Bail (Electronic Monitoring) Amendment Bill

on behalf of the Minister of Justice: I move, That the Bail (Electronic Monitoring) Amendment Bill be now read a third time.

Thank you for all your time in the first and second reading speeches and for the insightful debate during the committee of the whole House. This bill amends the Bail Act 2000 to clarify that the court can enable Corrections to approve absences from the electronic monitoring (EM) bail address for defendants on EM bail. For over 10 years the practice has been for the courts to enable Corrections to approve absences for defendants from EM bail. This allows for the efficient and safe management of defendants by Corrections and prevents the courts from needing to be involved in frequent day-to-day decisions. What this bill does is enable Corrections to continue to manage the day-to-day absences of defendants. Specifically, it does this by enabling the courts to continue to enable Corrections to approve absences in accordance with purposes specified by the courts.

This bill will also validate conditions that involved Corrections and others to prevent the need to reissue conditions for the over 2,000 current defendants and to provide certainty for agencies and defendants. I think it’s important to prevent the negative impacts on the courts, agencies, and defendants of requiring the courts to approve specific absences, hence the use of urgency to progress the bill through all stages.

I extend my thanks to the policy teams at Justice and Corrections and the Parliamentary Counsel Office for their work to support the passage of the bill through the House. I would like to thank MPs from around the House for their support of this important bill. On this basis, I commend this bill to the House.

The question is that the motion be agreed to.

Thank you, Madam Chair. We do support doing things legally. That is, essentially, what this bill is fixing up.

💬 Hon Member: Who knew?

Look, I’ve said it before: Corrections was illegally granting people indulgences to leave their approved premises. Now, we also think it’s really important that we get this right and that the decision is made at the right level. Electronic bail is good, and the principles in the Bail Act are clear that people should be on bail wherever it’s consistent with community safety and other things, such as the likelihood of their absconding—that’s good. If the best way to achieve that—the best way to strike that balance—is to put them on electronic bail, rather than put them on remand in our crowded prisons, that also is good, and that should occur.

The other thing I’d say is that we also absolutely agree that enabling people to remain connected with their communities gives them the best chance of changing their ways and averting disaster; so electronically monitored bail, where you can go to your kid’s school play or attend work or visit your sick mum and all those kinds of things, is actually a critical part of having a rehabilitation-focused corrections system, a system which doesn’t fracture the relationship between the offender—or, in this case, defendant—and the community. That’s good, but I’m not sure we needed to do this under urgency, and if we did need to do it under urgency, my very strong view is that the Justice Committee should have a look at it, because the more I tried to draw the threads together, to put the pieces of the legislation together and confirm how they worked, the less convinced I was that it worked effectively.

Now, I’m hopeful that it’ll muddle along—it’s a patch, because that’s what it is, right? It’s a running patchwork on the hull of the justice system. I’m certainly not convinced it’s the most effective one. I put a number of amendments up, and some of them were perhaps a little too Labour for the other side, but others of them were perfectly reasonable suggestions. My suggestion that there be a quick-fire right of review, rather than having to go back and make an application to the courts for variation of bail, was, in fact, focused on the efficiency of the bail system and balancing the rights of someone who’s had an administrative action done that affects their rights—the right to have that reviewed or appealed in some way, and the size of that decision—but the Minister of Justice was not interested.

The words in the Minister’s mouth when he said, “Oh, thanks to everyone around the House for their cooperation.”—well, no thanks to you, because we come here prepared to support the Government in fixing things up. It would be nice if, for a change—we’ve seen this bill today, and yet we’ve come up with sensible amendments, but none of them are seriously considered. You don’t have to like them all. You can have a think about them, but none of them are seriously considered, and that’s just disappointing.

I’m also concerned that the Act itself loosely, kind of, points to the electronic bail assessors and says that the judges can give them some role in managing the extent and detail of bail arrangements, but it doesn’t actually empower them. I’m concerned that the very crux, the very problem that is being sought to be solved—people have been wondering about making decisions which they have no legal power to do—isn’t actually solved by this legislation. In fact, if you look at it, if you go to the legislation and you look at this new section 30MB, “Court must specify all details of authorisation or enable EM assessor to approve authorised absence.”

The way they do it, in authorising a defendant to be absent from the EM address, under section 30M, the court must specify all required details of an authorisation—so that’s option No. 1—or enable an EM assessor to approve. But nowhere does it say that these EM assessors have the power to approve. Now, identifying an EM assessor is one thing; empowering them to make a bail decision is actually—this is a bail decision. The court might give the general outline, “Yes, this person is on electronically monitored bail.” The court actually doesn’t have to give any further details; they can just say that the rest of it is delegated—so if they go to work, what hours it is; if they pick up their kids, what hours it is; medical appointments, and all those things. But there’s no actual conferment of power in there, so that’s actually a real concern.

