Cosgrove Clayton: Bail Amendment Bill — First Reading Second Reading In Committee Third Reading 
Cosgrove Clayton: Bail Amendment Bill — First Reading Second Reading In Committee Third Reading 
[Volume:651;Page:484] 
Hon CLAYTON COSGROVE (Labour—Waimakariri) 
: 
 This is a serious issue and should be treated as such but on examination of the Bail Amendment Bill—and I will show it for those who are watching at home—we find it consists of one page plus the explanatory note on the front. It is four clauses long. This bill can only be described as a classic National Party hoax. Before the election National members talked tough looked tough and tried to stamp their feet. National stirred up as much fear in the community as it possibly could then it comes into the House and produces this bill its fourth bill which is a hoax and which is flimflam. When this bill is passed at the end of this urgency there will not be one New Zealander who is any safer in this country than he or she is now—not one. 
This is the level of in-depth analysis that National is engaged in. This bill of four clauses just creeps over the page with one line on the last page. That is it. National is trying to say to the people of New Zealand that by altering a couple of words they will be safer. This bill is predicated on a number of deliberately false and deceitful— 
Chester Borrows 
: If it’s so insignificant why didn’t you do it? 
Hon CLAYTON COSGROVE 
: I think the member is going to blow over there Mr Deputy Speaker; you might want to get the men in white coats. 
This bill is based on a couple of very false and deceitful premises. The first premise relates to the use in the Bail Amendment Act 2007 of the words “real and significant risk” which of course were put into section 8 of the Bail Act based on a body of common law precedents in order to give more precision and consistency—and later in this speech I will quote from a member of the judiciary to substantiate that point. National members say that this change made it easier to get bail and that it was done in some way to try to get the prison population down. 
Let us deal with the latter point first. Here are the remand figures and we know that the number of prisoners on remand went up by 30 percent between 2004 and 2008. I will give members some specifics. The remand prison population has continued to grow at a rate greater than the sentenced population despite of course the 2007 amendment to the Bail Act. In July 2007 the number on remand including prisoners held in police stations totalled 1733 and comprised 21 percent of the total prison muster. By July 2008 the number had increased by almost 6 percent and constituted 23 percent of the total prison muster so that puts the sword into the silly accusation National still tries to run out that this was some sort of sneaky way to get the numbers down. 
National’s second point is that the Bail Amendment Act 2007 strengthened people’s ability to get bail. The real and significant threshold was chosen after examining judicial decisions on previous risk thresholds. In its 2002 decision on  
R v Hines 
 the Court of Appeal implicitly agreed with the High Court that to amount to just cause for a defendant’s continued detention the risk that a defendant may interfere with a witness should be more than a nebulous and insignificant risk and should be a real and significant risk. That was the decision of a learned judge. 
The Kahui case at the High Court was one of the first decisions after the changes came into force. In that case Justice Heath stated that the change to a real and significant risk “does not seem to me to put the test any higher than was under previous legislation but rather to emphasise the need for a proper inference to be drawn from proven facts; as opposed to the Court engaging in speculation or guesswork about the possibility of a risk.” That is not from a politician or a political party. That is from a learned judge Justice Heath in a terrible case as we know the Kahui case was after these changes had been made. That puts the sword into the idea that the real and substantial risk threshold a form of words based on common law precedent somehow allowed a weakening in the bail laws. 
In its explanatory note on the National Government notes that the changes the previous Labour Government made were intended to clarify rather than make significant changes. This bill has been dressed up as a turbo-boosted effort. Simon Power is the hard man now it appears on law and order. I presume National will roll out Judith Collins at some point in the debate but maybe we have here the kinder and gentler face the baby-faced assassin on law and order who is here to soften us up. 
In December 2007 the Ombudsman put out a report which I am sure the honourable member Mr Power has. The Ombudsman conducted a review of the criminal justice sector at the Prime Minister’s request. He stated: “I express doubt whether this amendment”—this is the Labour Government’s amendment—“will have a major impact in reducing the number of custodial remands.” We know from the remand figures that it did not reduce the numbers; actually those numbers went up. The figures he obtained from the Ministry of Justice which is now Mr Power’s own ministry showed that in 2004 2005 and 2006 the percentages of custodial remand cases given a custodial sentence was 41 percent 43.8 percent and 44.3 percent respectively. 
That is what we have learned judges saying contrary to Mr Power’s spin and to the ACT Party’s tactics of trying to scare the living daylights out of people. I remember that during the election campaign Ms Wilkinson ran around the Waimakariri electorate saying that it was easy to get bail. Well Justice Heath and the Ombudsman disagreed with that and the remand figures show that it is not true but I suppose it was a good one-liner to try to scare ordinary New Zealanders with. In some respects I suppose it worked but we have to deal with reality. 
What is National’s big hit on its first law and order bill? This is flimflam this is propaganda and this will not make one New Zealander—if we pass it tonight—safer out there in the community. If the National Government was really serious and not just talking tough with Judith Collins wandering around like a latter day John Wayne it could do something that would not cost any taxpayers’ money. The Government could call the Governor-General and trigger by Order in Council our parole legislation of two-thirds and that would make people safer. That would make our communities safer. National would not have to bring it into the House because it has been done. It could simply ring the Governor-General ask for an appointment and ask him to trigger it through Order in Council. That would be a serious and substantial move because the legislation that Annette King and Phil Goff put through is ready to go. It sits there now raring to go. 
My question to Mr Power is why will he not trigger that process. He comes to the House with this four-clause one-page bill and he will stand up over the next few hours and try to convince the people of New Zealand that they will be safer in and out of their homes once this bill is passed. He will try to convince the people of New Zealand that Justice Heath was wrong that the Ombudsman was wrong and that his own ministry’s figures are wrong. He will try to say to the people that the remand population went down when the facts from his ministry show that is wrong and he will try to build a case around this. I look forward to this debate because it will be a lengthy one. This bill is flimflam. This is National talking tough stamping its feet yelling out scaring the community before the election and then trying to dress up a weak bill. 
I ask Mr Power why if this legislation is so good he does not drop it into a select committee. If he wants to turbo-boost it through then OK he could give it to a select committee for a couple of days because it is only four clauses and one page long. It would take only about 10 seconds to read it and maybe 1 minute to read the explanatory note. 
Chester Borrows 
: Oh come on you had help. 
Hon CLAYTON COSGROVE 
: Well maybe it would be 10 minutes for that member and that is just the first page. 
If those members are so proud of the bill then why do they not give it to a select committee and let it go through an examination? They could call in the stakeholders whom they say feel this is a good thing. They could call in the Law Commission and others and ask for their view on it. But oh no that will not happen because then I suspect we would start to see the overlocking being unpicked on this legislation. We would start to see the cloth beginning to unravel and fray legislatively speaking around this legislation because this bill is their big hit their big turbo-boost to be tough on law and order. I say again that if they wanted to be tough on law and order and if they wanted to make people safer in their homes tonight—and they could do it now; I am sure the Governor-General would make himself available—they could trigger the Parole Act through Order in Council in one hit.