Hon CHRISTOPHER FINLAYSON (Attorney-General) on behalf of the
Minister of Justice: I move,
That the Bail Amendment Bill be now read a first time. I nominate that the bill be referred to the Law and Order Committee for consideration. This bill makes a series of improvements to bail laws to improve public safety and ensure the overall integrity of New Zealand’s bail system. The changes will make it harder for those accused of serious offences to get bail. When this Government took office we made a promise to review all aspects of the bail system, and we started by reversing Labour’s 2007 amendments that made it easier for defendants to get bail. In 2011 we released a consultation document seeking the public’s views on what else needed to change. This bill makes the changes that are necessary to improve the operation of the bail system. We want to ensure that bail decisions strike the right balance between keeping the public safe and maintaining fundamental criminal process rights, such as the presumption of innocence and freedom from arbitrary detention.
The changes in the bill fall into six categories. First, the set of changes reverses the burden of proof in certain bail decisions to target defendants charged with the worst offences and those with the highest risk of offending while on bail. In most cases, the prosecutor is responsible to prove that a defendant should not get bail. A reverse burden of proof means that the defendant must instead prove that he or she should be granted bail. The bill imposes a reverse burden of proof on defendants charged with murder, recognising the extremely serious nature of such a charge. These defendants will need to satisfy the court that they will not commit any violent offences while on bail, and public safety will be the court’s primary consideration in such cases.
The bill also extends the list of offences that qualify a defendant to be subject to a reverse burden of proof when the defendant has a similar previous conviction. In addition to the offences that already qualify, such as sexual violation and aggravated robbery, the following offences will also now qualify: kidnapping, including abduction for the purposes of marriage or sexual connection; aggravated burglary; assault with intent to rob; and sexual conduct with a child under 12 years or a young person under 16 years.
Secondly, the bill improves the court’s ability to deal with defendants who are charged with serious drug offences. Currently, one-third of defendants charged with class A drug offences offend while on bail. Those defendants will now be subject to a reverse burden of proof in bail decisions. The bill also removes impractical and unnecessary limits on the District Court’s jurisdiction to deal with the bail for defendants charged with drug offences. At present, certain decisions about bail must go to the High Court, regardless of which court will eventually conduct the defendant’s trial. There is no reason why these decisions could not be made in the District Court, along with the rest of the defendant’s case.
Thirdly, the bill strengthens the ability of police and courts to deal with young defendants on bail. There is currently a strong presumption in favour of bail for defendants aged 17 to 19 years. The bill removes the presumption for those who have previously been in prison, as this group shows an extraordinarily high rate of offending on bail. This means that 17 to 19-year-olds who have previously been in prison will now be subject to the standard adult tests for bail. To ensure that bail is taken seriously by young defendants, the bill also gives police new powers to deal with defendants under 17 years of age who breach their bail conditions. Police advise that they have difficulty, at present, enforcing the bail conditions of some of these young people. These defendants are often aware of the difficulties faced by police, and therefore treat
their bail conditions with indifference. This increases their risk of offending on bail, and also undermines the authority of the police and our justice system.
The bill will enable police to uplift and return home any young defendant found in breach of a bail curfew. Police will also be able to arrest a young defendant without first seeking a warrant from the court. This new power will be used sparingly, and is targeted at those young defendants who repeatedly or significantly breach their bail conditions. After arrest, police will have to bring the defendant before the court within 24 hours. The court will be able to order the detention of a defendant under 17 years old who has repeatedly or significantly breached their bail and is likely to continue to do so.
The fourth significant group of changes are to police bail. This is bail granted by police before the defendant appears in court for the first time. The penalty for failure to answer police bail is increased, so that the offence is punishable by up to 3 months’ imprisonment in addition to the existing maximum fine of up to $1,000. This brings the penalty into line with penalties for similar offences, and gives the court a wider range of options for dealing with defendants who fail to appear in court when required. The bill also abolishes monetary bonds and sureties for defendants on police bail. These bonds and sureties are not available in the District Court. They were seldom, if ever, used by police, because they are very difficult to enforce.
The fifth group of changes legislates the use of electronically monitored, or EM, bail. Since 2006 the courts have been able to impose electronic monitoring as a condition of bail. The Government has reviewed electronically monitored bail, and it appears to be an effective and safe way of managing defendants in the community. However, we believe that it is important that we have legislation that specifically covers this type of bail condition, thereby ensuring that the regime will continue to be administered consistently and effectively across the country. The legislation will ensure that courts have all relevant information about the suitability of the defendant for electronically monitored bail, as police will be required to submit a report to the court before electronically monitored bail can be granted. Courts will be required to consider any history of violence between the defendant and the occupants of the electronically monitored bail residence, to avoid this type of bail being granted inappropriately—for example, in domestic violence situations. The bill will also ensure that time spent on this form of bail is taken into account in a consistent way if and when a defendant is sentenced.
The final set of changes promotes the integrity and operational effectiveness of the bail system. The bill makes it clear that bail should not be granted in return for information. Under this Government, public safety is paramount, and it will not be compromised. The bill also reduces situations where a defendant will be bailable as of right, which means the court has no option but to release a defendant on bail.
Finally, the bill restores the jurisdiction of justices of the peace and community magistrates to deal with certain defendants who breach bail. This jurisdiction was unintentionally reduced when the Criminal Procedure Act was passed last year.
The Government is committed to bail laws that make New Zealand a safer place and keep victims at the heart of our criminal justice system. This bill reinforces our commitment. The New Zealand public deserve bail laws that protect them. The Government recognises that a person charged with a crime has the right to be considered innocent until proven guilty, and the right not to be arbitrarily detained. However, these rights must be balanced against the safety of the public. This bill helps get that balance right. I commend the bill to the House.
Hon PHIL GOFF (Labour—Mt Roskill)
: Labour members will be supporting the Bail Amendment Bill going to the Law and Order Committee. We will be doing so because we need to look very closely at whether this bill is real and necessary in what it
sets out to do, and will actually achieve that, or whether this is simply political spin. There is no doubt that the aims of the bill, which are improving public safety and ensuring the integrity of the bail and justice systems, are proper aims. The question that we have is whether this bill will actually deliver on those aims.
I noticed that the Attorney-General, when he was introducing the bill, said that National has already passed a bail bill and, in fact, had introduced it in December 2008, to reverse the Labour policy of softening up conditions for bail. I remember that debate. I remember going to look at the factual basis for the legislation, which was actually just an election slogan. And what did we find? The net impact of that bail law passed by Simon Power and enacted in December 2008 would affect 10 people a year—10 people a year. There are 15,000 people remanded on bail every year, and what we had was a bill that predicted that maybe 10 people would be affected by being put into jail.
I have no problem with tough bail laws. We start from the position that a person is innocent until proven guilty. That is the fundamental precept of our English system of justice in this country. I do not think even the Attorney-General or the Minister of Justice would disagree with that comment. That is the principle that the judge begins with, and then that principle can be overturned if there is a justifiable reason. The justifiable reasons are, firstly, that there might be a danger that the alleged offender, the defendant, would abscond, and if there is a real and provable danger then that is a good reason for denying bail and remanding the person in custody. The second justifiable reason is that the person who is the alleged offender is at real risk of committing further and serious offending in the community. Where that is demonstrated I have absolutely no problem with that person being remanded in custody. In fact, about 20 percent of all people charged with offences are remanded in custody, so the judges are using the discretion that they have to make that judgment and to remand in custody.