Also, I’m a little concerned at the lack of clarity around some of the things that were going on. At one point, I talked about people who weren’t Corrections employees giving these authorisations, and the Minister kind of said, “Oh, you know, not much. It’s not a big deal.” I’m still yet to be convinced that the people whose authorisations were by social workers or people in, I think it was, rehab facilities—that the authorisations to leave authorised premises given by those people are not actually simply void; that those people aren’t now illegally breaching their bail conditions. And come the day after Royal assent, any a shred of pretence will be gone, because I don’t understand that those people are captured in the pretty lengthy and confusing transitional provisions. This is what you get when you make legislation on the hoof. Now, I accept that, once the Government has taken advice and has accepted the advice that there is a breach of law, it does need to move to address it. But this has all the hallmarks of undue haste. So I’m concerned about that.

Fundamentally, in conclusion: yes, we get it—and this is the way the Government has chosen to address this problem—but, because there’s these 2,000 people out on electronic bail, and the fact of the matter is this Government’s been quite clear, and, in fact, a number of the backbench Government MPs stood up and said, “We’re going to be tough on crime,” which is, essentially, saying there’s going to be more of these, both in remand, on bail, and on EM bail, so the problems are going to get bigger. We get it. We actually want to make sure the bail system does work effectively, but we do think it should be both legal and legitimate. At the moment, we’re not sure it’s either, particularly around the ability to revisit those decisions. There are a whole lot of people out there who have been, essentially, breaching their bail. Under the current law, they’re in breach of their bail. I was surprised that one of my amendments which talked about civil liability was considered out of order, because that’s a real thing, and equally surprised that my title was considered to be not serious, because it was actually a perfectly reasonable title amendment.

If the Minister won’t address a select committee, certainly, it may be something that, on this side of the House, we’ll go to select committee and say, “Let’s give this a good bit of working over,” because we didn’t have the benefit of official advice, which is really useful for people like the Opposition to do genuine scrutiny, rather than scrutiny on the hoof. If you don’t like the quality of my tabled amendments, well, they were all drafted in the past hour or two, so there’s a reason for that. I do think select committee should have a really good look at this and make sure that it does actually work—if it doesn’t work, if there’s flaws in it, to identify those and report back to this House and make recommendations to the Government to change. We do need to get bail right. It is an important part of our justice system, and this, really, just feels a little hurried for my liking.

Thank you, Madam Speaker. I rise on behalf of the Green Party of Aotearoa to support this bill, but I have to say that there were moments during the committee stage where I feel like I wasn’t getting the clarity that we really needed for this particular bill in light of the fact that we are doing this bill under urgency and we are going through all of the processes this week. You do hear certain people who might say that the way that we scrutinise a piece of legislation might be alarmist or scaremongering, but I think it’s important to reassure people of the work that we do as a legislature, and having to scrutinise a bill without the ability to have public consultation is anything but.

In terms of the bill itself, there are a number of things that I would like to address, predominantly from some of the observations and some of the responses that we received from the Minister of Justice during the committee stage. I think, first of all, we do see that predominantly the bill is actually about the issue that we have right now, in terms of the authorisation of absence of those who are on electronic monitoring (EM), but it wasn’t until asking the Minister a number of times what spun all of this sort of urgency and the need for us to do this today through all stages that we were able to get something out of the Minister—that it wasn’t simply just to do with operational review from the Ministry of Justice and sort of bringing everything up to a piece of standard practice but mainly because there has been concerns around legal challenges of the current practice because it is not strictly adhering to the current Bail Act 2000. There have been instances of, potentially, judicial review as a result of that.

I think the first part of this highlights very much the issue of process. When we are seeing something like this being done throughout the thing, when it is only during the committee stage that we actually have something that has been challenged as part of judicial review by the court system—we need to look at it at this stage—it is only after the first and second reading that you realise the magnitude and the implication of this bill in terms of our constitutional arrangement, but also in terms of our court and our legal system in general. I think there is definitely something to be said about the process.

