Hon MARK BURTON (Minister of Justice) : I move, That the Evidence Amendment Bill be now read a first time. As per the letter of 14 June 2007 to leaders of all parties from the Leader of the House, the Hon Dr Michael Cullen, I intend to move that the bill be considered by the Justice and Electoral Committee, and that the committee report finally to the House on or before 22 June 2007.

Briefly, this bill deals with an amendment to the Evidence Act 2006, which was passed last year but is not yet in force. An unintentional error was made by the select committee, with unintended consequences, in relation to the co-conspirators rule. In broad terms, the bill ensures that a common law rule, commonly known as the co-conspirators rule, is included in the new Evidence Act. This matter requires legislative amendment prior to the Act coming into force. I want to take this opportunity to thank members and parties generally for their indication of cooperation and facilitating the rapid progress of the bill.

This is an important amendment as it has serious implications for criminal trials involving multiple accused, and evidence obtained by interception of communications. These cases generally involve major drug-dealing, organised criminal enterprises, or serious violent offending. These types of multi-defendant trials are costly, lengthy, follow from resource-intensive investigations, and often have a high profile. It is therefore important that the common law is maintained.

The co-conspirators rule has particular impact in respect of section 27 of the Act, which deals with defendants’ statements offered by the prosecution. This section incorporates the common law into statute, by providing that a defendant’s statement is admissible against him or her, but is not admissible against a co-defendant in the proceeding. There are three common law exceptions to this rule that are not included in the Act. The first two are collectively known as the co-conspirators rule. These rules provide, in the case of conspiracy, that the statements or acts of one conspirator that are said or done in furtherance of a common design are admissible in evidence against another conspirator. The second exception provides that although a conspiracy is not charged, if there are two or more persons engaged in a joint criminal enterprise, the statements or acts of one that were said or done in furtherance of a common design are admissible in evidence against the others involved in the joint criminal exercise.

As stated above, the application of the co-conspirators rule at common law is broader than just co-defendants. It also applies if the co-conspirators or persons involved in joint criminal enterprises are not co-defendants—for example, if one or more members of the conspiracy had pleaded guilty or there are separate trials where there will not be a co-defendant but the prosecution may still want to offer the evidence of what that person actually said. The common law allows such evidence to be admissible.

So the bill captures this by inserting new section 12A, in clause 5, into the Act. That new section states: “Nothing in this Act affects the rules of the common law relating to the admissibility of statements of co-conspirators or persons involved in joint criminal enterprises.” An amendment only to section 27 might mean that the rule was inadvertently narrow, and would cover only cases where the co-conspirators or persons involved in joint criminal enterprises are also co-defendants. The amendment to create new section 12A means that all aspects of the common law are in fact captured.

There is a third common law exception to the rule that a defendant’s statement is admissible against him or her but is not admissible against a co-defendant in the proceeding. This is where the co-accused by his or her words or conduct accepts the truth of the statement made by the defendant. The bill incorporates this common law exception into the Act by way of an amendment to section 27.

The original Evidence Bill was based on the Law Commission’s draft evidence code and changed the common law to provide that if a defendant’s statement offered by the prosecution was admissible, it was admissible against the defendant and any co-defendant. Amendments were made to the Evidence Bill by the select committee to retain the current law. The committee’s report to Parliament reflects that intention and states: “We recommend that section 27 be amended so that a defendant’s statement would be inadmissible against a co-defendant in a joint criminal trial. A statement made by a defendant would be admissible only against the defendant. This would maintain the current law relating to statements by co-defendants. In our view the admission of such a statement against a co-defendant would unfairly deny the co-defendant the opportunity to test the reliability of the statement by cross-examining its maker and add to the length and the complexity of many joint trials.”

Although the select committee intended to maintain the current law, it did not include the common law exceptions to the general rule. Accordingly, consistent with the committee’s intent, this bill amends the Act to include the common law exceptions in the Act. I commend the bill to the House.

SIMON POWER (National—Rangitikei) : The National Party will be supporting the progress of the Evidence Amendment Bill in all its swiftness. I thank the Minister of Justice, and the Attorney-General and Leader of the House, for bringing to the attention of the National Party a defect, I guess is the best word, in the original bill, which has to be remedied. It would be inconceivable for multiple-defendant methamphetamine trials and the like to proceed without this type of evidence being admissible because Parliament did not get the Evidence Act right.

Russell Fairbrother: Only conspiracy.

SIMON POWER: It would also be inconceivable for any political party, I say to Mr Fairbrother, to play politics with such an important issue.

We had some discussion with the Government around the process for implementing the bill, and I think we found a reasonable compromise to see this bill go to a select committee immediately and return, as I understand it, to the House on Friday, with a view to getting through the second reading, the Committee stage, and the third reading prior to the Evidence Act coming into force on 1 August. That will be an important milestone for that committee to meet.

I have no doubt that those members involved in the subcommittee of the Justice and Electoral Committee had no intention of excluding this particular co-conspirator evidence clause from the original bill. But, as has been explained to me by the Minister’s officials and by those from the office of the Leader of the House, essentially what occurred was that the Law Commission made some recommendations and when the subcommittee did not agree to those recommendations, the whole baby was thrown out with the bathwater, for want of a better phrase. And, in fact, what we saw was the rules of common law relating to the statements of co-conspirators or the like, removed from the statute book. That is unsatisfactory. The National Party certainly does not want to be associated with any error of law in relation to those involved in particularly tricky trials, particularly multiple-defendant trials around serious drug matters. We do not want to be associated with any law that enabled those matters not to be fully investigated.

Section 12A, inserted by clause 5, is a very short one. It simply states: “Nothing in this Act affects the rules of the common law relating to the admissibility of statements of co-conspirators or persons involved in joint criminal enterprises.” There is a further clause, clause 6, which relates to defendants’ statements offered by the prosecution. I have had quick look at section 27 of the Evidence Act, and clause 6 of this amendment bill purports to add a phrase to section 27(1), which makes the section make more sense in terms of co-defendants’ words or conduct at the point that evidence is offered by the prosecution.

I also want to say that this is in no way a reflection on those hard-working members of the subcommittee of that particular select committee, who were dealing with an exceptionally complicated piece of work. In fact, we are lucky in this House to have four or five former lawyers of some expertise in this area. I include those members cross party who were able to wade their way through an exceptionally complicated piece of work. Heaven help the New Zealand Parliament had we not had those four or five people. Some of the rest of us might have been in the position where we had to decipher what was going on with this particular legislation. I am almost convinced that had that been the case, this particular amendment bill would be a lot thicker than the one we see before the House now.

I know that my colleague Chris Finlayson, who was on that subcommittee, will be speaking to this bill shortly, but I want to reassure the Government and the House that National will do whatever it takes to expedite this process, short of agreeing to an urgency motion, to make sure that this legislation is in place and is working in the way I am sure the subcommittee intended when the Evidence Bill passed through that committee.

RUSSELL FAIRBROTHER (Labour) : I rise to speak in support of the Evidence Amendment Bill and to pick up on some of the points made by my learned friend Simon Power, who has just taken his seat. I accept that the error we are amending was a mistake by the Justice and Electoral Committee. It is one that I do not think any of us takes any pride in, but we do find some excuse in the difficulties inherent in codifying what is a notoriously complex area of law.

The subcommittee had before it the full bench of the Supreme Court. We had the Legislation Advisory Committee. We had an expert former High Court judge and a well-regarded academic who advised us continually. We had advice from some very good officials, who worked diligently, and we had submissions from both the Law Society and the Criminal Bar Association of New Zealand among many other helpful and constructive submissions.

The point we are now rectifying was entirely overlooked. It was probably overlooked because the committee considered very seriously the amendment proposed by the Law Commission and was easily persuaded in the end—as nearly all the submitters and the officials advising us appeared to be—that the Law Commission recommendation went one step too far in allowing statements made by an accused in a trial to be used against a joint accused when the maker of that statement did not give evidence. The reason we decided that was that the inherent requirement of fairness requires an accused person to have the ability to challenge a statement that makes him or her look complicit in an offence, on the basis of fairness and other overbearing procedures.

Of course, if an accused is not present, then he or she lacks the ability to challenge such a statement, and two consequences could occur. One, an innocent person could be wrongly convicted on a wilfully misleading statement by a co-accused or, two, trials could become unnecessarily complex as accused troubled by a co-accused’s statement sought to challenge it by all sorts of means that really amount to a fishing expedition. It was on this point that the committee was unanimous in deciding to rein in the Law Commission’s recommendation, but it certainly did not intend to abridge the common law as it related to conspirators and joint criminal enterprises.

The concern that I have is twofold, and I hope the select committee will have time to look at it—I am sure it will, because this is a small bill. One, clause 6 amends section 27(1) and, on the face of it—and I have seen this part of the bill only this afternoon—seems to go exactly to the problem the subcommittee was concerned to avoid, as were our advisers, and as were most of the submissions received by the committee, particularly from lawyers and legal academics. The problem is the old rule that a statement by a co-accused is not evidence in court against any other accused unless that co-accused gives evidence from the dock and can be cross-examined by those accused. If clause 6 of this bill has the effect of undermining that, then I hope the select committee will address that issue. From my discussions with the Minister the impression I have is that it is not the intention of the Government to, by a side wind, widen section 27 as it appears to me to be on first reading. Therefore I expect the subcommittee to take a sensible approach to this and to achieve the Government’s aims, which are really to bring the law as it relates to conspirators and to joint enterprises into the Evidence Act by way of this amendment.

It is important to keep clear what the law is for conspirators and joint enterprise. First of all, a conspiracy or a joint enterprise must be established before a co-accused statement can be used as part of it. It can only be used as furtherance of that established conspiracy or to define the members of it. It cannot be used, in fact, to define the conspiracy. I interjected during Mr Power’s speech because he seemed to be suggesting that in any joint trial this amendment will allow all statements to be used. Of course that is the Rubicon across which we on the subcommittee did not wish to cross, and I believe the Government is similarly in that position.

The other aspect of concern I have is that we were careful to endeavour to codify the common law in the Evidence Act. Although the Evidence Act refers to the common law from time to time it is done so within the principles section, section 6. One of the important things is to try to make the law of evidence accessible to lay people. Paragraph (f) of the principles section refers to the ease with which the law is available to the readers of the law. Of course, if we are going to make broad reference to the common law we therefore defeat that purpose in section 6(f) of the Evidence Act.

I agree that this bill should quickly go through so that when the Evidence Act comes into operation on 1 August it is complete. I agree that urgency of attention to it by the subcommittee is required. But I hope that members of the subcommittee can also set their minds to codifying the common law principles, which the Minister Mark Burton has outlined in his speech. As put by him they are very clear and very succinct. The difficulty of common law is that it is never quite as clear and succinct as those who make statements on their feet in advocacy of a particular purpose. One of the beauties of the common law is that it is never ending and one can spend one’s whole life in trying to understand it and achieve much satisfaction and joy in the process—and also much social isolation. But it is possible to codify, and we have endeavoured to do that in the subcommittee. I believe that the Justice and Electoral Committee must have the ability and the resources to attempt to codify what is contained in clause 5, which is the new section 12A of the Evidence Act. I commend the subcommittee to that aim.

Using this amendment to invoke the common law really has, by a side wind, the effect of encouraging judges to go where they would naturally want to on many occasions: to the common law rather than to the statute. Underpinning the Evidence Act is the concept of fairness and the availability of almost any evidence on the basis of relevance, and fairness and unfairness—they are the key tests. If we bring in the common law against the new principles in the law, we have the risk of, by a side wind, expanding the Evidence Act into an area we tried to avoid by codifying it as far as we did. I stress again to the House the importance of the Justice and Electoral Committee looking at clause 5—and, of course, clause 6, but clause 5 particularly—to see whether it is not possible to codify that which we failed to do when the subcommittee was looking at the original bill.

I can assure the House that if the minds of the members of the subcommittee had been drawn to this defect—and I accept it is a defect—we would have addressed the issue and we would have come up with an adequate codification to enable trials for conspirators and persons alleged to be involved in joint criminal enterprises to take place using the tools of the common law, and using statements of co-accused made out of court to establish the membership of those conspiracies or joint criminal enterprises or what was done in furtherance of those aims. This is a particular exception to the hearsay rule and the use of statements of co-accused and I hope the subcommittee will have regard to that and keep the debate and the amendment within those very narrow and precise confines.

I commend the Government on picking up this oversight. I noted an article by an academic about 2 months ago that signalled this defect and I think the Government is to be commended for dealing with this with alacrity. I hope the subcommittee can do likewise and can come out with a more perfect product than we produced on first flight.

LINDSAY TISCH (National—Piako) : I raise a point of order, Madam Speaker. Our list here shows that the fourth speaker is National and the fourth speaker is the next speaker.

The ASSISTANT SPEAKER (Ann Hartley): I am sorry, Mr Tisch. You are right but I have called, if the member wants to speak.

Dr PITA SHARPLES (Co-Leader—Māori Party) : The urgency of this legislation is perhaps underscored by the greater context in which this bill sits. On the one hand the bill is all about sorting out a technicality. We all appreciate that the Evidence Act 2006 is scheduled to come into force on 1 August 2007. Given the short lead-in time until the bill becomes a reality, it is therefore also appreciated that an urgent amendment is required in order to avoid serious implications for trials involving multiple accused charged with serious criminal offending. We recall also that the Māori Party supported the passage of the Evidence Bill in which this rule was meant to be included, so our support today is consistent with that original position.

However it is the particular case of the multiple defendant methamphetamine trials that has certainly grabbed my attention to this matter before the House. As we understand it, the problem relates to section 27(1) of the Act from which the co-conspirators rule has been unintentionally deleted. So why is that so important? The Minister has clarified the context in that under that rule statements by one defendant are, in defined circumstances, admissible as evidence against another defendant. The most usual circumstance of this is in drug trials where the intercepted statements of one may be used against others who are also involved in criminal enterprise or even gang offending.

The House will know that these issues are very dear to my heart. My involvement with campaigns targeting drug offending was given particular focus through the Patua te Ngangara or Beat the Demon drug education programme that we initiated from Hoani Waititi Marae in 2003. It was a joint initiative where we invited the participation of the police. We produced an education programme to take around the districts, and we trained the police officers—one from each district—in talking to this display. We gave them a script and sent them back to their districts, then we went around the districts to help them set up the programmes.

We used graphic images, including photos of brains with holes in them caused by the street drug known as P, which burns out nerve receptors in the brain, and the personal testimonies of people affected by drugs. We took the programme out to marae, to the Royal New Zealand Police College, we came here to Parliament to appear before the Māori Affairs Committee, we went to Waiwhetu Marae in Lower Hutt, and all over the motu. But we did not present just to marae; we went to schools, to hospitals, to community centres, and to town halls. We presented to the Mongrel Mob, Hell’s Angels, and Black Power. We talked to them all about the consequences of being involved in the conspiracy world that is associated with methamphetamine, from Kaitāia in the north to Invercargill in the south.

So I come to this take—the technicality around the co-conspirators rule—with their voices in my head. I remember whānau grieving about how P, methamphetamine, broke up the family. They were stories no one wants to hear—about young girls prostituting themselves to feed their parents’ habits. The substance intrudes upon the normal patterns of everyday life. I think of the tears shed by grandparents talking about their children being unable to focus on the tasks of parenting—feeding, changing, and washing their babies while under the influence of P, methamphetamine. When I think of children I know too of children as young as 9 being sold P in fruit-flavoured tablets. As MP for Tamaki Makaurau, and as an active participant in the Hoani Waititi Marae Patua te Ngangara programme, it is particularly those children who drive me forward in our campaign to stamp out methamphetamine.

Almost half of Manukau City’s population—42 percent—is under the age of 25. A survey carried out by the Manukau City Council a few years back found that 39 percent of the youth respondents said that dealing with drugs and alcohol was a major issue for them. Along with alcohol, violence, and dishonesty, drugs topped the list of crime issues that they were most concerned about. So when we came to this Evidence Amendment Bill and contemplated the implications for major drug-dealing, organised criminal enterprises, or serious violent offending, we believed this amendment to be crucial and critical.

I really commend the local councils that are working with iwi, with police, and with Government agencies to remove the pushers, the crooks, the suppliers of this drug. I think that today’s action in remedying the omission of the co-conspirators rule, in including the common law exceptions to the general rule, is another vital step in making change. As I understand it, the Justice and Electoral Committee always intended to maintain the rule but section 27(1) of the Act clearly abolishes it—a rule that has always been part of the common law and that was intended to be retained in the Act.

So it would seem that the most logical remedy for this situation is to amend the Act under urgency before it comes into force on 1 August 2007, and we are happy to do that. We support any moves that will help our nation to rid itself of the damage caused by people manufacturing, distributing, and selling methamphetamine. Indeed, we welcome today’s urgent action as a response to a call that I made in this House on 23 February 2006, that Parliament could lead a campaign to stamp out P. We know that some incredible efforts are occurring at a community level. In Murupara the townsfolk have vowed to clear the streets; to declare P-free zones. The iwi of Tauranga ran a high-profile campaign, including advertising on local radio and television, resulting in P-related crime in the region dropping by 20 percent. Communities came together and marched to Parliament last February in the fight against P; there have been marches in towns all over our country. Other tribes have put up a rāhui—a ban—in effect prohibiting the manufacture, supply, and use of methamphetamine in that area. A rāhui is generally reserved for the protection of ocean and land, generated as a method to conserve future generations of resource.

It seems entirely appropriate also to protect our future generations against P. Therefore, the introduction and first reading of the Evidence Amendment Bill today builds on the community efforts and consolidates the application of common law, of ensuring criminal trials will not be obstructed in following the course of justice. Urgent enactment of the Evidence Amendment Bill will ensure that the common law exceptions relating to the admissibility of evidence will have major implications for criminal trials involving multiple accused, such as is commonly found in drug trials or trials involving gang-related criminal activity.

The admissibility of evidence of co-conspirators and persons involved in joint criminal enterprise was based on a code drafted by the Law Commission. Of course, one would expect the same standards of rigour and integrity to apply in the examination of evidence as we would expect of any evidence admissible in a court of law. All things considered, we are happy to support the urgent legislation amending the Evidence Act 2006.

Finally, I am reminded of one of the slogans associated with the campaign of speaking out against methamphetamine, P—namely, “There is no P in community”. I am pleased that this bill today moves another step forward towards ensuring that any criminal-related activity associated with multi-defendant trials is able to be heard in the context of sound legal rules for the pursuit of justice for all. Kia ora.

