Criminal Procedure Bill — In Committee 
Criminal Procedure Bill — In Committee 
[Volume:638;Page:8294] 
Criminal Procedure Bill 
In Committee 
Debate resumed from 21 March. 
Part 2 Criminal Disclosure ( 
continued 
)  
KATE WILKINSON (National) 
: 
 I continue my call on Part 2 of the Criminal Procedure Bill. I have already outlined the two-page diagram and the four-stage disclosure requirement which do seem somewhat convoluted and complex. I was halfway through relating the situation of the Institute of Environmental Science and Research which in its submission advised that it provides forensic services and that it has major concerns over the potential implications of the time frames as a result of these disclosure requirements. In fact it stated in its submission that it was “bemused by the apparent lack of consultation” with the institute. There are times when the findings of the Institute of Environmental Science and Research are pivotal to the charge and summary of the facts yet under the regime proposed by this bill the current turn-round times are incompatible with the time frames envisaged. The institute admitted that part of this was due to its capacity actually to do the work but more important it is a matter of the inherent time it takes actually to process certain types of forensic work. If there is not enough time in which to undertake the proper forensic processes and they are going to be affected and jeopardised by this disclosure regime which is complicated then I would like the Minister in the chair Mark Burton to take a call and explain firstly what consultation he had with such forensic experts as the Institute of Environmental and Scientific Research and secondly how he thinks the process time frames will be able to meet the convoluted time frames that have been prescribed in Part 2. 
The commentary on the bill states that the recommended changes to this fourfold disclosure regime aim to “clarify or augment the obligations on the prosecution to reflect current practice and reaffirm an accused person’s right to fair process and to make the legislation more workable.” It specifically states that the objective is to make the legislation more workable but it cannot be workable if the institute does not have time to process its forensic projects. The legislation cannot be more workable if it so convoluted and complicated that an overview diagram of the disclosure provisions is actually included in the bill. The use of diagrams in legislation is not a common practice and I would have thought that the drafting of this bill could be simplified so as not to need to describe the provisions by way of a diagram. 
I do not believe that this legislation is very conducive to maximising the efficiency of the criminal justice system. I fear that rather than making access to justice quicker and more efficient it appears to do the exact opposite by complicating the process especially in relation to these disclosure requirements. If something is not broken then we should not be attempting to fix it. It has been suggested that the current system works well. The New Zealand Law Society says that it works well and those within the industry say that it works well. So we have to ask ourselves—and I would like the Minister to answer this one as well—why we are trying to fix something that works well with a complicated fourfold disclosure requirement that then needs a diagram to explain what is intended. On that note I seek the Minister’s response to those queries and I certainly look forward to hearing from him. 
Hon MARK BURTON (Minister of Justice) 
: 
 I am happy to begin to engage with the member Kate Wilkinson and she raises a number of important points. Firstly I have heard a number of references to the use of a diagram as though somehow by its very existence it suggests that the Criminal Procedure Bill is too complicated to understand in any other way. In fact it was provided simply to assist with clarity. I thought it was a useful and practical tool and was the sort of sensible inclusion that I think we should make use of more often. But the fact remains as the member noted in referring to the commentary that the bill actually proposes a new fourfold disclosure regime in order to consolidate what is already a very complex body of common law in legislation. That is the fact of the matter. 
Members listening to Kate Wilkinson would be forgiven for thinking that what we were doing was moving from a very simple straightforward current procedure to a very complex one. In fact the reverse is true. The situation as it stands is complex. It has evolved over time. This procedure will clearly set out rules in one place rather than in more than one place and not as the mixture of statute and case law that currently exists. It will mean that all parties can be more aware of what they are entitled to what their responsibilities are and what the required procedures and time frames are. I cannot see how moving from the complexity that has evolved over time—which is the case now—to a more systematic consolidated approach does anything but assist in the execution of the law. 
The member referred to the Institute of Environmental and Scientific Research and to our discussions with it. I can happily inform the member that there have been subsequent discussions with both the institute and the police. Ministry officials have engaged with them. I think it is fair to say that they report that for the main part the institute can meet within the time frames provided for in the vast majority of cases and that in the few cases that it may be unable to meet the requirements it can get an extension. That is provided for in the bill. 