Then the other thing that we have heard during the committee stage is the fact that, when we are looking at this particular bill, it’s a standard practice that has already been implemented—we are just putting in legislation for something that already exists—but, as we have seen with other regulatory systems bills that were introduced in this very House, just because it’s minor and technical improvements, again, it doesn’t mean that it doesn’t go through a full and robust process, particularly with select committee and public consultation. Again, we may not receive all that many submissions, but it is important for people to be able to actually contribute to that, and for people to say, “Hey, is the current practice actually a good thing or not?” I think just making the assumption that it is a good thing is not entirely accurate, considering that’s currently being challenged both in terms of standard operational review and also judicial review. That’s the first concern that we have from a process perspective.

The second concern we have is in terms of the way the bill was drafted. During the committee stage, it was the best opportunity—and actually, frankly, the only opportunity—for us to seek guidance and clarification on the details and specificity of each of the clauses and lines of this bill. There were definitely moments where we did not feel reassured by the policy intent and by the way some of these phrases have been drafted.

Again, this bill is amends the Bail Act 2000. There are a number of instances where we are trying to find an ounce of consistency—or inconsistencies potentially—between this particular bill and also the Bail Act 2000. The main purpose of that is because this is something that the Minister of Justice said that we need to do, and he mentioned a timeline of this only being consulted on in February, etc., so we had a very quick turnover for this. Again, the rush job means that there are a number of instances where we weren’t able to get specific clarifications on how this bill will work in practice and whether this bill will achieve what is intended, which is to ensure that we don’t have the same issue of people being able to challenge the existing system and the existing practice as a matter of legality.

To give you some examples of where we weren’t convinced in terms of its consistency with the principal Act—things like in the Schedule, new section 11(1)(b)(i) and (ii). I asked about the fact that both of them refer to the chief executive of the Department of Corrections. Paragraph (i) says it is an employee of the chief executive of the Department of Corrections, and, paragraph (ii), at the same time not authorised by the chief executive of the Department of Corrections. Things like this—you know, what does it mean? Is it consistent? I mentioned before during the committee stage that we’re seeing constant referral to the definition of the EM assessor, but without clarification of the way that the EM assessor is currently defined under section 30E(2) of the principal Act, and also under section 3 of the principle Act. The “Interpretation” kind of goes around in a bit of a circle. Again, there are issues and concerns from the perspective of consistency.

The third concern I would like to raise is around the idea of the ability to review. Again, we hear that this is to make sure that it is legal and what we do is legal—which would be very much appreciated, because like the previous speaker, the Hon Dr Duncan Webb, mentioned, it is nice when we do things legally in Aotearoa. But in this case, one of the things that we weren’t able to clarify, for example, is the fact that the whole point of this is to ensure that the EM assessor is able to have a level of certainty that they’re able to issue some of these absences, but there’s no ability to challenge any of the decisions that are made, because there are no provisions in place in terms of an independent review—which is normally what we see in other bills of a similar nature, when you have a member of the executive, which includes our departments, that can make decisions that affect others—and how they are able to be held accountable by matter of specific provisions within the legislation. But we are not actually seeing that in here.

I think what is concerning in some regard is the fact that the Minister said that, under new section 30MB(2)(b)(i), if there is an instance of inconsistency, the court is ultimately able to make the rule; it has the final say. If a person was to challenge the conditions or their application to grant absence from electronic monitoring under the conditions of this bill, what we’re seeing is that, if they are rejected, rather than being able to go through the route that they are going through now—which is through various processes, including judicial review—they then will make an application to court, because the court then is able to decide whether this particular decision that is made by an EM assessor stands. My concern is what sort of burden would this add to the court system if we’re seeing that one route has been closed to these people but another route has opened through the court system. Again, that is something that we haven’t been able to tease out and seek advice on.

Lastly, going back to the fact that, again during the committee stage, we were very grateful that the Ministry of Justice uploaded and corrected the link for the New Zealand Bill of Rights Act (BORA) report so that we were able to see the concerns of, and the analysis done by, the Attorney-General on consistency with section 18 of BORA. That was very helpful, and upon balance, it is still something that we see as not being a retrospective penalty. Again, we weren’t able to consult more broadly than we were able to today. With those concerns, we do support the bill, but we’re interested to see how it will be implemented.

Thank you, Madam Speaker. I rise on this third reading of the Bail (Electronic Monitoring) Amendment Bill. Look, it’s not just nice that we obey the law in New Zealand; it is, in fact, essential. This bill is being done under urgency because a problem was identified by Ministry of Justice officials and was brought to the Minister of Justice’s attention. I want to thank those officials for doing that. They saw that there could be, potentially, some issues with the electronic monitoring provisions of bail. But let’s be clear: the courts remain the body that determines if someone gets bail and if they are eligible for electronic monitoring for that bail. That remains, the very strong judicial oversight of bail remains, and the opportunity for defendants to apply to the court to vary bail remains.

