Criminal Justice Reform Bill — In Committee 
Criminal Justice Reform Bill — In Committee 
[Volume:640;Page:10558] 
Criminal Justice Reform Bill 
In Committee 
Debate resumed from 18 July. 
Part 2 Amendments to Acts relating to Criminal Justice  
(continued) 
Dr WAYNE MAPP (National—North Shore) 
: 
 I want to take the Committee back to 1999. The public made it perfectly clear through the Norm Withers referendum that they wanted tougher sentences. What was the response of this Government? Its response was to introduce law that allowed a rapist sentenced to 9 years in jail to be released in 3 years. The Government went up and down this country trumpeting that as its response to the referendum of 1999. Well the public saw through that sham and on this side of the House we pointed out to the Government time and time again the deficiency in its legislation. At best at that time the Government only tweaked the legislation. It did not deal with the core problem. It has taken until now 5 years later for the Government to recognise in clause 120 of this Criminal Justice Reform Bill that the two-thirds parole rule had some common sense—the very rule in fact that the Government repealed in its 2002 legislation. 
This Government is always going on about how it is tough on law and order. This Minister Mark Burton says so. But in 2002 it actually weakened the sentencing laws of this country when it substituted a two-thirds parole system—which actually the public said was not good enough—with a one-third parole system. That was a total betrayal of public trust. It is no wonder the public were disgusted with the Government on this particular issue. Frankly I am surprised that it has taken so long for the Government to return to what was at the very minimum a common-sense position. 
I want to make absolutely clear that National is committed to the policy that violent repeat offenders shall have no parole rights. The public has made it perfectly clear that people like that who represent an immense danger to society should not earn entitlements for early release and that when the judge has heard all the evidence and assessed the circumstances of the crime the criminal should serve the sentence that he or she was given by the judge. That is what the public wanted in 1999. This Government betrayed them in 2002. It has made a modest rectification in clause 120. But we are very clear on the National side of the Chamber that we have heard that concern and that—as we said in 2005 and will say for the next election—violent repeat offenders will not be eligible for parole under National. 
I ask this Government why it does not listen properly to the people of New Zealand. For that matter why does it not listen to its support partner New Zealand First? Members of New Zealand First do not believe in parole either yet I imagine they will vote for this measure today. It makes one wonder where New Zealand First’s ability to influence the Government is. People who are part of that particular class of criminal—the violent and repeat offenders—have used up their chances. The public needs proper protection from them and they ought to be serving a proper sentence. 
I want to put that very clearly on the record so that it is absolutely clear to New Zealanders where Labour stands—a weak vacillating Government—and where National stands. National is determined that the violent offenders who are such a scourge in our country will not be eligible for parole. That choice will be clearly put before the people of New Zealand in 2008. My colleagues have been speaking at length about the Sentencing Council and we put in a minority report about that. We are concerned that the Sentencing Council does— 
Hon MARK BURTON (Minister of Justice) 
: 
 I will take one final call as we come to the close of this part. After considerable debate the member Wayne Mapp wandered back to Part 1 so I think he has clearly concluded his Part 2 contribution. But I think if members translate what he said it seems that he pretty much supports overwhelmingly the measures the Government is advancing in Part 2. The member—clearly from the comments he has made and the comments his colleagues have made—overwhelmingly supports the general provisions of this bill. 
I can assure the member of numerous examples of measures both in speeches and more important perhaps in legislative measures that this Government has advanced so that serious repeat violent offenders will be dealt with harshly—and they should be. The safety of the community must be first and foremost. 
Secondly the member made reference to the influence of other parties. Well I have to say to the member that the best way to have influence is to engage and to cooperate. I want to acknowledge that this bill is the better for the engagement and cooperation of New Zealand First and of Mr Mark in particular who worked very closely on the development of the front-end home detention. I think that is a progressive measure that will significantly enhance sentencing options for the bench and provide an option that I think the bench and the community will welcome along with the resources to make sure that it can indeed work. 
I acknowledge the various contributions members have made and I look forward to wide support from the Committee for Part 2. 
CHRISTOPHER FINLAYSON (National) 
: 
 I just want to make a few comments about Subpart 3 of the Criminal Justice Reform Bill which deals with amendments to the Parole Act. These amendments were canvassed by the Justice and Electoral Committee at some length. They deal with the situation where there is an urgent application to the Parole Board for a confidentiality order. As can be seen by clause 83B which proposes to insert new section 13AA in the Parole Act 2002 applications may be made by the Commissioner of Police or the Chief Executive of the Department of Corrections and applications have to be supported by an affidavit sworn by the applicant—they are not applications in these extreme situations that would be served on either the offender or the offender’s lawyer. 
The important point I want to make is that when a confidentiality order is made that information may not be disclosed or published to either the offender which makes sense given the nature of the information that has been disclosed pursuant to the confidentiality order or to the offender’s counsel. Now there were a number of us on the select committee who had to think long and hard about whether that was appropriate because normally safeguards can be entered into to ensure that information can be given to the offender’s counsel in circumstances where one relies upon his or her professional obligations as an officer of the court. But it was decided that because of the nature of the information and the special circumstances that may cause the Commissioner of Police or the Chief Executive of the Department of Corrections to make such an application given the nature of the information it would not necessarily be forthcoming if the offender’s counsel was to be given copies of it. So I want just to emphasise that that is a very extreme measure and I hope such applications will be made in good faith because I note there is no requirement as there is with applications of a similar nature made in a civil context that they be certified to be true and correct. I would hope that such applications are going to be very rare indeed and will be made in good faith by those persons. 
The point is that solicitors and barristers have obligations to the court and it should only be in very special circumstances that they should not be entitled to receive that information. The only other precedent I know of and maybe Mr Fairbrother will be able to comment on it if he speaks is under the Terrorism Suppression Act where certain types of applications can be made under sections 35 or 55 of that Act and in very special circumstances the Attorney-General can make an application to the court that it is desirable to protect the classified security information and that the information not be given to either the entity that it is sought to designate under the Terrorism Suppression Act or any barrister or solicitor representing that entity. One can certainly understand in a terrorism context why one would not want to part with highly sensitive classified information. This is another step along the way and I want to assure the Committee that great care has been taken by me and others on the select committee to satisfy ourselves that such an application could result in an order whereby information may not be disclosed to the offender’s counsel. But it is a slippery slope and I would hope that we would not be making that kind of legislative change very frequently at all. 
