Courts and Criminal Matters Bill

Part 3 of the Courts and Criminal Matters Bill goes to the heart of one of the important mechanical ways in which this bill seeks to operate. It provides to court registrars the power to issue arrest warrants to debtors, with or without a judge being present in the courthouse. Currently, the law allows registrars to issue those warrants of arrest only if the judge is absent, but now it will provide that the rest of those matters will be dealt with by registrars, even if a judge is present in the courthouse.

That is an important provision for this bill, because once there are warrants of arrest out for people and they either have fines in excess of $5,000 or outstanding reparation sentences or payments, they can then be subject to this regime. Right now, there are a very limited number of people who owe more than $5,000 and who are subject to an arrest warrant—in fact, the number is 500, according to advice from the Ministry of Justice. But let us just look at those people who do owe more than $5,000 in fines. According to information I received from the Minister in the middle of last year—which is older information—about 25,000 people owe more than $5,000. Those 25,000 people, according to my calculations, owe $220 million in total. We have people who owe sums of $800,000, $300,000, $139,000—huge amounts of money are owed in fines by people who owe over $5,000.

But of that 25,000 who owe a total of $220 million, only 500 are subject to a warrant of arrest, and they are the group this legislation hopes to target. The Government’s own advisers said that when this bill was first introduced it would have caught 35 of those people each year. Now, it will catch 117 of them each year, but members must wonder, when $220 million was outstanding from that group of people this time last year, how much money will be caught with this legislation. I tell them it is only $1.5 million. The legislation really does not go far enough. That percentage is 0.25 of 1 percent of the debt that is outstanding.

Brian Connell: Say that again.

Hon TONY RYALL: One-quarter of 1 percent of the debt outstanding will be caught by this legislation. Why are we even bothering with this provision to extend the ability of registrars to issue warrants of arrest? I bet members that this Minister cannot even tell us how many extra people the provision will help catch.

Hon Rick Barker: Lots.

Hon TONY RYALL: OK, we have that on the record. It will catch lots more than the 117?

Hon Rick Barker: Yes.

Hon TONY RYALL: How many?

Hon Rick Barker: I haven’t got the precise figure, but it will be much more effective—

Hon TONY RYALL: I ask for a precise figure.

Hon Rick Barker: I want to say to the member that the sooner we get this legislation passed, the sooner we can start implementing it.

Hon TONY RYALL: That is right. We should get moving. We say to the Government that if it is serious about cracking down on fines defaulters, its members should vote for the amendments that I have put forward, because those amendments will provide for a number of things. They will provide for us to get all the information the various departments have. They will provide for us not to allow the Labour Government to lift the threshold whereby people can qualify—

Hon Rick Barker: Oh!

Hon TONY RYALL: I heard Mr Tamihere say that some people have the ability to just change one word here or one word there in order to change the whole meaning of a clause, and that is why I am moving that amendment.

Frankly, I do not think that what is being proposed in this bill goes anywhere near far enough, and I would like to hear from this Minister an explanation of the numbers that will be involved, and of what the benefit of doing this actually is. What is the actual benefit of doing this, when 117 people will be caught by this legislation? There has to be an arrest warrant before people can be caught.

Hon Rick Barker: The provision gives the registrar more powers to issue arrest warrants.

Hon TONY RYALL: So how many more will be issued? He does not know, and that is the whole point of what we have been saying—the Minister does not know. When the Minister first brought this bill to the House, I bet he did not even know that it would affect only 35 people. Did the Minister know that it would affect only 35 people? Did he ask? It is a pretty basic question. Obviously not! He did not ask whether 35 people would be affected, or even what number would be affected.

New Zealand First supports this bill, but there is a “but”. I have listened to the debate this afternoon, and I want to cover a number of issues. In looking at Part 3, I go along with what Mr Ryall from National said, and I start asking myself why we really need to include these clauses, or this part, in the bill.

I want to cover one or two provisions in the part, which I think will be important if carried out correctly. Under clause 9(1), section 84C(1) of the principal Act is amended by “omitting the words ‘a Judge, or if a Judge is not available, a Registrar,’, and substituting the words ‘a Judge or Registrar’.” Clause 9(2) states: “Section 84C(2) of the principal Act is amended by repealing paragraph (d), and substituting the following paragraph: ‘(d) if the judgment debtor cannot practicably be brought immediately before a Judge or a Registrar, any member of the police or any bailiff may take the bail bond of the judgment debtor, and Parts 1 to 3 of the Bail Act 2000 apply with any necessary modifications as if the bail bond were taken by a member of the police under section 21(1) of that Act.’”