CHRISTOPHER FINLAYSON (National) : As Mr Power indicated, National will support this legislation and will certainly cooperate in having the matter dealt with expeditiously at the Justice and Electoral Committee on Thursday. Perhaps it sounds like a conspiracy on the part of the subcommittee that dealt with this matter—that subcommittee being under the chairmanship of Mr Fairbrother and comprising Mr Tanczos, Dr Worth, and myself—but it was certainly not the intention of the subcommittee to alter the law and abolish the three common law exceptions by some kind of side wind.

Perhaps it is interesting to go into the legislative history of the matter, just for the sake of completeness. Clause 26 of the Law Commission’s draft code could probably well have been a better formulation than the clause adopted by the select committee. That clause provided that evidence offered by the prosecution in a criminal proceeding of a statement made by a defendant is admissible unless three exceptions are made out. When the bill was being dealt with in the select committee, the relevant clause was clause 23. I think that is where the drafting went wrong, and it made its way into the legislation as section 27.

As Mr Fairbrother correctly observed, a number of senior and august people made submissions on this legislation—from Supreme Court judges to members of the Rules Committee to other members of the Law Society to others, including legal academics—and this point was not picked up on the way through. Indeed, when I went through my papers I found that on 5 September the Law Society made a submission that the common law rules surrounding the admissibility of defendants’ statements in trials involving one or more defendants would be changed if the then clause 23 was amended. The society proposed a possible amendment to the clause, but it did not actually address the issue now raised by this amendment. Indeed, the papers of the officials referred to clause 23. There was some debate on unrelated matters, and they too recommended no amendments to the clause.

So it does seem that the point in issue went through a number of filters, yet was not picked up by members of the subcommittee, the select committee, the officials, or the submitters. All that one can say to the House in those circumstances, on behalf of the subcommittee, is mea culpa. I guess that is what happens when there is a once-in-100-years comprehensive review of legislation and a subsequent codification.

As the Minister and Mr Fairbrother have outlined, the amendment deals with a very important issue. The amendment has already been explained by the Minister. The rules of the common law relating to the admissibility of statements of co-conspirators, or people involved in joint criminal enterprises, must of course be preserved.

I must say, however, that I agree with Mr Fairbrother when he expresses a concern about the terminology of the proposed section 12A, inserted by clause 5. That section, I remind members, states: “Nothing in this Act affects the rules of the common law relating to admissibility of statements of co-conspirators…”. Mr Fairbrother quite correctly referred to section 6 of the Act, which sets out the purpose of the legislation. One of those purposes, in paragraph (f), talks about the desirability of enhancing access to the law of evidence. There were a number of occasions during the course of the select committee stage when the select committee attempted to define just what exactly the rules of common law are. I believe this is an occasion where it should not be beyond the wit of the select committee, within a short space of time, to define just what exactly the rules of the common law are, which would enhance access to the legislation. I do not know the Minister’s view on that, but we should be able to improve that clause in the select committee on Thursday, and perhaps the Law Society and the officials may wish to get together and see what can be done about that. We will certainly cooperate in that.

The other measure that perhaps needs a little thought, as Mr Fairbrother pointed out, is clause 6, and it could well be that Mr Tanczos will say something about that. I will leave it to him.

As Dr Sharples said, there are many situations where there are multi-defendant trials—for example, for the supply of class A drugs. Often, as the explanatory note of the bill says, statements are intercepted by the police. They are used against others who are involved in the conspiracy or who are partners in the enterprise, and it is extremely important that those statements are admissible.

So there we have it. It is best for these matters to be remedied now, rather than to imperil a number of forthcoming criminal trials. Everyone knows that the job of the High Court in these trials is difficult enough as it is. Creating further difficulties for the criminal justice system by not dealing with this legislation in an expeditious manner is the last thing that any member in this House wants to see happen, and for those reasons we will support the legislation.

But I do say that—and perhaps Mr Fairbrother was a bit too defensive—codification brings with it the inevitable hiccups. I can recall that in 1985-86 the code of civil procedure was repealed, and the new High Court Rules were introduced. They created fundamental changes to the way that the civil justice system was run in the country. For example, it was decided by the Rules Committee of the High Court that there would be one mode of commencing proceedings in the High Court—namely, by notice of proceeding and statement of claim. So the originating application, the originating petition, and the originating summons procedure were all abolished, as indeed was the way of commencing proceedings by means of writ of summons and statement of claim. But before the High Court Rules were introduced, it was recognised that urgent amendments would be required to reintroduce the originating application for a miscellany of proceedings—for example, for applications under the then Law Practitioners Act for people to be admitted as barristers and solicitors of the High Court.

So when one is dealing with a major exercise in the codification of the law—and, as I said, the last time the law was thoroughly reviewed was as far back as 1908—it is not surprising that there is the occasional hiccup. For that reason I, while wanting to deal with this matter urgently and comprehensively, must say I cannot get too hung up about it. As the late Alan Martin would have said, it really is the putting right that counts. I am sure the select committee will be desirous of putting it right at the earliest possible opportunity, which is why National supports this legislation.

Dr RICHARD WORTH (National) : There has already been a clear indication given by National as to where it stands in respect of this amending legislation. I would make these observations.

The Evidence Act sets out to codify the law of evidence. Prior to that, we had a mix of statute law and of common law rules. These common law rules are developed by the judges; they are part of the judge-made law. It was a major undertaking to codify the law of evidence that was intended. I think that is to be well seen in the fact that the Law Commission report that had recommended such codification was in a complex report of two volumes, published in August 1999, nearly 8 years ago. So it was that the relevant committee of Parliament set about the task of looking at the work that parliamentary counsel had done to effect that intended codification. Because it was complex, it was decided to establish a subcommittee—and we have heard of the composition of that subcommittee—and to engage expert assistance, and that happened.

The starting point for looking at these issues that arise is in the principal Act in section 27. It is in Subpart 3, under the heading “Defendants’ statements, improperly obtained evidence, silence of parties in proceedings, and admissions in civil proceedings”. The short point is based on section 27(1), which has the heading “Defendants’ statements offered by prosecution”, and reads: “Evidence offered by the prosecution in a criminal proceeding of a statement made by a defendant is admissible against that defendant, but not against a co-defendant in the proceeding.”

Members have heard that there was a divergence of view between the Law Commission and the way it wanted the law to be drafted, and the subcommittee. There are different perspectives and there are different philosophies; those differences are well known. I would simply comment that some of the arguments that arise, in looking at what might be the preferred position, are that it obviously offends common sense to exclude from a jury’s consideration the evidence of accomplices—who are often the only witnesses to the crimes—and that there is no compelling reason not to rely on evidence that the prosecution has obtained fairly in establishing the case against all of the defendants.

Mr Finlayson has seen this as a mea culpa situation. That, it certainly is. But it might also be characterised as something akin to an Homeric nod. That phrase was coined by the Roman poet Horace in his Ars Poetica, where he said: “et idem, indignor quandoque bonus dormitat Homerus”, which translates to: “and yet I also become annoyed whenever the great Homer nods off.” Just as we found an error in this legislation, there are numerous continuity errors in Homer that resemble nods. I take just one example from the , where Menelaus kills a minor character Pylaimenes in combat, but in a later section of the he is still alive to witness the death of his son.

So it is that we see, in this legislation, in two parts, a series of small amendments. They are small amendments in terms of the length of the material, but they are significant, for reasons that others have identified in the context of change to the law. In particular, in these major drug trials, there is the need for clear rules to be put in place touching the co-conspirators rule.

I would just say this. It is intended that the Evidence Act be a code, and there are a number of indications of that intention in the statute. Two indications, for example, are in sections 10 and 12. This amendment, desirable though it is as to its intent, opens up a residual common law possibility, which I think is undesirable. It would be far better, when the Justice and Electoral Committee comes to consider this legislation, if the committee could actually put into statutory form what the exceptions are to be. We know what they are. The exceptions are to be: first, where the co-defendant accepts the truth of the statement; second, things said and done in furtherance of a common design in a case where conspiracy is alleged; and, third, things said and done in furtherance of a common design where the accused are alleged to have engaged in joint criminal enterprises.

This legislation is clearly required. National supports its passage in a speedy way, but I just invite the committee to think about the issue that I have raised, and the desirability of maintaining in a stand-alone form, without the need to resort to extrinsic aids, a code of evidence.

NANDOR TANCZOS (Green) : Let me first say that I agree with the comments made by previous members who spoke on the Evidence Amendment Bill. I accept that this was an oversight by the Justice and Electoral Committee, and it is something that needs to be rectified fairly swiftly, which is why the Green Party, like other parties, has not denied leave and will support this bill going to the select committee. The Government has indicated some quite specific concerns that need to be addressed, and we are aware that some urgency is required around the passage of this bill, so that is why we are supporting a speedy process. Mr Power said the bill was a short one. I agree, and perhaps, in a way, that is part of my concern. The concerns I will speak about echo the comments of previous members, and I think the issues have been quite well covered.

When we looked at what is now the Evidence Act 2006 in the Justice and Electoral Committee, we were concerned about the original proposal of the Law Commission that if a defendant’s statement offered by the prosecution was admissible, that evidence should be admissible against co-defendants. We thought that the Law Commission went a little bit further than we were comfortable with, and certainly further than most of the submitters to the select committee and the advisers were comfortable with. Previous members have talked about the range of advice that we got on this matter. So we amended the bill, and what we ended up with was section 27, which states, in subsection (1): “Evidence offered by the prosecution in a criminal proceeding of a statement made by a defendant is admissible against that defendant but not against a co-defendant in the proceeding.” That, I guess, is where the difficulty has arisen, because in some kinds of cases we would want that evidence to be admissible, and that is what the common law has previously recognised.

If we look at the amendment bill, we see that it is quite short and has some fairly simple things in it, but I would just like to touch on them, because I think there are some significant concerns. I think those concerns can be addressed by the select committee, but it is important to highlight them and make sure that the select committee addresses the issues, particularly because we have a foreshortened select committee period for dealing with the bill. The first concern is in relation to new section 12A, to be inserted after section 12. The section is headed: “Rules of common law relating to statements of co-conspirators or persons involved in joint criminal enterprises preserved” and continues: “Nothing in this Act affects the rules of the common law relating to the admissibility of statements of co-conspirators or persons involved in joint criminal enterprises.”

I just highlight that in contradiction to section 6 and section 12 of the Evidence Act 2006. This, again, is something that has been addressed by other members. The last provision in section 6, “Purpose”, is: “enhancing access to the law of evidence.”, and we paid a great deal of attention to this in the select committee in order to make sure that the rules of evidence were laid out as clearly and straightforwardly as possible in this Act. It would seem to me that new section 12A runs right through that purpose, because it establishes a whole new area of unclearness, and I think that is unfortunate in the context of what the legislation was actually trying to achieve. Section 12 of the Act states that if there is no provision in this Act or any other enactment, or if an issue is not dealt with adequately: “(b) to the extent that the common law is consistent with the promotion of that purpose and those principles and is relevant to the decisions to be made, must be made having regard to the common law.” So it is saying that where there is uncertainty or unclearness, the common law should be applied in so far as it is consistent with the purposes and objectives of the Act.

I guess the thing that concerns me about new section 12A is that it states that nothing in the Act affects the rules of the common law relating to those matters. Rather than saying that the common law should be used where it is consistent with the new Act, this provision says that in this case, the common law overrides the Act. That seems to me to be inconsistent with the formulation and the intention of what has previously been here. So I think that is something that the select committee should pay some attention to.

As I say, it does leave a large area of uncertainty. I am not as learned as the other members of the subcommittee who dealt with the Act, and that is one of the reasons why I do not take as much responsibility for the mistake as them. Although those members may be clear about what the common law says in this instance, I am not, and if we are simply referring to the three exceptions that were previously stated, then we should state that clearly. The thing that worries me is that if we are going to put in this fairly blanket statement about the common law and give it an overriding power, it is important that we clearly state what those common law rules are. Members have said that the select committee should be able to do that, and I see no reason why not, but there is a foreshortened time period, so I think it is something we should make sure we devote attention to and make sure that we clarify.

The other significant new clause in the Evidence Amendment Bill is clause 6, which amends section 27(1) by adding the words: “unless by the co-defendant’s words or conduct, the co-defendant has taken to have accepted the truth of the statement made by the defendant”. This is the clause I referred to earlier. So section 27 (1) would state: “Evidence offered by the prosecution in a criminal proceeding of a statement made by a defendant is admissible against that defendant, but not against a co-defendant in the proceeding”—and now the following phrase is to be added—“unless by the co-defendant’s words or conduct the co-defendant is taken to have accepted the truth of the statement made by the defendant.”

At first glance, that does not look too problematic, but then it led me to start to think what we mean by their words or conduct being “taken to have accepted the truth of the statement …”. That started to raise some concerns—or at least some cautions—in my mind, because it is such an ambiguous statement. An example was put to me where an accused gives a statement that contains some details, and the counsel for the co-accused—where the co-accused is not giving evidence—asserts some of those same details in the course of cross-examination. Does the assertion of those details imply acceptance of the truth of that statement? Does it imply acceptance of the truth of part of it? I think it is unclear. Perhaps that is simply because I am not as learned as some of my colleagues, but I think there is an ambiguity about what we mean by “taking someone to have accepted the truth of a statement”. That is something I would like to see clarified, in terms of both its intent and the actual wording of that clause.

I also refer to the comment that Mr Fairbrother made earlier around the question of whether we would be inadvertently opening the door to the admissibility of hearsay evidence beyond the narrow confines that the select committee quite carefully arrived at. I think that there is clearly an issue here that needs to be addressed. It needs to be done with some haste, and we accept that, and we accept a process for doing so. Nevertheless, in my view there are some problems with the bill as currently drafted, and I think it is important that the select committee puts its mind to clarifying that, so that in terms of a bill intended to codify the laws of evidence, that is what we actually end up with.

RON MARK (NZ First) : I will not hold the House’s time too long. In fact, I will take advice from Nandor that it is time for this bill to proceed—

The ASSISTANT SPEAKER (H V Ross Robertson): The member will use the member’s full name.

RON MARK: Oh, we are mates. I refer to Nandor Tanczos, the honourable member—have you not met him? He is a great guy. He is quite correct that it is time for this bill to proceed, given the gravity of the situation now presented to the House through the omission, or the error, that was made in the Justice and Electoral Committee. Sometimes these things happen, and I guess it is appropriate that those who are best positioned to understand the problems presented through the submission and to analyse the proposed amendment, which is designed to correct the situation we now have with the Evidence Act 2006, be given the task and the opportunity to get on with that business as quickly as possible.

Let me just say that New Zealand First views with deep concern any flaws in our law that would make it difficult—indeed, in this case, impossible—for the police to bring prosecutions against people who make up organised criminal gangs, who deal in and peddle methamphetamine and spread misery. It is worthy of noting right now because once again we have in the papers a family member of a very high-profile New Zealander reportedly dealing with the issues related to the use of P. It is not the first time that a high-profile New Zealander has been brought to the attention of the country and the courts for using this drug. We in New Zealand First can only ask what more signs this country needs as to the seriousness of the issues of drugs, organised crime, and the preying upon our communities, our loved ones, and vulnerable people by people such as this. How more serious can it possibly be?

It is timely that we go back and correct the errors or omissions that have been made in the select committee and tighten our laws and remedy this problem. Might we suggest very humbly to the House, from New Zealand First’s perspective, that there is more we should be doing. This is not just a passing moment in our history; this is something that has been eating away at the social fabric of our nation for decades. The problem now is that we are dealing with an insidious drug that destroys the mind and from that destroys the lives of countless New Zealanders, not just the individuals who partake in and use and abuse this drug, but the victims who they create along the way, as they do whatever they have to do to earn the money to feed the pushers who are supplying them with methamphetamine.

We in this country—and, sadly, we in this House—probably will not understand the price being paid in our communities until one of us sitting here in this Chamber has to deal with it in our own family in such close proximity as Paul Holmes and his family are now. Television front-men come and go. We hear their stories, and our heart goes out to those people. We also ponder and wonder as to what it is in the minds of people that leads them into using this drug in the first instance. Maybe it is just a lack of education, a lack of understanding, a missing something in their lives. Maybe they are looking for a cheap thrill, a cheap trick. Maybe it is the fashionable thing to do. Maybe it is what everybody else is doing. One thing we know for sure in New Zealand First is that the people who manufacture, distribute, sell, and market these products know exactly what they are doing. They do it for one reason and one reason alone, and that is profit, so that their lifestyles may be improved at the expense of others.

We have an omission, an error, a gap in our law that was not brought about deliberately; it is one of those things that can happen in a select committee, and clearly the House has identified the need to move expeditiously on this. Might I suggest that while we are doing that, and when we come back to debate this in the second reading and through the Committee stage, we really seriously consider what it is that we will do as a nation of people, as a collection of parties that are formed along particular philosophical beliefs and against specific policies, and as individual members of Parliament to drive these people who manufacture and distribute such an insidious drug out of this country, out of our communities, and out of our lives.

We in New Zealand First are dead serious about this and we are committed to this. That is why members will see even tighter legislation come to the floor of this House from New Zealand First. It will be legislation to outlaw and ban the existence of gangs, and I look forward to tabling that document.

• Bill read a first time.

Evidence Amendment BillHon MARK BURTON (Minister of Justice): I move, That the Evidence Amendment Bill be considered by the Justice and Electoral Committee,referred to Justice and Electoral Committee

• Motion agreed to.

RON MARK (NZ First) : And that is why we will be supporting the passage of this bill.

KEITH LOCKE (Green) : The Greens will be supporting this bill to remove the sedition laws from the statute book. Those laws are not consistent with a vibrant democracy or with our New Zealand Bill of Rights Act. They prevent us from “exciting disaffection” against the Government of the day, and of course that is something that we MPs could be accused of doing in Parliament most days when we sit here. Those laws were put on the statute book to constrain dissent against the Government, and have been used for that purpose. For example, they were used to convict Māori leaders in the 19th century, notably Te Whiti and Rua Kēnana. Then, in the earlier part of the 20th century, a Catholic bishop, Bishop Liston, was charged for making supposedly seditious statements when he hinted that he supported the Irish nationalist cause. We have also had the example of three leaders of the Labour Party—Harry Holland, Peter Fraser, and Walter Nash—who were convicted of sedition for supporting workers’ struggles, for being against conscription, and for selling left-wing books.