Nor do I have a problem with the principle that there should be a reversed onus of proof in particular cases where it is up to the defendant to prove that he or she should be given bail rather than the prosecution to prove that they should not. In fact, the substantive Act, the Bail Act 2000, was an Act that I passed. I took a National Government bill and I moved a Supplementary Order Paper, on becoming Minister of Justice, precisely to reverse the onus of proof for categories of people who were offending at very high levels on bail. I took career burglars—you know, you get only one in 10 burglars actually convicted, but of those who were charged, 26 percent of them were offending on bail. They would be given bail in court and on the way home for tea they would commit another couple of “burgs”. That was not good enough, as far as I am concerned, and we took an action and said: “Reverse onus of proof. Those people have got to prove that they are safe to have in the community.” I also took another hard-core group of people. These were people who already had substantial convictions. I estimated, using the information provided to me by the Ministry of Justice, that the rate of offending in this hard-core group was about 90 percent—90 percent of them, while on bail, would reoffend.
We changed the law. We took the weak law that the National Government had proposed in 1999, we changed the law, and we toughened it up. Did it have an impact? By God, of course it had an impact: 2, 000 people a year were remanded in custody who would otherwise have been given bail, and that is about 269 at any one time. That did have an impact on the level of offending while on bail.
We were able to do that and stay within the New Zealand Bill of Rights Act. We made sure that the legislation was within that Act, so that before people were presumed innocent, and therefore the prosecution had to demonstrate why they should not get bail, we had good grounds for doing that. The Crown Law Office upheld that, that it was
within the New Zealand Bill of Rights Act. We passed legislation. It was expensive legislation. It cost $30 million in extra prison space to lock more people up on remand.
So I do not want to hear the Attorney-General or anybody else saying that a Labour Government had not been prepared to take tough decisions on bail. That legislation was justified. If you can justify it, and if it is about safety of the public and you can prove that you can make people safe, then we will support it. But if it is just a bit of political spin—something that was invented for an election campaign, and they know that it is not going to make a difference—then I will oppose it when I have seen the evidence, if that is what the evidence shows. And, actually, I would expect a select committee to do that, because that is the job of the select committee: to take away the political flimflam and find out whether what is being proposed is justified on the facts, on the evidence, on analysis, and on cross-examination of the ministry officials to show that that is going to make a difference. I am not interested in doing what National and Simon Power did in 2008, which was to pass legislation where the publicity vastly exceeded the actual impact—10 people a year, when we were talking about 15,000 people a year getting bail.
The critical thing I will want to know at the select committee is whether what is being proposed here is justified in terms of the impact it will have on genuinely improving public safety, because there are people who are arrested for offending who should not be let out on bail. And at the moment there are people who are let out on bail and who keep offending. So I will look at this, as will my colleagues on the Opposition side of the select committee, to find out whether this is real, whether it will actually have an impact that increases public safety rather than being something done—as it was last time under the National Government—simply to carry out an election promise that had no substance. It sounded good, but it has not made any real difference at all.
There are a number of things that we want to know that, unfortunately, the Minister did not touch upon. He did not touch upon whether this has been put for clearance under the New Zealand Bill of Rights Act. The New Zealand Bill of Rights Act is a reasonably flexible document. If there is justification for suspending a right that people would normally be entitled to—the presumption of innocence—then they will say: “Yes, it meets the requirements.” But if it is just a political thing and there is no justification I want to know that, and I want to know why we have not yet had any suggestion from the Government benches as to whether this meets the provisions in the New Zealand Bill of Rights Act.
I want to know what empirical evidence the Government had in terms of justifying this on the impact it might have. I have the regulatory impact statement in my hand and it says there is no way of predicting what the cost of this policy will be because you cannot predict how the policy change will influence the courts’ exercise of discretion. So we might have a lot of loud noise and fuss around this, and the judges will go on doing exactly what they have done in the past, which is to look at it objectively and say: “Is there a real risk of this person absconding or offending?”. The regulatory impact statement itself says that the Ministry of Justice does not know how much impact this is going to have. And there is no way of predicting, it goes on to say, “Which defendants will offend on bail, and the extent to which serious offending on bail is reduced.”
Here we have a regulatory impact statement that says it does not know what the impact of the legislation is going to be. Well, actually, I would have thought the sensible thing to do is to find out what the likely impact is going to be before you bring the legislation in. If you are looking at it rationally and saying that you are genuinely about public safety, find out what the likely impact will be. Do not work off what the National research unit put together as a result of polling before an election campaign. Find out what the real impact will be.
So, just summing up, yes, we will support this bill to the select committee. But we will be looking at it carefully in the select committee to see if it genuinely does improve public safety. If it is just political flimflam, we would vote against it.
The ASSISTANT SPEAKER (H V Ross Robertson): Just before I call the next member, I wish to remind members, to advise them regarding cellphones and iPhones in the Chamber, that this is a debating chamber. It is not a place to receive phone calls during sittings of the House. We are not a call centre. Phones should be on silent mode when brought into the Chamber.
JACQUI DEAN (National—Waitaki)
: There is one fact, unpalatable though it will be to the Opposition, that gives the lie to the speech of the previous member, Phil Goff, and that is that recorded crime has dropped again under National. It is now down 4.8 percent nationally in 2011, down to a 15-year low. National is proud of its record since it came into Government in 2008.
Another unpalatable fact, perhaps, to the Opposition is that before National came into office in 2008, crime was increasing, and that is a fact. Gangs were growing. That is a fact. Prisons faced a critical shortage of beds. That is certainly a fact. P was seriously damaging communities, and we know that for a very sad fact. And violent repeat offenders were being freed on parole, and the courts were very congested. National is turning that round. National will continue to promote policies that hold offenders to account and put victims at the heart of the justice system.
National’s goal is not only to prevent and reduce crime but also to reduce the impact of crime when it does occur, by improving the responsiveness of the criminal justice system. National’s planned changes to bail laws target defendants arrested for the worst crimes, and those at highest risk of offending whilst on bail.
The main provisions of the Bail Amendment Bill are reversing the burden of proof. What this means is that the bill will reverse the burden of proof in bail decisions for those charged with serious class A drug offences, such as the manufacturing of P. More than one-third of defendants arrested for serious class A drug offences go on to offend while on bail, so what we are proposing is to reverse the burden of proof. This legislation will reverse the burden of proof in bail decisions for defendants charged with murder. Murder is the most serious offence in New Zealand law, but it is currently subject to the same test for bail as other, less serious offences. We will change this to reflect the seriousness of the charge.
The current list of specified offences has not been reviewed since the Bail Act was first enacted, so it does not reflect the risk posed by defendants charged with other serious violent and sexual offences who have a history of serious offending. So the bill will expand the list of violent and sexual offences that result in a defendant being subject to a reverse burden of proof if they have a prior history of such offending. Examples of that offending such as kidnapping, assault with intent to rob, and sexual conduct with a child under 12 years old will now be included.