Therefore I think in effect the concerns the member raises have all been responded to. So I am confident that with those responses the member will now be fully satisfied and will happily embrace Part 2. 
Hon CLAYTON COSGROVE (Associate Minister of Justice) 
: 
 I am not a lawyer. Before Mr Finlayson in his own inimitable charitable and humble way gets in to have a dig at those members who stand up and who are not lawyers I will get in first to say that I am not a lawyer. I am sure that he is far more— 
Christopher Finlayson 
: I’ve said nothing! 
Hon CLAYTON COSGROVE 
: I am just getting in first because Mr Finlayson who is one of the most charitable and humble members of the House normally does that. 
As a person who is a layperson and not a lawyer I say that this Criminal Procedure Bill provides a decent disclosure regime and brings the law into this century. A lot has been made of the fact that preliminary hearings and if you like committal hearings will go and therefore that defendants will be somehow stripped of their rights. It is worth noting that since 1977—so the Law Commission in its papers and others tell us—committal hearings or decisions on the papers in terms of committal to a trial have been made in around 47 percent of cases. 
The bill also allows some flexibility which is something not evident under the present circumstances in that if a committal is made on the papers by a judge there is still the ability for counsel to make an application so that a preliminary hearing can come about. But that is a matter for the judge. 
Kate Wilkinson 
: I raise a point of order Mr Chairperson. This debate is on Part 2 which is specifically about disclosure requirements; it is not about depositions or pre-trial hearings. It is very specifically about disclosure and I do not believe that the member is talking about disclosure. 
Hon Mark Burton 
: I think it is fair to say that when the Committee is conducting its business members are generally given a little bit of leeway to explore the issues around the particular focus of the part. That is something that members have commonly done—on both sides of the Chamber. As long as the member moves reasonably quickly to the appropriate part of the bill that is generally seen as allowing for a certain amount of touching on related issues that members want during these debates. 
The CHAIRPERSON (Hon Clem Simich) 
: I thank Kate Wilkinson for raising the issue. The Minister has proposed a way through it and I intend to follow that. 
Hon CLAYTON COSGROVE 
: I bow to your learned judgment Mr Chairperson. 
In essence when enacted Part 2 of the Criminal Procedure Bill will become a separate statute referred to as the Criminal Disclosures Act. In essence two major reports on reforming criminal disclosure have been written both of which call for the implementation of a statutory regime for disclosure. These are actually learned reports—the first being of course  
Report on Discovery in Criminal Cases 
 from the Criminal Law Reform Committee in 1986 and the second being  
Criminal Procedure: Part One Disclosure and Committal 
 Report 14 from the Law Commission 1990. 
I have to say not being a lawyer but being one who observes legal practice through being a member of Parliament that when law commissioners eminent as they are propose reforms they should be listened to. There are various views within Law Society branches around the country in respect of this disclosure regime but I would have thought that when law commissioners suggest changes like this—which do bring a practical effect and a more speedy and efficient court system—those of us who observe the law and are part of the legislative decision-making process should listen. 
The member who took a point of order on me has been very vocal of course in trying to manufacture the proposal that we do not have such justice. Her favourite saying which she quotes from history is “Justice delayed is justice denied.” Well this proposal effectively to codify disclosure regimes provides a more efficient court system. I would have thought that people would agree with that basic proposition. I see Mr Borrows over there an ex-policeman who was involved no doubt in aiding the Crown in prosecution of many criminal cases. He would agree with the proposition that a more efficient court system provides a greater degree of justice to both defendant and victim. That is what these proposals in Part 2 are all about. 
Chester Borrows 
: That’s right. I agree with what it’s about. 
Hon CLAYTON COSGROVE 
: The member says he agrees with that but of course his Supplementary Order Paper does not provide the back-up for that comment. 
CHESTER BORROWS (National—Whanganui) 
: 
 Thank you for the opportunity to speak on Part 2. I agree funnily enough with Mr Cosgrove who talked about the desirability of a more efficient court system and we will see that as we go on to debate further parts in respect of this bill. 
Part 2 codifies a disclosure regime that exists currently and that is a good thing. So we will be voting for this part. It allows for limited disclosure by accused people but in actual fact it really only underlines two principles of the disclosure regime at the moment. One of those principles is alibi which is already part of the law and that accused people must disclose alibis at certain periods. Also that there is no property in expert witnesses; they are supposed to be independent and generally are. 