The second point I want to make in this Part 2 speech deals with my proposed amendment on Supplementary Order Paper 126 to Subpart 2 which deals with amendments to the Sentencing Act. Yesterday in response to the statements that I made about my Supplementary Order Paper and the requirement that when a court was dealing with sentencing guidelines it should have regard to any sentencing guidelines rather than adhere to them as the proposed clause 40 inserting new section 21A suggests Mr Chauvel commented that one should read on a little further and go to the subordinate clause of new section 21A—namely “unless the court is satisfied that it would be contrary to the interests of justice to do so.” But that is with respect a rather superficial response because it is clear that the subordinate clause set out in new section 21A is to be the exception rather than the rule. Given the realities of sentencing practices as I have explained that subordinate clause will be the rule rather than the exception. The principal clause is going to be simply a redundancy because—I ask the Committee—how can one impose consistency when there is more than one guideline? 
I explained last night that the only guidelines the National Party has seen are the guidelines that were given to me when I was in England. No one from the Law Commission or from the Minister’s office has condescended to provide them for us although we know they are in existence in draft form. But we have a number of Sentencing Council guidelines. For example a judge sentencing a person may have to consider a reduction in a sentence for a guilty plea. A judge may also have to consider a guideline entitled “new sentences” or one concerning seriousness. If one is dealing with multiple guidelines provided by the council the only sensible thing one can do is to have regard to them and that reflects the reality of sentencing. What I have proposed is utterly consistent with the English statute. Section 172 of the Criminal Justice Act provides that every court must have regard to a relevant guideline. 
When one is sentencing one cannot simply rely on the provision at the end of new section 21A if it is enacted—namely that it can be applied because the court would be satisfied that it would be contrary to the interests of justice not to do so—and ignore in reality the first part of the section. If we are to be diligent parliamentarians the section should be drafted in accordance with the reality of sentencing practice and that reality is reflected in the proposals I have set out on my Supplementary Order Paper. 
I come back to the point that as drafted the provision is redundant in reality and I am also sure that as drafted it will be a recipe for meaningless appeals because there will be constant challenges to decisions made on sentencing with possibly both parties arguing that the sentence imposed is not consistent with guidelines. I think that if the provision is enacted we will have a recipe for confusion and unnecessary litigation. 
RON MARK (NZ First) 
: 
 I wish to take just a short call to allay some of the concerns expressed by Dr Wayne Mapp. Yes it is true that although New Zealand First is supporting the passage of this legislation through the House we do have concerns about parole. Mr Mapp has informed members that the National Party now has a policy that it will repeal parole and there will not be parole for—I think he said—violent offenders. That is quite a turn of events because in the 11 years I have been in Parliament this is the first time that the National Party has had such a policy. 
Judith Collins 
: It was at the last election Ron. 
RON MARK 
: I say to Judith Collins that it had it at the last election; it did not have it at the election before that or at the one before that. 
Judith Collins 
: It was at the last election Ron. 
RON MARK 
: There she goes catcalling across the Chamber. She is on her horse racing it—here comes Judith Collins with her interjections. We all love and value them do we not? I say to Judith Collins that the National Party did not have that policy in 1993 when it was in Government it did not have it in 1996 when it was in Government and it did not have it in 1999 when it was thrown out of Government. It did not have it in 2002 but it finally had it in 2005. 
Mr David Bennett can shake his head all he likes. I know that it is a sorry story that the National Party of which he is a member should only then have finally come to New Zealand First’s position. But we are not surprised about that because in  
The Hollow Men 
 we all found out that the best research National got was from the New Zealand First website so there are no surprises there. 
New Zealand First has been consistent in its view on parole. We do not like parole and when we are in Government we will repeal the parole legislation. So I am looking forward—if history should deal the nation a New Zealand First - National Government arrangement—to discussions with National Party people about repealing parole completely. The National Party policy is not about repealing parole completely; it is about repealing it only for violent offenders. So I welcome Dr Mapp’s sensible—as always—contribution. I welcome the change and the shift in National Party policy. As always it was a little late but it is finally there. 
The question is: why are we in New Zealand First supporting this legislation and these amendments? It is simply because this is better than nothing. We cannot get everything we want. We did not get everything we wanted when we were in a formal coalition Government with National. Although we are unhappy that this does not fit in totally with our policy at least we are making some progress on the parole conditions to address the situation we were left in with regard to Mr Burton and the Kuchenbecker murder. I do not think either the National Party or New Zealand First were happy with that outcome. Simon Power and I have had some interesting discussions. 
Mr Bennett is still such a new member that he is shaking his head and pulling a face at everybody. He needs to know that Simon Power has told me privately that he supports the bill. He supports every clause in it except for the Sentencing Council portion. 
Dr Wayne Mapp 
: It’s actually in the minority report. 
RON MARK 
: Dr Wayne Mapp can interject all he likes from the sidelines as he strolls his way through to his seat but I can only tell Mr Mapp what Mr Power told me. 
Dr Wayne Mapp 
: Read the minority report; it’s quite explicit. 
RON MARK 
: I do not care what the minority report says. I can only tell Mr Mapp again what Mr Power told me. Mr Power told me that his primary concern was about the Sentencing Council and that it was on that basis—and on the basis of the Government’s refusal to split the bill into two which would have allowed National to vote against the Sentencing Council—that it is voting against this particular portion. 
David Bennett 
: Go out of the Chamber as you should. 
RON MARK 
: The very junior member Mr Bennett should understand that a lot of what I have heard from the National Party is like the shedding of crocodile tears. Mr Bennett is now smiling so he knows I am right. I thank Mr Bennett. Deep down National members agree that the bill needs to go through although they are not happy with all parts of it and we agree and concur with that. 
So I am looking forward to an opportunity in the future to work with some like-minded and similar-minded people who might seek to redress a couple of these things. The difference we have is on the Sentencing Council. New Zealand First likes it; National does not. On the issue of parole New Zealand First would go further than National and therein is where the differences lie. 
Dr ASHRAF CHOUDHARY (Labour) 
: 
 I move  
That the question be now put 
. 
The CHAIRPERSON (H V Ross Robertson) 
: No I have not heard from the ACT party yet. 
Dr RICHARD WORTH (National) 
: 
 I raise a point of order Mr Chairperson. I was just a little concerned that in the course of Mr Mark’s speech he referred to Dr Mapp when I think he was referring to me. He certainly did so on one occasion. I think he did it inadvertently. Although I am flattered to be known as Dr Mapp it could be appropriate that— 
The CHAIRPERSON (H V Ross Robertson) 
: That is not a point of order Dr Worth. 
