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House of Representatives
19 June 2007
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Criminal Justice Reform Bill — Second Reading


Criminal Justice Reform Bill

Second Reading

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.

A party vote was called for on the question, That the amendments recommended by the Justice and Electoral Committee by majority be agreed to.

Ayes 70 New Zealand Labour 49; New Zealand First 7; Green Party 6; Māori Party 4; United Future 2; Progressive 1; Independent: Field.
Noes 51 New Zealand National 48; ACT New Zealand 2; Independent: Copeland.
Question agreed to.

A party vote was called for on the question, That the Criminal Justice Reform Bill be now read a second time.

Ayes 70 New Zealand Labour 49; New Zealand First 7; Green Party 6; Māori Party 4; United Future 2; Progressive 1; Independent: Field.
Noes 51 New Zealand National 48; ACT New Zealand 2; Independent: Copeland.
Bill read a second time.