I want now to cover what the Hon Richard Prebble said, that $650 million of fines are outstanding but that we are to look for only 117 people, and the amount we will get back will be only $1.5 million. I go along with Mr Ryall in asking why we need that provision in the legislation. I have some figures that were obtained by the Minister for Courts which show that the total amount wiped in 1999 had grown by 54 percent, when $25.6 million in fines was wiped. I have another quotation: “The figures also showed 830 people had fines over $10,000 wiped last year, compared with 23 in 2003, although the majority were for sums less than $1,000.” Why do we want this provision in the legislation if we are to use it, like a wet bus ticket, to slap people on the back of the hand? There is also information, as Mr Ryall said, stating that most of the fines were written off because people went to jail or were given community work. A Rotorua man had $43,000 of fines wiped in return for 300 hours of community service. Well, I tell the Minister, I have seen people in court being handed down sentences of community hours but not doing them, and they have been back in court 2 or 3 months later. So, coming back to Part 3, I say that a lot more work needs to be done in that area.

To cover the last issue, I ask why we have clause 13, “Judgment debtor undergoing periodic detention to be discharged on payment”. The clause states: “The heading to section 84Q of the principal Act is amended by omitting the words ‘undergoing periodic detention’, and substituting the words ‘doing community work’.” I tell members that I know a lot of young people who have been given those sentences, and they are not even doing the work. I say to the Committee and to the people of New Zealand that when New Zealand First’s law and order policies are put in place, youth will be put in the army for a bit of discipline. The Minister should look carefully at Part 3.

Mr Perry’s contribution was a very fine contribution, and I would like to ask him, when he is doing his factoring, not to forget that in addition to the $1.5 million this initiative will bring, which is $1.5 million of the $600 million - odd due, the Government expects to get another million dollars from the advanced voluntary compliance arising out of its publicity surrounding this initiative. So there will be $2.5 million, but $1 million will come from those thugs who thumb their noses at law—

Hon Maurice Williamson: Yeah, right!

BRIAN CONNELL: Yeah, right!, I suppose, is the term that comes to mind. The other thing I should add, before I turn my attention to Part 3 specifically, is that the increased ongoing annual operating costs to fund this initiative—this comes from the officials—is estimated at $750,000. So that is the increased operating cost per annum. Then there is an additional set-up cost of $938,000. That is a total cost of $1.7 million to recoup $1.5 million. Do members understand the maths? $1.7 million to capture $1.5 million—and the Government wonders why we are having a little bit of trouble following its logic.

I turn my attention to Part 3, clause 9. That is the component that broadens the number of authorised people who can issue warrants for arrest. That sounds good, but I want to share with members exactly what happens now, and they can ask themselves whether it will make any difference. One of the submitters to the Law and Order Committee told us that once the prescribed fee has been paid, the collections unit of the District Court takes over and attempts to serve the judgment debtor with an order for examination. The submitter said that all too frequently the collections officer responds that: “The defendant has moved to another address. The house is vacant. Please provide additional information for the collections officer to attempt to serve again.”—then there is one little line, and it is the show-stopper—“The order for examination hearing will not proceed.” They go to all the trouble of doing that, they go back to the court, the court rules again, the deputy registrar directs the warrant to arrest against the judgment debtor, and it is issued.

What happens next is all too common. The court writes, in relation to the application for a warrant to arrest the judgment debtor: “The collections officer’s notice of non-execution advises that the defendant has moved to another address. Please provide additional information for the collections officer to attempt execution again.” The submitter said that they were getting pretty frustrated by this point, that they were looking to the Government to help them out, and that they failed to see how this law would help them. They go to a lot of trouble and supply a lot of information through their own devices, which the Government agencies say they simply could not get hold of—they even find out where the debtor lives, even though the Government says that it could not do that.

They supply the new address to the court and they try again to effect the execution of a warrant to arrest, and the response usually is: “Defendant is not known at this address.” They write and tell the crooks that they are coming, then wonder why they are not there when they arrive. “The defendant is not known at this address.”, says the flatmate, who has been slipped 20 bucks to say that. “The defendant has moved overseas.” We could follow Mr Prebble’s argument—and I think it has some merit—that we ought to just let debtors go. Why do we want to intercept them, anyway? The trouble is that some of them come back, and that is when we want to pick them up. “Please provide additional information for the collections officer to attempt execution again.”—that is the bit that really rotates them.

They have received that three times, with that little show-stopper at the bottom that the order for examination or warrant will not proceed. We are asked to believe now that this bill is going to change all of that.

I move, That the question be now put.