HEATHER ROY (Deputy Leader—ACT) 
: 
 I have put forward some amendments that I would like to bring to the attention of the various parties in this Committee. They are fairly simple in their nature and they are all around the subject of victims’ rights and the ability of victims to present to the Parole Board. I would like to have subclause (3) omitted from clause 96 subclause (1) omitted from clause 97 subparagraphs (ii) and (iii) of new section 45(7)(b) omitted from clause 98 clause 101 omitted and also clauses 102 and 104 omitted. 
The reason I want those amendments made by this Committee is simple. Although the ACT party was not represented on the Justice and Electoral Committee I understand that the committee heard a large number of submissions from victims but these have largely been ignored in the committee’s report. In fact the victims of various crimes are feeling quite aggrieved—firstly about that but secondly about what they perceive as a lack of ability to be heard now before a Parole Board except under exceptional circumstances. I would like to call on Parliament to cut out the provisions of the Criminal Justice Reform Bill that remove the victims’ right to be heard by this board on whether criminals should be let out of prison. 
This bill currently before us in the Committee stage should take victims’ rights into consideration. I believe that this debate should be halted until the Government has lodged a Supplementary Order Paper to remove these provisions but in the absence of the likelihood of this happening I have put forward these amendments myself. 
When the select committee reported on the bill none of the members on the committee bothered to comment on victims’ submissions which begged them—and the victims were begging because they felt personally aggrieved—to remove this right. Labour National and the Green members on the committee spent a lot of time looking at the confidentiality of evidence of prisoners’ wrongdoing. They worried a lot about the rights of criminals but the victims of a large number of crimes felt that their voice would not be heard at all. They feel really that no apology for the biggest impact of the bill on victims will be heard and that provisions to shut victims out of Parole Board hearings will happen if this legislation is passed and these amendments are not made. 
The committee did manage to spare a paragraph to endorse some meaningless words which were put in to pretend that parole is a privilege not a right. But it did not even note that the attendance of victims at hearings will now be a privilege not a right. The Parole Board will grant the privilege only if victims agree to confine themselves to discussing the “risk to the safety of the community” posed by the criminal’s release and “ways of managing any risks …”. No longer will they be able to protest about the simple injustice of a criminal’s early release and the hurt that it does to victims who have already suffered far too much. So board members by locking the door can now protect their delicate ears against the demands that a meaningful part of a sentence be served. They need not hear these protests against the board’s conversion of a sentence into a trivial price for what very often are vicious crimes. 
Parliament it seems is ganging up with those in the justice establishment who are contemptuous of the public demand for real penalties for crime. Time and time again communities and citizens of New Zealand have voiced their very loud concerns about real penalties not being served for crimes and the rights of victims not being heard and certainly not being listened to. Victims are seeing the scandalous parole process put back behind doors that are firmly closed to them. That is surely not fair and at worse is quite scandalous in itself. I would like the other parties in this Committee when considering this stage of the legislation to think very carefully about the amendments I have put before it and to support them. Thank you. 
CHARLES CHAUVEL (Labour) 
: 
 I want to make two contributions in response to matters already raised by other members in this Committee stage. [ 
Interruption 
] I am glad that Dr Mapp is so keen to hear those contributions. It is always good to have an appreciative audience. The first comment I want to make relates to the matter raised by Mr Finlayson as to the additional protections inserted by the Justice and Electoral Committee in Subpart 3 which relates to the provisions concerning secret witnesses—so-called—before Parole Board hearings. The situation as the member set out is that we have sought to enhance the due process protections that exist when this scenario arises—that is when an application is made for evidence effectively to be heard in a manner that will not be disclosed to the person applying for parole. 
It will be recalled that Mr Finlayson spoke of the protection inserted whereby the select committee felt it was appropriate to require the grounds for making an application of this nature to be set out in an affidavit on oath or by affirmation by the statutory officer applying for the order. So it will be necessary for that person to depose as to the reasons why this extraordinary breach of the normal principle—that a person should know the evidence against him or her—should occur. 
The other protection which I do not think Mr Finlayson mentioned but which is worthy of recording is that we have set out in the committee report and in the bill that these powers ought not to be delegable. It is a departure from the usual rule in the laws relating to the State sector that a chief executive may delegate functions to his or her employees. In this case the power must be exercised only by the Commissioner of Police himself or herself or by the Chief Executive of the Department of Corrections. Again this is a token of how seriously the select committee took the provisions in order to try to make sure that they should not be able to be exercised except in the rarest of cases. 
The other matter to which I want to refer relates to the contribution from Heather Roy. I have just looked over her proposed amendments. It seems to me that one of the difficulties with what is suggested is that all provisions in the legislation relate to Law Commission proposals to remove the right of victims to make oral submissions to the Parole Board. There is no change as far as I can see to the ability to make written submissions to the Parole Board. The omission of these provisions would simply maintain the status quo where certain victims have a right to make submissions. I suspect this would not really be desirable because parole decisions are after all supposed to be based on an assessment of risk and victim submissions are relevant to that only in extremely rare cases: where the victim can provide information relating to the offender’s risk of reoffending. 
In my view—and this was a matter raised in the select committee—to go down the path that the amendments suggest would be to hold out false hope to victims of crime by suggesting that somehow their views will be taken into account in circumstances where the statue simply provides that they cannot be because they are not grounds that the Parole Board can legitimately take into account when it assess risk which is after all its job. Thank you Mr Chair. 
KEITH LOCKE (Green) 
: 
 Those who have read the commentary from the Justice and Electoral Committee will see that the Green Party was particularly concerned about the confidentiality orders whereby information would be provided to the Parole Board on a confidential basis. We then have under Part 2 in clause 83B subsection (4) of section 13AB: “To avoid doubt anything that may not be disclosed or published under a confidentiality order may not be disclosed—(a) to the offender; or (b) to the offender’s counsel or other representative of the offender.” It is very hard to get any justice in such a situation and to stop people from giving false information if even the lawyer of the person is not able to know the information. That would only encourage people to give prejudiced biased false etc. information to the Parole Board so I think it is a very dangerous way to go. 
It was the National member Mr Finlayson who recently drew a parallel with the Terrorism Suppression Act 2002 saying that the Act has a whole section about classified information not being given to the person or group accused of being terrorist. It is very hard to defend oneself in judicial proceedings against accusations if one is not aware of the information available. There is some provision in the Terrorism Suppression Act for possibly—it is not obligatory—a summary of the classified evidence to be provided to the lawyers for the accused. 