What is excellent is that the provisions of Part 2 allow for judges to set time frames on disclosure. A lot of good judges who allow cases to rattle through the court system which brings justice to a speedy resolution lead by example through force of personality and that is exactly what they do now. Judges themselves are divided in respect of a point that Mr Cosgrove raised on depositions. Those who wish to set those time frames tend to have speedy resolutions and go through the court system. I must say that it is a shame that there is not a clause in here that amends the Evidence Act in relation to requiring the police to speak to material witnesses who are readily available and ascertain evidence from them because sometimes they choose not to interview the obviously available witness. 
I also point out to the Minister that the provisions of Part 2 actually achieve what he wants the provisions of Part 5 as they are written now to achieve and that is to bring about speedier jury trials. So I look forward to supporting Part 2. 
CHARLES CHAUVEL (Labour) 
: 
 I am pleased to rise to speak in the Committee stage concerning Part 2. As previous speakers have indicated this part will create a codification of the existing disclosure regime in criminal cases. It is important in my view to undertake this exercise. The current law is loosely based on the regime that came into force with the Official Information Act. That legislation of course was never intended by its framers as a full statute relating to disclosure in criminal matters; it is legislation that the judges have had to fashion into that sort of disclosure regime. So rather than relying on legislation that was not really intended for the purpose and on judge-made law created under the legislation—somewhat imaginatively it might be said—we have the opportunity to fashion a custom-made disclosure regime in criminal cases. It is appropriate to take that opportunity. 
As the Minister indicated a fourfold disclosure regime is intended: initial disclosure on the part of the prosecution followed by full disclosure. It is pleasing to note that the legislation indicates that the continuing disclosure obligation on the part of the Crown and the prosecution in these matters is preserved and that it persists from the time of the commencement of a criminal proceeding right through the prosecution of the matter and through to the exhaustion of any appeals. It is appropriate that the State should bear that burden on a continuing basis at all times. 
 The legislation as has been said also sets out a regime regulating disclosure by the defence—a novel matter but a matter that ought to be dealt with by statute—and where as will be seen a number of competing interests are balanced. The disclosure regime relating to third parties is very significant because obviously in criminal matters third parties will often have access to important information that will potentially be of assistance to either the prosecution or the defence. It ought to be the case that the court has an orderly way in which to be able to bring that information before it following a hearing relating to its relevance and the court’s satisfying itself that the party intended or named in the application actually has possession of it. 
Mention was made of the diagram appearing after clause 18(2). In my view that diagram is a very helpful overview of the regime that applies. It will be of enormous assistance particularly to lay people trying to understand just how disclosure obligations operate in District Court trials. I think it is perhaps a somewhat novel way to describe and set out obligations in a statute but I think the Law and Order Committee is to be praised for having set it out in such clear terms. Clearly the diagram does not purport to create the obligations but simply to describe them and it does so in a helpful way. 
I point to another couple of provisions in Part 2 that I think are worthy of mention. Clause 25 relating to service of applications for disclosure clearly contemplates that such applications might be served by electronic means which is clearly appropriate in the modern era. Facsimile transmission is also mentioned and it is good to have that recognised explicitly in the statute. 
Clause 27 describes in detail the disclosure obligations on the prosecution which are to operate within 21 days. In my view clause 27 sets out a very comprehensive and appropriate code for initial disclosure. Clause 28 goes on to then describe the full disclosure obligations. Again there is a very full and fair description in the code that will apply to prosecution obligations. It is a far more satisfactory state of affairs than exists under the current attempt to fashion a judge-made code largely based on the Official Information Act. 
Clause 29 provides for additional disclosure. It indicates that the defendant can if he or she is dissatisfied with any aspect of the disclosure request additional disclosure from the prosecution. This clause provides for the additional disclosure that may be requested from the prosecution. Where a request that has been made is declined the prosecutor must give reasons for declining. 
Clause 30 makes it clear that there is no requirement to invent or come up with new information simply because of a disclosure request. Clause 31 sets out a very comprehensive code under which the reasons for withholding information are set out. They are more comprehensive than those set out in the Official Information Act. They are very clear and that will help parties to criminal litigation understand just why disclosure is declined in any particular case. 