Another provision of this bill relates to young defendants. This bill will strengthen bail for young defendants. It will make defendants aged 17 to 19 years old subject to the standard adult tests for bail if they have previously served a prison sentence. This removes the strong presumption in favour of bail that currently applies to young people. It will allow the court to detain defendants under 17 years of age who significantly or repeatedly breach their bail conditions, and it will enable police to uplift young defendants found in breach of court-imposed curfews and return them to their own homes, or places where they will comply with the curfew. These tough measures matter, and they will make a difference. It also means that after an arrest, police will then bring the defendant before a court within 24 hours, where the court will be able to order
detention of the young person under 17 who is repeatedly or significantly breaching their bail and is likely to carry on doing that.
Another provision is with regard to police bail, which is granted by police before the defendant appears in court for the first time. The penalty for failure to answer police bail is increased under this bill to be an offence that carries up to 3 months’ imprisonment, in addition to the current maximum $1,000 fine. This Government means business. In bailable as of right provisions, we will reduce the number of situations where a defendant is bailable as of right.
The final provision I want to touch upon is the electronically monitored bail regime. We will put the electronically monitored bail regime into law to ensure that it is administered consistently. Courts have been able to impose electronic monitoring as a condition of bail since 2006. The Government has reviewed it, and it appears to be an effective and a safe way of managing defendants in the community.
This Government puts the rights of victims at the heart of all our law reforms. This bill makes a good contribution to that. We are proud of this bill, and I recommend it to the House.
Hon LIANNE DALZIEL (Labour—Christchurch East)
: As my colleague the Hon Phil Goff has already said, Labour will support the Bail Amendment Bill’s referral to a select committee. As a member of the Justice and Electoral Committee, I am very pleased to see that it is going to the Law and Order Committee. There are obviously going to be significant issues that the select committee is going to have to address, and my colleague started off by highlighting those that are set out in the regulatory impact statement. The regulatory impact statement makes it very clear in its disclosure statement at the front that the Government is basing its decisions without any real knowledge of either the fiscal costs or the benefits of the options. That is a strategy that a Government can adopt, and it does kind of tie back to the reason why we are debating this bill, but I think this is something that will be explored at the select committee.
The statement from the regulatory impact statement says: “The expected fiscal costs and benefits of options can only ever be approximate as there is no foolproof way of predicting: how the policy change will influence the Court’s exercise of discretion [and] which defendants will offend on bail, and the extent to which serious offending on bail is reduced.” When one turns to the back of the regulatory impact statement, there is a very interesting analysis of the specific offences and the proportion that serious offences represent in terms of the total number of offenders who offend while on bail.
Of course, if we were thinking about the legislation that we have in front of us today, we would expect the bar on the graph here that goes right out to the end to be one of the very serious offences included in this legislation, but, actually, it refers to offenders who are much more likely to commit a traffic or vehicle regulatory offence than anything else. Other offences committed while on bail that certainly go up there on the graph are “Offences against justice procedures, Government security & Government operations”. “Offences against justice procedures” are, no doubt, offenders not complying with the provisions of their bail and perhaps not fronting in the court when they are required to. The next one down is “Theft & related offences”. It is only when we get down to 11.4 percent of the most serious offences committed on bail that we start to get acts intended to cause injury.
So I think it is important, when the select committee is considering the detail of it, to actually look at what offences are committed while people are on bail and to remember that the presumption of innocence until proven guilty is part of the analysis. I am not saying that we are not going to support the bill as it traverses through the House; I am just saying that there is a responsibility on members of the select committee to look very carefully at this detail and to report back to the House accordingly.
What the regulatory impact statement cautions is that there are a number of assumptions and caveats used to assess the fiscal costs and benefits of each option. So there are some costs that are included in the regulatory impact statement—I am going to come to those—
Mike Sabin: What about the human costs?
Hon LIANNE DALZIEL: —and some of the benefits are not really known. Well, I think the member is interjecting that it does not matter what it costs because keeping people safe is the priority. That might be the conclusion that the Government reaches—that it is prepared to lock everyone up who is charged with an offence of this nature—
Mike Sabin: That’s not what the bill deals with.
Hon LIANNE DALZIEL: I know that is not what the bill does. It is all very well to say that it is not relevant to look at the question of costs and benefits, but that is what a regulatory statement does.
In addition to the fiscal implications, policy options that involve increasing the use of reverse burdens of proof in bail decisions will also, as my colleague has highlighted, require—and this Government has said this itself; it is restated in the regulatory impact statement—“a particularly strong case before regulation is considered. Reverse burdens of proof may override the following fundamental common law principles and rights guaranteed by the New Zealand Bill of Rights Act 1990: [namely that] a person charged with an offence is to be considered innocent until proven guilty [and that] no person shall be arbitrarily detained.” This issue is then also raised in the regulatory impact statement: “Amendments to youth justice provisions … also potentially have implications for New Zealand’s obligations under the United Nations Convention on the Rights of the Child to ensure that children under the age of 18 are detained only as a last resort and for the shortest possible period.”
I am simply highlighting these facts from the regulatory impact statement, because it is going to be important for the House to address them, and certainly important for the select committee to consider them, because they will be issues that will be raised at the select committee. The last thing that we want to see happen is for changes to the law to be made in order to look like something is being done to address something that people are fearful of, but, actually, the changes do not make any difference, at all.
We have had a drop in our crime rate, in real terms, every year in this country since 1995. The crime rate has gradually been coming down. That is, I think, a much more interesting issue. If one considers whether we would rather have changes to bail laws affecting people who have already offended, or have changes that actually make a difference in terms of the amount of offending that is happening in the first place, I know where I would like to be putting my effort, and that is certainly into those drivers of crime that lead to the crime rate.
I actually think that this House is going to be facing a very serious challenge as to whether the Government is prepared to make a difference in terms of our crime rate when we come to the Alcohol Reform Bill, because we all know that the changes being promoted in that particular legislation do not meet the very strong bar that the Law Commission set when it undertook its very evidence-based report to the House. It basically ensured that we were aware that if we could make a difference in terms of the amount of alcohol that was being consumed, we would end up having a huge impact on our crime rate, because so much crime—domestic violence and other offences—is committed while people are under the influence of alcohol. So that is going to be the challenge to this House. It is all very well to talk about the bail legislation, but when it comes down to the fact of how people will vote on the amendments that Labour is going to be tabling to the Alcohol Reform Bill, then I think members on the other side of the
House will be called to account by their own constituents. This legislation will not have the impact that changes to our alcohol laws will have.
This regulatory impact statement also goes through the question of the individual offences that have been chosen, and there are a couple of offences that I just want to highlight to the House. What the Ministry of Justice has done is set out the risks around the status quo, then it has set out different options—options one, two, and three—and then it has highlighted which is its preferred option. So when we come to defendants charged with serious class A drug offences, the preferred option is to “Reverse the burden of proof for defendants charged with serious class A drug offences”. The other options that it looked at were an amendment to section 10 of the Bail Act, looking at those who had a history of serious violent, sexual, or class A drug offending, and option three was to “Prohibit defendants charged with serious methamphetamine offences who are remanded in custody from applying for release on electronically monitored bail”.