One of the things that worries members of the Green Party is that hiding from people and their lawyers information that is part of accusations made against those people that could be very detrimental to their future has now crept from the Terrorism Suppression Act into our criminal legislation. We see it in the Ahmed Zaoui hearing proceeding in Auckland. There are two stages to the hearing around his security risk certificate. The first stage is public source material and unfortunately there is secrecy around that in that the media are not allowed to cover those proceedings even though they concern material completely in the public domain. I have written to the Commonwealth Press Union about that and I hope the media will make great play of their being excluded from a hearing that has publicly available material as the only content of it. 
The second stage—which will start later—of the hearing in relation to Mr Zaoui’s security risk certificate concerns the classified information which will be completely withheld from Mr Zaoui and his counsel. The special advocates appointed by the Inspector-General of Intelligence and Security Stuart Grieve and Chris Morris will be prevented from even talking to Mr Zaoui’s counsel after receiving that classified information and assessing it. They somehow have to act on Mr Zaoui’s behalf at some distance without communicating with Mr Zaoui and his lawyers even though they were appointed by the inspector-general. 
Members can see the complications that are being introduced into our legal system in its various aspects: the Terrorism Suppression Act the security risk certificate procedure and now the Criminal Justice Reform Bill. We do not want to go too far down this track because it gives the State in effect greater powers to determine the future of a person without judicial constraint. In this case it is not just the State we are talking about; people who might be prejudiced against a particular prisoner or whomever can operate in secrecy and get away with providing information that is not tested. 
Dr RICHARD WORTH (National) 
: 
 No one else has spoken about Supplementary Order Paper 127. I am glad the Minister the Hon Mark Burton is in the chair because I believe it would be helpful if he could offer a short explanation as to why that Supplementary Order Paper in his name lies before us. I know what its purpose is but the question is why this is being done. What it is about is amending the Prisoners’ and Victims’ Claims Act 2005. That legislation was due to expire on 30 June 2007 and the plan is to extend that date to 1 July 2010 in this particular and critical part of the bill. 
Members of the House who were in Parliament in 2004 will remember that legislation. It was highly controversial and it culminated in the passage of the Prisoners’ and Victims Claims Act in 2005. That legislation was about setting up a code to enable prisoners who believed they had been abused to make claims against the prison authorities. There was then to be established a compensation fund from which to provide payments if they were successful in those claims and a priority was established for paying out any money that the prisoner got in compensation. If it was not possible to trace the victims the prisoner got it all. 
There was huge concern about that legislation on both sides of the Chamber it is fair to say. A number of deeply philosophical and troubling questions arose from it. For example if there was a fund how was that fund to be allocated when there was more than one victim? Should the money go to the first victim should it be spread equally should a person who was more scarred get more money than a person who was less scarred and issues such as that? It was made clear that because of the concern that Parliament had about this legislation it should expire with the close of 30 June 2007. That is made very clear in Part 2 of the principal Act. 
Now we have by a side wind a Supplementary Order Paper that seeks to perpetuate what is clearly an unsatisfactory circumstance. No one doubts that prisoners should be safe; that is not the argument. Where excesses occur action should be taken. But I believe that the action that should be taken in respect— 
Darren Hughes 
: What kind of action? 
Dr RICHARD WORTH 
: —I will come to that—of excesses by prison staff is disciplinary action. Those prison staff should be punished. They perhaps should be charged. They perhaps should lose their jobs. There is a range of possible penalties. It was wrong in principle to create a special compensation fund. 
So why I ask the Minister are we perpetuating that legislation when it was clearly the wish of the Parliament that come 30 June 2007—19 days ago—that legislation should have ceased to exist? 
Hon MARK BURTON (Minister of Justice) 
: 
 The member who has just resumed his seat raises perfectly reasonable and considered questions. I perhaps would take him to task just a little on his final assertion. I do not think it is fair to assume that the House by a majority wanted the Prisoners’ and Victims’ Claims Act to expire. What it is fair to assume is that it certainly wanted it to run until 30 June. We find ourselves in a position that I think I could best summarise by saying this: the conditions that led to the creation of a short-term provision—as it was; around a 3-year provision—assumed that some other measures would be able to be completed within that time relating on the one hand to the victims of crime and on the other hand to the whole process of the structures procedures and provisions around the oversight of complaints made by prisoners and compliance with rules of conduct around the oversight of prisoners. 
As it happens perhaps the most important measure that has not been concluded has to do with the rights of victims. As the member will know a significant select committee inquiry is still in progress and it will be an important part of advising the Government and the House on appropriate measures that will have some direct bearing. So that is the first thing. The second point is that work is well advanced but not yet complete on issues around the oversight of complaints procedures for prisoners. 
Both those matters are best served by the extension of this provision. That is essentially what Supplementary Order Paper 127 seeks to do. It is a further extension to preserve what is not a perfect provision at all I readily admit for the victims of crime but is certainly better than the removal of it until those other matters that I have now discussed are completed. So what the Supplementary Order Paper seeks to do is to maintain for the time being until 2010 the right of access for the victims of crime in the circumstances—and I will not repeat them all because the member has given a good overview of that and I have previously too. Its purpose is to maintain for the victims of crime access to compensation payments should they become available in the way that is prescribed in the original 3-year provision. 
It is on that basis that this Supplementary Order Paper is introduced. Of course as the member has rightly pointed out it replaces Supplementary Order Paper 121 as a result of a matter of timing because we did not get Part 2 completed in the Committee stage in the last sitting block of Parliament. So the technical changes around timing were required; thus Supplementary Order Paper 127 was put in to replace Supplementary Order Paper 121. 
LYNNE PILLAY (Labour—Waitakere) 
: 
 I rise to take a call firstly to support the Minister in what I believe was a very sound explanation of the consideration being given to victims and of Supplementary Order Paper 127 in his name relating to the sunset clause. I also want to speak in opposition to the amendments in the name of Heather Roy relating to the reported right of victims to make oral submissions to the Parole Board. 
Certainly there was considerable discussion with the advisers from the Law Commission in terms of the admission of the provisions that maintain the status quo. It was argued that for victims to give an oral submission would serve to re-victimise the victims if I can use that term. Parole decisions are based not on the crime but on information relating to the risk posed if the offender was again put within the community. Of course victims can make written submissions but there is the expectation of their going to the Parole Board and relitigating and reliving the pain and the trauma that they have experienced. In some instances the belief that recounting the crime would have quite an influence on the Parole Board’s decision really raises false expectations. It certainly was the view of the Justice and Electoral Committee that that would be a disservice to victims. It would not give them a right but really it would raise expectations about what they believed their right to be. 