Clauses 32 and 33 go on to provide for further restrictions. Addresses of witnesses and informants can be protected—clearly that is an appropriate balancing exercise on the part of the House and Parliament should go that way. Trade secrets are also protected in certain cases and the committee has clarified the definition there in a helpful way. 
Clause 35 deals with the disclosure obligations upon defendants. Again a comprehensive code is set out that will make it clear what obligations exist. If alibi defences are to be brought up then proper notice under clause 37 will need to be given allowing for preparation in advance of any such defence being advanced. Expert witnesses are subject to a similar notice requirement by clause 38. If expert evidence is to be relied upon then the prosecution is to have a chance to digest either the brief of evidence in advance or a fair summary of it so that again the interests of justice are preserved and there is not defence by ambush in these cases. 
Clause 39 and those clauses that follow in Part 2 deal with disclosure by non-parties. As I said it is a novel part of the regime. Clearly there will be situations where information that is vital to either the prosecution or the defence in criminal proceedings exists and that information is held by third parties. The legislation would set out a clear way for making an application for a party to disclose such material. 
Clause 40 sets out the tests on which the court must base its decision as to whether to grant a hearing for the disclosure of third-party material. It is a low threshold and it seems appropriate. The consequences and the procedures by which third-party disclosure should be dealt with are also set out in the relevant clauses. 
One other point I would make is that the legislation sets out a sensible test for admissibility in the event that information exists it is not disclosed and it is then sought to be relied upon at the hearing. This is not a rigid test. Clause 47 sets out an interest of justice test so that the court may determine whether in all fairness to admit the evidence grant an adjournment or to do anything else that does not prejudice the rights of the parties and the fairness of the procedure. It is unlike the inflexible test that operates for example in the US. There is not a “fruit of the poison tree” test. The court has all the powers it requires in the interests of justice to decide whether to admit the information to grant an adjournment or to allow other things to be done in fairness to the parties. 
JILL PETTIS (Labour) 
: 
 I am not a lawyer but I am most certainly interested in the fair application of the law and that is why it was interesting to sit on the Law and Order Committee when this bill was considered. 
The Criminal Procedure Bill is significant in the fact that it is proposing new criminal disclosure legislation. It will establish a fourfold disclosure regime requiring initial then full disclosure. One of the other interesting aspects of this is that the proposed Act consolidates a complex body of common law and legislation that we were advised led to inconsistent disclosure practices. The committee emphasised that disclosure is a continuing obligation on the prosecution under the new Act applicable both before and during a trial until all appeals are exhausted. 
Consistency is a good thing in life and it most certainly is a good thing in the practice of the law. It is also the view that the changes recommended aim primarily to clarify or augment the obligations on the prosecution. Clarity in the application of the law is also critically important. The public perception is that justice needs to be fair and to be seen to be fair to all because fairness in the application and execution of the law is in everyone’s interests. 
Part of the aim of Part 2 is to make legislation that is more workable. We are all familiar with comments and representations made to us from the public about their confusion in regard to the application of the law as they come into contact with it whether they are on the side of the accused or the victim in the whole legal argument. Anything that makes legislation more workable and more easily understood by the general public can be perceived and seen only to be a good thing. 
Reference was also made to notice and plea in Youth Court proceedings. In New Zealand the Youth Court is a bit more under the spotlight these days. It receives more attention from the public then as a consequence from the media. I am pleased to say that not all the publicity—the public and media comment—about the Youth Court is negative. This bill will certainly work to some degree to assist proceedings in the Youth Court. In the case of young persons in Youth Court proceedings they are not required to plead but disclosure is triggered only when a not guilty plea is entered. Amendments in relation to the Youth Court are intended to accommodate Youth Court proceedings when no plea is entered. 
Part 2 is about improving the efficiency of preliminary hearings and adding clarity to part of the court proceedings. I look forward to hearing further debate on this bill as the Committee stage ensues. 
Hon MARK BURTON (Minister of Justice) 
: 
 It appears that members have raised the questions and issues that they wanted to raise. I will just round off this part of the debate. 
Chester Borrows 
: We have a great many issues. 
Hon MARK BURTON 
: The member should pay attention to his own colleague. I paid careful attention to Kate Wilkinson who raised a number of— 
Kate Wilkinson 
: I’m here. 