What we are doing here is, in fact, codifying a current practice where Corrections can ensure that a defendant can be absent from their residence when they’re on electronic monitoring for purposes already specified by the court but they may need to vary some of the hours or days when they’re doing that. This is a very sensible piece of law, clarifying the fact that Corrections can make these changes and codifying what is usual practice. This will mean that we do not need to have people going back to the court all of the time, reducing pressure on the courts, and I know everyone in this House is very concerned about timeliness of justice and making sure our courts are not overburdened. With that, I will be commending this bill to the House on behalf of ACT.

Thank you, Madam Speaker. Following on from my colleague Todd Stephenson’s learned words, the Bail (Electronic Monitoring) Amendment Bill will be supported by New Zealand First. It is important to clarify that what we are dealing with is that the Bail Act did not adequately provide for the approach that was in place. The Minister of Justice, who is focused on effective and efficient justice, identified this anomaly and acted as he should to ensure that we rectify this and continue on a pathway of effective and efficient justice.

This is not a running patchwork; this is a proactive approach to an issue that was needing to be rectified. Therefore, it is being done as it should be, as a priority in this House, to ensure that electronic monitoring continues to be a useful tool, that we don’t overburden the court system, and that we continue to work proactively to identify future anomalies in our justice system in such a manner as would be appreciated as we continue to a common objective, I think, in this House: to ensure that we do the best within our justice system. Therefore, New Zealand First commends this bill to the House.

Tēnā koe e te Pīka. Tēnā tātou ano e te Whare. I rise on behalf of Te Pāti Māori to oppose this bill. Why? Well, the first statement we want to make is that the system is broken and the system doesn’t work for our people. So is this justice or injustice? Why? We’re in urgency and Te Pāti Māori do not support any bills when they’re going through urgency. Why? Because we need to have the time to actually meet and discuss these amendments and bills with our communities. Our whānau are important to us.

💬 Hon Casey Costello: They trust you to speak on their behalf—that’s why you were elected.

Our communities are important to us and our community voices are important. This step has not seen this process go through. We’ve heard that from many of the members here tonight and throughout the day that we’ve all said that this needed more time to go back out to our constituents in our communities to have their say so that they could provide a voice here in this Parliament. That’s what this Parliament is about—you’re right.

💬 Hon Casey Costello: Making tough decisions.

So this is how we’ve decided we oppose this bill. I want to remind our whānau at home that there are 2,000 Māori on electronic monitoring bail. There are 30,000 queries and responses for leave requests. This affects our people.

This Government puts pressure on our people, on our whānau, in terms of how we get to respond. We’ve put up with a lot as a Māori community. We have put up with the defunding of section 27 reports, which lead to Māori and lower income people in prison. The gang legislation, three strikes legislation, the removal of prison reduction targets—we have put up with all of that. All we’re saying is that we want our whānau to have a say—to have the opportunity to join select committees, and put in submissions so that they have the right to make some decisions. Te Pāti Māori do not support the bill. Kia ora.

Thank you, Madam Speaker. I rise to take a call on behalf of the Green Party of Aotearoa New Zealand to support this bill for the reasons that my learned colleague Dr Lawrence Xu-Nan has already articulated, but I’ll repeat it anyway as a sort of repeat double act.

There are three key reasons that we’re supporting this bill, and the first is that we do believe that people who are being electronically monitored should be able to have timely access to be able to do things like apply for absences so that they can go to the shop, and go and do the other things that are on their approved list. The second is that not passing this legislation has the potential to create an unacceptable backlog in our already overburdened court system, so we wouldn’t want to see that either. Look, the third, as my colleague Dr Duncan Webb has already said, is that it’s pretty good for things to be legal, and we support things being legal here. So these three things are all very important to us, and so that’s why we are supporting the bill.

I do acknowledge the concerns that have been articulated by the previous speaker, Takutai Tarsh Kemp. Obviously, urgency is never an ideal way to do business, and I think that all of us in the House would much rather prefer it if we avoided the use of urgency, but I think that, in this instance, our not using urgency could create the risk that some people who, through no fault of their own, would be unfairly illegalised for a mistake that was made almost over a decade ago, and so that’s not ideal.