The Greens have been pushing for an end to the legislation on sedition for years. We have been asking written questions, etc., but were getting no change out of the Labour Government. However, two events have given the sedition issue, and the getting of these undemocratic laws off the statute book, some momentum. The first was the decision in 2004 by the police to use the sedition laws, after those laws had been in abeyance for decades, really—since the first half of the 20th century. In 2004 there was the Tim Selwyn case, where a man who lodged an axe in the Prime Minister’s office window was convicted not only of criminal damage, which is a normal charge, but also of sedition because of what he wrote in a pamphlet at the time. He called, in that pamphlet, for others to take similar symbolic actions against the Government’s then Foreshore and Seabed Bill. He did not, in the pamphlet, talk about violent acts or vandalism, or ask for people to use an axe in the way he had used one; he just talked about symbolic actions, which clearly could have been of any type. But the sedition laws were so flexible in their application that he was actually convicted.

Then there was the case more recently where the police charged a Dunedin man with sedition after he put out a little pamphlet advertising the swap of a petrol-soaked couch for a crate of beer. Clearly, although no one would support the idea of burning couches, that was a student prank. Yet that Draconian law, which had been in abeyance for many years, was brought out again. The charge against the Dunedin man was later dropped, but we saw the real problem of the police starting to use that repressive law, perhaps again and again.

The other event that has propelled change was Sir Geoffrey Palmer’s Law Commission report entitled Reforming the Law of Sedition, which called for the law’s repeal and provided all the reasoning as to why it should be repealed.

The Green Party is particularly pleased with this bill, because for once we are running against the tide of what has been happening in some other like-minded countries, as they are often called, such as Australia and Britain, both of which have made their sedition laws even worse than they had been. Those countries have not taken them off the statute book; they have made them even worse, under the cover of the so-called war on terror. In most other cases where New Zealand is compared with those two countries, we have had legislation flowing in the same direction as theirs, which has been restricting our freedoms to some extent and undermining due process in the judicial system. It is great that in this case we are running in the opposite direction of Australia and Britain, and are expanding our human rights by getting rid of the sedition laws.

Australia still has seditious laws that, I think, prevent people from—again that funny phrase—“exciting disaffection” against their Government. Actually, the Howard Government in 2005 brought in some laws that expanded the sedition provisions in a worse direction than previously. One of the new offences brought in by the Howard Government makes it a crime to “assist an organisation at war with the Commonwealth”. If that Australian law had been in during the Viet Nam War, tens of thousands of Aussies could have been charged, because huge numbers of them supported the Viet Namese struggle against the American, Australian, and New Zealand invaders, and marched with banners declaring such things as “Victory to the National Liberation Front”—the National Liberation Front being the body that was fighting for freedom in South Viet Nam. Today, parliamentary delegations from Australia and New Zealand honour the leaders of that very same National Liberation Front, visit Ho Chi Minh’s tomb, and generally accept that the freedom struggle of the Viet Namese was a just cause and that the Australian and New Zealand troops, along with the Americans, were among the aggressors.

There is also in Australia a new and rather vaguely worded piece of legislation against advocating force and violence, which could be used against dissenters. For example, if the Australian Government advocates and uses force and violence against Iraqis—as it is actually doing today—I do not think that John Howard would be brought before the court. Yet if an ordinary Australian advocates violent resistance by Iraqis against the foreign occupying troops, he or she may end up being charged under that law.

In Britain new laws prohibit the glorification of terrorism. Well, no one in this Parliament, I am sure, supports terrorism, but we can see that the British laws enter dangerous territory in making such a prohibition on people’s speech. Firstly, I think it is much better that if anyone is glorifying something we greatly dislike, such as terrorism, they do it out in the open so that we can deal with it. We can combat it and we can argue against it vigorously, rather than drive it underground where it becomes even more dangerous. Secondly, as we all know, one person’s terrorist is another person’s freedom fighter, and Nelson Mandela is often mentioned as a case in point. There is a film in our theatres right now called Catch a Fire, which is the story of an African National Congress fighter who blew up an oil refinery. That would clearly be a terrorist act under the anti-terrorism legislation we have in Britain, Australia, and New Zealand, but at the time of the apartheid regime some New Zealanders defended, publicly and in writing, such African National Congress actions. Should they have been imprisoned for doing so? I think that most people would say no. Talking about what other people are doing overseas thousands of miles away from here, or expressing a point of view or an opinion, should not in themselves be crimes. That should not be put on the same level as actual terrorist acts committed by New Zealanders.

The Green Party supports this bill, but we would have liked it to go a little further than it has gone. We would have liked it to also include removing the blasphemy provisions from the Crimes Act. Perhaps the select committee could even do that, because the blasphemy laws are just as much a breach of free speech as the sedition laws are. If we look at the origin of those laws, we see that they are often intended not only to protect religion but to protect a particular denomination—in the British tradition, the Anglican denomination—from criticism. Today I think we are in a situation where there are many denominations within Christianity and many other faiths, and where some people are not religious at all, and they should be able to have a free exchange of ideas about each other’s beliefs and religions. Hopefully, that exchange will not be done in a hateful way; of course, we are against that. But there should be freedom to have that exchange, and we are operating in an environment where there is a carry-over of the traditional State religion. I was just looking at the title “Queen of New Zealand”, which has a much longer version: “Queen of New Zealand and Her other Realms and Territories … [and] Defender of the Faith”. That is the final phrase in the Queen’s official title, the “Faith” not being the Christian faith but the Anglican faith. The Queen is head of the Anglican Church.

So our blasphemy laws go back in history, as do the sedition laws. Both are archaic and both should be abolished, but it is great that this bill will do that in relation to sedition. The Green Party fully supports the bill. The way that the four MMP parties—United Future, the Greens, ACT, and the Māori Party—have worked together to establish the momentum to get rid of this law is wonderful. We had a joint press conference, and then quickly after that Labour, when it saw the game was up, moved this bill into the House, and we have progress on it today.

HONE HARAWIRA (Māori Party—Te Tai Tokerau) : Kia ora, Mr Assistant Speaker—

Hon Peter Dunne: I raise a point of order, Mr Speaker. I stand to be corrected, but I think the member has already had a call in the debate.

The ASSISTANT SPEAKER (H V Ross Robertson): No, the member has not actually had a call.

HONE HARAWIRA: I was called in the last debate, but I have not spoken in this one. Kia ora, Mr Assistant Speaker. Kia ora tātou te Whare. When Ross Meurant came to Parliament, fresh from his dastardly deeds as head thug for the Red Squad, he warned the Government in his maiden speech of a small group of Māori who, he said, had plans to overthrow the Government. Well, I was one of those he named, and he was right. The overthrow of the Government is exactly what I have in mind, and I intend to carry out that promise. Back then, of course, Meurant was trading on his reputation as a hard man to try to cast us in a seditious light. I note that the tough guy got all quiet when he was asked to repeat his charges outside of the House.

But the charge of sedition is an oxymoron—a contradiction deriving from “oxy”, or “sharp”, as in the Māori Party, and “moron”, as in “dull”, like any politician who opposes this repeal. The contradiction, of course, in repealing seditious offences is that the act of sedition—“To bring into hatred or contempt, or to excite disaffection against, Her Majesty, or the Government”—should even be considered an offence at all. People who have been charged with sedition are often our sharpest citizens, passionate about their causes and patriotic about their country—the peacemakers, the protestors, and the movers and shakers of Aotearoa.

The roll of honour for those charged with sedition includes people already named; the Labour movement leaders; labourer Tim Armstrong, who published in 1916 the statement: “… the freedom that we enjoy in this country today is owing to the fact that there have been men courageous enough to defy any law that was contrary to the interests of the people and aimed at robbing them of their freedom.”; Catholic Bishop James Liston, whom Keith Locke referred to; Methodist clergyman, teacher, and former soldier, Ormond Burton, who printed a mild anti-war poem and who, for his radicalism, got 2½ years in jail; and ordinary citizens who marched and protested against the Viet Nam War.

Of course, our most celebrated prophets of sedition are Erueti Te Whiti o Rongomai and Tohu Kākahi, who in 1881 were both charged with “wickedly, maliciously and seditiously contriving and intending to disturb the peace”. It is a big jump from disturbing the peace to sedition. Despite their protests and demands for a proper trial, Te Whiti and Tohu were held in custody in New Plymouth for 6 months before being shunted off to the South Island with many of their followers. Then, in another oxymoronic and self-serving act of legislative juggling, the Government passed what it called the West Coast Peace Preservation Act in 1882, so that Te Whiti and Tohu would not be tried for sedition but could be detained indefinitely, as the Governor thought fit. Dr Ranginui Walker explained this best when he stated in his book Ka Whawhai Tonu Matou: Struggle Without End of 1990: “It was by violence that a tribal (Maori) society was destroyed in the first instance, and the (Pakeha) nation state brought into being.” The so-called peace preservation law resulted in peaceful people and peaceful prophets being assaulted, arrested, jailed without conviction, and treated like animals and herded into caves—all for daring to passively resist colonial land-grabbing. The so-called peace preservation law was in fact a declaration of war against people who were seeking nothing but peace.

And then there is the man immortalised in song and in the three-part painting series by Colin McCahon, Tūhoe prophet Rua Kēnana from Maungapōhatu who was charged with sedition in 1916 for daring to call himself a prophet for peace, for daring to call his community Hiruharama Hou—the New Jerusalem—for daring to establish a policy of non-violence, and for daring to call upon his people to hold to their faith and not enlist for World War I. The police hunted down Kēnana, killing his son in the process, and packed him off to Auckland for trial for sedition.

At the other end of the century—not too long ago—a new generation of Māori activists, including lawyer Annette Sykes and activists Mike Smith, Nick Tangaroa, Ken Mair, and Tame Iti, were accused of sedition for their intentions “to incite, procure, or encourage … lawlessness” for protesting the creeping control and ownership of Aotearoa by foreign investors, which is an issue that people are only now starting to wake up to. Mike Smith talked about targeting the 1995 Asian Development Bank conference as an opportunity to destabilise the political infrastructure and discourage foreign investment. Mike Smith also explained the concerns he had, rightly, for Annette Sykes when he said that Sykes, “who represents the respectable face of Māori nationalism” was more feared than himself for daring to be uppity while still inside the tent. He said: “Watch her lose her positions on boards like Moana Pacific and the Māori Broadcasting Authority.” And so it came to pass.

This is the nub, then, of the whole issue. Sedition has been used to quieten the natives and to suppress and oppress anyone daring to challenge the status quo. In fact, even former Prime Minister and President of the Law Commission, Sir Geoffrey Palmer, admits that the archaic offence of sedition was too wide and too unclear, and had been used to muzzle unpopular political speech. The most recent expression of this ridiculous law, of course, came when Timothy Selwyn got charged for opposing the foreshore and seabed legislation. He made submissions, started a petition, and sent out emails, but was stymied by a Government determined to ignore due process to ensure it got its way, so was forced to take more direct action and surprise, surprise—not at all—he got slapped with the charge of sedition.

When the Māori Party first started drafting a member’s bill last year, I spoke to Keith Locke from the Greens who said he was working on a similar bill. So I asked the Clerk’s Office if the Māori Party and the Greens could co-sponsor a bill. Well, well, well, the response was a bit like getting charged with sedition: “What! It’s never been done before. That’s out of order. It’s out of the question.” Then, of course, ACT and United Future also started looking at reforming the sedition laws, so the whole notion of repeal became a lot more real. So it is good to see that, by joining together, the four MMP parties were able to have an impact on fast tracking this legislation.

In closing, we would like to honour those who have helped get this repeal bill to the Table: those who have suffered so that we can more easily see the mean-spirited, ugly, demeaning, and destructive nature of the charge of sedition; Idiot/Savant for drafting a bill and badgering us all to sponsor it; those who still speak against conscription and war; those who still speak out for their land rights and their Treaty rights; those who still speak against colonisation and foreign control; those who still speak out against injustice; and those who still speak out against violence and economic abuse of power. Theirs is a rightful freedom, and we dedicate this repeal bill to them all. Kia ora, Mr Assistant Speaker.

Hon PETER DUNNE (Leader—United Future) : At the outset, I want to acknowledge the support of the MMP parties for the Crimes (Repeal of Seditious Offences) Amendment Bill—United Future, the Greens, the Māori Party, and ACT. I want to draw to the House’s attention that we held a joint press conference very deliberately on the day before Anzac Day, to make our call for the Law Commission’s recommendations to be accelerated in their passage through this House. It struck us as ironic that although Anzac Day celebrations bring together all New Zealanders and commemorate the struggle of New Zealanders in a bygone generation for freedom, we still had legislation on our statute book that was as archaic and anti-freedom as any legislation in our history.

The stories have been told during the debate on this bill about the use to which the sedition legislation was put in earlier times, to repress the free expression of opinion, political dissent, and sometimes a broader cultural dissent. My colleague Mr Locke has drawn attention to the fact that in many other countries around the world today these laws are actually being strengthened rather than repealed, and that we stand a little bit to one side from the mainstream in having legislation before our Parliament to repeal sedition law. I say that is a very good thing.

My family has had some personal experience in earlier generations of the application of this law, because we were Irish nationalists. Were we in Britain today we would still be subject to the provisions of that law. I want to recall a couple of little stories for the benefit of the House. Thankfully, in neither case was a sedition charge proceeded with, but the threat was there. A very elderly relative of mine, who died long before I came along, was standing on the Wellington waterfront in August 1914 when the first New Zealand Expeditionary Force set sail for the Great War. Someone said to this dear old Irish lady: “You must be a very proud woman today to see your son going off with the first New Zealand Expeditionary Force.” She turned and, in a loud voice, said: “I thought I would never see a son of mine stoop so low as to fight for England.”, and was dutifully carted away by the authorities and threatened with being charged for sedition for making this outrageous utterance.

A generation later, World War II came along. The same dear old soul was still alive, and was at Addington Raceway in Christchurch. In those days, apparently, before the big racing events, the national anthems of all the Allies were played. She stood rigidly to attention during all of the Allies’ anthems until “God Save the King” was played. Down she sat and away she was carted. I tell those stories not because a sedition charge resulted in those incidents, although the threat was certainly made, but because of the sense of the time about how one was defying the established order. Even mild acts of political dissent—if those could be described as such—or adverse commentary ran the risk of the full weight of the law being put upon one.

When we look at the experience of the Labour leaders in World War I, of the Māori nationalists in the 1880s, and of Rua Kēnana in 1916, and we see how this law was applied in a way that was simply the ultimate form of gagging writ—“We will shut you up because we will lock you away.”—and then when we realise that in today’s environment that law could still be applied, and in recent examples has been applied, inevitably we come to the conclusion, as the Law Commission did, that this is an assault on freedom and an assault on free speech that has no place in a democratic society like ours. Therefore, it is good to see this Parliament moving, by what looks to be unanimity, to repeal this obnoxious, outdated legislation.

I stand here delighted to see the bill before the House, urging expedition in its passage, and looking forward to a time when the references to sedition in this country are purely historical, never to be repeated again. A country that is confident about itself and its direction does not need laws of this type to regulate its behaviour. I look forward to the third reading of this bill, which will hopefully be not too far away, when we can farewell this particular legislation to the dustbin of history, where it deserves to lie and rot.

RUSSELL FAIRBROTHER (Labour) : I take much pleasure in supporting this Crimes (Repeal of Seditious Offences) Amendment Bill, as it appears all members of the House do, but it is still important to make the point as to what the law of sedition is about. Sedition law in New Zealand is unusual in that it is an offence of use of words rather than an offence of action. Most, if not all, of the laws in the Crimes Act are concerned with actions that are committed with criminal intent. It is ironic in today’s society that words still appear on our statute book as an offence against the affairs of the State. We really need to reflect upon the Privy Council decision in Lange v Atkinson, which was a hallmark decision on the law of defamation. It took that case, which freed up the area for comment made by political journalists against the actions of politicians, for us to recognise that the day must well be nigh when the law of sedition would be removed from our statute book.

Simon Power: “Nigh”—it’s not a word you hear often.

RUSSELL FAIRBROTHER: Yes, it comes with age, I tell Mr Power. This is also the age of freedom of information. We have the Official Information Act and the Privacy Act, but we are essentially an open society. We are an open society that reflects global trends in that regard and, as we embark upon our free-trade economic programme, then we too must allow for more liberalisation of the individual within the State. But what gets me most, I think, is when we turn to the definition of a seditious offence contained in the Crimes Act. A seditious intention is an intention to, among other things, criticise or point out errors or defects in the Government or constitution of New Zealand.

It is one of the strange ironies that, even today, very few people in this country can tell us what our constitution is, or what parts of our constitution apply, and what instruments of the State should be considered instruments of the constitution. Of course, we in New Zealand have no formal written constitution. We have a collection of Acts that can make up part of our written constitution, and some people debate which of those Acts should be included in our constitution.

Simon Power: It’s time is nigh.

RUSSELL FAIRBROTHER: The time is nigh to move from that position, I would say to Mr Power, and perhaps it is well-nigh time that we moved to a written constitution. Of course, I would expect the National Party to oppose that, because, in a free-thinking, open, and free society, some National members would have difficulty in coming to terms with the confidence that people can acquit themselves without the hierarchical tendencies of the party to which that member belongs.

But coming back to the offence of criticising the constitution, I point out that it is crazy to have on our statute book a law that makes it an offence to point out defects or errors in the constitution of New Zealand when even academics cannot decide what that constitution is. It is essential in our criminal law that there be some certainty, so that people who go about their business have an awareness of where the line is between criminal behaviour and lawful behaviour. If we are charged with a criminal offence, it is absolutely no defence to say we did not realise that what we were doing was against the law.

So this is one of the ironies. Fortunately, these provisions of the Crimes Act have been pretty dormant. Earlier speakers have identified that there have been very few cases—and certainly in recent times the case of R v Selwyn has been perhaps the only case—in which a prosecution has been successfully achieved under this section of the Crimes Act. But the sedition offences, of which there are about four or five in total, are serious offences. They are in the Crimes Act, not the Summary Offences Act, and they carry penalties of up to 2 years’ imprisonment. An offence carrying a penalty of up to 2 years’ imprisonment is considered to be a serious offence and, as Mr Selwyn found out, it is almost certain to result in a term of imprisonment if the matter is serious enough. As we move into a free and open society, it is time that we addressed the removal of this law, and it is perhaps surprising that it took until 2006 for the Law Commission to produce a report on what has clearly been a very outdated and old-fashioned law on our statute book.

Quite clearly, it goes back to the days when society was ruled by the king or queen, and the hierarchy in society was understood by people at all levels of society. It is a very British and colonial approach to life, which, hopefully, we are moving away from.