Hon MARK BURTON 
: There she is. She raised a number of sensible and reasonable questions that I think I can provide a reasonable answer to. 
It is worth reminding ourselves that under the current law prosecution disclosure before trial is a mixture of case law and statutory rules under the Official Information Act 1982 and the Privacy Act 1993. It is a complex mix and I think this point goes to the matters that Kate Wilkinson raised in her questions. It also explains the purpose of simplifying and putting into one place provision that indeed does assist all those issues around disclosure requirements in a more transparent and straightforward way. The key principle in criminal proceedings is that all of those matters that should be and are required to be disclosed to the defence are disclosed in a good and timely manner. These provisions will assist in that process and I commend this part of the bill to members. 
The question was put that the amendments set out on Supplementary Order Paper 97 in the name of the Hon Mark Burton to Part 2 and the following amendments in his name to clause 56 be agreed to. 
Subclause (1): to omit “ 2 4 5 and 6” and substitute “and 2”. 
Subclause (2): to omit “ 2 4 5 and 6 (or” and substitute “and 2 (as”.  
Amendments agreed to. 
Part 2 as amended agreed to. 
Part 3 District Courts Act 1947 
The CHAIRPERSON (Hon Clem Simich) 
: We now come to Part 3 clauses 58 to 64 which includes debate on schedule 3. 
CHARLES CHAUVEL (Labour) 
: 
 I am pleased to rise to speak in the Committee stage on Part 3 of the Criminal Procedure Bill which will make amendments to the District Courts Act 1947. The interesting aspect of this part of the bill is that it will deal with the jurisdiction of District Courts over a number of offences. 
Under section 28A(1) in clause 60(1) these offences are: “(a) any offence for which the accused elects under section 66 of the Summary Proceedings Act 1957 to be tried by a jury: (b) all indictable offences under any enactment (other than the offences referred to in Parts 1 and 2 of Schedule 1A): (c) the indictable offences referred to in Part 1 of Schedule 1A in any case where— (i) the proceedings are transferred to the Court under section 168AA of the Summary Proceedings Act 1957; or (ii) a person pleads guilty under section 153A or section 168 of the Summary Proceedings Act 1957 before he or she is committed for trial or sentence to any such offence: (d) conspiring to commit an indictable offence to which paragraph (b) or paragraph (c) applies—” 
Kate Wilkinson 
: What does that mean? 
CHARLES CHAUVEL 
: I am sure the member will be able to ask the Minister Mark Burton for a full explanation. Clause 60(1) continues: “(e) attempting to commit an indictable offence to which paragraph (b) or paragraph (c) applies or inciting or counselling or attempting to procure any person to commit any such offence which is not committed: (f) being an accessory after the fact to any indictable offence to which paragraph (b) or paragraph (c) applies.” The bill also goes on in clause 61 to deal with maximum sentences in clause 62 to deal with appeal against sentence and in clause 62A to deal with regulations. 
It is clause 62A that I would like to speak on. Clearly under the legislation offences will be able to be added or removed from Parts 1 and 2 of schedule 1A and transitional arrangements will be able to be made for the trial and sentencing of persons charged with those offences. This will be able to be effected by regulation. So middle banding will be able to be dealt with by way of Order in Council rather than by primary legislation. Although that is in one way offensive to the general principle that primary legislation ought to be amended only by further primary legislation it does seem to be a sensible move. 
I note that in the report of the Law and Order Committee the move is one that would be supported by the Chief Justice and would prevent officials from encountering the position they have told the committee—according to its report—they currently encounter which is that the schedule relating to middle banding and indictable offences rapidly falls into inaccuracy because of the frequency with which it is amended. It is much better to be able to do it by regulation to have the scrutiny of the Regulations Review Committee and the other safeguards that exist and to be able to get on with it as the jurisdiction of the District Courts evolves. 
I note in that regard—with great respect to the District Court bench—it does seem to me to be sensible to be expanding the jurisdiction of that court by reference to the numbers of different types of more serious offence that that the court can hear and try. After all the ranks of the District Court bench in recent years have been swelled by former Crown counsel former partners in Crown solicitor firms and former employees of those firms. They clearly represent a very very strong level of expertise in criminal matters. It is appropriate to continue to expand the jurisdiction of the court in criminal matters in light of the expertise that the court has. 