As I said before, this legislation appears to be good legislation. The intent is good in terms of not letting people welsh on their fines and not take their punishment. It is a piece of legislation that looks good, but when one drills into it further, one wonders what, in fact, it will actually achieve. Listening to the debate so far, I heard Edwin Perry say that we will be going after only 117 people at the moment, and collecting $1.5 million at most, out of $500 million. I cannot see that there has been a cost-benefit analysis done on this legislation.

Brian Connell: Yes, there has. It is $1.7 million.

DEBORAH CODDINGTON: The benefit is $1.7 million. And what is the cost?

Brian Connell: The cost is $1.7 million to get back $1.5 million.

DEBORAH CODDINGTON: Everybody knows that the courts system is in total disarray, and has been for decades, and this legislation will not clean it up. When I ask what the cost is, we all know this legislation will invoke the law of unintended consequences. I just wonder whether there are things in here that are really necessary, and actually defeat the purposes of this bill. For instance, there is an education programme, whereby people, first of all, will be told, according to Brian Connell, that they will be arrested and will be served with something, so that when we turn up to serve the something on them they are not there. Then people are told that if they leave the country, or when they come back, they will be stopped at the border—

Hon Tony Ryall: If they’re unlucky.

DEBORAH CODDINGTON: Well, we have to be really nice to criminals, because if we are nice to them then they will be nice back. That is the socialist philosophy. And if they are really bad, one should say: “Please be nice.” One just has to read the latest Rip It Up magazine. It has the Greens’ crime policy there in a nutshell.

I get back to Part 3, and the education system. Why do we tell fine defaulters? Would it not be better not to have them come back, just to let them go? If a person racks up a fine of $500, that amount compounds because of enforcement charges, and it goes on. Most members here have children; we know what they are like. To use an analogy, a young person goes out, is meant to be home for tea at 7.30 but is not. At 9.30 the young person thinks he or she will get a growling anyway, so might as well stay out until 1.30 and enjoy him or herself. Young people are the same with fines. They rack up fines for $1,000, $1,500, and think that they are never going to be able to pay $1,500. They let it go and the fine goes up to $7,000. Why do we not just let them go, and not let them come back? [Interruption] Edwin Perry is right; it is true—it will be wiped when they get back. That is quite right. If they get taken before the court, if they get through all the barriers that this legislation sets up before we actually get the money out of them, they are likely to get 6 months’ periodic detention, or some community service. If we work backwards and calculate the time it takes to pay off the fines, some of them are in effect earning something like $300 an hour through community service—and that is if they even turn up to do it.

Clause 10 in Part 3 is another interesting interpretation in light of the recent decision of the Supreme Court. We now do not even know what the difference is between salary and wages, and a payment in consideration of work performed under a contract for services. We cannot blame the courts for that. That is what this Labour Government—Margaret Wilson—has told them to do. It has told them to walk all over contracts. It does not matter if someone has a contract for services performed with a film production company, for instance, the contract is not that at all, according to this Government, because it can go before the court and it will become classified as wages and salary.

That will have enormous consequences on the film industry, as well as on all sorts of other industries, where people are paid huge amounts of money for a very short time, and then they might be off work for 2 or 3 months. But under this new philosophy from this Government, people with employment contracts of that type will be entitled to the same personal grievance claims as people on wages or a salary.

Part 3 of the Courts and Criminal Matters Bill, which National supports, is clearly important legislation, and there is no need to hurry through it. I am concerned that we appear to be proceeding at breakneck speed and I look ahead to see that there are nine parts to this bill. So there is every opportunity that we could spend tomorrow in concerned and critical debate about some of the key provisions.

I would just like to focus on one particular aspect that comes quite dramatically out of Part 3, which is the references to the word “bailiff”. That word first appears in clause 9, “Where judgment debtor does not appear at examination or order cannot be served”, and reappears in clause 12, “Contempt procedures”, where wide-ranging changes are planned to section 84O(6) of the principal Act. I have just been looking at the definition of “bailiff” in the District Courts Act, because Part 3 is concerned with the District Courts Act, and I have been reflecting on what the implications might be of this change.

The word “bailiff” is from the Latin bajulivus and is the adjectival form of bajulus. It means a governor or custodian. So in its modern context it is used to describe a legal officer to whom some degree of authority, care, or jurisdiction is committed. I would just note that because the definition is an open one in this statute, a number of possibilities are certainly thrown up.

The term was first applied in England to the King’s officers generally, such as sheriffs and mayors, and more particularly to the chief officer of a hundred. So the county within which the sheriff exercises his or her jurisdiction is still called the sheriff’s bailiwick, while the term “bailiff” is retained as the title of the chief magistrate of various towns, and the keepers of royal castles.

