Mapp Wayne: Courts (Remote Participation) Bill — In Committee 
Mapp Wayne: Courts (Remote Participation) Bill — In Committee 
[Volume:664;Page:12353] 
Hon Dr WAYNE MAPP (Minister of Defence) 
: 
 I have been listening carefully to the previous speaker Lianne Dalziel whom I know is concerned about issues to do with rights. I know of the training and experience she has had. I feel that there needs to be a balancing point put here and I know that other members who are highly experienced in criminal proceedings will seek to take a call in this debate on the part of the Government as well. 
For the benefit of the House the record and those members of the public who are listening I say that it is worth noting the terms of the provisions of clause 9 and then the protections set out in clause 6 in particular. The first point to note is that clause 9 states: “AVL must not be used in any criminal substantive matter … unless a judicial officer determines … (a) in accordance with the criteria in sections 5 and 6;”—which in practical terms will be section 6—“and (b) taking into account whether the parties to the proceedings consent to the use.” Labour Opposition member Lianne Dalziel would say that the situation of the parties is absolute. They have an absolute determinative power as to whether there should be a hearing via an audiovisual link. I suggest that it ought not to be an absolute right at all; it is something to be balanced in the circumstances of the case. 
One should also look at the criteria set out in clause 6: “(a) the ability of the defendant—(i) to comprehend the proceedings; and (ii) to participate effectively in the conduct of his or her defence; and (iii) to consult or instruct counsel privately; and (iv) to access relevant evidence; and (v) to examine witnesses for the prosecution;” and other matters therein. Those are the high-level protections that judicial officers have to consider. 
However I will come back specifically to the way that clause 9 is constructed because it relates to the fundamental point. The operative direction to the judicial officer is that an audiovisual link must not be used in any criminal substantive matter and then there is an exception to the direction with two criteria. As legal scholars would well know that effectively sets an incredibly high threshold for this situation. The judicial officer would have to be totally satisfied that in essence the proceeding involving the defendant would not be prejudiced on this issue. Naturally enough this issue would be dealt with by a hearing where counsel for both the defendant and the prosecution would make submissions as to whether this step is appropriate. 
I agree that it is a significant change. I agree that it is one to be approached with caution. I suggest however to the Opposition that the structure of the legislation is such that the very things the Opposition members have raised have been taken into account. I am sure that is why the Attorney-General whom Ms Dalziel well knows is highly experienced in criminal law matters and who understands citizens’ rights deeply would have taken the provisions into account. I point out that the Attorney-General’s judgment based on his experience determines whether the relevant notice under the New Zealand Bill of Rights Act should be issued. It is not an issue for what a civil servant thinks is appropriate. It is not an issue for what an agency thinks is appropriate. It is the Attorney-General’s judgment that is at stake. 
I will conclude on this point: this Government has made sure that we have a highly experienced lawyer as our Attorney-General. He is deeply experienced in litigation. In contrast the previous Labour Government chose for a number of years to have a non-lawyer as the Attorney-General. I think that tells us a great deal about Labour’s deep respect for the institution of Parliament and the institution of the Attorney-General. Labour was prepared to run roughshod over that issue and Labour members should be embarrassed about it. They have stopped interjecting except for someone who knows absolutely nothing about the law. I say that Labour Opposition members would do themselves a favour if they carefully analysed the legislation to see whether the balance of rights and protections is properly taken into account.