)(a) as an existing EM assessor as opposed to having to be an employee of either the Department of Corrections or Police.

Then, if it’s not covered under 11(1)(a), therefore, any decisions that are currently made or have been previously made by residential treatment centres would not be validated by this amendment and by this particular schedule—which just ties into some of the discussions we had before in terms of judicial review; whether that would then still create the same potential legal challenge that the Minister is trying to avoid in the first place by bringing all of this under urgency.

Then, the other thing, lastly, in terms of new clause 9(1), thank you so much for that clarification. From my reading—again, I could be wrong, so clarification would be very helpful—it says, “only to authorisations that occur after commencement, even if they occur in any of the following:”. Ergo, any of the “following” would not be applicable, which means that they would be ruled out. But if they are to be ruled out, again it comes down to I’m not sure if they are then in effect or not, under new clause 10. Thank you.

Mr Chair, thank you, and once again just following up for the very hard-working Opposition MP Dr Lawrence Xu-Nan. Why 60 days for the validation in clause 11? The rationale for 60 days allows time for defendants in the youth court to get their conditions varied. Some youth courts only sit once a month. This will also give time to replace any other conditions not involving Corrections.

Why is there not a definition of electronic monitoring (EM) assessor in the bill, was another question. “EM assessor” is defined in clause 3 of the Bail Act. References to “EM assessor” in the bill refer to the Bail Act definition, and that’s consistent with standard practice.

We come now to the Schedule. The Hon Dr Duncan Webb’s tabled amendment to the Schedule is ruled out of order as not being a serious amendment.