We also know that the High Court prefers that that should be the case—that more criminal matters should be dealt with in the District Courts than in the High Court. It is better to leave the High Court for serious civil matters and appeals on decisions of registrars and what have you and to have most matters of crime in principle dealt with in the District Courts. That is the direction that this legislation will take and the schedule will be able to be updated—as I mentioned—by regulation. Thus middle banded offences can more easily be kept up to date as society determines and as the House decides is appropriate. 
TIM BARNETT (Labour—Christchurch Central) 
: 
 I will take a very brief call on one particular part of the Law and Order Committee report in relation to Part 3 of the Criminal Procedure Bill; that is the item referring to the Regulations Review Committee. 
I am thinking of my experience for 6 years as chair of the Justice and Electoral Committee. That was thank goodness prior to Mr Finlayson’s arrival in this Parliament—if he had been here he would have made my life quite unbearable. Anyway it was a very functional committee because the National MPs were particularly cooperative. We had occasion to I guess one could say clash horns or have debate with the Regulations Review Committee. 
I note that when considering Part 3 of this bill the Law and Order Committee sought advice from the Regulations Review Committee and received advice that at least one clause—62A which the committee was mindful to introduce into the legislation—“raised a fundamental issue of principle in respect of the delegation of lawmaking powers by Parliament.” I have to say that clause 62A does not seem to be as shocking as that at least on the face of it. It covers an amendment to section 123(1) of the principal Act and it adds a couple of paragraphs (bf) and (bg) amending schedule 1A—adding offences and so forth. 
I guess the issue behind the concern of the Regulations Review Committee is about the flexibility of legislation. The Law and Order Committee had a look at the situation and noted in the commentary that “the decision as to where a case is committed for trial will have no bearing on the rights of the person charged or the sentence that may be imposed.” Obviously the committee took outside advice notably from the Chief Justice who supported the amendment. Since this legislation is really around making the court system work more effectively the advice of the Chief Justice is important. 
The select committee also took account of the fact that any regulations made would have to go back to the Regulations Review Committee. This is really an example of the Regulations Review Committee giving advice that was considered and then rejected on particularly good grounds. The Regulations Review Committee has the power to call in any regulation for scrutiny and it will continue to try to guard the rights of the citizen that could potentially be under threat. 
That is really why the question was raised in the first place. I think it is worthy of note by members that this is quite a good example of the role that the Regulations Review Committee plays in both advising committees and guarding fundamental rights. 
Hon MARK BURTON (Minister of Justice) 
: 
 I have just a couple of points. Firstly clause 60 of the bill importantly clarifies the extended jurisdiction of the District Court and that is effectively a tidying-up provision that is quite important. 
I want to comment briefly on the contributions from Tim Barnett and also from Charles Chauvel. [ 
Interruption 
] It was an offering of high standard I have to say. MMP has thrown up some interesting challenges to Governments but it has also offered up—and here we see a good example of it—some of the benefit that can accrue from the interaction between various parts of this institution. I have to say I was very encouraged by the interaction between the Regulations Review Committee and the Law and Order Committee and by the manner in which that interchange scrutinised and examined what is an important question of jurisdiction in looking at the regulation-making powers that are contained in clause 62A. 
If we look at the commentary on the bill we see an exchange and a working through of the issues. I believe that this has in the end produced a very strong and conclusive result and one as has been mentioned that also enjoys the support of the Chief Justice. This is a smaller part of the bill but it reflects some of the benefits that can come from the changes that have happened within this institution and in terms of the interaction between—in this case—the select committee and the Regulations Review Committee. 
HONE HARAWIRA (Maori Party—Te Tai Tokerau) 
: 
 Kia ora Mr Chairperson. I am concerned about the note about changing unanimous verdicts to majority verdicts. Is that in Part 3? 
Hon Mark Burton 
: That’s Part 4 Hone. 
HONE HARAWIRA 
: Is that Part 4? I will save it for Part 4. On Part 3 I will just let it slide there Mr Chairman. 
The CHAIRPERSON (Hon Clem Simich) 
: I call the Hon Clayton Cosgrove. 