I just wanted to acknowledge the hard work of the officials that have drafted this and the hard work of the wider Public Service sector and the wider infrastructure that supports it—the Department of Corrections, the Police, and the wider judiciary—because it’s really important that we actually keep in mind that it is hard working out there. There have been a lot of increases in the offences, there’s growing work pressure, and there are growing demands on that sector, so it’s important to acknowledge them for the good work that they’re doing. I mean, I guess that nobody’s perfect, but this will help all those hard-working people not only in the front lines but it’s also important to acknowledge the people in the back lines, the so-called back line/front line division—you know, the policy officials who spotted this mistake and brought it to the attention of the Minister.

I think it’s really notable that we’ve been able to pass this correction to the mistake in just a single day. We’ve progressed it through all aspects of the legislation in a single day, which I guess testifies to how efficient lawmaking can be when we put our minds to it, and how efficient the drafting of legislation and how efficient just the wider Public Service really is. I think it’s important to note that.

I also wanted to repeat the words of praise that have already been lavished on my colleague Dr Lawrence Xu-Nan. I think that the Minister for Mental Health said that he was ably leading the Opposition, and one of the ACT Party colleagues says that he’s the hardest-working Opposition MP. Certainly, that’s been our experience with Dr Lawrence Xu-Nan, and I think it’s thanks to the efforts of people like—

Don’t tell Hon Simeon BrownChlöe Swarbrick.

Well, look, the successes of our colleagues are celebrated by everyone, from the leadership to the lowliest backbencher such as myself. There’s no hierarchical division in the Greens. We’re all co-leaders and we’re all backbenchers at the same time. Look, that inclusive leadership style is why the Greens were at 15.5 percent in the recently released Roy Morgan poll.

Now, I’ll pivot back to the real importance of this—[Interruption] It’s good to appreciate your colleagues. I also wanted to appreciate what has been said by other colleagues in the Opposition. I really liked the turn of phrase that Dr Duncan Webb used, which was “a running patchwork on the whole of the legislation”. It’s in these sorts of colourful turns of phases that we get an opportunity to really explore in the House.

In closing, we all know that it’s really important that we humanise people, even though they might be under electronic monitoring, and this is why the Green Party is supporting this legislation. Thank you.

I’ll leave some of the other comments to be made by my colleagues, but I do want to put on record the comment that was made by Te Pāti Māori, which is they do not ever support the use of urgency—ever, full stop. I would love to see them pass a Budget or any other future legislation if they ever get the privilege to serve in Government—heaven forbid. I commend this bill to the House.

Thank you, thank you. I’m not entirely sure what the purpose of that was, but never mind.

💬 Glen Bennett: No purpose. Purposeless.

Purposeless. Labour, as we have said, obviously will be supporting this at third reading, as we have done at first reading and at second reading, but, certainly, the committee of the whole House stage highlighted the fact that there are several holes, a few gaps, and so our support is somewhat begrudging in so far as this doesn’t feel like it’s a well-planned-out piece of legislation.

That’s not to be disparaging of the people that have done that work but rather of the need for the rush behind it and the fact that it’s in urgency and, therefore, has quite obviously missed out as a good process should be in the benefits of going through a select committee process. The select committee process exists for a reason. Those reasons are to be able to find those things that need to be amended, to make those changes, to listen to advice, and to improve the legislation once and for all. Under urgency, which this bill has been afforded, or accorded, it has missed out on that. But we nevertheless understand that behind that is a need to pass this bill.

The Government has been forced, essentially, into rushing through this bill, mainly because—and this is the underlying issue—the justice system simply isn’t in a position to be able to cope with the ensuing chaos that would happen should this not be corrected and, having identified the problem and not fixed it, should there be a different way for the courts to have to address this issue.

Obviously, on this side of the House, we’re not interested in participating in, or causing, that type of chaos, but it doesn’t necessarily mean that the Government haven’t had sufficient time to have, themselves, identified some of the gaps and some of the potential issues that my colleagues, in particular on this side of the House, were able to raise during that committee process and were able to ask questions about. Unfortunately, those answers weren’t necessarily forthcoming, and we find ourselves being none the wiser on some of the more important things, but, as I said, that’s where the “begrudgingly” comes from, because we nevertheless still need to support this bill.

As I said, if we were to reject this legislation, quite literally thousands of people on electronic bail could see their absence approvals suddenly invalidated. The courts, who are already under immense strain, would be, again, quite literally swamped with thousands of additional applications, and that would be an absolute mess. That is why we’re voting for it. It’s not good lawmaking. The bill also is just, essentially, the bare minimum.