The preferred option was option one: just reversing the burden of proof for defendants charged with serious class A drug offences. This is what the cost is. The cost is listed as: “Could result in a significant number of defendants being held in remand who would not have offended on bail or would not be convicted of the offence charged. [It is likely] to be the least justifiable infringement on defendants’ criminal process rights. Fiscal cost to the Department of Corrections due to increased defendants in custody of $774,000 per year, or the equivalent of 8.5 prison beds.” It was $774,000 per year—three-quarters of a million dollars—for an estimated 7 percent reduction in offences committed on bail by defendants charged with serious class A drug offences, which is a minor number of offences when compared with the total number of offences on the graph that I showed to the House before.
So I think there is going to have to be some serious consideration of all of these factors, and one should not just get bound up with the hype around looking like one is tough on crime. If one really wants to be tough on crime, then the Alcohol Reform Bill is the one to use.
METIRIA TUREI (Co-Leader—Green)
: Tēnā koe, Mr Speaker. The Green Party has always supported the integrity of the legal system and worked very hard to improve it. We have more than a decade of history here, often standing in a contrary position to many of the other political parties because of our commitment to a principled and genuinely just legal system. We have worked very hard and opposed infringements of citizens’ rights and any attacks on the central tenets of the legal system. Citizens’ rights and their human rights are paramount: the right to a fair trial, the right to representation whether you are rich or poor, and the right to be treated as though you are innocent until you are proven to be guilty.
We have had in this House over a number of years many erosions and attempted erosions of these central tenets of our legal system. There was an attack on the right to be present at your own trial under this National Government. We have had continual attacks on legal aid, rendering it very difficult for those who are on low incomes to get adequate and proper legal representation, and leaving the legal system accessible by the rich and not so much by the poor. And we have had erosions of the principle that a person is innocent until proven guilty, and part of that erosion has already ripped into the bail laws. This legislation, the Bail Amendment Bill, extends that erosion and continues that process of erosion by extending the reverse onus of the burden of proof. We oppose it for that reason.
What we await from the Law and Order Committee is the analysis that proves that this erosion is both necessary for public safety—that is, that it will actually create a safer environment that is identifiable and quantifiable—and the only alternative to legislative change to enable the protection of public safety. We are not convinced by
this legislation or by the explanation for it. We also consider that this legislation is a political statement about the legal system, not a principled one and not one based on justice.
The Green Party acknowledges the reoffending rates, the issues with bail, and the implications for the community when bail is wrongly given. There have been some very serious and terrible cases where New Zealanders have lost their lives, and they are tragedies for the families, for the communities, for the judges who make those decisions that have led to that action, and for the whole of the country when the legal system fails individuals and their families. There is no doubt about that or the hardship and the tragedy that is part of that. We also know that the system does have its flaws, that not all bail decisions are being made rightly, and that not all of the legislative options for providing judges with what they need to make these decisions, and the systems to make sure that people do not reoffend, are put in place. That also needs to be part of the discussion around what you do with bail, rather than justice being this very political act that is set out in this legislation. It certainly is not clear that judges have all of the powers that they need to make the best decisions.
We also know that New Zealand has one of the highest custodial rates in the Western World—higher than Australia, England, and Wales. We know that the existing system also has an element of racism in it. So although 6 percent of the prison population of Māori who face a conviction are imprisoned, 11 percent are remanded in custody, and there is a direct relationship with the extent to which Māori are convicted, imprisoned, and remanded in custody at a rate significantly higher than that of the Pākehā population. That has never been properly addressed by any Government or any Minister of Justice, and continues to be an open wound in New Zealand society.
There are parts of this system that need to be fixed. This bill is a very blunt tool. It is not yet proven whether it will fix any of them. There is virtually no support for defendants who are released on bail, so the current system mostly uses reporting and curfews, and, yes, they are used to control and monitor defendants who are on bail. And where there have been failures in the reporting, curfew, and monitoring of defendants, there have been serious tragedies, and New Zealanders have lost their lives as a result.
We can identify those very tragic cases, but at the same time there are also those other cases of the opportunistic crime that occurs. I am talking about the crime that arises out of people getting bail and being involved in stupid stuff, where they do stupid things because there is no support around them to stop it—things like the stupid burglaries that occur; the alcohol-fuelled bad behaviour, whether it is violence or other kinds of crime; the drug-fuelled violence and other kinds of crime; the crime that arises out of poverty; and the crime that arises out of insecure and unstable housing, where people who have got nowhere to go are behaving in really negative and bad ways that cause harm and crime in the community. We do not have sufficient processes or systems in this country, even around alcohol and drug treatment, to make sure that people get that treatment when they are remanded on bail, to help prevent them from reoffending.
The question here for the Greens is how we prevent crime from being committed. That is the question that needs to be answered in any consideration of law that concerns the legal system or the justice system—how we stop crimes from being committed in the first place, and if they are committed, how we stop further crimes from being committed. It involves a range of things. Some of them are very punitive. Some of them do require a person to remain in custody, which is the most punitive thing that the legal system can do. Some of them are not punitive, such as alcohol and drug treatment, anti-violence programmes and support for families, and making sure that, across the board, New Zealanders have access to a decent job and a decent house. Those things are not
punitive, but they are mechanisms by which we reduce crime. They are ways to stop crime from being committed and, therefore, to keep our people safer in the short term and in the long term. That has got to be the purpose of the legal system and the justice system.
Finally, the Green Party does take this issue very seriously. At the select committee we will be looking for all of the mechanisms available in the law—all of the mechanisms available in the law—to help prevent the harm caused by crimes committed while a person is on bail, to make sure that judges do genuinely have the powers they need, and where they do not, where there are some gaps, to make sure that those gaps are filled. We will look for support for other ways of preventing offending on bail, such as some of the community restorative justice programmes and things that I have been talking about previously. Like Labour, we are not convinced that this is the right measure to take to deal with the problem, and we will be looking for those alternatives at the select committee. Thank you.
JAMI-LEE ROSS (National—Botany)
: I am very pleased to stand in support of the Bail Amendment Bill. It is another day when the National-led Government is bringing to the House another piece of legislation to clamp down on crime and to do what we can to put victims at the heart of the justice system. New Zealanders will see this Government as bringing another bill to the House that will assist them to remain safe in their homes and on the streets.
We have no shame in saying that we support victims. We have no shame in saying that we think that the justice system needs to be moved further towards the rights of victims and away from the rights of those who commit crimes. We are proud to say that we passed 18 new laws in the last Parliament to clamp down on crime and get tougher in the law and order area. I am particularly pleased to say that through changes this Government has brought through, my community, my area of Counties Manukau, is much safer, due to the 300 police officers who were brought on to the streets of Counties Manukau. Six hundred were brought on to the streets nationwide, and Counties Manukau is a safer area because of it.
Today we are looking at making some changes to bail, and I am looking forward to this bill going through to the Law and Order Committee, where we can consider it further. The prime area that has been touched on, and that is in the bill, is the issue of bail and reversing the burden of proof. In most cases at the moment if the prosecution opposes bail, then it must prove that the defendant poses a risk of absconding, interfering with witnesses or evidence, or offending on bail. In these cases the burden of proof lies with the prosecution. We want to change that. The current Act that is in place at the moment imposes a reverse burden of proof on defendants charged with a specified series of sexual or violent offences when they have a previous conviction for one of those offences. The reverse burden of proof means that in order to be granted bail the defendant has to demonstrate that they do not pose a risk to the public or to their trial. This makes it harder in marginal cases for those defendants to get bail and more likely that they will be held in custody on remand until trial.