Hon CLAYTON COSGROVE (Associate Minister of Justice) 
: 
 I raise a point of order Mr Chairperson. Forgive me but in the din my colleague pointed out that Mr Clarkson may have wanted to take the call. I am happy to yield and take the following call. Unlike Mr Finlayson I am a humble and charitable member so I am happy to yield to Mr Clarkson if he would like to take a call. I am happy to follow him because I do not think he has had the opportunity to take a call in this debate; I have so I am in your hands Mr Chairperson. 
The CHAIRPERSON (Hon Clem Simich) 
: Thank you for your generous thoughts but I made the call and I called the Hon Clayton Cosgrove. 
Hon CLAYTON COSGROVE 
: I am indebted to you Mr Chair. Part 3 is an exceptionally small part of the Criminal Procedure Bill. As other of my colleagues have said essentially the bill widens the jurisdiction of the District Court in criminal matters. There is the interesting term “middle banding” which I am sure Mr Finlayson as a learned barrister could elucidate for me as a non-lawyer. I invite him to take a call. The middle-band offences as set out in the schedule can be tried either in the High Court or in the District Court. 
The other aspect to Part 3 of course is that from now on changes in middle banding will be made by regulation rather than legislation. What that does is to make a far more efficient process both in the courts and in this House because if changes to middle banding have to be made we do not have to go through the exhaustive procedure of passing legislation. They can be made through regulation with the safeguard of course of the Regulations Review Committee scrutinising those aspects and keeping all parties honest. 
I would again say that this measure modernises our court system. It provides a more efficient regime for our court system and far more flexibility. Some people on the other side of the House have in earlier calls I believe argued against middle banding and expressed concern in respect of it. But changes as I said can be made through regulation. What is wrong with that? I would have thought that is far better than going right through a new consultation process with the public and trotting back to the House with legislation. I would think it is better than going through first second and third readings and a select committee process etc. and then trying to do it. 
If there are good ideas that come from learned judges the Law Commission or learned barristers and lawyers across the other side of the Chamber—and I see one has just come in; no I was looking at the wrong person—those can be assessed in a relatively swift manner. [ 
Interruption 
] I was looking at Mr Henare and thinking he was a barrister— 
Pita Paraone 
: A bush lawyer. 
Hon CLAYTON COSGROVE 
: My colleague says Mr Henare is a bush lawyer. I do not think it is fair to say that Mr Henare is a bush lawyer at all. He is certainly not a lawyer. 
Hon Tau Henare 
: What would you know about the law? 
Hon CLAYTON COSGROVE 
: I probably know as much as Mr Henare although most people would know a tad more. Regulations can be used in a flexible fashion so that we can make our court system more efficient. [ 
Interruption 
] Mr Henare seems to be arguing against— 
Tim Barnett 
: I raise a point of order Mr Chairperson. A member opposite is heckling while standing in the aisle. I am not sure whether that is allowed. 
The CHAIRPERSON (Hon Clem Simich) 
: You are absolutely right Mr Barnett. Members are not to speak or call out unless they are sitting on their benches. 
Hon CLAYTON COSGROVE 
: Thank you Mr Chair. That is all right; I do not mind Mr Henare having a go. It adds to the colour and entertainment in this Chamber. I think Mr Henare is more akin to being a Porirua public bar bouncer. His profession should be as a doorman or doorkeeper or whatever one calls it rather than as a member of this Parliament. I can imagine Mr Henare standing in a public bar and head-butting the punters as they come in. He is more akin to that than to the style and honourable nature of this Parliament. We cannot get the thug out of some people obviously. 
I fail to see how the Opposition could argue against provisions that— 
Hon Member 
: We’re not arguing! 
Hon CLAYTON COSGROVE 
: Well we have convinced Opposition members obviously. Obviously the power of the Minister of Justice’s arguments has convinced the Opposition because now I am being heckled by members who say that they agree with the bill! So I commend the Minister of Justice for the persuasiveness of his arguments for the depth of his logic and for his progressive and innovative ideas which have obviously swung this debate round. [ 
Interruption 
] Mr Borrows interjects. I acknowledge his interjection that he agrees with the bill and that he supports the bill. I think Mr Borrows has exhibited—at least with this legislation but not with some other bills—a degree of progressiveness that sadly is lacking in some of his colleagues in the National Party. So I commend Mr Borrows for that. He is obviously a leader or potential leader of the National Party because he has been persuaded by this bill. 
Progress reported. 
Report adopted.