So based on the information and the advice that the committee was given the decision was not to hear oral submissions at the Parole Board but that written submissions could certainly be forwarded to it. That would mean that the process was fairer and did not raise victims’ expectations. The Parole Board would consider parole on the basis of the risk posed by the offender should he or she be put back into the community. 
I would also add that the committee is currently carrying out an inquiry into victims’ rights. Very much of what we have heard and of what is in our minds—and I speak on behalf of all the committee members at this point in time—is a concern about victims during the process and about how they are supported. There should be transparency and integrity in the process whether during the prosecution of the offender or at the parole end. We want to provide clarity and certainty for victims. Raising their expectations about the impact of an oral submission on the effect the crime has had on their life does them no service at all; it does them more of a disservice. That is why I stand and say I do not support the amendments proposed by Heather Roy. Thank you. 
Hon MARK BURTON (Minister of Justice) 
: 
 I have taken some advice on the amendment that Heather Roy has put forward. I have also listened to my colleague on the Justice and Electoral Committee. I think Heather Roy’s amendment is well intentioned. I have no question at all that her concern is genuine as I think it is for every party in the House that in advancing this bill we should be advancing the interests of the victims of crime first and foremost. I think we could have had considerable debate and had we had the luxury of time we could also have gone away and everyone could have taken advice consulted widely around the community and reached an informed view as to whether this particular amendment adds in any meaningful way to the value of this legislation for victims in terms of their participation in the parole process and in particular the Parole Board hearing process. 
The problem we have is a practical one. The Committee is reaching the very very end of the debate on Part 2 and it has to make a decision on whether the amendment the member has put forward is to be supported. If it is not supported then it will be lost. If it is supported and comes in it may prove to make little effective change. But I have reached the conclusion and I have discussed this with officials that it does little harm if any. I have concluded as the Minister responsible for the bill that I will support Heather Roy’s amendment. I think it basically reflects reasonably the views genuinely held by members around the Chamber that we can make progress on the bill in a sensible way and take it on good faith that the intent is positive. The advice I can give members is that the officials’ advice is that whether or not it does great good certainly it will do little harm. I thought it would be useful to members to give an indication that I am prepared to support this amendment on behalf of the Government. 
RON MARK (NZ First) 
: 
 I just want to rise and thank Heather Roy for bringing that matter to the Committee and placing an amendment before us. I have to say that eleventh-hour advice from her friend Stephen Franks a man whom I consider a colleague is often better if it is received well before the eleventh hour. I have no doubt that Heather will take that very firm advice and guidance back to Stephen Franks to ensure that we are more timely in our submissions and in expressing concern over issues in future. 
I thank the Minister. New Zealand First stands with victims—it always has and it always will do. We strongly criticise the Victims’ Rights Act the Labour Government passed last term because we do not think it goes anywhere near far enough. We are a party that believes that if it is OK to give inmates compensation then we should be giving compensation to the inmates’ victims for the actions that resulted in those inmates becoming inmates in the first place. 
That leads us to the other issue which is the amendment to deal with the sunset clause. Suffice to say that we will be supporting the Government’s Supplementary Order Paper 127 reluctantly and on the condition—which the Minister has accepted from New Zealand First—that this Supplementary Order Paper will give the Government time to readdress this issue once and for all and finally. 
We have a fundamental difference from National and Labour on this issue. It is very simple and this is how it goes. If I am prosecuted for assaulting the Minister and I go to jail then the Minister gets absolutely no compensation for that whatsoever. He gets the satisfaction of knowing that justice has been done. If while I am in prison I am being guarded by Mr Simon Power and I as an inmate am assaulted by prison officer Power then how is it that I an inmate get compensation for Mr Power’s common assault on me as an inmate? It does not make sense to New Zealand First members. New Zealand First members believe that what should happen is simply that Mr Power should be treated in exactly the same way that I was when I assaulted the Minister. He should be charged he should be tried and if he should be found guilty then he should be sentenced. If he ends up in the cell with me then that is it—end of story. There is no compensation for the Minister when I assault him and there should be no compensation for me when Mr Power assaults me when I am an inmate. It is pretty simple. No one should get compensation for that act. 
The fact is that we now have a system where that compensation is being paid out so the Government has at least tried to mitigate that circumstance by making the compensatory payments available to the victims in the first place. 
Simon Power 
: But you voted against it. 
RON MARK 
: Well if we vote against the amendment I say to Mr Power we end up with the first situation which is what we had at the outset—that is inmates would continue to get the $300000 or $400000 worth of compensation—but the difference is that they get to keep it. New Zealand First will not be party to allowing inmates to keep compensation. 
Simon Power 
: You were opposed to the bill. 
RON MARK 
: Yes I tell Mr Power we were opposed to it then and we are opposed to it now. But if we do not— 
Simon Power 
: Well then why are you voting for it? 
RON MARK 
: I would ask Mr Power to please listen. Our view is that if we do not extend this then tomorrow the member will see inmates getting compensation and keeping that compensation. So the member should not play games with me. 
We understand the reality but we will not accept a further extension of this sunset clause again. We expect that there might well be an election before then and some like-minded people might be able to sit down and put some sensible law in place. We would welcome that opportunity but we are supporting this extension only. That is how we see it in New Zealand First. We see it under the firm understanding—and the Minister has a clear understanding—of what we want. We will not support a further extension of this same clause. We have 12 months in which to sort it out I think. When does the sunset clause kick in—again? Well let us sort it out because the current situation is a nonsense. It denies the original victims true justice and we agree with fixing that situation. So let us get beyond this point and do some work after this legislation is passed because we will not be extending it again. 
DARREN HUGHES (Junior Whip—Labour) 
: 
 I move  
That the question be now put 
. 
A party vote was called for on the question  
That the question be now put. 
Ayes 70 
New Zealand Labour 49; New Zealand First 7; Green Party 6; Maori Party 4; United Future 2; Progressive 1; Independent: Field. 
Noes 51 
New Zealand National 48; ACT New Zealand 2; Independent: Copeland. 
Motion agreed to. 
The question was put that the amendment set out on Supplementary Order Paper 126 in the name of Christopher Finlayson to clause 40 be agreed to. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 55 
New Zealand National 48; Maori Party 4; ACT New Zealand 2; Independent: Copeland. 
Noes 66 
New Zealand Labour 49; New Zealand First 7; Green Party 6; United Future 2; Progressive 1; Independent: Field. 