We want to extend that reverse burden of proof to a number of other crimes. The bill will reverse the burden of proof in bail decisions for those charged with serious class A drug offences, such as manufacturing or dealing in P. I have the Minister of Customs sitting in front of me. He has extolled to the House the problems of P in the community, and anything we can do to get tougher on those who are involved in the P business is a welcome move. I also note that Mike Sabin is in the House today. Those in Northland know of the great work he has done in the community, dealing with P, and helping those who have struggled with P. As more than a third of defendants arrested for serious
class A drug offences offend whilst on bail, it is good that we are making changes in this area to include those types of offences in the reverse burden of proof regime.
The reverse burden of proof in bail decisions for defendants charged with murder will also be changing. Murder is the most serious offence in New Zealand law, but it currently is subject to the same test for bail as other less serious offences. We are going to change that, as well, to reflect the seriousness of the charge.
There have been a few comments this afternoon about whether the bail changes that are coming through this bill will actually give people a reason to not offend whilst on bail. I am quite aware of a situation we had in South Auckland a few years ago where an Indian bottle shop owner was murdered in his bottle shop. There were six offenders in the case, some of whom were later convicted of murder. One of the offenders, who was actually convicted of aggravated robbery, was found to have offended whilst on bail. He obtained firearms, he stole cars, and he led the police on a high-speed chase through South Auckland. He did all that whilst he was on bail. He received an extra 9 months in prison for those additional offences. I raise this because it highlights an example where there are people and communities around New Zealand—real examples; in this case the South Auckland community—where people can highlight the fact that there are offenders out there who offend whilst on bail. We should make it more difficult for them to do that.
The statistics show that the percentage of offenders who offend on bail increased from 15.7 percent in 2004 to 18.4 percent. That is going in absolutely the wrong direction. Overall, an average of 17.4 percent of defendants charged with an offence between 2004 and 2009 who had spent time on bail were convicted of committing an offence on bail. We need to make changes in this area. This bill does that. This is a continuation of National’s desire to rebalance the justice system more in favour of victims and make sure that there are appropriate punishments for those who commit crimes in the community. I am looking forward to this bill being considered further by the select committee.
DENIS O’ROURKE (NZ First)
: New Zealand First supports the Bail Amendment Bill emphatically. We do not believe that it is a matter of political spin, as some have said. What we do see is significant and understandable public concern about serious offending while on bail, and a problem that is increasing. But the bill does need scrutiny on detail, at a later stage, to ensure that the rights against arbitrary imprisonment and the right to presumption of innocence remain protected properly. New Zealand First does support the bill’s overall intent to strengthen bail conditions and limits, to make bail for serious and drug offences harder to get, to streamline procedures, to extend District Court powers to avoid the need to go so often to the High Court, and to codify and improve rules relating to electronic monitoring. I think those are all very good objectives, which New Zealand First wishes to see promoted in this bill.
The proposal to require an accused to prove his case—the reverse onus of proof for serious and drug offences—I think is essential. It properly places the onus of proof where it should be—on the defendant—for bail considerations, as opposed, of course, to the onus of proving the charge itself. I see no inconsistency in this, because it is a reasonable presumption that if there is adequate evidence to support a charge in serious and drug offences—in other words, a prima facie case—then it is reasonable to presume that there is heightened and sufficient risk to refuse bail. Those risks, of course, as we know, include the risk of absconding to avoid trial, which I think is the primary risk, and, of course, the risk of reoffending, which, although a secondary risk, is the one that now requires particular, and much more, attention.
I note that the regulatory impact statement states: “A reverse burden of proof is unlikely to change the court’s decision on bail for defendants who pose little risk of
offending, absconding or interfering with witnesses. However, in marginal cases,”—for which I would read serious cases—“a reverse burden [of proof] increases the likelihood that the defendant will be remanded in custody.” And so it should.
The innovation in this bill, as we know, is the imposition of the reverse onus of proof for serious and drug offences. New section 9A applies to defendants over 17 years charged with murder. I note again from the regulatory impact statement that it states: “Of the 156 defendants charged with murder who spent at least some time on bail, 21 (14%) were convicted of at least one offence committed while on bail.” Although one might say that is a relatively low number, it is still a serious number, and although it is generally of a low level, one could validly say that although the number is low the potential effect or impact may be very high. So it is a serious matter, which needs attention.
I note also that new section 17A applies to defendants charged with a serious class A drug offence. Again, in the regulatory impact statement it refers to the period 2004 to 2009, where 34 percent of defendants charged with serious class A drug offences offended on bail at twice the general rate of offending, which was only 17 percent. So what we see there is, of course, a much heightened risk. Both of these new provisions will go a long way to satisfy the public concerns, which New Zealand First observes in these particular sorts of cases.
Another worthwhile innovation is the move away from mandatory bail for under-20-years-of-age defendants where the defendant has previously been imprisoned. Again, that shows a heightened risk, which is what we need to pay attention to, while at the same time preserving the balance of the need to protect young people and protect the public. So I think that is a good and proper balance in that situation. Another innovation is sections 16 and 17 being amended to cover the offence of attempted drug-dealing. It is, of course, logical that that should be included as well, because it is just as serious in every respect as actual drug offending and needs to be dealt with in exactly the same way.
New Zealand First also welcomes the codification of the rules relating to electronic monitoring. That practice has proved its worth. Electronic monitoring does work as a form of monitoring, and the existing rules in relation to it, which have been developed as part of the common law, also work and deserve to be incorporated into the statute, as well.
The additional provisions to ensure enforcement and to ensure maintenance officers have access to premises are also very important provisions in the new bill. We think that these are sensible and necessary, and that it is proper that there be an offence of refusing entry to an electronic monitoring officer who may be entering just to maintain the device and to make sure that it works properly or to attend to whatever other problems there may be. It is good, sensible stuff, we think.
The bill also makes other welcome changes, and I look forward to examining those in more detail at later stages of the bill, especially looking closely at the repeal of section 7(3) in clause 5 to abolish offences bailable as of right. But no doubt all will support the re-empowering of justices of the peace and community magistrates to reconsider bail where bail conditions have been breached. These will be very welcome to the community, which sees that as a significant issue, and it will add some necessary and effective means with which to discipline those who breach bail conditions.
Overall, New Zealand First does support the bill, and although we believe it is somewhat belated, we will be pleased to support it to the next stage for further examination. Ultimately, however, New Zealand First certainly does want to see that this bill is enacted in substantially the form that we see today.
IAN McKELVIE (National—Rangitīkei)
: It gives me pleasure to have the opportunity to speak on the Bail Amendment Bill. I intend, perhaps, not to go into the legal part of this bill and the bill part of this bill as much as some members, because I have got two very competent members, a lawyer and a former member of the constabulary, following me. I am sure they will go into that for me. But I firstly want to congratulate the Minister of Justice on the introduction—
Kris Faafoi: You’re being watched.