Picking up on points from some of the other speeches that have already been made, and particularly from those speakers who are more learned in the history of the struggle of the indigenous people of New Zealand—the tangata whenua—it can only inhibit the ability of those who want to advance concepts of a Māori economy, of Māori autonomy, if they have at the back of their mind the thought that they may face an arrest by an officious policeman who draws upon the law of sedition that is found in sections 81 to 85 of the Crimes Act. The debate still to be had in our country is on the way in which the indigenous people are able to express themselves politically, and that debate is not fully expressed, because the parameters of that expression are still being discovered and realised by many, particularly in the Pākehā world.

While I am on my feet on this issue, I have to say that there appears to be a great relaxation of many of the rules that have controlled the way we conduct our affairs. I reflect on the recent case of David Bain, who was released from prison following a successful petition to the Privy Council. He is a man who was convicted of a number of murders about 13 years ago, and, of course, he was not acquitted. The conviction was not quashed by the Privy Council. Its members suggested that his case be returned to New Zealand for consideration of a retrial, and they did not even comment that he should be freed on bail. I have no comment on whether that is appropriate, but what I believe has been inappropriate is the amount of media speculation as to what should be done by the Solicitor-General in this matter, because of course this matter is still before the court.

What the Bain matter illustrates as being relevant to this debate to remove the law of sedition is that even our quite clear law of what is sub judice appears to be changing in practice because the press feel free and uninhibited to venture into the area of court matters. When a charge or a matter is before the court, no longer does the press feel inhibited by what used to be the very clear and well-enforced and well-understood law of sub judice. The harm we see there, of course, is the effect on the ability of someone like David Bain in obtaining a fair trial and the Crown obtaining a fair trial, because people are wading in and ignoring those laws.

The point I make there simply is that we are in times that are a-changing, and that reflects the openness of society, which I welcome. It reflects the ability of well-educated people in New Zealand to enter into a debate on contentious matters, for people to hear that debate on contentious matters, and to react in a verbal way rather than a physical way, and not to feel defensive or threatened. New Zealand is an open society. It is my very strong wish that it become even more open than it is, and that all the people of New Zealand are able to live their lives as they are able, by their physical characteristics, by their cultural characteristics, and by their own view of what it means to be a human being in New Zealand.

So this is a bill that obviously is welcomed by all parties. It is one that will go to the select committee and I imagine that process will not take very long. I look forward to its return to this House, and when we can take from our statute book these rather grand-sounding laws of sedition, but which in effect, as we have heard already, are pernicious laws and ones that, if not directly, indirectly have a consequence of inhibiting true and open debate.

SIMON POWER (National—Rangitikei) : I know that two of my colleagues have gone before me in respect of making contributions on the Crimes (Repeal of Seditious Offences) Bill. In no way do I want to attempt to relitigate matters that they no doubt have covered during the course of their full explanations in relation to this matter. I will depart slightly from some of the matters that the member who just resumed his seat, Russell Fairbrother, covered, although I will come back to them, because I think the time is nigh for National to make a contribution on those particular matters.

I guess what we are seeing here is MMP at work. The smaller parties have got together and decided that this is legislation that needs the support of the House to progress. The two larger political parties—and New Zealand First latterly—have come to the view that the bill is worth supporting to a select committee, and that it is worth having a discussion about some of the issues that have been raised. As no doubt my colleagues who went before me on this issue have outlined, National will be supporting this bill to a select committee. In fact, as I make the count, all members of this House—although I cannot speak for the two Independent members—will be supporting this bill to a select committee. National will reserve its position at that point, to make sure that any matters that might require further attention are not buried here in the first reading and that a thorough discussion does occur in relation to the impact of the bill.

It would be a mistake for the Parliament and the select committee process to assume that just because a bill receives the full support of the House at its first reading, it will necessarily progress through all stages without proper examination and investigation. That would, of course, be quite wrong—although some of the speeches we have heard from some parties today have been, shall we say, enthusiastic in their repeal of seditious offences—because what we are looking at here is a historic series of offences that do require close attention.

Just because the Law Commission comes up with an idea does not make it right. We will come to another bill later tonight where the Law Commission has just come up with an idea and we are all supposed to fall over ourselves and say that it is perfect in every regard. As the Minister of Justice knows, there are some aspects of that particular bill that National agrees with in a wholehearted manner, and there are some aspects we do not agree with. I will indicate now that we are in for an interesting debate on that bill. But I think it is a necessary debate, because I know that the Minister, to give him his dues, has approached this matter reasonably open-mindedly and I know he will be interested to know what National will propose during the Committee stage of that bill.

But I come back to the Crimes (Repeal of Seditious Offences) Bill, because it is the one we are debating presently. I am minded to remind the House that National will support this bill, and for this reason: one of the reasons outlined in the report from the Law Commission for repealing the sedition provisions in the Crimes Act is that a seditious offence can be inappropriately used to impose a form of political censorship. That is, if anybody was saying negative things about the Government or a Government department or ministry, that person could be—the Law Commission would lead us to believe—seen to be committing or allegedly committing an act of sedition.

Being a member from the Opposition who has had a couple of departments and one ministry firmly in his sights for some time, I say that I would most certainly want to avoid being charged with sedition and politically censored for making comments and bringing to the attention of the public some of the shortfalls of that ministry and a couple of departments. That is all part—[Interruption] Harry Duynhoven over there shakes his head. He is a diligent member. But that is all part of the rough and tumble of democracy. That is all part of the toing and froing, the yin and the yang, of the political process. Members opposite, when they grace the Opposition benches in years to come, will be pleased that they, too, will have preserved an ability to criticise, to probe, to investigate, and to bring to light matters that they believe to be unsatisfactory from time to time. Of course, there will be a lot less “time to time” in that set of circumstances than there currently is in this set of circumstances.

Just to reiterate, any present law that falls foul of the New Zealand Bill of Rights Act—and this is a serious point—does deserve the attention of the House. I am a firm believer in upholding the principles of the New Zealand Bill of Rights Act wherever possible. I have to say that I think in my 7½ years here we have had only two occasions that I can recall where the Attorney-General has said that a particular piece of legislation that the Government was tabling did impinge, in the Attorney-General’s view, on the New Zealand Bill of Rights Act. We had that debate at that time. But it is an important safeguard. The role of the Attorney-General in Cabinet is an important one in bringing that independence to bear.

With those few remarks, I say that although National will support this bill to a select committee, it is important that the investigative and exploratory processes at the select committee are used fully before the bill progresses further.

• Bill read a first time. referred to Justice and Electoral Committee

• Bill referred to the Justice and Electoral Committee.

• Sitting suspended from 6 p.m. to 7.30 p.m.

Hon MARK BURTON (Minister of Justice) : I move, That the Criminal Justice Reform Bill be now read a second time. First let me extend my thanks to the members of the Justice and Electoral Committee for their work on this bill. I say sincerely that the bill as reported back incorporates, I believe, a number of changes, in response to submissions considered by the committee, that have enhanced the quality of this important legislation. The bill will give effect to the legislative components of the Effective Interventions initiatives of the criminal justice system, which aim to reduce criminal offending, increase certainty around penalties given to those who break the law, and help stem the growth of New Zealand’s prison population. The work consists of three broad themes: tilting the balance earlier to prevent crime, using alternatives to prison where this is appropriate, and adopting smarter use of prison resources where this is necessary.

This new legislation will help to improve consistency and transparency in sentencing. Importantly, it will also provide a greater range of non-custodial sentences and sentencing options, and will thereby help reduce the number of offenders who would otherwise be imprisoned. However, I take this opportunity to assure the House that those who commit serious offences, such as repeat violent offenders, will continue to go to prison, and for long terms. The safety of the community must be and is always this Government’s first priority. The planned changes will give judges more options when sentencing offenders at the lower levels of offending. Sentences can be used that genuinely fit the specific circumstances of the offence and the offender, and that therefore better serve the interests of the wider community, including, importantly, victims of crime.

Part 1 provides for the establishment of a Sentencing Council, which will be responsible for producing sentencing and parole guidelines. The council will address the considerable inconsistency in sentencing, particularly for less serious offending, that has been identified in research carried out by the Law Commission. In consideration of judicial submission, the bill now provides for the chairperson of the council to be a member of the judiciary appointed by the Chief Justice, with the deputy chair to be one of the non-judicial members. This was very much part of engagement by the judiciary both directly with the executive and through the select committee process, and, as I mentioned earlier, it is, I think, indicative of the sort of positive change that can come through discussion and consideration of a proposal. Non-judicial members of the council will be appointed by the Governor-General on the recommendation of this House of Representatives. The appointment criteria have been streamlined to give this House greater freedom in selecting non-judicial members.

The appointment process has also been changed to ensure that it does not place unnecessary constraints on the ability of the House to regulate its own procedures. Similar changes have been made to the provisions concerning parliamentary scrutiny of guidelines produced by the Sentencing Council. The Government accepts the select committee’s view that the bill should not set out the procedure whereby the House may disapply a group of guidelines, and that this is a matter for the House itself to determine.

Part 2 includes a number of important amendments to the Sentencing Act and the Parole Act, and changes to the Bail Act and the Prisoners’ and Victims’ Claims Act. The changes to the Sentencing Act will increase the range of non-custodial sentences available to the courts. There are three new sentences: home detention, community detention, and intensive supervision.

Home detention will be established as a sentence in its own right, rather than as a way of serving a sentence of imprisonment as is the case presently. While no sentence is without its challenges, the effectiveness of home detention, I think, is well established. It has low reconviction and reimprisonment rates when compared with prison sentences, and it has high compliance rates. Home detention also helps with rehabilitation by allowing offenders to maintain their responsibilities to their families and to the wider community. I am confident that the courts will see home detention as a useful alternative to a short sentence of imprisonment in appropriate cases. I emphasise: in appropriate cases.

The two new community-based sentences—community detention and intensive supervision—will provide a higher level of restriction and supervision of offenders than existing sentences. The reported-back bill provides that community detention, which involves an electronically monitored curfew, can be used not only to reduce the likelihood of reoffending but also as a punitive sentence. This will be especially appropriate for cases such as default on fines or non-compliance with lesser sentences.

The bill also includes measures to improve the effectiveness of community work sentences; for example, probation officers will be given the power to refuse to treat up to 10 percent of the total hours of a sentence as hours completed, in cases where the offender fails to work satisfactorily. I think that is an important addition to the current arsenal of resources.

Home detention and community detention are both reliant on electronic monitoring. The bill includes important amendments to facilitate the smooth operation of the system. It will be an offence to refuse entry to a person authorised by the probation officer to service or inspect the monitoring equipment. There are also new provisions to protect against attempts to tamper with the monitoring equipment.

A Supplementary Order Paper included a number of important changes to the Parole Act, which have now been incorporated into this bill. Many of these changes will address issues that were raised by the Graeme Burton case. The Parole Act will be amended to state explicitly that consideration for release on parole carries no entitlement to release. This provision will make it clear that release on parole is a privilege and not a right. The Parole Board will also be empowered to make confidentiality orders in respect of information that cannot be disclosed to an offender because of the threat to someone’s personal safety or prejudice to the maintenance of the law. I want to be clear that I expect such orders to be made very rarely, but I say to members that it is vital that there are measures to ensure the Parole Board is in possession of all the relevant information when it is considering a case. A third important change is to give the Commissioner of Police the right to apply for the recall of a parolee to prison in limited circumstances. This power I also expect to be used infrequently, but it is important that in certain circumstances the police can apply directly to the Parole Board for an offender’s recall. It is, of course, then for the Parole Board’s consideration and determination. The last important change incorporated from the Supplementary Order Paper will give the Parole Board the power to summon witnesses. This is another measure that is intended to ensure that the board is in possession of all the essential information when it is making a decision, and I think that, again, is one of the important lessons that recent experience has taught us.

In addition to the Parole Board changes contained in the Supplementary Order Paper, the original bill included a significant change to parole eligibility that will take effect when the sentencing guidelines come into force. Offenders serving determinate sentences will be eligible to apply for parole after serving two-thirds of their sentences, rather than one-third, as it is at present. This certainty in sentencing will mean that all those involved in the case—the victims, the police, and, of course, the offender—know from the outset that the offender will be serving the lion’s share of the sentence.

The last matter I will canvass is the amendments to the Prisoners’ and Victims’ Claims Act 2005, which the select committee struck out. The Government believes that it is essential that the sunset clauses covered by the amendments be extended. If this is not done, from 1 July 2007 prisoners will once again become eligible for compensation in accordance with common law. This will mean that victims will need to undergo a more onerous process by way of a civil action to get a share of any compensation payments made to prisoners, in pursuit of restitution or reparation.

Simon Power: Just change the law.

Hon MARK BURTON: The member is well aware of our international legal obligations. I am sure that this cannot be viewed as a desirable outcome by any member of this House, particularly those who in the past have asserted their support for the rights of victims. While provisions to enhance the rights of victims and to ensure independent oversight of prisoners’ rights are being advanced—and they are; one through the select committee and the other through Government policy—the interim extension of this provision for victims of crime is, I believe, something that members have an obligation to support.

Taken as a whole, the measures contained in the bill will, I submit, improve the operation of the criminal justice system in many ways. The measures will help to build safer communities for New Zealanders, and help stem the growth of New Zealand prison populations. I therefore commend this bill to the House.

SIMON POWER (National—Rangitikei) : It was with some interest that I listened to the Minister of Justice’s comments on the Criminal Justice Reform Bill. Peculiarly we have had three justice bills before the House tonight. The first two National supported, and I will explain shortly why, as a party, we continue to have major difficulties with the largest segment of this bill.

It is not to be underestimated just what a significant change to certain areas this bill proposes. Disappointingly it is one bill dealing with three quite different subject matters. The first relates to the arrival of the Law Commission - recommended Sentencing Council. The second relates to changes to home detention so that it is brought in as a sentence in its own right, which is quite a difference from the current back-end, front-end use of home detention that currently exists, as well as some electronic bail issues and parole changes on the back of the Burton disaster—I suppose that is the only word to use in respect of that matter. Thirdly, and sitting out there on its own as the Minister finished, is the victim compensation sunset clause, which expires shortly. The Minister urges the House to support the extension of that sunset clause.

Can I say that National has taken this bill extremely seriously, for a range of reasons. The first reason is that the Government has made no secret of the fact that its Effective Interventions package is largely on the back of the structural reform proposed in this bill. National members approached this bill with the view that we were concerned about the Sentencing Council. We were open-minded about Part 2 with respect to the home detention and community sentencing options, and frankly remain warmly enthusiastic about that part. The difficulty for us is that as a caucus we had to make a decision as to the overall weight of the bill, and the most significant change that was being proposed was that of the Sentencing Council.

My colleague Chris Finlayson, the shadow Attorney-General, will go into more detail on this issue, but I arrived at the Justice and Electoral Committee to sit in on the work on this bill for most of the time—I did not make it to every single hearing. National members remain particularly concerned about the Sentencing Council and still believe that, whichever way it is measured or viewed, it has the potential to eat away at judicial independence. We believe it has the potential to cut into what has historically been a clean separation of power between the legislature and the judiciary.

That independence from the executive is what enables the judiciary from time to time to take hard decisions out of the hands of the legislature and to make decisions in the light of badly drafted law or the like. National in its minority report makes clear that it tried to have this bill split, and it will try again in the Committee stage, so that the Sentencing Council can be dealt with separately—although I appreciate there will be a part by part vote—from those matters for which we have more enthusiasm, which are contained in Part 2 and relate to some of the sentencing options that the Minister proposes.

The basis for the bill is the concern the Government has around the size of the prison population—that is the basis for the bill. That is what was in the explanatory note right from the start—up front, from the first consideration. National members said in the first reading that we were concerned about what efforts we could make in this area to prevent crime from occurring in the first place. The Minister’s suggestion that parole is a privilege not a right and the fact that the Justice and Electoral Committee chose to enshrine that in quite strong wording in the bill is something that we agree with. But, make no mistake, that parole eligibility at two-thirds—which we told the Government in 2002, when it passed legislation to reduce that eligibility to one-third of a sentence, was the wrong thing to do, and the Law Commission has agreed with that—has to be offset against shorter sentences across the board. The Minister kind of skipped over that a bit, but one of the recommendations of the Law Commission report was that in order to balance the need to get the parole eligibility ratcheted up to two-thirds of the sentence, sentences across the board would have to be reduced somewhere in the vicinity of about 20 percent and we are not convinced on this side of the House that that is what the New Zealand public wants to see. So during the Committee stage we will be putting some amendments that will try to deal directly with some of these concerns I raise now.

The other concern is that I am not convinced that departments like the Department of Corrections and the courts department are up to dealing with the quite high-level approach that the Minister of Justice is taking. He is to be commended for taking a high-level approach because somebody in that sector has to get their eyes up a bit. But the problem is that when we are dealing with a different home detention and community sentencing basis for non-custodial sentencing, can the departments and the ministries responsible for administering these new arrangements cope? We will be testing some of those ideas in the Committee stage shortly. I believe we are going to move pretty swiftly to the Committee stage over the next few days.

The Government assures us that by the end of this fiscal 3-year cycle there will be 1,000 more police on the streets, which means more arrests will be made, which means the courts will have to deal with that inflow, which means the Department of Corrections will have to deal with that situation at the other end, which means the way that we monitor and check the new sentence of home detention and community sentences will also require a focused workforce. We remain to be convinced that that can be done. I welcome the Minister’s comments tonight that as far as the new sentence of home detention goes, public safety is the Government’s No. 1 concern. The Minister and his colleagues in the justice sector can rest assured that we will be making sure they are held to that commitment during the course of the next short while.

I think some of the issues around community home detention, some of the use of information, which is monitored, and the right to access to that information, needs a bit more exploring through the Committee stage. We certainly did that in the select committee process, and I believe we amended the bill in a pretty constructive way, when things like reporting times on public holidays and the like are taken in account. Under the guidance of Lynne Pillay we made some amendments to the bill, which I think were pretty constructive amendments. But there is no doubt that, on this committee, the Government was rolled when it came to issues surrounding the Prisoners’ and Victims’ Claims Act 2005. I want to be clear that although the two other parties on the committee may have had different reasons for opposing the extension of that sunset clause, this is MMP at work. I tell the Minister that victims of crime should not have to relive their crimes in order to claim monies awarded to offenders; there are other ways, other channels, and other criminal sanctions that can be used to deal with offenders who are maltreated in our prison system. We will talk more about that during the Committee stage.