Amendment not agreed to. 
The CHAIRPERSON (H V Ross Robertson) 
: We now have some further amendments. They are all in the name of the member the honourable Heather Roy. The first is to clause 96. It is an amendment to omit subclause (3). 
Hon MARK BURTON (Minister of Justice) 
: 
 I seek leave for the amendments in Heather Roy’s name to be taken together unless any member has objections because they basically all relate to the same part of the bill. 
The CHAIRPERSON (H V Ross Robertson) 
: Is there any objection to that? There is none. 
The question was put that the following amendments in the name of Heather Roy to Part 2 be agreed to: 
to omit subclause (3) of clause 96; 
to omit subclause (1) of clause 97; 
to omit subparagraphs (ii) and (iii) from new section 45(7)(b) in clause 98; 
to omit clause 101; 
to omit clause 102; and 
to omit clause 104 
Amendments agreed to. 
The question was put that the amendments set out on Supplementary Order Paper 127 and 122 in the name of the Hon Mark Burton to Part 2 be agreed to. 
A party vote was called for on the question  
That the amendments be agreed to 
Ayes 64 
New Zealand Labour 49; New Zealand First 7; Maori Party 4; United Future 2; Progressive 1; Independent: Field. 
Noes 57 
New Zealand National 48; Green Party 6; ACT New Zealand 2; Independent: Copeland. 
Amendments agreed to. 
The CHAIRPERSON (H V Ross Robertson) 
: The question now is that Part 2 as amended stand part. 
KEITH LOCKE (Green) 
: 
 I raise a point of order Mr Chairperson. I would just like to correct the Green vote. 
The CHAIRPERSON (H V Ross Robertson) 
: Is the member seeking leave to do that? 
KEITH LOCKE 
: Yes. 
The CHAIRPERSON (H V Ross Robertson) 
: Is there any objection to that course of action being taken? 
SIMON POWER (National—Rangitikei) 
: 
 I raise a point of order Mr Chairperson. I apologise to the member but I think some confusion has arisen because of the replacement of Supplementary Order Papers between I think 122 and 127. Because you are following the numbers and not the clauses I just want to make clear and check with you Mr Chairman for the benefit of the Committee that Supplementary Order Paper 127 is the one from the Minister that would extend the sunset clause on victims’ and prisoners’ compensation. That is correct is it not? 
Hon MARK BURTON (Minister of Justice) 
: 
 Yes. 
The CHAIRPERSON (H V Ross Robertson) 
: I actually did say it was the Minister’s amendments set out on Supplementary Order Papers 127 and 122. 
Hon MARK BURTON 
: I think the point the member is trying to make though is that Supplementary Order Paper 127 replaced Supplementary Order Paper 121 and the last time the member was a party to the debate he may have been expecting 121 to be the number before him and it is now 127. So I am sure the member was just confused by the change in the Supplementary Order Paper numbers. 
SIMON POWER (National—Rangitikei) 
: 
 I raise a point of order Mr Chairperson. I think all the Committee needs to know is that if the Chairman would take the time to just make sure that the Committee is aware of the content of Supplementary Order Paper 127. The Minister is confirming it by nodding. But perhaps it would help the Green Party if the chairman gave us a brief description of what is in that Supplementary Order Paper. 
The CHAIRPERSON (H V Ross Robertson) 
: Can I just suggest to the member that the Supplementary Order Paper has been on the Table for some time and any member is free to look at it. 
KEITH LOCKE (Green) 
: 
 I raise a point of order Mr Chairperson. I would like to correct the Green Party vote on Supplementary Order Paper 127. We would like to cast a vote against that particular Supplementary Order Paper. 
The CHAIRPERSON (H V Ross Robertson) 
: So the member wants his vote reversed—to vote against? 
KEITH LOCKE 
: Yes 
The ASSISTANT SPEAKER (H V Ross Robertson) 
: Can I just say that the voting on the Supplementary Order Paper was done as a bloc. The vote cannot be split. The vote for the two Supplementary Order Papers cannot be split. 
KEITH LOCKE 
: The Green Party will vote against both those Supplementary Order Papers. 
The CHAIRPERSON (H V Ross Robertson) 
: The Green Party is voting against both? Thank you. 
RON MARK (NZ First) 
: 
 I raise a point of order Mr Chairperson. Can you please clarify for me that the member is seeking leave to have those votes changed but the votes have already been tallied and the result of that vote announced therefore— 
The CHAIRPERSON (H V Ross Robertson) 
: The member can do that under Speaker’s ruling 68/5. The member sought leave and it has been granted. The question now is that Part 2 as amended stand part. 
A party vote was called for on the question that Part 2 as amended be agreed to. 
SIMON POWER (National—Rangitikei) 
: 
 I raise a point of order Mr Chairperson. Before you took the vote on the question that Part 2 as amended stand part I am not sure whether you gave the Committee the result of the previous vote on Supplementary Order Paper 127. If I am wrong I apologise but if I am not I would not mind hearing the result please. 
The CHAIRPERSON (H V Ross Robertson) 
: Thank you. The member is absolutely right. The vote in that part particular case on the Minister’s amendments set out on Supplementary Order Papers 127 and 122 is: Ayes 64 Noes 57. 
RON MARK (NZ First) 
: 
 I raise a point of order Mr Chairperson. That is precisely what my previous point of order was. I wanted to know whether the result of the vote had been announced. You said it had and that leave had been given. The reason I asked that question is that the Standing Orders require leave to be sought— 
The CHAIRPERSON (H V Ross Robertson) 
: Mr Mark please I am on my feet. There is no need to relitigate this. The issue has been voted on. It has been agreed to by the Committee and we need to move on. 
RON MARK 
: Can I finish my point of order Mr Chairperson? 
The CHAIRPERSON (H V Ross Robertson) 
: Yes. 
RON MARK 
: I might not have given leave from New Zealand First had you answered my question. Mr Power has just clarified exactly what I thought to be the case. You sat me down and said that the vote had been counted. Clearly it had not. New Zealand first might not have allowed that leave at that point in time. 
The CHAIRPERSON (H V Ross Robertson) 
: Can I just say that I was under the impression that leave had been granted for the vote to be changed. That can be done under Speaker’s ruling 68/5 and also Standing Order 153(2). Leave was put. There was no disagreement. 
A party vote was called for on the question  
That Part 2 as amended be agreed to. 
Ayes 70 
New Zealand Labour 49; New Zealand First 7; Green Party 6; Maori Party 4; United Future 2; Progressive 1; Independent: Field. 