Members may know that under the manorial system, the bailiff, the steward, and the reeve were important officers. The bailiff managed the property of the manor and superintended its cultivation.

I have been asked to make some comment about the position of the reeve and those special responsibilities, and I may seek leave for an extension of time to deal with that at some length, but I would say that the bailiff of a sheriff is an under-officer employed by a sheriff within a county for the purpose of executing writs, processes, distraints, and arrests. It is in that context that I believe—subject to the Minister making some comment about this in a moment—we are perhaps most appropriately concerned.

As a sheriff is liable for the acts of the officers acting under his warrant, his bailiffs are annually bound to him in an obligation with sureties for the faithful discharge of their office. As a result of that, they are called bound bailiffs. They are also often called bum-bailiffs or, shortly, “bums”. The origin of this word is uncertain. The new English dictionary suggests that it is an allusion to the mode of catching the offender.

Special bailiffs are officers appointed by the sheriff at the request of a plaintiff for the purpose of executing a particular process. There have been significant changes to the District Courts Act 1947 since that legislation was enacted. Members of Parliament who are lawyers would, I think, mourn some of the changes that have been made in the context of the enforcement of judgments and, in particular, the very critical role that bailiffs have performed over the years since this legislation was enacted.

I move, That the question be now put.

I thought for a moment that I would be struck out of having the opportunity to speak to this part of the bill. I will just say to my colleague who is about to leave the Chamber—

Hon Dover Samuels: No, he’s not.

SHANE ARDERN: —oh, he has come back in—that listening to his contribution has, I believe, headed off the 4 a.m. contribution I made in the Chamber some years ago, when I made reference to those who might be listening on the cowshed radio. Thank goodness the cows are dry, because if farmers were listening on their cowshed radio to the previous contribution, I am sure they would be as confused as I am. But I have learnt a lot about bailiffs, and about where they came from, through that process. I will go back to discussing the bill for a moment, if I can. I look at the members on the Government benches, and I see that the Minister of Finance is back on deck and will be the No. 51 vote, which those members will maintain until the wee small hours of tomorrow morning—

Simon Power: Sunday.

SHANE ARDERN: —or at least until Sunday morning, to make sure that this bill gets a proper hearing.

I say to the member that when we listened to the Budget with some interest, clearly we were looking at a number of areas the Minister had included in his statement on how the State would fund the various activities it would be involved in.

Hon Tony Ryall: We never thought they would do this.

SHANE ARDERN: That is right—my colleague is on to it. We never for a moment considered that the Government would introduce legislation straight after the Budget to catch 117 crooks at the border, who are trying—

Hon Rick Barker: These are alleged ones.

SHANE ARDERN: No, they are the convicted ones. They are not alleged crooks; they are the ones who have been convicted. They are convicted crooks who are trying to escape New Zealand at the border. Now I understand how the Government will overcome the huge problem that it has with regard to the shortage of prison cells in this country. It will get the Customs Service to protect the borders in such a way that anybody with unpaid fines and a criminal conviction who tries to get out of New Zealand will be turned back at the border, and that person will not be able to escape to Australia or anywhere else until he or she has cleared those fines.

There are quite serious issues that probably need to be touched on in this legislation, as well, particularly in this part, because it refers to this matter. One issue is why the Government, which is trying through this legislation to enhance the information flow between the Immigration Service, the Customs Service, and the police, is not allowing that to happen, so that all three departments in unison—along with the Inland Revenue Department, if that is necessary—can identify the people who have, as I am led to believe, $600 million - plus worth of unpaid fines? Why does the Government not allow information to flow between those departments, so that they can find those people and go out and make them pay their fines? The Minister may want to answer that question; I do not know the answer to it.

Hon Rick Barker: We’re doing it now.

SHANE ARDERN: Well, why is there a need for this legislation, if the Government is doing it now? Why are we doing this?

Hon Rick Barker: This is about civil debt enforcement.

SHANE ARDERN: Oh, well, we will let the Minister take a call and explain that in a moment, because that would be a good idea.

The next point the Minister may like to touch on when he takes the call is why, if that is so, we have a $5,000 threshold. Why do we not just reduce the threshold to zero, and then anybody with an unpaid fine who presents himself or herself to one or another of those departments is then clobbered? Why does the Government not do that? How come we have put a $5,000 threshold in place? Is it because the Government believes that the cost of retrieving fines of less than that might be greater than the benefit to the State? That would be a reasonable explanation. Most members in the Committee would accept that explanation, if that is so. Why is there a $5,000 threshold?

I move, That the question be now put.