Overall, the weight of the intervention on judicial independence of the Sentencing Council puts National members at this position at the second reading: we will be voting against this bill at this time. As we head into the Committee stage we will be working constructively to deal with the issues raised part by part, and we will be voting part by part for the parts we agree with and the parts we disagree with, for amendments we agree with, and for amendments we disagree with. I urge the Government, if it wants to be serious about cross-party support for measures in criminal law, to think seriously about allowing that split to occur in a constructive way. Overall, the invasion of the Law Commission’s idea of a Sentencing Council on judicial independence is the big stumbling block that National sees with this bill.

LYNNE PILLAY (Labour—Waitakere) : It is a pleasure to stand in the House in support of the Criminal Justice Reform Bill. In speaking to this bill I firstly thank the members of the Justice and Electoral Committee, the staff, the officials, those who made submissions, the members of the judiciary who spoke to the committee, and the Law Commission, which put so much time into its report on servicing guidelines and parole reform, which was the basis of this legislation.

This Labour-led Government is committed to a society where all families, both young and old, are safe and secure. Central to this commitment is having a criminal justice system that protects our communities by more effectively rehabilitating offenders and making much better and more effective use of our prisons. If we look at the current prison inmate numbers in New Zealand, we see that they are no longer sustainable—not only financially but also socially. Our prison population has increased sharply over the last decade and is forecast to increase further over the next 5 years. This peak has been reached even though at this point in time the rate of recorded crime is at its lowest level in over 20 years.

We need a transparent and more effective rehabilitation system when we are dealing with offenders. The Government’s Effective Interventions package, which was announced in August, puts the commission’s recommendations into practice, and this bill ensures that the Effective Interventions programme falls into place and is actually effective as such.

The clauses in this bill draw most of the parts of the Effective Interventions programme together. Part 1 establishes a Sentencing Council. The job of the Sentencing Council will be to issue guidelines for judges, helping to create better and more consistent sentencing across New Zealand. I was disappointed to hear from Simon Power that the National Party opposes this bill based on the provision for the Sentencing Council. I see the Sentencing Council as very much a major leap forward. In consideration of a judicial submission, the bill now provides for the chairperson of the council to be a member of the judiciary appointed by the Chief Justice, with a deputy chair to be one of the non-judicial members. This will ensure judicial confidence in the council, and we know that that is crucial to the success of these guidelines. But we also know that under the bill it is the chairperson who holds the casting vote. I believe that that gets a real balance in the Sentencing Council, and I know that in time, with the support of other members—sadly, not those in the National Party—we will see an effective Sentencing Council with guidelines that show consistency in sentencing. I think that is very important, not only to victims but also to prisoners, as well.

Home detention will be made a sentence in its own right. That is very useful for people who would otherwise receive only a short time in prison, which would certainly not reap the same rewards, one would think, as the new role of home detention. Building on that are the two community-based sentences, community detention and intensive supervision. They will put greater emphasis on giving offenders work and life skills. We all know that if these people achieve and maintain those life skills and training skills—the ability to work and to be productive—once those people integrate back into society those skills will assist them to steer away from returning to a life of crime in the future.

I have heard other speakers acknowledge that there will be truth in sentencing. The option of parole after serving one-third of a sentence will no longer be the case. Prisoners will not be eligible for parole until they have served two-thirds of their sentence. I think this is very important. Victims want clarity and certainty in sentencing, and in this way they will feel that justice has been done.

I also want to speak very briefly on the sunset clause. I heard Simon Power acknowledge that the Green Party and National Party members oppose the retention of the sunset clause, and that saddens me. I note that they do so for quite different reasons. I think the select committee report was very tactical in that they were able to voice their opposition in such a way that it did not really show their points of difference. I was disappointed that the amendments to the Prisoners’ and Victims’ Claims Act 2005 were struck out. I believe that extending the sunset clause would be of great benefit to victims in New Zealand and I am disappointed that it did not receive the support of other parties. If the sunset clause is not extended, it will mean that from 1 July prisoners will once again become eligible for compensation in accordance with the law, but it will be much more onerous for victims to argue to get a share of any compensatory payments made to prisoners. If prisoners receive compensation while they are in prison, and that compensation is deserved, then that should certainly be the case, but it is very much natural justice that if they do have some compensation awarded to them, their victims are able to make a claim against them to get a share of that compensatory payment. This clause should be seen very much as a positive move for victims, and I am very hopeful that it will get support—if not from National or Green members, then from other members in this House.

It was a pleasure to work on the Criminal Justice Reform Bill. Work on crime is not always the most fulfilling work, but I think this bill will take our country forward. It will enable victims to see more justice in sentencing, which is a very, very positive thing and will give them some assurance. The bill will provide more clarity in terms of sentencing and parole, which is also a good thing. Also, in terms of the other sentencing options, I think that will, again, be a very, very big leap forward for prisoners, not because they will be pampered but because they will perhaps finish their sentence with some life skills and be able to work actively in the community again. I commend this bill to the House. Thank you, Mr Assistant Speaker.

KATE WILKINSON (National) : In speaking to the second reading of the Criminal Justice Reform Bill, it is a shame—and it has been mentioned—that the Government has not heeded advice and agreed to split or divide the bill so that Part 1, dealing with the Sentencing Council, which we have already mentioned as one of our stumbling blocks, could be separated and dealt with separately from Part 2. As we have heard, Part 2 deals with the amendments to the Bail Act 2000, the Sentencing Act 2002, and the Parole Act 2002, etc. Although some aspects of the bill relating to the parole structure, the parole system, and sentencing may actually be acceptable, unfortunately, the option to support part of the bill and not others has been closed to us if the bill remains in its current combined state. We would ask that the bill be dealt with separately so that, at least, the good parts of this bill can be duly put into law.

Certainly, in its current form and its current state, we will have difficulty in agreeing, as Mr Power said, to Part 1, which deals with the establishment of the Sentencing Council. I want to deal, for a moment, with the Sentencing Council, because that really is the big stumbling block for us in this bill. The inclusion of a politically appointed Sentencing Council is opposed by National, and unfortunately it does overshadow any good otherwise shown in the bill. Had the Minister agreed to deal with that issue separately, then we certainly would have had a better option, but unfortunately he did not.

We have a bill that provides for the creation of this Sentencing Council—a separate, politically appointed Sentencing Council. I am not convinced that the need for such a Sentencing Council has been established—bearing in mind that I was not on the Justice and Electoral Committee at the submission time. Certainly it does not appear to me—having skimmed through the submissions—that the need for such a council has been established.

We already have a comprehensive Sentencing Act, which provides guidance to the judges when they are sentencing. We know that judges—and they should be—are given some flexibility and discretion when sentencing. We also know that this discretion is subject to higher, superior courts also providing guidance from time to time. The purposes and functions of the Sentencing Council may be somewhat laudable, but we do have major reservations about having such a politically appointed Sentencing Council.

In New Zealand we have a fundamental principle of the separation of powers, and I believe it is vital that we cling to that principle and we do not discard it for what may be seen as sinister motives. The separation of powers means that the legislature, the executive, and the judiciary must be kept totally separate from each other. This is done for a variety of reasons—to ensure accountability, transparency, and impartiality, and to provide the necessary checks and balances. Judges, who interpret the law, do not create the law, and nor should they. If judges make decisions that the executive does not think reflect the intention of the law, then it is up to the executive to change the law. The executive should not have authority to direct the judiciary—in other words, if the law is not working, then we must change the law.

But what this bill does is create that separate Sentencing Council, a separate body corporate; a legal entity separate from its members and separate from the Crown. Yes, some of its members are judges; half of them are appointed at the whim of the Government of the day. Over half of the Sentencing Council may be merely political cronies and this sets a dangerous precedent, both in relation to the separation of powers doctrine and also in relation to accountability.

Admittedly, the actual membership of this Sentencing Council has been improved since the first reading of the bill. Now, it comprises a Court of Appeal judge, a High Court judge, two District Court judges, and the Parole Board chair, who is also a judge. But five others—so that is five out of the 10—are appointed at the whim of the Government. The chairman of the council must be a judge—and again I can see that this is an improvement from the original bill—but then, the deputy chairman can still be that political crony, that lay person.

We need to ask ourselves whether the Sentencing Council is actually needed. The prime purpose of the council appears to be to promote consistency in sentencing practice, but if any apparent inconsistency actually does exist at present, then why not just do as suggested by the New Zealand Law Society in its submission, and resource either the Supreme Court or the Court of Appeal to deliver sentencing guideline judgments. That would make much more sense than introducing a separate Sentencing Council, which would potentially violate our entrenched separation of powers doctrine, and which would potentially be politically controlled, yet it would add another layer of bureaucracy and cost.

Sentencing should not ever be politically driven. To quote from the New Zealand Law Society submission: “once these sentencing guidelines have been provided to Parliament ‘If Parliament does not like the guidelines, it may disallow them’. Accordingly, all the expertise that is accumulated in the Sentencing Council counts for nothing if at the time the guidelines come to be considered the political climate is not conducive to those guidelines being implemented. With the proposed mandatory reconsideration by the Council of rejected guidelines, the sentencing process may become a politically influenced process.” And that, we submit, is not a position in which we would want to be.

I restate our minority view, which is outlined in the commentary to the bill, that although we may think there is justification for some kind of sentencing guidelines panel to provide guidance to judges on sentencing matters, thereby improving consistency in sentencing across the country, we are not persuaded that the model proposed in this legislation—the Sentencing Council—is indeed appropriate. It runs the risk of compromising judicial independence.

I have said that although the bill has been amended so that a judge must be a chairman of this council, which is certainly an improvement, it is not nearly enough. This scapegoat council will be easy to blame for any criticisms on sentencing. It can take the blame for the Government’s lack of policies in relation to the reduction of crime. The priority must be to prevent crime in the first place, not to put a bureaucratic council in place to act as a scapegoat and as a political tool, and to hide the failure of this Government’s policies that are not addressing the problem of the increasing rate of crime.

If this Government was really concerned about the passage of good legislation—and good criminal justice legislation—it would, and could, easily have done so. It could have split the bill into the two separate parts, one regarding the contentious Sentencing Council and the other dealing with the other matters. Regrettably, it did not, and on that basis, unless there are some crucial, vital changes at Committee stage, National will be voting against the Criminal Justice Reform Bill—which, I have to say, would be a shame, because there are some good bits in it.

TE URUROA FLAVELL (Māori Party—Waiariki) :Tēnā koe, Mr Assistant Speaker, ka nui te mihi ki a koe i tēnei pō, ā, kia ora tātou e te Whare. E ai ki tā te rangatira nei, ki tā Nelson Mandela: “No-one truly knows a nation until he has been inside its jails. A nation should not be judged by how it treats its highest citizens, but how it treats its lowest ones”.

E tika ana tō tātou tirito ki tēnei huarahi e hiahia nei ki te tīni haere i ngā kaupapa mau here, whai muri mai i te pūrongo o te Tari Ombudsman. Hei tā tērā tari, he rere kē noa atu te ture ki tērā e whakatinanahia ana i ngā whare herehere, ki ngā waka heri mauhere rānei?

Ko ngā mea kei roto i tēnei pire hei kōrero whakatika i te Bail Act, te Sentencing Act, me te Parole Act ka mutu, kia whakaiti nei i te pikinga o te tokomaha o te hunga mauhere. Kua roa te Pāti Māori e kōrero ana mō tō mātou riri ki tō tātou hiahia ki te mau here i te tangata. He kaha ake a Aotearoa ki ētahi atu whenua, pēnei i a tātou i tua atu o Amerika, arā, ko te hunga rangatahi kua pāngia nei e te wairangi, e te pōrangi rānei, ā, he whāiti tonu ō rātou mātauranga, mahi pūkenga ā-noho. Ko tenei māuiui kei mua i a tātou e puta mai ana i te pikinga ake o te hunga here, i ngā 10 tau kua hipa, mā te 40 ō-rau. Kei te pūtake o tēnei momo māuiui, ko tērā e hāngai tonu ana ki te tangata whenua.

Kāti, i kimi au i ngā rārangi kōrero mō ngāi Māori, atu i te tau 1875 ki te tau 2005. I tērā 130 tau i eke te tokomaha o nga mauhere Māori ki te 55.3 o te 10,000 tāngata i te Hune o te tau 2005. Inā kē te nui o ngā 130 tau i ngā 10 tau i mua i te tau 1995, 33.6 te rahi, e kī, e kī, kare kau he raruraru. I waenga i te tau 2000 me te 2005, ko te kaha tipu i eke ki te 21 pai hēneti. Koi nā te ngau o tēnei kaupapa—kei te tipu te kaute o te hunga mauhere. Nau mai ki te whenua o te mau here. He whenua mau here i te hunga parauri. Kei reira anō hoki te kaha mau ā-riri nei o te motu ki ngā mahi hē, kino rānei a ētahi.

Kei te pīrangi te Pāti Māori ki te wānanga i te whakahau a ētahi kia kaha ake te mau here i te tangata hei karo i te mahi tinihanga o te tangata. Hei tā John Whitty, Kaiwhakahaere o te New Zealand Prisoners Aid and Rehabilitation, ko te ngāwari mai o te tikanga mau here he tohu tonu tērā o te noho o te whenua—ko tā mātou, ko te tautoko. Nā reira, kua rata mātou ki tā te Sentencing Council. Ko tā mātou e whakapono nei, kia tau ngā āhuatanga katoa i te whenua, me tika te hanga i nga tikanga ā-ture. Me titiro kē tātou ki tēnei mea e kī ana, ko te “restorative justice” hei huarahi kia tau pai ngā take. Nā, mā tēnei ka whai wāhi te hunga hara i waenga i te hapori, kaua mō te tū i tōna kotahi anake. He huarahi tēnei hei whakapakari ake i te wāhanga o te hapori, hei whakahoki i te mana o te katoa, ko te hunga i rongo nei i te kino o te hunga hara.

E ai ki tā te Tari Whakatika Tangata, $161.91 te utu ia ra mo te hono o te mauhere i te whare herehere. Ehara pea tērā i te moni nui engari, mēnā ka kohikohia, ka $59,097 te utu ia tau. I a tātou e āta titiro nei ki te tokomaha o te hunga mauhere, me kimi huarahi tātou mō te painga o te motu a ngā rā kei mua i te aroaro.

Kei te tino pai ki a mātou te wāhanga o tēnei pire ki te whakatū i tētahi Kaunihera Whakatau, ki te tuku whāinga e pā ana ki ngā mātāpono, ngā taumata, ngā momo hara me te whakaaetanga kia puta ā-here nei. He nui tonu ēnei mahi, nō reira, e whakaae ana mātou ki te tūtohutanga o te Komiti Whāiti o te Justice and Electoral, kia kaha tonu te kaunihera ki te whai i ēnei wāhanga, kia waiho ake ko te paku rere kētanga ki te Whare, māna tērā e whakatika.

E tika ana kia noho motuhake nei ngā kōti me tōna ake mana ki tēnei whenua, ā, kei tēnei Whare te tikanga mō ngā whāinga, kaua ko te Sentencing Council. Ko tāna kē, ko te whakahaere i ngā rawa, kia heke whakarao te kaute mauhere a te wā. Nā, ko tā mātou o te Pāti Māori, ko te āta titiro ki ngā nekeneke i tēnei take.

I te tau 2003, o te hunga hāmene, he maha ake te Māori, whā rima whakarau, e rua whakarau o te hunga Pasifika ki te Pākehā. O te hunga noho mauhere ono whitu whakarau o te Māori, toru whakarau a Pasifika ki tērā o te Pākehā. O te hunga e tatari ake ana kia whiua e te kōti, tekau mā tahi whakarau he Māori.

Ko tētahi kōrero ngoikore i kite nei au i te Hōtaka o te Tari Ture, ko tēnei: “Being Maori does not make a person an offender.”E kī, e kī, kātahi te kōrero mārama ko tērā!

I muri mai, ko tēnei: “All in all, the criminal justice system needs to do far better at stemming the entry of Māori and Pacific peoples, and managing their exit.”Ā, tautoko. Kua mārama, ko te mate kē, kāre i te tino kitea.

Arā anō tētahi wāhanga e kī ana: “The preparation of the proposals in this package, in particular as they affect Māori and Pacific peoples, has raised the possibility of systemic bias within the criminal justice sector; that is, unintended consequences of discretion at various stages in the criminal justice system, and unevenness of decision making.”

Taihoa. Kei te kōrero tātou mō te whakaaro kino, whakaaro kore ōrite o te whainga ā-ture ka mutu, ko tōna tikanga, ko ōna rite, tōna pono mō te iwi Māori, Pasifika rānei, ka āta tirohia a te wā. Kei ngā rōpū o tēnei Whare te māia, te kaha rānei ki te āta titiro ki ēnei āhuatanga, ōna tīmatanga me ngā kaiwhakaari kia kore tēnei mea te aronga tahi, e kitea. Koia nei te pire hei āta wetewete i tēnei mea o te aronga tahi. Kāore he take o te tatari ki tētahi pūrongo anō.

Arā anō atu tētahi mea hei whakatikatika, arā, ki te wāhanga hōu—54H o te Sentencing Act. Mā reira, ka taea e te kōti te tohu i te whāinga i tētahi rongoā, ā-rongoā wairangi, ā-rongoā tinana rānei. Mēnā ka whakakorengia, ka taea te tīni, te whakakore rānei e te whakatau ā-kōti, nā, ko tōna mutunga mai, ko te huringa o te whakatau kore noho here, ki te whakatau noho here. I tōna whakatinanatanga e rua ngā huarahi mō te hunga wairangi, ko te noho here ā-tinana, ko te noho here ā-rongoā. Ko tona tikanga, ka ōrite te noho o te hunga wairangi e mauheretia ana, ka noho pērā ki ngā mea kei te hapori, kia kore a ia e patua nā tōna māuiui.

Ko tā mātou o te Pāti Māori, kia whakatinana tātou i te tikanga o te ture ka mutu, kia noho tuwhera ngā kuaha o te ture ki te tini, ki te mano. Kei te pīrangi hoki mātou ki te noho i te taha o ētahi atu e ngākau nui ana ki te whakaaro ki te whakaiti i te hunga mauhere, ki te kati i ngā whare herehere kia mutu tērā pōhēhē nei mā te mau here o te tangata, ka ngāwari noa te anga whakamua, ā, ko te hunga e hiahia ana ki te karo i te aronga tahi o te ture me tōna mai, arā, ko te tokomaha o te iwi Māori ki roto i ngā whare herehere. Nō reira, ka tautoko mātou i te Criminal Justice Reform Bill i tēnei pānuitanga tuarua i runga i te tūmanako, ka riro mā te Sentencing Council ngā take nei e whakatika mō te painga o te iwi Māori, Pasifika, hoki, koia tōna aronga. Kia ora tātou.