Noes 51 
New Zealand National 48; ACT New Zealand 2; Independent: Copeland. 
Part 2 as amended agreed to. 
Schedule 1 
The CHAIRPERSON (H V Ross Robertson) 
: There is an amendment to schedule 1 in the name of the honourable member Chris Finlayson set out on Supplementary Order Paper 126. I have to tell the member that I have ruled that amendment out of order as a direct negation of the question. It is an indication that the member intends to vote against the schedule standing part. 
Schedule 1 agreed to. 
Schedule 2 
The CHAIRPERSON (H V Ross Robertson) 
: The same applies to schedule 2. The amendment in the name of Chris Finlayson set out on Supplementary Order Paper 126 to omit this schedule is also out of order as a direct negation. 
Schedule 2 agreed to. 
Schedule 3 
The question was put that the amendments set out on Supplementary Order Paper 122 in the name of the Hon Mark Burton to schedule 3 be agreed to. 
Amendments agreed to. 
Schedule 3 as amended agreed to. 
Clauses 1 and 2 
SIMON POWER (National—Rangitikei) 
: 
 Well what an interesting 30 minutes we have just had on the Criminal Justice Reform Bill the title of which is now the subject of the debate as is the commencement date. The interesting thing about the commencement date is that what is about to commence is quite different from what was going to commence 25 minutes ago. 
Yesterday when the National Party raised issues with the Minister over the rights of victims of crimes to appear before the Parole Board in a very limited and narrow fashion—only at the invitation of the Parole Board and only on certain limited matters such as public safety and the like—the Minister purred cooed checked with the officials and told us that everything was all right. I said at the time that I was worried about the ambiguous nature of these particular clauses and I was worried that the victims of crimes throughout New Zealand would consider it to be a loss rather than a win to have victims’ rights heard on what otherwise could be seen as a bill concerned only with offenders’ rights. The interesting thing of course is that this very point was raised by Victim Support at the Justice and Electoral Committee when the bill was before that committee. 
Then the most curious series of events occurred. As Heather Roy tabled her amendments to the bill National looked at them quickly and was supportive of them. Ron Mark on behalf of New Zealand First quickly made an assessment that the amendments were worthwhile and decided to support them. All the while Lynne Pillay and Charles Chauvel were put in the odd position of standing up and rejecting the amendments for various reasons which I am sure they believed to be right and proper—which they were not. 
Then the Minister stood up and took a call and in one of the most glaringly obvious and clever understandings of MMP that we have seen in this Chamber for some time he realised after doing the maths on his fingers and toes that these particular amendments would pass whether or not the Government supported them. This meant that the rights of victims to appear before the Parole Board would remain as they are today and that the issues National had raised in the Committee yesterday—and that were put on paper by Heather Roy on behalf of the ACT party—would stand forever inscribed as the Government being opposed to any lack of ambiguity around a victim’s right to appear before the Parole Board. 
Not only were Charles Chauvel and Lynne Pillay completely sideswiped and had their legs knocked out from under them having stood in the Committee to speak against Heather Roy’s amendments but the Minister—who is a Minister because he is able to do numbers unlike his two colleagues—realised it was all going to turn to custard. All of a sudden the ambiguity that National had referred to yesterday became a problem for Labour and it was suddenly a problem for the Minister of Justice who stood in a reasonably chastened way and said: “Well we don’t want any ambiguity on this; let’s just make it all crystal clear.” He talked to the officials who shook their heads. But the Minister who takes political responsibility for the numbers game in this House worked it out and the Government supported ACT’s amendments the contents of which were pointed out to the Government yesterday by National—then there was not a problem; today there was a problem. The Government has finally realised the mistake of its ways because of Victim Support because of National because of ACT and because of other organisations outside the House that have strong views on these issues and it was forced to back down despite sending its loyal troops Lynne Pillay and Charles Chauvel in to argue the contrary. 
This is a good day for MMP because a common-sense result occurred despite the Government giving assurances yesterday that there would not be a problem. Today it has recognised that there was a big problem. It was a big problem because if the Committee had voted on this the Government would have— 
Hon MARK BURTON (Minister of Justice) 
: 
 I want to assure Mr Power that my socks remain firmly on my feet. I did not require my toes for counting! I want to repeat what I said before. I think we arrived at a point at which members had seriously raised concerns. I think the points my colleagues were making were entirely valid. I am not convinced that the amendments that Heather Roy has brought forward will in a material way advantage victims. But on balance in a situation where the intent I believe was genuine and where it appears no harm could be done it did no harm for members of Parliament to simply support a measure that clearly—overwhelmingly—parliamentarians would want to support and that is the notion of looking after the rights of victims. So I do not regard it either way as a particularly big deal. 
One way or another these are not significant changes. They will have limits. They may or may not have any meaningful impact but on the balance of it it was simply time to find a positive way of moving forward. Indeed as Simon Power says this is MMP and MMP requires accommodation. From time to time it requires that all of us listen consider an argument that is made sensibly and fairly and respond to it. So the amendment has become part of a much larger measure which we are now seeing move forward. 
I welcome the introduction of what are very significant changes to New Zealand’s criminal justice system. We are seeing the movement towards the introduction of the Sentencing Council. We are seeing a raft of community-based sentences which will significantly enhance the range of choices available to judges and to the community in terms of appropriate sentencing. Of course we want to see where necessary the use of appropriate custodial sentences. But this legislation will enable a raft of non-custodial alternatives where they are the best option with the appropriate support and conditions around them that can give the bench—and perhaps most important the wider community—the confidence that they indeed represent significant advantages for the wider community both in terms of safety and in terms of the way these options deal with those who have offended against society. 
In the end it is in the best interest of every member of our community that those who have offended ultimately do the time or pay their debt to society but rehabilitation is an important part of the total Effective Interventions package which this legislation is part of moving forward. It is absolutely in all our interests that effective rehabilitation treatment programmes and so on are available in order that those who have offended can ultimately be rehabilitated rejoin the community—which the vast majority of them do—and become contributing members of the community. 
So I say to members that I think this is a positive day for Parliament. We have seen MMP busily at work but perhaps more important we are seeing major legislative change that will significantly improve New Zealand’s criminal justice system. 