To reiterate, this process, whilst in urgency and not ideal, does at least force a little bit of focus on to the very, very obvious flaws which I think have been well ventilated tonight, and with that lack of critical detail, it will be interesting to see if there are some other workarounds required as the operational phase of this kicks into gear, because, particularly, my colleague the Hon Dr Duncan Webb isolated two specific things that I think will rear their ugly head in the future to raise some issues.

It’s been a decade of legal non-compliance, and it’s good that this has been noticed. For more than 10 years, the Department of Corrections has just been operating outside the law when it comes to this and approving absences for those on electronic bail. We’ve heard through this process that something like 30,000 of those applications are approved, let alone the ones that are not approved, every single month and have been done for such a long time.

During the course of examining this bill through this urgency and rushed process, there was the opportunity to also table some amendments, as is normal, and there were some really sensible amendments that were generated from this side of the House, particularly when we think about probably the biggest risk here, which is the issue of liability and even civil liability, which was ruled out of scope, but it certainly didn’t seem to be out of scope from our perspective, and it’s one of those things that, therefore, still lingers as a concern.

It took legal opinion, we think, from Crown Law, but the other point that we would really like to make sure that is focused on in this final opportunity for us to say anything on this bill is that we’re still really none the wiser about the impetus. Where did this information come from? We’ve heard some information from the Minister of Justice about the potential for—for lack of a better word—cases in Christchurch that are pending resolution, and so he didn’t want to elucidate on that further, which is his prerogative, but we still really don’t know what that advice was, and my colleague Helen White implored the Minister to think about ways in which that information could be released to just provide the necessary context, which, of course, is why we’re here. We’re literally passing a bill into legislation without an important part of that puzzle, so that feels a bit undercooked as well.

As I have said, there are some alarming vagaries in this. It lacks some key details. The retrospective immunity certainly comes to mind, and I’ve mentioned that civil liability, but the bill retroactively legalises past absence approvals. At almost the end of this process, I still don’t feel like there’s an awful lot of clarity about how that immunity for those who had previously relied on the old system is conferred and how that necessarily will be communicated and various other aspects of the operation of that. We’re in a situation where those people, those electronic monitoring (EM) assessors, we’re told to believe, will be protected from legal action for unknowingly breaching the Bail Act and are protected from that civil liability, but are defendants who acted in accordance with previous approvals fully protected from all of those legal consequences? I think that remains an outstanding question as well.

In terms of future oversight and accountability, again, this process, whilst talking about what could be perceived as quite a narrow bill, does raise the question about administrative oversights and not, essentially, allowing this to happen again. There were questions posed during the committee stage about what safeguards would be in place to ensure that all of the aspects—has that fine-tooth comb been run over various other aspects? If we knew the provenance of the identification of this problem, we may have been able to answer that for ourselves.

Whilst technically a technical fix, it would have been much, much more preferable to have a little bit more information about how this could impact future things. If the legislation is meant to streamline the justice system and prevent delays, which is certainly why we are supporting this bill, it just conjures up all sorts of other things that the Government should be doing and should be taking the opportunity to make contributions on, even whilst talking on this bill about the much bigger problems that exist in our justice system when it comes to court delays and when it comes to all sorts of practical implications of navigating that system.

The backlog in headquarters is growing, and the remand population is increasing, and whilst that might not seem overly specific to this bill, one of the reasons that this is so important and the implications of this are important is, quite frankly, because of the really high numbers of people on remand. Electronic monitoring is being used more than ever. We do support the use of electronic monitoring. It’s an important part of keeping people tied to their communities, people who haven’t almost certainly been necessarily convicted or certainly haven’t been sentenced. We wouldn’t want the issues that have been raised through this process to sully the concept of electronic monitoring, and, having said that, we commend the bill to the House.

E te Māngai o te Whare, e tautoko ana au i te pire ki te Whare.

[To the Speaker of the House, I commend the bill to the House.]

That was an incredibly short speech—an incredibly short speech. It’s perhaps the shortest that I’ve heard that member, Greg Fleming, give.

It is a pleasure to be able to take another call on this bill. At the last reading—I believe it was the second reading that I spoke on—I said I would try and find the New Zealand Bill of Rights Act (BORA) vet, which was not tabled there, but is mentioned in the regulatory impact statement. I kept my word to the House, and I found the BORA vet for this bill. The reason that I decided to dig it out is I thought when we have bills like this which are passed under urgency, which are related to people’s fundamental freedoms and detention and the deprivation of liberty, it is very important to make sure that these bills are consistent with our fundamental rights. I thought it was important that at least it was touched on in this debate.