• [An interpretation in English was given to the House.]

• [Thank you, Mr Assistant Speaker—a huge greeting to you tonight, and to us in the House. The great Nelson Mandela once said: “No-one truly knows a nation until he has been inside its jails. A nation should not be judged by how it treats its highest citizens, but how it treats its lowest ones.”

It is timely to be looking at measures to reform the criminal justice system in the aftermath of the report from the Office of the Ombudsmen that there is a big difference in legislation and what happens on the prison floor, or indeed a transport vehicle.

The measures being introduced in this bill in amending the Bail Act 2000, the Sentencing Act 2002, and the Parole Act 2002, are ostensibly to bring down the sharp increase in the prison population. The Māori Party has brought to this House our consistent anger that this country is imprisoning in larger numbers than any other benchmarking nations, apart from the United States, young people who may be addicted or mentally ill, and who have limited education, and work and life skills. The crisis facing this nation stems from a 40 percent increase in the prison population in the last decade. It is a crisis that we have particular concern about in terms of the disproportionate and severe impact upon tangata whenua.

Just recently I sought a breakdown of the Maori prison population from 1875 through to 2005. Over that 130 years, the highest rate of Māori prison inmates was 55.3 of 10,000 people, in June 2005. Just 10 years earlier in 1995, the rate was just 33.6—so tell me there is no crisis! The overall growth rate of imprisonment between 2000 and 2005 was 21 percent. How bad is that! The nation is experiencing unprecedented and sustained growth in numbers incarcerated. Welcome to New Zealand—land of the locked up crowd; and that is increasingly becoming a brown crowd. The crisis has been fuelled by judicial sentencing patterns that reflect a public mood of hostility and intolerance in relation to criminal behaviour.

The Māori Party wants to see an active and rational debate about how we can decrease our over-reliance on the use of imprisonment as a response to crime. John Whitty, the National Director of New Zealand Prisoners Aid and Rehabilitation, has described restorative justice

The Department of Corrections currently estimates that each prisoner costs the State the grand sum of $161.91 per day inside. It may not sound very much, but add it up, and it comes to a total of $59,097 per year. So when we look at the rocketing rates of incarceration, we know we must act decisively now, in the social and economic interests of our future development as a nation.

We have greatly welcomed the initiative in this bill to establish a Sentencing Council that will issue guidelines on sentencing principles, levels, types, and the granting of parole. This is quite enough of a work programme for it to get started on, so we agree with the recommendation of the Justice and Electoral Committee, that the council should work on these areas, and leave the alterations of parliamentary procedure to the House to control.

It is, of course, an essential rule of law that the judiciary should retain its own integrity separate from the executive, and, accordingly, the setting of guidelines through House conventions and the Standing Orders is not something this Sentencing Council should do. What it should do, of course, is manage penal resources, but in a way that aims to dramatically reduce the incarceration rate, over time. The Māori Party has a particularly urgent interest in progress being achieved in this area.

In the year 2003, of those apprehended, prosecuted, and convicted, there were about four to five times as many Māori, and about twice as many Pasifika peoples, as Europeans. Of those given a custodial sentence, or serving prison sentences, there were six or seven times as many Māori, and three times as many Pasifika peoples. Of those remanded in custody awaiting trial, 11 times more were Māori.

One of the greatest understatements of all that I found in the “Programme of Action” taken from the Ministry of Justice website, is this: “Being Maori does not make a person an offender.”Incredible! An astounding discovery! This is cutting-edge policy here, folks!

Following that, was this one: “All in all, the criminal justice system needs to do far better at stemming the entry of Māori and Pacific peoples, and managing their exit.”Agreed. It is clear, the problem really is that one cannot really find it.

There is another section, which states: “The preparation of the proposals in this package, in particular as they affect Māori and Pacific peoples, has raised the possibility of systemic bias within the criminal justice sector; that is, unintended consequences of discretion at various stages in the criminal justice system, and unevenness of decision making.”

Hold on a minute here. We are talking about the justice system being biased, being unfair, being uneven, and that, as a consequence, the implications of consistency and fairness for Māori and Pacific peoples are identified as matters that must be investigated further. Do parties in this House have the intestinal fortitude, the courage, to have a good look at this bias, its origins, and the actors who apply and ensure that the bias continues, without ever being openly challenged? The Māori Party, for one, has, and I am sure our friends the Greens have, who will join us. The Māori Party believes that this bill is exactly the opportunity to be investigating further these charges of systemic bias. Why wait for another report?

There is another major injustice that this Bill could remedy, and that is the proposed new section 54H of the Sentencing Act, whereby the court can order the taking of prescription medicine, including psychiatric medical, or medical treatment. If consent is removed, the sentence can be varied or cancelled—having the effect of changing a non-custodial sentence to a custodial one. What all this means in practice is that mentally ill offenders have the choice between physical or chemical incarceration. Given the high correlation between mental illness, offending, and incarceration, it is important that inmates with mental health issues are treated exactly the same as anyone in the community with a mental illness.

We, the Māori Party, believe in justice being seen to be done, and that it is accessible to the multitude. We are also prepared to work with anyone who is willing to take up the challenge of working towards a society that will decrease the prison population, that will close prisons, that will stop believing that to move forward in this country means to lock up its people, and that is prepared to put an end to the bias in a system that to date has ensured that more and more Māori end up in jail. So we will be supporting the Criminal Justice Reform Bill at this second reading, because we hold great hopes that the Sentencing Council must address the implications of consistency and fairness for Māori and Pacific peoples as a key driver for its work.Greetings to us all.]

RON MARK (NZ First) : I rise on behalf of New Zealand First to indicate that at this point, the second reading, we support the Criminal Justice Reform Bill. I think we have made it clear along the way that although there has been, in the initial stages of formulation and production of this bill, some discussion with New Zealand First, particularly around issues such as community sentencing and home detention, we have not had a member on the Justice and Electoral Committee and we were not privy to the evidence that was presented or to the discussion that took place. I guess it would be fair to say that I will be listening with interest to Chris Finlayson, who has a pretty powerful reputation as a lawyer. At the outset, though, as I have already said to the National team, New Zealand First does not have a great deal of issue with the Sentencing Council.

But to go through and just recap on some of the things that have been said during this debate, let us be clear: we have had many people from the Government consistently parrot the line that crime is down. Reported crime—reported, that is, not the national victimisation statistics that say that crime is three times higher than that which is reported, and escalating—may well be down but violent crime is not. Violent crime, serious violent crime, is still rising, and New Zealand First takes exception to those members of the Government who would seek to minimise the discussion around crime by focusing on reported non-violent crime. It is the level of violent crime that we have in our community that dictates whether we have a safe community—and might I suggest that we do not.

Also, those people who continue to parrot from the Government benches that crime is down do so whilst turning an absolute blind eye to the youth crime statistics. Again, in this debate we have dealt with people saying that youth crime is no higher than adult crime. Well, New Zealand First has now gotten hold of and published the crime statistics from the Youth Court and from family group conferences and the results are horrendous. In some areas we are talking about a 63 percent increase over 3 years, yet Government members still parrot that youth crime is not climbing. I tell these people to wake up; forget the spin. Nobody is doing anybody in the community a favour by trying to hide the reality, by trying to hide the truth of the matter, and by minimising the effect that this unacceptable escalation in violent crime is having on ordinary New Zealanders. My mind turns immediately to a 90-year-old man bashed in a home invasion, and a 65-year-old lady left bleeding on the footpath by two youths who escaped on bicycles. As long as we continue to deny that we have a problem we will always have a problem, and it will only get worse.

I listened with interest to people saying that we have the most horrendous crime statistics, that the number of people incarcerated in our prisons is totally unacceptable, that it reflects badly on New Zealand, and that it has to be the driver for passing this law and getting the number of people in prison down. Well, New Zealand First would say if they are that keen on getting numbers in prison down, then they should let prisoners out—all done, finished—and bear the result of that. But that is not the answer.

The real problem, the real reason we have these unacceptably high numbers of people in prison, lies in the Government’s performance in the handling of prisons. We are sick of saying that if the Government does not like the number of people in prison, it should stop running pathetic prisons, stop running pathetic rehabilitation programmes, and stop ignoring the fact that 80 percent of the people in prison are there because of drug or alcohol-related issues. The Government should reinstate places like—oh, let me pick one—Queen Mary Hospital, the drug and alcohol rehabilitation centre in Hamner Springs. Who closed it? Labour closed it. Who closed it? Jim Anderton closed it. Who closed it? The Greens closed it, with their confidence and supply agreement in the last term. That is who closed it. And it was not just Queen Mary’s; it was all the drug and alcohol rehabilitation centres throughout the country that were delivering a fine services. But now we sit here and say: “Oh, we’ve got more people on DIC in jail.” Well, I say “Hello—wake up! It isn’t rocket science. My 9-year-old grandson will tell you that.”

If we do not run effective drug and alcohol rehabilitation courses and programmes in our prisons, then we should get ready to receive the same people back again—because they will be back there, and they are. If a member is Māori in this House, one thing is for sure—that member will have whānau in prison. That is it; we do, and we see the results. But do members want to know why we have so many people in prison? Let us talk about the two decades of not focusing on drug and alcohol rehabilitation, and now, only after we have had a bit of cross-party kōrero—Nandor Tanczos, myself, Pita Sharples, and a few others talking to Damien O’Connor—has the Government announced, is it a three-fold increase in drug and alcohol rehabilitation, I ask Mr Tanczos?

Nandor Tanczos: Yes.

RON MARK: Well, that is better—too late, but better. It should be doing more, but that is better than it was. Yet it is still not enough.

Do we want to talk about why we have so many people in prison? Let us try mental health services, folks. Twenty-two percent of the people in our prisons are there because they have mental health issues, and our mental health services consistently fail them. We could talk to the Burton family—to both the Burton families. We could go and talk to the victims of the Burton families. Well, we cannot talk to one of them because she is dead, and her husband and her family still mourn that. But do we see any great serious changes in mental health? No! The same few people who championed deinstitutionalisation as the bright new light on this nation’s future in handling our poor sick and mentally unwell—Labour’s Helen Clark, National’s Jenny Shipley—are still doing nothing, and the mentally ill are 22 percent of people in our prisons.

I tell the Government that if it wants to get the prison population down by 22 percent, it should reform some of its mental institutions, deliver better health services, and look after those people in the manner in which they are entitled to be looked after and in which their families who have paid taxes are entitled to see them looked after. Then the Government would watch the prison population drop. And here is the real rub: people who are in prison for reasons of mental health are probably likely not ever to go back again if they are treated and looked after appropriately—unlike the other lot.

Why else does the Government have so many people in prison? New Zealand First says we should nail the gangs—crush them, make gangs so unattractive that nobody wants to join, and cut off the supply of young people joining gangs. The Government should make being a member of a gang illegal. Government members should not tell me that other countries have not done that. Ireland has done it, Canada has done it, and the United States is doing it. Hong Kong has done it, Singapore has done it, and one does not see any gangs in China. There are still triers, but we do not see them on TV on the 6 o’clock news out there giving Sieg Heil salutes. But 25 to 30 percent of our inmates are gang members, so why would this House not crush gangs?

Does the Government want to get the population of prisons down by 25 percent? It should deal to gangs. Does this Government want to get the prison population down by 22 percent? It should deal to mental health. The reason we have people in prisons, and the reason prisons are bulging at the seams, is that we still fail to deal, whilst they are in prison the first time, with their fundamental health problems. Inmates go in there with eyesight problems and hearing problems. They cannot read, cannot learn, and were disenfranchised from schools. Does the Government want to get the prison population down? It should deal to truancy.

There is plenty more I could say but I have the nod for 2 more minutes so I will say that New Zealand First will watch and work through the discussion of this bill at the Committee stage with interest. We do not have such a serious problem over the proposed Sentencing Council. We welcome the changes to home detention, which is something we have campaigned on long and hard. We laugh at the changes to community service, because, you know, this Government passed the Sentencing and Parole Acts in 2002, and said that everything it would do in community work was right, and that repealing the periodic detention provisions was the right thing to do. But the Government was wrong. All those community officers and probation officers who have been tearing their hair out for the last—what—4 or 5 years have finally got some reprieve coming via this bill. How ridiculous is the situation when a person who has offended and then been convicted should themselves determine when they might do community service, and then suddenly find, with 30 days to go out of a 12-month period, they have not done it. They do not do it, and it gets remitted.

The Supplementary Order Paper in respect of the Criminal Justice Reform Bill, and its proposed amendments, which are specifically focused around the Burton case, are good—about time. But, hey, have not some people in this House been screaming about these things and saying parole is a privilege, not a right? And what have people done for the last 10 years? Well, unfortunately—and let us be clear about this—it has taken the death of a man for something to be done. I will say that again. This Government did nothing in terms of listening to what other people were saying until a man was killed. Well, the only question that now remains is how many more people will have to be killed before we get some more sensible law changes around here. I ask the Government just to put a figure on it—one, two, five? How about we just start working together on some of these issues, and start accepting that we do not have the franchise on intellect, we do not, individually or personally, have the franchise on what is right and what is wrong?

New Zealand First has taken part in some cross-party discussions with alternative parties in this House, and we are astounded at the things we share in common in terms of views, but we get to that point only by talking to each other and listening to each other. The parties who have yet to learn how to listen and how to talk are Labour and National, and we would welcome a change in their direction.

NANDOR TANCZOS (Green) : Let me begin by saying a word in support of both Te Ururoa Flavell and Ron Mark in relation to what they said about the problems in our prison system. I totally support the comments made about the excessive prisoner population figures we have in this country, and the scandal that Māori are disproportionately highly represented in those figures. I totally support the need for change.

Mr Flavell talked a lot about restorative justice, which is something the Green Party has supported, basically since we have been an independent Green Party. We think that that is something that shows real promise of addressing—at least in some cases; it is not appropriate in all cases—both the needs of victims and the problems of offenders in terms of finding ways to reduce offending. It is important to acknowledge that the way the sentencing guidelines in this bill are envisaged to work is that there is likely to be explicit recognition of restorative justice, because the bill sets out a process for establishing sentencing guidelines. The courts must adhere to those sentencing guidelines, except in certain cases, particularly when it is contrary to the interests of justice. One of those cases is likely to be explicitly stated, as where a restorative justice programme, or similar conferencing programme, has outlined an alternative approach. So it is good that, as I envisage it, there will be some express recognition of restorative justice.

It is also good that some progress is being made in the area of restorative justice. We discussed this with the Minister in the Justice and Electoral Committee just the other day in relation to the estimates, and we learnt of the work being done in terms of the certification of restorative justice facilitators, training, and best practice. All of that is most welcome, because these kinds of processes can work only if they have credibility. That means they have to be done properly, and be enforceable as well.

I also want to touch on Mr Mark’s comments, particularly in relation to drug addiction treatment and mental health issues in the prison population and among the offending population. I think he is spot-on with those comments. It is absolutely right that we have to get serious about addressing the things that lead to crime. If we do not start to get serious about things like early intervention, alcohol and other drug addictions, and mental health issues, then we will not be able to address those problems. It has always astounded me that we seem to have an open cheque book for building prisons but a very, very tight budget when it comes to keeping people from getting on the path to prison in the first place. That is to our shame and our detriment.

It is good that the Government has acknowledged that, and has in fact said that one of the motivating things behind this bill is a desire to start to address the burgeoning prison population. So the Green Party does support this bill. We are aware, also, that it is part of a greater package of measures, many of them non-legislative. They are policy and budgetary initiatives, and we support those. When we deal with these kinds of issues, we have to deal with them in a coherent way across legislation, policy, the Budget, and the like, and we welcome the Government’s moves in that regard.

I refer now to some of the specifics of the bill. Part 2 deals with sentencing issues. One of the things it does is establish a hierarchy of sentences and orders. That is most welcome. Section 10A, inserted by clause 37, sets out a hierarchy of sentences and orders from the least restrictive to the most restrictive. Subsection (2) states: “(a) discharge or order to come up for sentence if called on: (b) sentences of a fine and reparation: (c) community-based sentences of community work and supervision: (d) community-based sentences of intensive supervision and community detention: (e) sentence of home detention: (f) sentence of imprisonment.” I think it is the first time there has been such a clear schema for judges to look at when sentencing, so that they can see where, on that continuum, a particular case should sit. That will be most helpful and welcome.

The other thing particularly useful is that the legislation expands the tools available to the judiciary when sentencing. I have to say that I think imprisonment is a very blunt instrument. In a lot of cases it is counter-productive, and it seems to me that many of the people in prison actually should not be there. There are more effective ways of dealing with them. So anything like this measure, which increases the number of tools available to the judiciary and also increases the sophistication with which judges can apply sentences, is to be welcomed—particularly at the level below imprisonment.

One thing I am very pleased about is the new sentence of home detention. We have that option in this country, of course. As people are sentenced to imprisonment, they may be given leave to apply for home detention, and they may or may not get it. Sometimes it is given at the end of a sentence; sometimes it is a substitute. But we have not had home detention as a sentence in its own right. When we think about it, we realise that it is crazy we did not have that before. At the moment judges say whether a case is suitable for home detention, then the Parole Board is given the decision as to whether the person will get it. It is much more sensible that at the time of sentencing the judge looks at all the factors involved and tells the person that he or she will be sentenced to home detention. So this development is most welcome and, as I have said, the range of new kinds of sub-imprisonment sentences is very welcome.

One of the areas that has been talked about a lot is, of course, mental illness, as well as that of alcohol and drug addiction. The select committee looked at the special conditions a court may impose when applying various combinations of supervision or intensive supervision. It is important that in relation to any condition that requires an offender to take prescription medicine, or to take part in programmes, and the like—certainly in cases of medical intervention, and cases where prescription medication is involved, for example—there has to be a clear right to withdraw consent. Of course a withdrawal might result in a change of sentence, nevertheless there must be a right to have that. It is important that those kinds of conditions can be applied.

The other thing I will touch on briefly—because my time is now limited—is the Sentencing Council. The Green Party supports the introduction of a Sentencing Council. We are aware of some of the reservations of the National Party, and we approached the matter with some caution. But we think there are real issues, particularly around consistency of sentencing. This is true at the low end of sentencing in particular, because at the high end there is good guidance from the higher courts. Cases go to appeal and good guidance comes through, but at the lower end sentencing is wildly inconsistent. In fact, the select committee heard from judges who said that, in practice, some judges have already effectively established a sort of guideline for themselves in their own courts or among a few judges, and this bill makes this consistent nationwide. That allows for greater transparency around the process, and I think that that is welcome. Of course, we must learn from the UK experience—in particular, to do this in context. It should not be done piecemeal; we should do the bulk of it in one go so that there is some context and coherence to the whole schema.