IAN McKELVIE: Ha, ha! I have got great support. I want to congratulate the Minister on the introduction of this bill, which will be welcomed by many in New Zealand, and particularly by the officers of the courts and the police, who as a result of this will have more and sharper teeth to deal with these types of people.
I want to comment briefly on our communities and how they work. As a grandparent, I guess I particularly welcome this bill—as I am sure all grandparents will—as the older you get, the more concerned you get with law and order matters, and of course that is because you have got so many generations following you. But I want to go back to the days when I went to school. In my day we walked down a 2-kilometre metal road to go to school.
Kris Faafoi: In the snow.
IAN McKELVIE: No snow where I come from, Kris Faafoi. We never have snow there, actually. But we walked down the metal road 2 kilometres to school. Nowadays, mothers and fathers do not let their children walk 2 kilometres to school down a metal road, for the very reason that we are introducing stricter measures around bail conditions to this Parliament. There is no doubt that this type of activity in the country, and the releasing of these people prematurely and without just cause into our community, has given a lot of grief to many in our community.
The key aspect of this bill, as has been stated, is that it makes it more difficult for serious offenders to get bail, and I think that is critical. I think the murderers, the class A drug abusers and people who abuse the law around class A drugs, and the people who commit violence, particularly violence in our homes, are great issues for us today. Sex offences are something else that I think not only is our community intimidated by but also a large percentage of our community is frightened of. Consequently, I think the opportunity for us to impose stricter conditions around the people who are charged with these types of offences is hugely important to us.
This bill also allows the community, which detests and fears the people who commit those crimes, to put much stricter conditions around younger people. Historically we have let our under-20-year-olds have a much more lenient set of bail conditions around them than was required. I think that the insertion into this legislation of stricter clauses around our under-20-year-olds is a great opportunity for us to tidy that part of the criminal sector up. Also, with regard to our under-17-year-olds, for whom the police have historically had to get a warrant to reinforce their bail conditions, the police will no longer have to do that. That makes it much easier to deal with those types of crimes.
I would also remind the House that in 2007 Labour introduced legislation making the acquisition of bail easier. I think—
Kris Faafoi: Oh, we’ve been through this.
IAN McKELVIE: You have got it again, unfortunately. I was not here when you went through that, so I had to reinforce it. But public confidence in the integrity of the New Zealand bail system—and, as a consequence of that, in our law and order programme—will improve dramatically as a result of this legislation. The bill also complements the Government policy of delivering public services in a more efficient and economic manner. I have no problem supporting the referral of this bill to the Law and Order Committee, and I look forward to its passing. Thank you.
KRIS FAAFOI (Labour—Mana)
: Thank you very much for the opportunity to speak on the Bail Amendment Bill. It is nice to follow Ian McKelvie, a fellow member of the Law and Order Committee, and I look forward to thrashing out the issues that we have highlighted during this debate in the Law and Order Committee. I know that I and the Hon Phil Goff are going to raise a number of issues at the select committee. He has already raised a number of them.
I do want to just point to one thing that the Attorney-General said on behalf of the Minister of Justice when he introduced this bill. He said that we needed to get the balance right with this bill. I am just wondering which balance we are talking about—whether it be the political balance or the real balance. This is a serious piece of legislation. This is a serious piece of legislation, and I will cede some ground in the fact that with anything that goes through this House, you have to have a certain degree of a political win. So we will cede a little bit of ground, but we do not think that this is really going to address the issues that the aim of the bill wants to address.
There is nothing wrong with the aim of the bill, which “makes changes to the Bail Act … to improve public safety and ensure the overall integrity of New Zealand’s bail system. The changes will make it harder for those accused of serious offences to get bail.” I have got no problem with tougher bail laws. As Mr McKelvie mentioned in his contribution, in which he talked about his own community, I do not want people who are in my community, certainly, who have committed serious offences and who are at risk of committing again while they are out on bail out there to potentially put law-abiding people in my communities at risk. But we do not believe that this bill has necessarily got the balance right in terms of the real and the political balance. As I have said, I will personally cede some ground on the political stakes.
This bill is going to go to the Law and Order Committee, and, as Mr Goff mentioned, we will be supporting its going to the select committee, but there are a number of concerns that we will raise, and a number of significant changes that we will look at. We hope that this will not be a lost opportunity, and that members on the Law and Order Committee might be able to see some of the merit in what we may propose in terms of what changes might be needed.
I just wanted to pick up another point that Mr McKelvie made, in terms of communities and his being a grandparent. In terms of what we as a House will be facing soon, we have got a convergence of issues, and the Hon Lianne Dalziel pointed this out. We have got the Alcohol Reform Bill coming through at the moment. We have got a raft of law and order issues coming through the House at the moment. Outside of the House we have got issues related to poverty and child poverty, and I think in terms of what Lianne Dalziel mentioned on the drivers of crime, we have got a real opportunity to put a stake in the ground, not just as a Government but also as a Parliament, to try to address some of these issues, not just for the good of the political need that needs to be addressed now, but in terms of our children and our grandchildren, as Mr McKelvie mentioned earlier on.
I am going to try to use my contribution to the Bail Amendment Bill debate to try to encourage as many people as possible who might be interested in submitting to the Law and Order Committee to raise some of the issues that we will highlight. I think one of the great things about the select committee process is that sometimes someone comes along and makes a submission and highlights an issue that you or another party had not thought of, so I encourage those who might be watching or listening—those political junkies who are interested in the debate—to make their submissions known to the Law and Order Committee.
This Bail Amendment Bill sets out to do a number of things, and they have been well traversed, but I will go through them quickly in terms of what we see that it is going to
achieve. It will reverse the burden of proof for bail for those who are charged with murder. I will get to that later, but that, of course, is going to be a very emotive issue, but one that we need to look at in terms of what the evidence is there, too. It also reverses the burden of proof for those with convictions of specified offences and adds new offences: sexual violation, which includes against minors; murder, which I have already mentioned; and manslaughter; but also robbery, aggravated robbery, and wounding or injuring with intent. It also gives more power to the District Court over the granting of bail for defendants with previous drug-dealing offences, which previously only the High Court had jurisdiction over. It also aligns policy around police bail, and brings it into line with what the District Court has within its powers at the moment, so that essentially means that there are no more monetary bonds or sureties that can be offered under police bail. Police can also arrest those aged under 17 for breaching bail conditions—and I will come back to that later on—and the Youth Court can have the power to detain.
The bill also legislates electronically monitored bail, and one thing that Mr O’Rourke did mention earlier is that this will codify electronic monitoring of bail. But one thing that I think is good and that Mr O’Rourke did highlight is that it will make it an offence to deny access on to a property for someone who is coming in to monitor someone who is on electronically monitored bail. I think that is a good thing, and I think that is a common-sense measure that is within the bill.
But there are some things that I did want to point out in terms of the context of this bill. One thing is that because, in terms of bail, of the significant number of people who are prosecuted or defendants who were offered bail in 2009, of just under 128,000 defendants, 91,497 had a bail decision as part of their procedure. We just need to put some of this in context, especially in terms of people who are suspected of scarpering, or not answering their bail. Written questions that we have asked have found that in 2009 only 4 percent of people who were on bail failed to answer bail, and that 5 percent of the people between the ages of 17 to 19 failed to answer their bail. So we think that there are not necessarily the right motivations in terms of addressing some of the issues in this bill, in terms of the reality of what is happening on the ground.