To briefly go over some of the content of it: the BORA vet was I think signed off only yesterday, so this is a very, very quick ascension of this bill to the House. We saw it earlier in the week as—I can’t remember exactly what it was called; it was “urgent bill” or something like that. Anyway, it was very mysterious. Then when we actually found out what it was about it was—not disappointing, but maybe slightly less impactful than we may have thought. This is signed off yesterday by the Attorney-General, the Hon Judith Collins KC, and it does discuss some of the issues in relation to this bill. It does conclude that it’s compliant with the New Zealand Bill of Rights Act, and I think it’s important to note that for the House, because although we are talking about a retrospective law and we are talking about restriction of movement, the conclusion was that those fundamental rights are not breached.

I personally believe—and I’m sure that many others hold the view in this House—that the New Zealand Bill of Rights Act vet is very important and something that we should maintain, and so I think referring to it is helpful. The thing that I did find particularly revealing about this, though, is that the main right that it focuses on is restricting movement of the persons on bail. The BORA vet concludes that it’s demonstrably justified this limit on freedom of movement. However, it doesn’t really address the retrospectivity aspect of it, which I would have thought would have been the main aspect that we would have been concerned about.

Thinking about it, I do think perhaps it’s due to the fact that this is maybe even more immediate, right? I don’t know. Anyway, it’s a very short document, less than two pages—just over one, really—and that wasn’t discussed. I’ll just leave that with the House as something that I thought was interesting to reflect on that I don’t think has been covered in the debate to date.

The other issue that I wanted to raise about this bill is I still really don’t know exactly the reasons as to why this bill has suddenly come about in such an urgent fashion. I was thinking through, well, what are the reasons that this might be the case? We’ve had other urgent bills through the House recently. We had one on the greyhound racing ban—it was very evident why that needed to be brought through. We had another recent bill which I think was around people being able to challenge perhaps convictions or something in court—that was very obvious as to why it had to be brought with such urgency.

This, though, is in the interests of the people who are on bail to have this flexibility, because essentially, the decisions that the monitors are making are, “Oh yes, you can go and buy groceries. You can go to your medical appointment. You can do things like go and see your lawyer.” Essential things really to allow the person who’s on bail to have access to justice and so it’s in their benefit, so I don’t imagine that they would complain about it. However, obviously—as everyone has said—it is important that we make sure that we are compliant with the law.

That’s why we are supporting this bill. That’s why even though it’s come through with urgency, we’ve made sure to scrutinise at committee stage. We’ve made sure to go through every clause. We’ve made sure to do things like look through the New Zealand Bill of Rights Act vet, suggest amendments to make sure we do our part to ensure that this particular law is fit for purpose. It has been a very rushed process, but these things do sometimes happen, and I think the whole House has really played a role in allowing the Government to fix this problem. I commend it to the House.

I rise to speak in this third reading in support of the Bail (Electronic Monitoring) Amendment Bill. It’s an urgent legislative change that was required to ensure the longstanding and efficient practice of management for defendants on electronically monitored bail. Most of the parties in this House support it. Therefore, any more debate would just be a waste of time, so therefore I commend the bill to the House.

Thank you, Madam Speaker. While most of the parties are supporting this bill, I’d first of all like to take a moment just to respect the views of a party that hasn’t supported the bill. They’ve been concerned that it’s too flippant, because this is an important area and urgency is being overused. I take on board the reasons for that. There’s been a lot of trauma in the Māori population over the use of prison, and I can understand a party that is looking through that particular lens as being really wary of where we use urgency. I don’t intend to be wary in the use of urgency when I look at the problem before us, and our party has decided to be pragmatic about this, but that does not mean that you haven’t heard quite a vigorous Opposition tonight to a flippant use of urgency.

In the committee stage, I asked some questions about what had motivated this bill, and I couldn’t get a lot of answers. I still only have a vague idea about what provoked it. I know, because the Minister of Justice seemed to relent and give us a bit more information, that there were perhaps four cases where somehow this electronic bail and its legality reared its head, and that they were oral cases. I also know that there was some sort of report done by officials who raised concerns about the legality of these actions.

Now, I absolutely take the point that has been made, quite often, that this is a law that will retrospectively allow the legality of something that, in fact, has given people perhaps more liberation than they otherwise would have. They’re on electronic bail and they’ve been given an opportunity to go to, perhaps, a funeral, or shopping, etc. I do appreciate that that’s a different circumstance from where you’re restricting people in lots of ways, but we’ve always got to remember also that there are victims in that situation. There’s always two sides. When somebody is given that kind of freedom, and they’ve committed a crime, there’s another person on the other side of that. I actually haven’t heard that point of view raised at all tonight, that there are victims in this situation.

