Katene Rahui: Bail Amendment Bill — First Reading Second Reading In Committee Third Reading 
Katene Rahui: Bail Amendment Bill — First Reading Second Reading In Committee Third Reading 
[Volume:651;Page:499] 
RAHUI KATENE (Maori Party—Te Tai Tonga) 
: 
 Getting tough on crime is always the hallmark of a new Government. If we roll the clock back to 1999 one of the baby steps of the new Labour Government at that time was the introduction of the Bail Act 2000. Eight years down the track we have amendments proposed to get even tougher on crime by amending that 2000 Act. The effect of the Bail Act 2000 was immediate and severe. Between March 1997 and March 2007 the sentence muster increased 35 percent from 4493 to 6053. During the same time however the remand muster increased a massive 214 percent from 550 to 1724. 
Seven years down the track conventional wisdom assisted by case law suggested that the original 2000 Act should be refined to clarify that the risk should be more than nebulous and insignificant and should be a real and significant risk. It is a sensible suggestion one would think to articulate a clear and concise interpretation of the law. So last year the 2007 change was made to better clarify the law in line with case law on the subject particularly the Court of Appeal’s decision in  
R v Hines 
. In introducing the concept of a real and significant risk this brought the legal consideration of bail into line with how the Department of Corrections currently does its risk assessment reports. Again it was a useful initiative one would think to see links being made between two justice sector agencies. 
Perhaps the most salient point of the 2007 legislation was the obligation it placed on the police to provide evidence to the court on risk. Why is that so important? The onus to show one’s evidence means there is a process to counter any possible bias or prejudice. Decisions about granting bail are therefore made on the basis of evidence and a robust process. The responsibility to prevent prejudice or bias being of undue influence is vital in order to counter the problems that have emerged when there have been any elements of discretion in the system at large. 
The unintended consequences of the use of discretion in the criminal justice sector is an issue that has concerned the Maori Party but also is an issue of concern to many other commentators in the sector. The recent work undertaken by the former Government called Effective Interventions describes the fact that four to five times as many Maori as Europeans are apprehended prosecuted and convicted; six to seven times as many Maori are given a custodial sentence or were serving prison sentences; and 11 times as many are remanded in custody awaiting trial. To break the remand statistics down further in 2003 while 10 out of every 100000 European people were remanded in prison the figure for Maori was 110 out of every 100000. But it gets worse. Last year’s report by the Ombudsman Mel Smith which investigated issues involving the criminal justice sector revealed that there has been a marked increase in the volume of offenders who have been remanded in custody. Between 1991 and 2006 the number of remands as a ratio of all inmates grew from 9.7 percent to 20 percent. 
These statistics are all going in the wrong direction. Twenty years ago Moana Jackson in his groundbreaking research  
The 
Maori and the Criminal Justice System: a new perspective—he whaipainga hou 
 recorded that when all necessary variables have been considered Maori record instances where their sentences or the rejection of a Maori-based alternative can be attributed only to judicial insensitivity and prejudice. Ten years ago a joint Te Puni Kokiri and Ministry of Justice study found that the court system is meaningless to many Maori; too many Maori are receiving poor-quality legal advice; prosecution practices for Maori differ from those of non-Maori; lawyers court staff and the judiciary have been found guilty of culturally inappropriate behaviour; Maori offenders are receiving inappropriate sentences; and imprisonment has been proven to be ineffective. 
Less than one year ago the Ombudsman suggested that a royal commission of inquiry was urgently required to undertake a comprehensive review of the criminal justice system. The reason for his call for an inquiry is spelt out in black and white in the programme for action for Maori in the Effective Interventions programme pursued by the previous Government. In that report a specific recommendation was introduced to investigate the impact of the exercise of discretionary powers in the criminal justice system. The Ombudsman and the Chief District Court Judge have both publicly supported the value of the real and significant provision. Their argument is that without this provision too many people are remanded into custody unnecessarily and this is particularly of concern for people who are facing low-level charges or non-custodial sentences. 
Given all this background the proposal to remove the words “real and significant” from the Bail Act reverts the legal position back to that prior to 2007 and provokes further questions. Why would one want to remove specificity from legislation to deliberately return to the concept of risk and with it the attendant problem of loose interpretation? Why when the Ombudsman and key justice sector agencies all appear to agree that there is an element of discretion that works against Maori outcomes in the justice sector would anyone seek to take the risk to introduce the possibility around even more discretion? 
There is a very key issue that I believe every member in the House and every party represented would absolutely agree on. That is the fundamental importance of public safety. We must not expose the people to any element of risk and we must do all that we can do to restore a sense of peace within our communities. But we cannot agree to legislation that invites loose interpretation or an element of subjectivity or discretion when there is a real alternative in sight. That alternative was to tighten up the law and to make it more specific by defining risk as being real and significant as the 2007 amendments did. That was why when the amendment to clarify and tighten the provisions came before the House last year as part of the Criminal Justice Reform Bill the Maori Party supported the legislation. We supported that legislation then because we wanted to ensure that offenders are not unnecessarily remanded in custody rather than on bail. Our policy position has always been that we seek initiatives to lower the incarceration rate and to reduce the use of prison as a response to offending. We want to protect the public from harm and the clarification of real and significant risk does that in our estimation. 
But we are also keen to engage in a much wider debate around the Government’s law and order policy and we anticipate that Minister Sharples in his capacity as Associate Minister of Corrections will be an active participant in that debate. The debate must consider these three issues posed by the Ombudsman last year: the wide philosophical issue of what is the purpose of a remand and whether and when bail or custody is appropriate; that the increase in prison muster is undesirable in terms of the impact on offenders and families; and the demand for increased Government expenditure on prisons. The overrepresentation of Maori should be an area of significant focus. Thank you Mr Assistant Speaker.