O'Rourke Denis: Bail Amendment Bill — First Reading 
Text is incorporated into the Bound Volume 
O'Rourke Denis: Bail Amendment Bill — First Reading 
[Sitting date: 10 May 2012. Volume:679;Page:2190. Text is incorporated into the Bound Volume.] 
DENIS O’ROURKE (NZ First) 
: 
 New Zealand First supports the Bail Amendment Bill emphatically. We do not believe that it is a matter of political spin as some have said. What we do see is significant and understandable public concern about serious offending while on bail and a problem that is increasing. But the bill does need scrutiny on detail at a later stage to ensure that the rights against arbitrary imprisonment and the right to presumption of innocence remain protected properly. New Zealand First does support the bill’s overall intent to strengthen bail conditions and limits to make bail for serious and drug offences harder to get to streamline procedures to extend District Court powers to avoid the need to go so often to the High Court and to codify and improve rules relating to electronic monitoring. I think those are all very good objectives which New Zealand First wishes to see promoted in this bill. 
The proposal to require an accused to prove his case—the reverse onus of proof for serious and drug offences—I think is essential. It properly places the onus of proof where it should be—on the defendant—for bail considerations as opposed of course to the onus of proving the charge itself. I see no inconsistency in this because it is a reasonable presumption that if there is adequate evidence to support a charge in serious and drug offences—in other words a prima facie case—then it is reasonable to presume that there is heightened and sufficient risk to refuse bail. Those risks of course as we know include the risk of absconding to avoid trial which I think is the primary risk and of course the risk of reoffending which although a secondary risk is the one that now requires particular and much more attention. 
I note that the regulatory impact statement states: “A reverse burden of proof is unlikely to change the court’s decision on bail for defendants who pose little risk of offending absconding or interfering with witnesses. However in marginal cases”—for which I would read serious cases—“a reverse burden [of proof] increases the likelihood that the defendant will be remanded in custody.” And so it should. 
The innovation in this bill as we know is the imposition of the reverse onus of proof for serious and drug offences. New section 9A applies to defendants over 17 years charged with murder. I note again from the regulatory impact statement that it states: “Of the 156 defendants charged with murder who spent at least some time on bail 21 (14%) were convicted of at least one offence committed while on bail.” Although one might say that is a relatively low number it is still a serious number and although it is generally of a low level one could validly say that although the number is low the potential effect or impact may be very high. So it is a serious matter which needs attention. 
I note also that new section 17A applies to defendants charged with a serious class A drug offence. Again in the regulatory impact statement it refers to the period 2004 to 2009 where 34 percent of defendants charged with serious class A drug offences offended on bail at twice the general rate of offending which was only 17 percent. So what we see there is of course a much heightened risk. Both of these new provisions will go a long way to satisfy the public concerns which New Zealand First observes in these particular sorts of cases. 
Another worthwhile innovation is the move away from mandatory bail for under-20-years-of-age defendants where the defendant has previously been imprisoned. Again that shows a heightened risk which is what we need to pay attention to while at the same time preserving the balance of the need to protect young people and protect the public. So I think that is a good and proper balance in that situation. Another innovation is sections 16 and 17 being amended to cover the offence of attempted drug-dealing. It is of course logical that that should be included as well because it is just as serious in every respect as actual drug offending and needs to be dealt with in exactly the same way.  
 New Zealand First also welcomes the codification of the rules relating to electronic monitoring. That practice has proved its worth. Electronic monitoring does work as a form of monitoring and the existing rules in relation to it which have been developed as part of the common law also work and deserve to be incorporated into the statute as well. 
The additional provisions to ensure enforcement and to ensure maintenance officers have access to premises are also very important provisions in the new bill. We think that these are sensible and necessary and that it is proper that there be an offence of refusing entry to an electronic monitoring officer who may be entering just to maintain the device and to make sure that it works properly or to attend to whatever other problems there may be. It is good sensible stuff we think. 
The bill also makes other welcome changes and I look forward to examining those in more detail at later stages of the bill especially looking closely at the repeal of section 7(3) in clause 5 to abolish offences bailable as of right. But no doubt all will support the re-empowering of justices of the peace and community magistrates to reconsider bail where bail conditions have been breached. These will be very welcome to the community which sees that as a significant issue and it will add some necessary and effective means with which to discipline those who breach bail conditions. 
Overall New Zealand First does support the bill and although we believe it is somewhat belated we will be pleased to support it to the next stage for further examination. Ultimately however New Zealand First certainly does want to see that this bill is enacted in substantially the form that we see today.