We, obviously, had a legislature that chose many years ago to put the courts in charge of these decisions. I appreciate that time has rolled on, and if you have 30,000 decisions, some of which are probably quite minor, that’s not really something that the court is equipped to make. And maybe it never was. Maybe it was the wrong decision at that time. Maybe it should have been more streamlined than that, but that doesn’t mean that the solution before us tonight is perfect, either.

I heard my friend the Hon David Parker suggest at one point in the committee that perhaps there was a very different way of dealing with this situation, where we would have had more specificity in the bill. I was interested in that, because I was concerned—I didn’t know what these decision makers would do in this situation; what they had been doing. I heard there was no review of the last 13 years of decisions to see whether the system was working or broken. There was no consideration of what was going on here when you take a decision that’s being made or is supposed to be made by a court, which has got distance from the situation and doesn’t know the personalities involved and actually is listening in an objective way, and you give that decision to another party that is not so far away and may well be someone who is much closer to the situation and also may lack the very objectivity we’re looking at.

For example, there’s two things that can go wrong there. One is that this power can be used in an abusive way towards the person who is on electronic bail, but it also could be used negligently with regard to the person on electronic bail. Those are things which we train our judges to guard against, to be very careful about, and they’re away from it. If somebody is, perhaps, in a closer relationship, they are more tempted to use those powers punitively or when in fact somebody’s just annoyed them. Those are the kinds of things which I think are part of a human difference, and I don’t propose that everything goes back to the court, here, but I would have liked to see a thought process around the checks and balances around this system. OK, we’ve got somebody who’s on electronic bail; what is the system they are now going into? Who’s going to make those decisions and who’s going to make sure that those decisions are fair and reasonable decisions towards them and towards the victims, perhaps, of their crime?

Both of those things need to be looked at, and I haven’t really been satisfied tonight that what’s been come up with here is anything other than “We’re just going to roll on with what we’re doing, without actually knowing what it is.” That’s why I asked the Minister several times; I said, “Who’s making these decisions?” It was as plain as that, and I never really got an answer to who’s making these decisions, what checks and balances are in place. Again, I didn’t get those answers. That’s because, probably, this matter is being rushed. That’s actually the point that was being made by the Māori Party tonight—they were very wary of a rushed decision.

I am not at all sure that everything is good here. I know that it is better than the alternative. The alternative is that we send all this stuff back to the courts and no one gets anywhere. We already have those roadblocks in other areas in our court system. For example, we actually at the present time have situations where someone will apply for bail and they will be going in front of the judge to talk about bail at the same time as they’re going to talk about their substantive hearing. They’ve been inside so long or their solution has been found but it never actually happens in time. That’s because we have terrible delays in our system, not because they’re working well.

Yes, delay is a huge issue, and I don’t want to add to it tonight by any kind of objection to this pragmatic attempt to make sure that the law functions and that people can get their electronic bail. If somebody’s got a funeral, I want them to be able to get there. If they’ve got an urgent medical appointment, I want them to be able to get there. All of that is good, and I’m wary of questioning the people who’ve made those decisions in terms of their integrity, and I think I made that clear on my questioning. I am, however, really concerned that I still don’t know whether those checks and balances are in place. It may be that the people who are making the decisions have already thought of that; they’ve already got nice, good, safe systems in place. But when I asked the Minister about that tonight, I got absolutely no assurance that he even understood or had inquired about what those systems look like.

Our job, when we have something come in here before us like this—particularly something that’s retroactive—is to make sure that we are asking those questions, but it’s also the Minister’s job to answer them. When there is cooperation around the House, when we’re all on the same page—or almost all of us are on the same page—saying, “Look, we want to make sure this comes through tonight; we want to make sure we’ve fixed the situation as far as we can.”, that’s a good thing, but what, actually, any good Government needs to do is make sure that it fronts with the answers.

What this needs, given it’s gone through so urgently, is a review at some point. I would really like information about how this policy has been used and how it has been working out and what those cases were that came before the court, because I don’t know whether they were complaints that the system has been abused; I don’t know whether they were complaints that there was negligence and some victim had missed out as a consequence. Thank you.

It really is a pleasure to be the lucky last speaker on this bill. What I would like to say is I really appreciate the expressions of concern from across the House about urgency, but what I will say is this: when we have the best justice Minister in over seven years at the helm of the justice ship, I know that this urgency for this bill is a sound move. I commend this bill to the House.