The other thing is that judges must also have the ability to depart from those guidelines. Section 21A, inserted by clause 40, provides for that, and states: “a court must impose a sentence that is consistent with any sentencing guidelines … unless the court is satisfied that it would be contrary to the interests of justice to do so.” We know that according to judges, anything they say is in the interests of justice. Therefore, if they think that offenders should be sentenced to something else, they will consider it in the interests of justice to do that. So the legislation does leave quite a lot of scope still for flexibility. Nevertheless, the move towards coherency is useful.

Finally, I absolutely condemn the secrecy hearing provisions in terms of parole. It is unacceptable that people applying for parole, or their counsel, cannot hear charges made against them. That is absolutely unacceptable. It is modelled on Draconian, inappropriate, anti-terrorism legislation, and it is a fundamental assault on the principles of natural justice.

As well, I am very pleased to see the extension of the sunset clause on prisoners’ victims’ rights removed. The amendment to the Prisoners’ and Victims’ Claims Act is swept out of this bill with the excellent support of the National Party, and I thank my colleagues on the committee, particularly Chris Finlayson and Simon Power, for that.

RUSSELL FAIRBROTHER (Labour) : I have enjoyed listening to this debate on the Criminal Justice Reform Bill and I have enjoyed listening to my friend Ron Mark. I have to say that I am not sure that I can say that everything he says is wrong; I know I disagree with him, but I am not sure I can say he is wrong. Just as I can assert what my position is, he is entitled to disagree with me—and will disagree with me—but, again, he cannot do so based on any science. That is the difficulty with discussions on sentencing: we each come to the criminal justice system from an entirely different point of view.

My position is somewhat humble, with not much research, but I have appeared for perhaps over 10,000 people charged with criminal offences, and I have appeared on sentence of many of those people, and have appeared on sentence through to the appellate level. One thing I have learnt from that experience is that we have a very, very faulty system. It is inherent with human error and pseudo-science, and at the end of the day nobody really knows what the causes of criminality are.

I suggest that we are very cautious before we say that there are 22 percent or 25 percent of inmates with mental health problems, and that if we cured mental health problems, we would cure crime. There is a high percentage of people in the community with mental health problems who do not commit crime. Again, with the statistics for alcohol and drug use, there are equally high numbers in the community with alcohol and drug habits who do not commit crime. There are many in the community with literacy problems who do not commit crime. I think that when we look in good faith for reasons for criminal offending, it is often easy to pick on the symptoms of someone’s difficulties and to say that it explains his or her criminal offending. But the other half of the equation is that for every one of those persons, there are some other people in the community who have those same problems and who do not commit criminal offending.

I speak today in support of the Sentencing Council, having first of all been very reluctant and having been involved in my support because of a caucus decision thereon. I was very glad to get off the Justice and Electoral Committee before this Criminal Justice Reform Bill had to be considered, because I thought I would be a malcontent on that committee in dealing with issues of the Sentencing Council and likewise. However, I have thought long and hard on this issue, and before being prepared to take a call tonight, I had to reconcile with myself as to whether I would make a speech that was political and perhaps traditionally, from my point of view, lightweight or make one that reflected the many years of experience I have had in the courts, appearing for many, many people—many good people—appearing for sentence on terrible crimes.

If we can have a Sentencing Council that takes away from judges the pseudo-science on which they are forced to sentence at present, then I am all in favour of a Sentencing Council. There are about six basic tenets when a judge comes to consider sentence. I will not go through each of them, but none of them are justified by any science. Most of them are inherited from British common law, and they are repeated endlessly—such as deterrence.

At the very moment that a judge says that he or she is imposing a deterrent sentence the courtroom is empty, except for the police and the prosecutor, the accused, and the prison guards—the media are not there. The judge says that he or she must impose a deterrent sentence, the judge imposes a difficult sentence or tough sentence, and the prisoner is taken away. It is ridiculous to make such a comment, because no one knows that the sentence was passed, so it cannot be a deterrent sentence. However, it is the only pattern the judge has available to him or her, and that shows more a paucity in the sentencing process and the science behind it than it does with the people who choose to become judges and who take on the very difficult task of passing sentence.

One thing that I did learn from my time at the Bar is that very few, if any, judges enjoy the sentencing process. I have spoken with some considerable minds, who have been very highly regarded lawyers, and who have sat on difficult civil cases and difficult trials. They have said that the time of passing sentence has been the time that causes them the most sleeplessness and the most anguish, no matter how worthy or unworthy the accused person is. So I welcome a Sentencing Council, because the Sentencing Council may be able to build up a jurisprudence of science on which to base its recommendations to the courts and the judges as to the sentences that should be imposed.

At present there are guidelines for sentencing set down by our Court of Appeal, and these have built up over the years and they have been building up since the late 1970s. These guidelines impose very rigid requirements on lower court judges on sentence, but do they stop offending? No, they do not. Why do they not stop offending? It is because the Court of Appeal judges who impose the guidelines are frequently not experienced in the practice of criminal law, and they are faced for the first time in their lives when they go to the bench with people who commit very serious crime. Some of those judges are very experienced in criminal law. The judges have to go to an almost arithmetical pattern to determine what the appropriate sentence is. They do it by looking at various cases and trying to distil patterns from decided and sentenced cases, and then they reflect on what might be the public attitude and determine whether that pattern should be subject to an increase or sometimes—only occasionally—to a decrease.

This is not the way for a judge to operate. A judge is a representative of the community, but if a judge’s only access to what the community thinks is by the newspaper, the television, or the protest outside the court, then the judge is taking into the courtroom the very evidence that he or she would reject if witnesses appeared in his or her court using the same science to advance their case. So one of the inherent ironies is that we appoint very capable people to the bench, who are then given the impossible task of passing the right sentence with absolutely no informed support.

In fact, no judges call upon, and they are not able to call upon, academic research, when it comes to sentencing. Judges eschew hearing from specialists such as psychiatrists, psychologists, or sociologists as to a causative factor behind the offending, because they are so bound by precedent and judicial guidelines that are inherited and passed down that their range is very focused indeed. I have seen judges with a look of terror in their eyes at the press of public concern outside when they consider a sentence. I have seen sentences affected by the judge’s experience of pushing through a throng of people outside who want the blood of the person being sentenced. That is a human reaction, but judges should be protected from it.

Therefore, it is for all those reasons that I support a Sentencing Council. I do not think it is worthwhile quibbling about whether it could be seen to be a breakdown of the concept of the separation of powers; I do not really see how the logic follows on that. But if there is a risk of that occurring, then what we do gain is judges who can point to an informed body of opinion before passing a sentence. And if the sentence they pass proves to be ineffective, there is a review body that considers all the science in the community, in the academic community, and in the international community and comes forward to the bench or to Parliament with ideas for improvement.

Members can stand here in future and say that drug addiction is a cause of criminal offending—I am not convinced that it is; lots of drug addicts do not commit crimes. Or they can say that broken homes are a cause of criminal offending—I am not sure they are; I know a lot of people from broken homes who do not commit crimes. Or they can say that mental health issues are a cause of criminal offending—I am not convinced that is the case; I know a lot of people with mental health issues who do not commit crimes. These are all factors, but we can have a learned body of opinion that will enhance our community knowledge and our community. One day this Parliament may be able to debate the whole question of criminal justice based on fact and research rather than opinion and newspaper dialogue.

I am moved to ask myself what prisons are really for. I look at the statement of intent of our Department of Corrections, and one of its duties is to bring about rehabilitation. Members should think about just how illogical that is. We lock someone up in prison, we take that person out of his or her community, we take that person away from his or her family, and we stick that person in with other like-minded people for 24 hours a day, and all that person learns is how to behave in a criminal way. We put prisoners in the charge of prison officers—and I have acted for a lot of prison officers and I know them very well; they are very good people. But they are paid a menial wage, and they bring into the job skills that reflect the level of pay.

If we are going to rehabilitate prisoners in prison, we should have professors running our prisons, we should have academics running our prisons, we should have mentors who are well paid running our prisons, so that they impart real skills to prisoners. But we cannot rehabilitate somebody in isolation, because at the end of the day that person leaves prison and goes back to the same family and the same community that never had the advantage of the rehabilitative processes given to that person in prison. It is my view that we use the term “rehabilitation”, when we speak about prisons, to ease our conscience about not thinking the matter through and locking people up rather carelessly.

So I welcome the advent of the Sentencing Council. I think it is a tentative step to bringing our prisons back to being prisons, and our reformative process—habilitation and rehabilitation—back on to a scientific basis so we can bring about reform for those very many people who commit criminal offences but who can lead a different life. I would estimate that 90 percent of people who appear for sentence are capable of living lawful lives if they have the chance. Prison does not offer that chance, but community-based sentences such as the new home detention sentence will.

CHRISTOPHER FINLAYSON (National) : There are two issues I wish to address in this second reading speech. The first issue is as to the constitution of the Sentencing Council and the second issue relates to the proposed amendments proffered by the Minister of Justice, and, in particular, clause 83B, which introduces a new section 13AB.

But first let me look at the Sentencing Council, because, as Mr Power said, the National Party does have concerns about the proposed body. Mr Fairbrother and Mr Tanczos raised some very interesting issues in their speeches about the proposed Sentencing Council, and, in deference to them and out of respect for their views, I want to respond to some of them now.

Let me make it clear that there is no debate on the issue of the need to have greater consistency in sentencing. There have been differences in sentences passed in different parts of the country, in different District Courts, and we in the National Party acknowledge that the situation is unsatisfactory.

We also acknowledge that it is an inadequate answer to say that the Court of Appeal can, from time to time, issue guideline judgments. Certainly, that is what the Court of Appeal has done over the years, but it is an inadequate response to the problems facing the courts, because the Court of Appeal has issued guideline judgments only in some areas of the criminal law. In many areas of the criminal law some cases do not get to the Court of Appeal so that the Court of Appeal can give guideline judgments. Many cases, in fact, get no further than the District Court or, on occasion, the High Court on appeal from the District Court. In any event, and this is the third point, the Court of Appeal does not have the resources to do a comprehensive job on guideline judgments.

There is no debate about the need for a guidelines panel of some description. The real issue, and the one that concerns the National Party, is whether the model proposed in this legislation is the right one. National says it is not, because it compromises judicial independence. Let us be clear about this issue. It is not an arid or an academic constitutional argument. From time immemorial the separation of powers has been seen to be essential to our democracy, and this Parliament must zealously safeguard the separation of powers.

How could the council be improved? I think, quite easily. I refer to the Judicature Act 1908. The Sentencing Council could be a creature of the judiciary, just like the Rules Committee of the High Court. That body has a diverse membership. The members are appointed at the pleasure of the Chief Justice. The membership set out in the Rules Committee would be too narrow a membership for a Sentencing Council. One could have essentially the same people serving on a Sentencing Council, but the body itself, rather than being a mishmash of the judiciary and the executive, would be a creature of the judiciary. What is wrong with this model? What we heard from both Mr Tanczos and Mr Fairbrother was a discussion at a high level of abstraction, but it is necessary—and we will go into greater detail when we come to the Committee stage—to look at clauses 9 and 10.

Clause 9 sets out the purposes of the council, and National has no problem at all with clause 9(a), which says that one of the purposes of the council is to “promote consistency in sentencing practice between different courts and Judges:”. We say that is absolutely correct. That is the key provision and that is a legitimate purpose for members of the judiciary to be involved. But when one looks at paragraphs (b), (c), and (d), one sees purposes that are illegitimate for the judiciary. It is not for the judiciary, for example, to take steps “to enable the development of sentencing and parole policy to be based on a broad range of experience and expertise:”, or “to inform members of Parliament and policymakers about sentencing and parole practice …”. These are properly the functions of the executive.

Then one looks at the functions of the council. I would ask Messrs Tanczos and Fairbrother, before the Committee stage, to take a good look at this clause. Clause 10(1) is a legitimate function for a body involving the judiciary—to produce guidelines relating to sentencing principles, sentencing levels, and so on. But it is not for the judiciary to do some of the other things that are set out in that clause. To provide a statement of the guidelines’ likely effect on the prison population is not for the judiciary; nor is it for the judiciary to give advice on sentencing and parole, to collate information on sentencing practice, to collate information on parole decisions, or to provide information to the public about sentencing and parole. These are not legitimate functions of the judiciary. These are the clear responsibilities of the executive.

That there is a conflict, or at least a potential conflict, is hinted at in clause 3(2) of schedule 1, which states: “A judicial member may, at any time, decline to participate in, or withdraw from participation in, any particular function or activity of the Council if the Judge considers it incompatible with his or her judicial office.” So we face the possibly farcical prospect of judicial members walking in and out of meetings of the council, depending on the nature of the issues, and leaving lay members of the council to get on with the business. In my submission it is best to recognise that there is an inherent conflict in the nature of the judge and the Sentencing Council.

Let us look also at clause 40, which we will consider in greater detail when we reach the Committee stage, probably tomorrow. That clause sets out a proposed change to section 21A of the Sentencing Act, and states that the court must adhere to sentencing guidelines. That is quite different from the English legislation, which provides that the judge must have regard to the sentencing guidelines. Sentencing, as Mr Fairbrother said, involves more than the judge robotically applying guidelines, like some kind of nodding automaton. A sentence will depend, obviously, on the law, the guidelines, the facts of the particular case, and any other relevant information, such as the matters referred to by Mr Fairbrother. If we are to have a Sentencing Council, and if the judges must adhere to the sentencing guidelines, one wonders why we simply do not have computers to deal with sentences, under the new regime.

In the National Party’s view there are two distinct functions of the new council: producing guidelines for the judiciary, which is a legitimate function for judicial involvement; and providing advice to the executive, which is not a legitimate function for the judiciary. As I say, the distinction between the judiciary and the executive must be zealously safeguarded. So that is where the House is going to divide.

The second point, and it was touched on by Mr Tanczos, relates to the application for the confidentiality order. We are a little bit concerned about this proposal, because there are some circumstances where a confidentiality order may be applied for and the information may not be provided to the offender—that is obvious, and that is fair enough—or to the offender’s counsel or other representative of the offender. I have a niggle with that because it seems to me that if a person is a solicitor or counsel for the offender, then it will be a very extreme situation when that person should not be entitled to look at information, bearing in mind that person’s oath to the court as an officer of the court, and the consequences of breaching any order.

I do not know that adequate safeguards are set out in this proposed section. I refer members to the situation that applies in a civil case, where one can apply for an ex parte order, and before doing so the person who applies must sign a certificate saying that the application complies with rules of court, and that there is a proper basis for the making of such an order. I think there should be opportunities in the Committee stage to tighten up this kind of situation. I can conceive of situations where confidentiality orders may be necessary, but I think the mode of application should be toughened up considerably.

CHESTER BORROWS (National—Whanganui) : What I find frustrating about this bill is that although parts of it have the ability to make some significant gains in some areas, others detract from the history and, some of the lawyers in the House would say, the sanctity of our judicial system.

National had to make a decision about what its priorities were in considering this in the light of the Labour members of the Justice and Electoral Committee being unwilling to allow a separation of the Sentencing Council provisions. National’s caucus intends to vote against the bill because of the constitutional conflicts that will be inflicted on our judicial system and the tier of Government that will come about from the creation of the Sentencing Council. Creating the Sentencing Council is an example of the Government not taking responsibility, we believe. As my colleague Simon Power has said in the past, it is making another “district health board” for the Government to hide behind. It removes from judges the ability to be creative and to address local or specific uniqueness as to offending that is happening within their area.

I think of a local situation in Taranaki, where two of our local judges have been innovative in creating a beast called a remand contract. What this means is that somebody who is appearing for sentencing and who is likely to go to jail because of some past offending or some trend in offending that has been continuing for some time, signs a remand contract and goes and does something else in the meantime, and that is related to attending some basic training in the army. Upon the person returning to the court having completed that basic training and providing a report and a completed certificate of the level of participation, the judges, if the report is satisfactory, have been convicting and discharging. So the person who has attended a period of creative incarceration and has done some of what we would call hard labour and has mixed with some people with different values and aspirations, has been given the opportunity to cut a different track.

Such a creative response, for what is generally a young person but in some cases is a slightly older person, as an alternative to jail may well not be accounted for within the Sentencing Council’s recommendations. I feel that any move to constrict a judge’s ability to be creative and innovative with respective sentencing to address some local prevalence in offending, is a detraction from the system we have now.

The Government needs to explain how the Sentencing Council takes account of the place of Parliament in the hierarchical tier of the separation of powers between the Parliament at the top, the executive in the middle, and the judiciary at the bottom. If the Government says it has devolved or delegated the power to the Sentencing Council, then it must explain clearly why such a serious step becomes a priority when there are certainly other priorities within the judicial system to be concerned about. The corrections portfolio is worthy of attention, for sure.

Another matter worthy of explanation is the effect that the lengthening of non-parole periods will have on the tariff of sentences. It has been made clear that in lengthening the non-parole period, the overall sentences would have to come down. One example is that in the case of a person sentenced to an extended term of imprisonment on, say, a rape charge, for which the maximum sentence has only relatively recently been extended from 14 years to 20 years, the sentence would come back to 15 years. That is a reduction of the maximum sentence by 25 percent, and that will reduce the tariff, and even an upper-end sentence will have the offender eligible for parole after serving what is the minimum sentence at the moment. That seems completely ridiculous.

The provision creating a new extended definition of a person under supervision has the ability to protract the victimisation of victims of crimes by requiring their attendance at hearings. It is good that the National Party and the Greens, the balance of the committee, were able to have this provision removed.

At the Law and Order Committee we heard the terrible story of the mother of a victim of murder. The particular murder involved six offenders. Because of the provisions the Government created just a few years ago to reduce the non-parole period to a third, and given the length of time the offender had spent in prison on remand, that poor mother was attending parole applications within about 18 months of the trial and has continued to do so, year after year. As this situation is multiplied by six offenders, and as she feels a duty to her dead son, it is effectively very cruel that she has to keep on appearing at those hearings, yet it is a process she feels she has to complete. That forces her, again, to appear in person to make a claim against the compensation paid to a prisoner, and that, I think, is difficult and unfair, and the National Party agrees. Just as progress was being made towards recovery by way of a planned holiday or a family celebration, the notification of yet another parole hearing would shove that recovery back further. So we are pleased that that provision is gone.