There will be the opportunity at the Law and Order Committee to raise some of those concerns, and I talked earlier about how this will be an emotive issue. A lot of people out in our communities will be looking for serious peace of mind and they will be looking to see us take action, especially against some of the more serious offenders who get bail. I do acknowledge the case that Jami-Lee Ross mentioned about the dairy owner who was killed, and one of those people involved in that crime—not necessarily convicted of murder—was out on bail. That is the kind of thing on which people will certainly want to see some action from us, and that will obviously be raised at the select committee.
I think there are concerns and opportunities within this bill. On reversing the burden of proof around bail with class A drugs, I think that is an opportunity, and someone mentioned earlier the war on P. Between the years of 2004 and 2009 I understand there were nearly 3,000 defendants given bail when they were facing class A drug offences. Twenty-three percent of them were remanded in custody, 31 percent were bailed, and nearly half, 46 percent, had a combination of custody and bail at large. But in that period 34 percent—nearly a third of them—reoffended on bail, and that, I consider, is a relatively large proportion of people reoffending while they are on bail. I would like to, hopefully, see the Law and Order Committee have a very, very good look at that.
As I mentioned earlier, Labour will be supporting this bill going to the select committee. We do it with a number of concerns, some of them significant, and some of them, hopefully, that we might be able to iron out relatively quickly. But there are
concerns, and we hope that the Law and Order Committee deliberations will give us an opportunity to address a number of those concerns so that we might be able to support it further than just the select committee stage.
MARK MITCHELL (National—Rodney)
: I am very pleased to stand in support of the Bail Amendment Bill. But I have been a bit disturbed by some of the comments I have heard in the House today, namely from Mr Faafoi and Mr Goff. I have heard political spin from both of them, which is a bit disappointing. I spent most of the time listening to Mr Goff telling us about how much he had done in relation to sharpening up the bail laws. But the fact of the matter is, Mr Goff, you did not do enough, and that is why we have the Bail Amendment Bill in the House now—to fix the gaping gaps that were obviously there.
Then I had to listen to Metiria Turei from the Green Party come in here and become flippant about burglaries. I have to say that burglaries affect a lot of households around New Zealand. You should not diminish the impact that they have on people. A burglar can quickly turn into a murderer or a rapist. It really disturbs me that we have members of this House who come in here and do not really take public safety that seriously. Well, that is how it appears to me.
I want to talk to one part of this bill, and I want to relate a story that is personal to me. It is about a young 12-year-old girl who lived in Gisborne and had been sexually assaulted and abused by her stepfather. When this came to light, unfortunately the abuse had gone on for a few years. The police investigated, and he was arrested and charged. He was later let out on bail. The young girl was on her way to school one day and he waited for her. He picked her up outside the school and drove her to the top of Gaddums Hill. He was a pig hunter, and he got his knife out and he stabbed her—stuck her like a pig—and killed her. This is exactly what he said afterwards. He said that he was proud of what he had done.
I just have to say that one of the changes in this bill relates directly to this young girl, who today would have been 22. She could well have been married and starting her own family. She is not here with us, obviously, any more. When a defendant is charged with a serious violent or sexual offence and has a previous history of sexual violence or sexual offending, a reverse burden of proof will apply. That is all very well, but how are we actually going to protect this 12-year-old girl? She was 12 at the time. I will tell you how we are going to do it with this bill.
The Government is extending the list of serious violent and sexual offences that qualify a defendant to be subjected to a reverse burden of proof to include sexual conduct with a child under 12, and with this amendment she would have had the protection she needed and would be here with us today.
The list will also now include sexual conduct with a young person under 16 and kidnapping, and we are all aware that there is a very high profile case at the moment, with the loss of another young lady, but I cannot speak about it, because it is still before the courts. The list will include abduction for the purposes of marriage or sexual connection and aggravated burglary, and I come back to the point that a burglary can turn very quickly from an innocent burglary into an aggravated burglary, into a sexual assault, even into a murder. The list will also include assault with intent to rob.
It is with great pride that I get to stand here today and support this bill. As a member of the Law and Order Committee I look forward to the bill coming to the select committee. I stand in support of it. Thank you.
The ASSISTANT SPEAKER (Lindsay Tisch): I understand the next call is a split call. I will ring the bell with a minute to go.
CHARLES CHAUVEL (Labour)
: I listened to that contribution from Mark Mitchell carefully. The previous speaker accused fellow members of the House of
engaging in political spin. He then went on to talk, in critical terms, about one of those members who had spoken about the burglary rate. I want to say one thing to that member who has resumed his seat. As members opposite know, or ought to know, the burglary clearance rate in this country is below 25 percent. That means that if somebody commits a burglary in this country now, they are much more likely to get away with it than not. The effect of a burglary on a person is horrible. They feel violated because their home has been invaded. There are statistics that show that an older person who suffers a burglary ends up with a greater chance of an early death because they feel that sense of violation.
Mark Mitchell: That’s right. You’re making my case. Thank you.
CHARLES CHAUVEL: It is all very well for Mark Mitchell to indicate that he agrees with what I am saying, because what I am actually saying is that the single biggest thing that members opposite in the Government could do to improve public safety is get that burglary clearance rate up by making sure that the police have the resources to do their job. We need proper community policing in this country and ideas like those that were contained in the election manifesto put out during the last election campaign, which showed how you would extend police resources in areas like burglary clearance. What you might do is get civilian staff in to assist, once the complaint has been made, to do the fingerprinting, and to do the investigative work that you might be able to spare a uniform for, and then deliver the file to the uniformed constable so they could actually follow it up. In this way you might do something about that pathetic burglary clearance rate. Then you might stop escalation from burglary to more serious crime—all things that that member spoke about piously in respect of the law and order debate, but that this Government is doing nothing about. Those are the things that we need to see action in law and order on if we want to see an actual improvement in public safety levels in this country, not more and more legislation that sounds good on talkback radio and allows Ministers to talk tough on law and order, but, when you actually weigh up the consequences of that legislation, is found to be wanting.
I want to say this about this bill: I have been very concerned about bail laws. I have been concerned to know about the sort of risk assessment that is applied by the judges when they go through the exercise of granting bail, and so I have been putting a series of written questions to the Minister of Justice, in particular, but also to her colleagues. Here is a summary of the answers received to those questions. In the year 2009 there were only 4 percent of offenders who refused to answer bail. In that year only 5 percent of those between the ages of 17 and 19 failed to answer bail. Only one conviction for murder was obtained in 2009 from somebody on bail, and only one again the following year. So the previous member, Mark Mitchell, and his colleagues can read the notes that they have from their research unit on anecdotal cases as much as they like. Yes, we will support this bill going to the Law and Order Committee. Yes, we want to see the very best bail system available in this country. But let us not have pious speeches about law and order. Let us see some real action based on evidence for a change, because that is what New Zealanders really want.
