Boscawen John: Third Readings — 
Text is incorporated into the Bound Volume 
Boscawen John: Third Readings — 
[Sitting date: 04 October 2011. Volume:676;Page:21645. Text is incorporated into the Bound Volume.] 
Hon JOHN BOSCAWEN (Leader—ACT) 
: 
 It is a privilege to stand up and take a call on the 15 bills that have come out of the Criminal Procedure (Reform and Modernisation) Bill. It is particularly a privilege for me because I suspect that this week will be my last week in this debating chamber as a member of Parliament and there are probably few examples of my being so proud of legislation as this one. 
The ACT Party plays a vital role in this House. Above all else we have contributed to stable Government over the last 3 years. We have supported National in all of its major legislative initiatives in its legislative programme but where necessary we have held National to account. There can be no better examples of that than both the Criminal Procedure (Reform and Modernisation) Bill and the video surveillance bill. Both bills have been before members particularly over the last 2 or 3 weeks and of course the surveillance legislation is coming up in the House later this week under urgency. 
The criminal procedure legislation comes before the House with major changes and those changes would not have occurred without ACT’s involvement. In fact it is the actions of the five ACT MPs in unison that have driven those changes. I will come back later to the comments of Mr Chauvel which I want to respond to but the public of New Zealand should be in no doubt whatsoever that the changes to this legislation are due to the actions of the five ACT MPs who universally stood against this legislation in the form in which it came back from the select committee. Without doubt had we agreed to those changes this legislation would have been passed in the format agreed to by the select committee and by the National majority but in a format that was substantially different in substance from the legislation before this House today. 
Without doubt the most significant of those changes is the change that truly upholds the right to silence. 
Simon Bridges 
: You’ve got the right to silence John. 
Hon JOHN BOSCAWEN 
: That is right—upholding the right to silence. It is interesting to hear the comments or the interjections of Mr Simon Bridges and I will come back to his comments in earlier readings of this legislation. Without doubt the bill as originally reported back would have severely curtailed that right to silence— 
Simon Bridges 
: No it wouldn’t; you know that’s not true. 
Hon JOHN BOSCAWEN 
: —which is a breach of a major constitutional provision. If Mr Bridges does not accept that it shows sadly that he did not actually understand what was in the bill when it was originally reported back. The bill as reported back required defendants persons charged with a criminal offence to identify which part of the Crown’s case against them they did not agree with. Defendants would have been required to tell the police and the Crown counsel what parts of the evidence against them they did not agree with. If a defendant had failed to do that the court would have been able to draw an adverse inference. A judge could have found a person guilty when he or she might not otherwise have found that person guilty. The fact is that by requiring a defendant to identify the so-called issues in dispute the prosecution would have been allowed to fashion the evidence to train witnesses to tell witnesses where the cross-examination questions would come from and to train witnesses in how better to answer the questions put to them by the counsel for the defendant. 
As the Green Party speaker Kennedy Graham has just acknowledged we need to be very careful to protect the weak because we need to acknowledge the substantial difference between the resources and power of someone charged with a criminal offence and the resources and power of the State to bring charges against them. The ACT Party was asked to support the bill as was originally reported back which would have required a defendant to indentify to the police the issues in the police case that they disagreed with. That would then have allowed the police to train witnesses on how better to fashion their evidence. We insisted that that provision be taken out and the legislation comes back into the House this afternoon with that provision taken out. So the right of ordinary people to stand up to defend themselves and to be proved guilty beyond all reasonable doubt—that major constitutional principle—remains. 
The Minister identified some additional changes that the ACT Party was also instrumental in achieving and I acknowledge Mr Chauvel and his minority report. It is a fact that when the bill originally came back it would have enabled the Crown to deny a person a jury trial if that person had been charged with a criminal offence that carried a sentence in prison of 3 years or less. The ACT Party insisted that that term be dropped back from 3 years to 2 years. In this particular instance I refer to the submission of Family First. One of the things I have been able to do in my 3 years in Parliament has been to present a member’s bill that tried to implement a compromise on the so-called smacking legislation that this House looked at in its previous term. Family First and I have been absolutely unrelenting in our determination that that legislation be repealed or certainly amended. Family First said in its submission on the criminal procedure legislation that certain charges—for example a charge of a man assaulting a female or a parent assaulting a child—would carry a maximum prison sentence of 2 years in prison. Under the bill as it was originally reported back by the select committee a parent charged with smacking his or her child—charged with assault—would not have been entitled to elect a jury trial. One of the benefits of the changes that we have made is to allow a parent charged with smacking his or her child to be tried by their peers. 
I think that this Parliament and the people of New Zealand owe a huge debt to organisations such as Family First and to the various other lobby groups that stand up for the rights of New Zealanders and take an interest in civil society. Those different lobby groups represent all sides of the political spectrum from the left to the right. Although individual members of this House may not particularly agree with the submission of one particular organisation or another we should acknowledge the work those organisations do and Family First is an example of one of those organisations. 
This legislation has also received submissions from a number of other organisations—particularly as we would expect from organisations associated with the legal fraternity. We have had multiple and additional submissions from the New Zealand Law Society the Criminal Bar Association—certainly its Wellington branch—and various barristers and no less a person than the Chief Justice made a submission on this legislation. But I would like to acknowledge three barristers who I think have done more than anyone else in this country to bring to politicians’ attention the issues associated with this bill. I again acknowledge Patrick Winkler and his assistant Samira Taghavi and Roderick Mulgan. 
Charles Chauvel 
: Hear hear! 
Hon JOHN BOSCAWEN 
: I would like to record in  
Hansard 
 that Mr Chauvel is agreeing with me. We have been lobbied by those people. We have been lobbied to do the right thing and that has been at big personal cost in terms of money and time. 
Mr Chauvel commented on the fact that the ACT Party was late in coming to the argument that the Minister of Justice did not have the numbers or that the Minister lost the numbers. Well the blunt reality is that the Minister never had the numbers. The ACT Party supported this legislation at the first reading so that it could go to the select committee as we do with most legislation because we wanted the people of New Zealand to have the right to submit on this legislation. We do not actually have a representative on the Justice and Electoral Committee. When we saw the implications of this legislation to a person our ACT caucus was absolutely united against it. 
We are very pleased that this legislation comes back before this House with major changes not just to the jury provision in respect of having to identify issues in dispute but also to the imposing of court orders and to clause 376 which would have increased the threshold for getting a new trial from previously a “miscarriage of justice” to a “substantial miscarriage of justice”. The ACT Party is proud of the legislation in its current form. This legislation really highlights the vital role we play. Thank you.