The National Party will be voting against this bill because of the severity of terms around the Sentencing Council. National believes that the duty of deciding maximum penalties and giving instruction or a steer towards the judiciary is in fact the role of Parliament. That role should not be abrogated by creating a Sentencing Council. When sentences handed down appear to be insufficient and the public starts to protest, that provision allows the Government to hide behind the Sentencing Council rather than take responsibility for the recommendations and guidelines created by that Sentencing Council. National believe we will see exactly the same situation we have seen in the health portfolio, where the Government has held the outcome at arm’s length and hidden behind another body.

METIRIA TUREI (Green) : The Green Party has some amendments on the Table—on Supplementary Order Paper 118 in my name. We are proposing to amend clause 10 of this bill. The two amendments we seek to make are to add as an exception, if you like, to the current age-limit requirement for making a will in this legislation a person under 18 who has a dependent child or dependent children. We think that young people who have taken on responsibilities as an adult should be entitled to the full legal protection, rights, and responsibilities of adults.

In the circumstances of the legislation there are some exceptions to the 18-year-old rule. I have talked to the officials about that, and they accept and understand that using the age of 18 as an indication of adulthood is a very blunt instrument for doing so. There is significant legislation in overseas jurisdictions, most classically from England—the Gillick case; those kinds of things—that shows that the age of maturity is a developmental stage and differs for each young person. But for the purposes of legislation, age is often the only really useful tool, so that is why the age-limit is set at 18 in this bill. But there are exceptions to that in the legislation, and those exceptions include situations where a young person has entered into a civil union, a marriage, or a de facto relationship. The key issue here is that all three of those states require third-party agreement to those young people being able to enter into them. A person under 18 cannot marry without parental consent or the consent of the Family Court, and it is the same for de facto relationships and for civil unions.

So the principle in the bill is that those under 18 still have to have some form of third-party consent to the state that gives them the exception that enables them to be able to make a will. I can understand the point of that—I really do. But there are some situations where young people find themselves members of the adult community and they have not needed consent. The most obvious example is when they have a child. They do not have to have consent to have sex, frankly, and sex often leads to the consequence—as many of us know—of having children. That state of affairs does not require third-party consent, it does not require a Family Court to agree, and it does not require the parents to agree—in fact, it is often completely without the parents’ agreement, but none the less it does happen.

Surely, when young people find themselves in the situation, entirely within the bounds of the law—totally lawfully—of having a dependent child or dependent children, they are then expected by the rest of the community to take on the responsibilities of adulthood. They are expected to raise their children properly, to find ways of supporting those children, and to make sure those children are properly fed and cared for, are educated, and have good, healthy lives. Sometimes they need support in order to do that—many of them do it successfully without support—but they are members of the adult community from that point on. Surely, as far as we can within the law, and knowing that we have to use many blunt instruments in order to put in place these kinds of principles, we should accept and understand that young people who have children in those circumstances are members of the adult community and are therefore entitled to the full responsibilities and rights of adults.

It is certainly true that the child of a young person who dies intestate inherits that young person’s property. So this provision is not necessarily about just protecting the baby’s entitlement to inherit from his or her parent; that does happen as part of the process of law. But the young person may want to make other dispositions about his or her property—other dispositions to other members of the family—or may have other concerns about his or her property. A young person may have significant amounts of property. It is certainly true that many young people are working a lot at the moment in order to protect themselves against the difficulty of student loans—that is something we have discovered recently. So young people sometimes have quite reasonable amounts of property, and certainly as parents they will have property, interests, and concerns that they want to take care of in a will. Surely, making a will is such a state of responsibility, and such an indication of a person taking responsibility for his or her life, that those young people who are in a situation where they have children should be entitled to take that step.

I urge members to support this amendment.

CHRISTOPHER FINLAYSON (National) : I reflected long and hard on Supplementary Order Paper 118 proposed by the honourable member Metiria Turei, and I am loathe to disagree with her because I think she makes some very good points. The difficulty I have with her proposal, particularly in relation to the proposed change to clause 10(2), is that what she says makes a lot of sense in relation to a 16 or 17-year-old, but what about a 12 or 13-year-old? Can one honestly say that in those circumstances where a 12 or 13-year-old has a child that, as of right, that person will be able to understand the effect of making a will? I do not have confidence that that would be the case.

So although one has to agree with the honourable member that the age of 18 years is an artificial line in the sand, as it were, in my opinion probably the best way of dealing with it is to leave the legislation as it is so that a person under 18 years may make, change, revoke, and revive a will in the circumstances set out in that clause without the need for Family Court approval or a Family Court order. But in the circumstances that have been described by the honourable member, if someone is under the age of 18 years then the safeguards set out in subclause (4) of clause 10 should continue to apply. It could well be that over the years we will come to look at the age of 18 years and say “Well, that was too old.”, but for the moment the National Party considers that the legislation, as framed, has probably got it right.

I want to make a couple of other points, and they relate in particular to Subpart 3, “Military or seagoing persons”. I wonder whether the legislation is consistent and whether it is necessary to make a couple of changes for the sake of consistency. Let us have a quick look at them, and then perhaps the Minister could advise whether I am making something out of nothing.

The first relates to clause 33(2), which talks in the language of informal testamentary actions, and it relates in particular to members of the armed services making, changing, revoking, or reviving wills. As one can see from clause 6, we struck out the term “testamentary action”, because we thought that saying someone would be doing a testamentary action was a little bit convoluted and why not speak plain English and say “making, changing, revoking, or reviving a will”. Yet we have kept that term “testamentary action” in relation to military or seagoing persons. I think it is much better to express clause 34 in terms of “Military or seagoing persons may make, change, revoke, and revive wills informally”, rather than “Military or seagoing persons may do informal testamentary actions”.

Some consequential changes would also be needed to clause 35, “Oral informal testamentary actions”, because surely to goodness that can be expressed in slightly simpler terms. Clause 36, “Proof of informal testamentary actions”, would need to change. I refer members of the Committee to clause 37, because in clause 37(1)(b) we have both expressions. Members will see that the phrase to “do a testamentary action” has been deleted and instead we have—rightly so, in my submission—“make, change, revoke, or revive a will”, yet we still have this idea of informal testamentary action. I think that should be tidied up and I invite the member to make a couple of comments.

The second point—and maybe it is a reflection of the fact that this legislation has been hanging around for some time, but I do think it needs to be tidied up—concerns the schedule and consequential amendments to the schedule. A reference is made to the Evidence Amendment Act 1980 (No 2), omitting from it subsection (2) of section 12 and substituting: “(2) The statement is not admissible to prove that the requirements of the Wills Act 2006”—it will be 2007—“or the Wills Act 1837 of the United Kingdom Parliament have been satisfied.” I have hunted high and low in the Evidence Act 2006 for the equivalent provision. I do not know that it is there, but certainly this reference to the Evidence Amendment Act 1980 (No 2), which is shortly to be repealed, needs to be changed. So I invite the Minister’s comments on that.

Hon RICK BARKER (Minister of Internal Affairs) : I will consult with my officials shortly and come back with some comments on the Evidence Amendment Act (No 2) 1980, about which the member Christopher Finlayson made a very good point.

I will respond briefly to Metiria Turei and her Supplementary Order Paper 118. I make the comment that this issue was raised by a number of submitters to the Justice and Electoral Committee. The Ministry of Justice considered the submissions and made recommendations to the select committee that the bill stay as it is and that the submissions be rejected. That recommendation was made for a number of reasons. Firstly, it is accepted that it is a rather crude measure to set an age as a proxy for maturity, but that is what has been done. It is consistent throughout the legislation, and it is consistent with other legislation such as the contractual capacity of minors under the Minors’ Contracts Act 1969 and the second-hand brokers legislation. It is also consistent with the law relating to minors who wish to get married, to have a civil union, or to get into other relationships. The consent and support of a third party is required. The same regime is being suggested in this bill for people who wish to make wills.

I accept the member’s point that we need to consider people under the age of 18. The legislation does that. It does not prohibit people from making a will; it simply puts them on the same basis as other statutes. I know that one could argue that consistency is the last refuge of a fool, but consistency does have its positive attributes from time to time, and I think this is one of those occasions when some form of consistency is a positive.

Dr RICHARD WORTH (National) : Part 2 of the Wills Act has a number of subparts. The subpart I want to deal with in particular is Subpart 1, “Making, changing, revoking, and reviving wills”. This particular subpart, which deals with formal issues, was the subject of detailed comment by the Law Commission. It is the Law Commission’s report of October 1997 that finds expression in this legislation that is currently before us.

The requirements for the validity of wills are set in clause 11. In summary, they are that a will must be in writing; a will must be signed and witnessed; and the will-maker must sign the document or acknowledge that a person directed by the will-maker signed the document in the will-maker’s presence. That latter possibility deals with the issue of amanuensis, when there is a blind testator—a blind will-maker. At least two witnesses must be together in the will-maker’s presence when the will-maker signs the will. Each of those witnesses must state on the document, in the will-maker’s presence, that the witness was present when the will-maker complied with the provisions. Each witness must sign the document in the will-maker’s presence. These are very strict formal requirements; they are very old requirements. They are requirements that originally had a basis in seeking to limit, to the greatest extent possible, the fraudulent execution of wills.

It is one of the few areas of the law where many people who are not lawyers feel confident in making their own wills. Indeed, there is a flourishing business in selling home-made wills. A number of legal stationers will provide—on payment of a small fee—an appropriate form for a will, and then leave it to the will-maker to do what he or she thinks appropriate. These documents often create significant problems when the testator dies and the will is considered in the harsh light of the legal requirements.

There was a discussion by the Law Commission on these formal issues. The Commission saw it as critical that the provisions I have just touched on be maintained—that is, that a will should be signed or acknowledged in the presence of two witnesses together at the same time, each of whom signs in the presence of the testator. There were two main purposes behind that requirement. One was cautionary: to help the will-maker appreciate that the document being solemnly signed, if left unchanged, will, when the will-maker dies, determine who gets the will-maker’s property. The other main purpose was probative, as I have said, to ensure that what is put forward after the death of the will-maker is in fact a genuine expression of the testator’s testamentary intentions.

There were many traps associated with the execution of wills. Probably the most common was a circumstance where the will provided for a particular person to take an asset under the estate of the deceased, and that person had witnessed the will. In that circumstance, the disposition was void. So a witness seeking to be helpful to a will-maker might well find himself or herself cut out of the bounty that would otherwise have flowed to him or her, by dint of being a witness to the particular will.

The legislation does make some changes to the strict formal requirements. They are basically premised in this way: first, there does not seem to be a reason why the formalities should not be dispensed with if the testator’s intention that the document should operate as a will can be established by other means. That is directly relevant to the issue of home-made wills. Similarly, the court should be able to uphold a disposition to an interested witness—that is, a person who would take under the will—if satisfied that the testator intended the provision freely and voluntarily. Finally, if the testator had the necessary will-making intention, it should no longer be essential that his or her signature be at the foot, or the end, of the will. That is why, running on from clause 11, there are these specific provisions relating to witnesses and witnesses affected by dispositions made to them.

METIRIA TUREI (Green) : I will be brief. I want to thank both the Minister in the chair, Rick Barker, and Chris Finlayson for their comments on my amendment. I will refer briefly to Chris Finlayson’s point about 12 and 13-year-olds. Although his point is a bit understandable, it is not a good justification for opposing my amendment in and of itself. The circumstances in which 12 and 13-year-olds find themselves with dependent children are extremely rare, even in this country, and those very, very exceptional cases should not be sufficient justification to deny those 16 and 17-year-olds—who do have children more often than 12 and 13-year-olds—the chance to be legally part of the adult community.

The fact is that large numbers of young people still have children very early. It does affect Māori and, I think, Pacific young people—but particularly Māori—in terms of having children younger than the Pākehā population. So there is an issue here. There is a reasonable number of 16 and 17-year-olds having children who now still will not have the legal entitlement to make a will, and I do not think that it is justifiable to say that because 12 and 13-year-olds may, in very rare circumstances, find themselves in that position, that is justification for denying that other population from having this right.

I understand where the Minister is coming from with his comments about the amendment. I do note that there is an additional area of exceptions for the age 18 limit, which is around those people who are involved in the armed forces—those on operational service or going out as seafarers. Again, it is an example of the recognition that sometimes people under 18 have jobs that have significant responsibilities. They are undertaking significant responsibilities and they should then be able to have the responsibility, in law, of making a will. I do not think it is unreasonable to recommend that young people—16 and 17-year-olds—who have to be responsible for their families should be denied that opportunity.

I sat in on a number of the submissions on this bill, and on some of the consideration, and I thought the submissions were very good. The changes the select committee has made to the legislation have been very good, and we generally support the bill in its form. We think a very good job was done on it. But there is just this one area where I think the community is starting to accept more that young people have the right to be engaged in their world and legally recognised for that engagement.

I think Parliament needs to come to terms with its role in making sure there is equity among young people so that we do support their engagement and we do support their efforts to be involved in the wider world and their understanding of the legal rights and responsibilities they have, as a form of supporting and encouraging them to be included in the civic life of their community, as well. If this is one small way in which we can demonstrate that as a Parliament, I think it would be a very good thing, and I hope at least some members will support this amendment. Thank you.

KATE WILKINSON (National) : I am pleased to take a call on Part 2. I would just like to preface what I have to say by saying I am mindful that perhaps this bill runs the risk, while trying to simplify the law of wills, of actually ending up making it much more complicated, potentially more litigious, and more uncertain. The bill has changed terms that have long since been interpreted, defined, and decided on by the courts, and it introduces new terms that have yet to be tested, which may appear simple but may also end up being ambiguous, uncertain, and the subject of litigation.

With that in mind, I would like to draw the attention of the Committee to just a couple of the clauses in the bill, and I would ask the Minister to take a call to clarify what I think are reasonably valid queries. The first one is in relation to clause 12, “Witnesses”. Clause 12(1) states: “The person appointed as executor of a will may witness the will.”, and that is fine, but it does not actually say who can be a witness. So there is no age-limit for who can be a witness. A 16-year-old child with a child cannot make a will, but that person can actually be a witness to a will, and that seems to be something of an inconsistency. Under the old law—if one would like to call it that—the age used to be 18, and that seems to have been omitted from this provision.

The other issue about witnesses, and I know it seems trivial—I have been called a pedantic lawyer in the past—is that there are some dispositions that under clause 13 would be void if the disposition was to a witness, but there is nothing about whether a trustee can be a witness. A trustee can have control of trust property for up to 80 years, but there is certainly no exclusion from a trustee being a witness to a will, and I wonder whether that might lead to some unintended consequence. I would like the Minister perhaps to take a call on that, or seek some advice on the actual definition and the ability or capacity of witnesses.

To go further, I will make a comment in relation to how a will can be changed. I find it a bit demeaning that one’s last will and testament can be changed by describing something in a note. As long as it is in a note and witnessed, then that can end up being one’s last will and testament. Perhaps I am old-fashioned, but to me the formality of having a will or a codicil makes one think about what one’s last intentions are. To have it described as a note is, I think, a wee bit demeaning of the importance of what is being executed here.

The final point I will make is in relation to the revocation of a will. Clause 16 provides how a valid will, or part of a valid will, may be revoked, whether it is by a later will, a document in which the will-maker “makes it clear his or her intention to revoke the will”, or the “will-maker marries or enters a civil union”. The old law always used to be—and I used to have issues with this when I was in practice—that a will was not revoked on dissolution or divorce, or whatever one wants to call it. Often one would find couples, 2 years after their divorce or dissolution, thinking their house was in order and suddenly realising that they still had a valid will that left all their worldly possessions to their estranged spouse who still was not on the Christmas card list. So it can actually lead to some consequences not necessarily intended by the testator or the will-maker.

I notice that there is a provision in clause19, “Effect on will of will-maker’s marriage or civil union ending”. In a sense that covers a wee bit of that, but it does not cover a situation where the estranged or divorced spouse were intended to inherit, or if it were intended that that spouse still be the trustee—there is no provision for allowing that exclusion. I would appreciate the Minister taking a call on those two points, which I think are important.

CHRIS AUCHINVOLE (National) : I rise to speak largely on the proposed amendment to Part 2 of the Wills Bill. I guess I would like to say at the outset that to make yet another exception to clause 10 could defeat, to my mind, the real purpose of the member’s amendment, which would be—and this was touched on by almost all of the speakers—to seek a review of whether 18 is an appropriate age at which to consider people to be adults. I encourage the member to press for the wider consideration of that issue rather than to make an exception in this case. In my experience, in all sorts of fields, if one makes exceptions, that just goes on forever until it eventually can become a rule to make an exception.

To speak on the matter of ages as it refers to wills, I say the making of a will is a low-risk activity, and most laws that do not allow young people opportunities to do things that adults are able to do are intended to protect the child from harm. Here there should be no great harm attached. It is hard to see what harm can result from making a will, and one could be forgiven for being at a bit of a loss to understand why we have an age restriction on the legality of a will.

That restriction is all to do, though, with property, and with property comes all sorts of desires and intentions and also a need to protect the vulnerable. Wills relate to possessions, and most people are pretty aware of what their possessions are. If one has a possession, I think it is reasonable that one has the disposal of that possession as part of the entitlement that goes with it. Possessions and the ethics surrounding them are, to varying degrees, common to all cultures and people. I have had the opportunity to travel extensively in many different cultures, particularly throughout the South Pacific, during my time as an exporter and a Pacific trader. Cultural differences are huge between the various societies—

Hon Rick Barker: Very irrelevant.

CHRIS AUCHINVOLE: —I thank the Minister—but concepts of ethics, justice, possessions, right and wrong, and theft are common to them all. If a person owns something, no one else has the rights to it without compensation—and possession is not really something that is fixed by age, in my experience.

All that being so, we can talk about clause 10, which fixes the age at which a young person can make a valid will, as my colleague Mr Finlayson has already pointed out. Currently in New Zealand a person under the age of 18 cannot make a valid will on his or her own. An exception is made for a person under 18 who is married, in a civil union, in a de facto relationship, or in the armed forces. The incapacity of under-18s to make a valid will reflects the English common law, which treats children below that age of majority as being under the “disability of infancy”. That means that they do not qualify for civil law rights enjoyed by adults. We heard the member mention the Gillick principle, which has been followed by courts in New Zealand and Australia, but that does not override statutory provisions.

One of the interesting things we get to is the discussion of the unintended consequences of some of the legislation we produce, and I guess that one could say “Here we go again.” Under-18s can make a valid will if they are, or have been, married, in a civil union, or in a de facto relationship.

• Progress reported.

• Report adopted.