JULIE ANNE GENTER (Green)
:Tēnā koe, Mr Speaker. In rising to speak on the first reading of the Bail Amendment Bill, I must first say that it is really quite unacceptable to have so little notice of a bill before its first reading. This bill was introduced this very week, and we are already voting on its first reading. Occasionally, there may be a need to introduce legislation urgently, but it is difficult to see what reasoning is behind the rush in this particular instance. Even when an emergency calls for urgent legislation, it is never really good practice. It does not lead to robust lawmaking when members of Parliament do not have sufficient time to consider a bill. I acknowledge that it will be going to the Law and Order Committee, where it will be
scrutinised, and we are very, very happy that that process is not going to be shortened by urgency, as so often happened in the first term of this Government. But, in principle, the Green Party cannot support a bill going to select committee when we have had only a few days to consider the bill, particularly when it has such a serious proposal as the reversal of burden of proof.
The Green Party strongly believes in reducing potential risks to public safety. We absolutely want a safe Aotearoa for all New Zealanders, where all New Zealanders can benefit from the ability to feel safe in their community. And there is, we acknowledge, a serious problem with violent or serious offences being committed by offenders while on bail. We do not deny this. The number of offenders committing offences while on bail has slightly increased in previous years, and that is cause for some concern—there is no question—but it is still a minority. The vast majority of accused people released on bail do not offend while on bail.
The Government has stated that it believes that this bill strikes a balance—we hear that a lot, “balance”—between public safety on the one hand, and protecting the rights of all persons to be presumed innocent and not be arbitrarily detained. But it is extremely concerning that the Government even thinks it is possible to strike a balance while reversing the burden of proof. Reversing the burden of proof is, in fact, trading off a fundamental human right of persons to be presumed innocent until proven guilty. The Green Party has opposed, and will continue to oppose, moves to expand the reversal of the burden of proof, because it is a denial of this fundamental right, which is the cornerstone of our democracy. It protects citizens against the power of the State and the abuse of the power of the State.
I must question what Mr Mitchell said just a moment ago. We absolutely acknowledge that there was a horrific crime committed, and we do not want to see that repeated. But I fail to see how reversing the burden of proof in relation to bail would prevent or preclude further such crimes from happening. There are serious underlying issues here, some of which are about how women and children are treated in the family in this country. These are really serious issues, and I just do not think that reversing the burden of proof in relation to bail is either necessary or sufficient to stop such a crime from happening. What we are very interested in is finding ways to prevent dangerous reoffending that will actually work, and that will not trade off fundamental human rights and continue the erosion of our democracy. And there are alternatives. We believe that there are alternatives, and that there can be a better system to ensure that the judiciary has the information and powers it needs to make the right decisions.
The Green Party believes that a review of serious crimes occurring while people are on bail needs to take place. We believe there needs to be a tightening of the parameters on the granting of bail by the judiciary, based on a mechanism to continuously review bail decisions and risk indicators, so we can learn from our mistakes and we can prevent those mistakes. It is by learning from those mistakes that we can prevent them in the future. We believe in empowering the judiciary with the right information to make the right decisions.
We have some other concerns about this bill, not the least of which is that in the regulatory impact statement I note that the decision about which crime types will be subject to this reversal of the burden of proof has been made based not on considerations of public safety but on a comparison of the monetary cost of crimes and the fiscal cost to corrections. We believe that the safety of the community and of individual victims and their families should be paramount, not fiscal considerations. For these reasons we do not support the bill at this time, but we do look forward to the scrutiny of this bill at the select committee, and we look forward to identifying mechanisms that will actually make New Zealanders safer. Thank you.
MIKE SABIN (National—Northland)
: It is a pleasure to take a call on this very, very important bill, the Bail Amendment Bill. It will be a short call, but I just want to address a couple of the points that have been made by previous speakers. It seems so often that the Greens will oppose anything—in particular, the matters that are ultimately about supporting innocent members of the New Zealand public who go about their lives and through no fault of their own become victims of crime. The scales of justice that the Greens see should be tilted in the vicinity of the offender because it the offender’s human rights that matter most, and those of the victim can be put to one side. Well, I can tell you, as a former police officer, the reality of what happens out there on the street is something that the Green Party should get itself more in tune with.
We have also heard some comments about political spin from the Labour Party. This is the same Labour Party that sat back on its hands for 10 years while the methamphetamine problem in this country went from nothing to the worst in the world. Labour sat back and said that it was perfectly under control, and that the problem reached its peak back in 2003. That Labour Government was in power when I was a police officer, and we watched crime rates go through the roof, the number of victims rise, the number of offenders in prison rise, and the number of offences rise. So I find it highly ironic that Labour members sit here, tiptoeing around this notion of political spin, when they know as much as anyone in this House that this is good law and this is necessary law because it makes our communities safer and puts the onus back on those who would perpetuate crime against innocent members of our society.
But this is not all that we are doing. This National Government takes very seriously the implications of crime: the implications for victims and the financial implications that this has for our nation just as much so. What we have seen over the last 12 months is yet another 4.8 percent decrease in crime, which is a 15-year low. This is in the main because Minister Judith Collins, as Minister of Police, saw the police steer their strategies far more to the areas of prevention because it is quite right, as members have alluded to, that drivers of crime must be addressed if you want to see crime rates fall. I commend the New Zealand Police for the work, for the prevention, that they are doing.
The Methamphetamine Action Plan, an initiative with which our Prime Minister, John Key, has taken leadership, has seen dramatic changes in something that the Labour Party seemed to think that it could sit back and ignore because it was going to go away of its own volition. That action plan has been delivering. We see a doubling of the treatment in prisons, and we also see a greater emphasis on rehabilitation because so many of the offenders who go to prison are going to come out and, statistically, will reoffend. These are all part of a suite of policies, of legislation, that responds to an increase in crime and an increase in victims that Labour members sat by for 9 years in Government and watched happen.
When we talk about political spin, we are actually saying: “You know what? This is pretty good law and we need to find a way to say we support it, but we are going to try to pick it to bits.” Well, the reality is—and I can tell you as a serving police officer—that I have liked nothing more than to have this bill in front of me because it gives us the opportunity to say that the onus should rest with the person who has prima facie committed the offence, and that the police are not left in a position where they are left to watch an offender walk out the door of that courtroom knowing full well that they will more than likely reoffend.
This legislation deals with the most serious of offences. It is not to say that offenders will not get bail; it is just that the onus of proof is on them to prove that they will not reoffend. So we are talking about class A drugs, we are talking about murder and the most violent offences, and the flippant comments about the regulatory impact and one or two murders are a disgrace. The lives of New Zealanders have been taken because
people have walked out of a courtroom and committed an offence while on bail. Sexual offending is also in the suite of changes in terms of the reverse burden of proof. This is part of the National Government’s continuing programme to support our communities to be safer, to support our police, and to support the notion that victims should be at the centre of the justice system. I commend this bill to the House.
A party vote was called for on the question,
That the Bail Amendment Bill be now read a first time.
||New Zealand National 59; New Zealand Labour 34; New Zealand First 8; Māori Party 2; ACT New Zealand 1; United Future 1.
||Green Party 14; Mana 1.
|Bill read a first time.
referred to the Law and Order Committee.