RON MARK (NZ First) 
: 
 It was interesting listening to my friend and colleague Simon Power’s speech but Simon did leave out a couple of small steps in the chain of events that occurred. In actual fact after New Zealand First had consulted with Heather Roy and received our email from our former colleague Stephen Franks we consulted the Minister Mark Burton. As was typical of the Minister throughout this whole process he did something I have found it difficult to have achieved from other quarters in this Chamber. That is he listened; he did listen. I find it interesting that Simon Power and other National Party members should now be trumpeting a success on their part in claims and statements that they always wanted this amendment to occur. I am reading pages 16 and 17 of the bill right now which contain National’s minority report. And guess what? It makes no mention of the clauses that Heather Roy has now amended. It says: “National members are also concerned about proposed amendments to the Prisoners’ and Victims’ Claims Act. We oppose moves to extend the Act beyond 30 June 2007.” But that issue relates to Supplementary Order Paper 127. It does not deal in any way shape or form with clauses 96 97 98 101 102 or 104. 
Mr Power did make a speech on those clauses. But National has been accused by the Sensible Sentencing Trust and by Stephen Franks of paying lip service to victims’ rights. In that the issue is not included at all in National’s minority report it would appear that Mr Franks is quite correct. National is dare I say grandstanding on that issue. The fact of the matter is that there is a lesson to be learnt here. One should look to Heather Roy as an example and look to the Minister as an example. 
New Zealand First was challenged severely in the debate last night by Mr Henare who said: “What are you going to do about it? What have you done?”. I say to Mr Henare that here is a perfect example of what can be done if one wishes to work constructively as Ms Roy the Minister and I—now supported by National—have done. Yes this is a fine example of MMP at work but it requires for a start a Minister who is prepared to listen. We have had that. I do not particularly want to see some of the former Ministers of Justice from National reappearing on the front benches of a Government because they did not listen did they? Tony Ryall is a perfect example. Tony Ryall knows everything he knows what is best for everybody and he is the first to tell anyone that. So I do not expect to see any changes in MMP with that man as the Minister of Justice in a new Government should that ever eventuate. 
New Zealand First wants to put it on the record that we do believe that effective rehabilitation is not only important but essential moving forward. But our serious belief is that the Department of Corrections and the Ministry of Justice over the past—God knows how long—decade or 15 years have been running rehabilitation programmes that simply are not effective. We think that the changes to home detention in particular are a good move forward but we would have to say that New Zealand First is putting the justice sector on notice—on notice. Our confidence in home detention has been severely undermined. We are happy that back-end home detention has been removed. We are very happy that home detention has now become a sentence in its own right which will be given by the presiding judge who has heard the case immediately at sentencing. We believe that that is a very definite positive step forward. But we still have grave reservations as to the way in which home detention is administered. We view with a high degree of scepticism the claims by Ministry of Justice officials and Department of Corrections officials that home detention is well administered and that the number of breaches is minimal and very low. 
We know from our sources inside the departments and the industries concerned that many of the breaches of home detention are never recorded because people consider them to be of minimal concern. Well we do not agree with that. So we say that with the passing of this bill—and everyone is on notice from our chair—home detention is still up for further observation and further monitoring and if we do not see severe progress being made in respect of the administration of home detention we will be first to the front looking to see it repealed. We would say that the Government is on notice again. 
HEATHER ROY (Deputy Leader—ACT) 
: 
 This bill at this stage is in fact a victory for MMP—and a very sweet one I have to say—because it is not about who changed their mind at the last minute and who said this and who said that; it is about the rights of victims. I am delighted that as a member of a party with just two members—and after the next election that will not be the case any longer—our amendments had the support of the Committee of the whole House as common sense. That is in fact very very good and New Zealanders can be proud of the way Parliament has operated this afternoon. 
I thank the Minister for his comments about my amendments. I thank the National Party for its support and I thank New Zealand First for looking very quickly at those amendments when they came forward at the last minute as indeed they did. But I would like to spend a moment just contemplating what might have happened had these amendments not been supported because the Minister says he is not sure what effect they will have. I think they will have a very profound effect for victims in the future. Victims’ rights are very often set aside when crimes particularly crimes of a very vicious and brutal nature are committed. Very often the rights and the privileges accorded to criminals are not in fact accorded to the victims of crime and that reflects a very very sad part of our society. 
The select committee I notice in its commentary that came back to the House after the select committee process was worked through did not bother to comment on the victims’ submissions and there were many I know. I think that is very regrettable. There was no mention of that from any of the parties on the select committee. I think this shows how our parliamentary process works in that these issues can be raised again in the Committee of the whole House so that the right result can be arrived at. Victims now will have the same ability they have at the moment to present to parole boards and that should and will remain a right. It will not be a privilege. They will not have to be invited to come before parole boards; they will have the right to do so as was previously done. That is exactly as things should be. 
I will focus only on this matter in my speech. Of course this bill is about a wide range of issues and the ACT party does not support many parts of the bill but in fact it is very very pleasing that the amendments that came forward to the Committee in my name this afternoon have been supported by the Committee as a whole. I hope that victims listening to this debate are able to have some degree of satisfaction at that point. 
JUDITH COLLINS (National—Clevedon) 
: 
 We have definitely seen MMP in action and we have seen something else that will surprise many commentators on Parliament. We have seen a fleet-footed agile Minister of Justice manoeuvring around MMP and the votes and being rolled. That was what was about to happen to Labour. The Minister of Justice has like a mountain goat negotiated those tricky passes. He has come right through them. I have never been as impressed with him as I am now and I congratulate him on being able to count. The counting would have told him he was about to be rolled and in fact victims were going to retain the right to be able to attend a parole hearing in their own right rather than simply if they were asked. It took Mrs Roy and her work to get that through. I congratulate her on that because I have always seen her as an extremely good member of Parliament. “Good on Mrs Roy.” I say. 
One of the things that I think we should look at in this bill is that it is actually about keeping people out of prison. It is about getting the prison numbers down. Part of that little plan was stopping victims from being able to turn up at parole hearings and actually say what they wanted to say. I see Mr Mark is nodding and agreeing with me so I do not understand why he is in fact voting for this bill in its entirety. I say that because this bill has other provisions that are also about keeping criminals out of jail and out in the community. 
One of those is the idea of a Sentencing Council and sentencing guidelines. The Sentencing Council is all about replacing the power of a judge who currently has such discretion with a council that will tell judges pretty much what to do. Judges already look at precedent. They already have guidelines and they work to those guidelines. But they also have the ability—a much greater ability at the moment—to look at the evidence look at who is saying what make some judgment calls look at the age of the person look at the whole background look at someone’s previous history and make a call as to the sentence. That is the role of a judge. 
So why do we need a Sentencing Council to come in on top of judges all of whom are highly experienced people and tell them how they need to do that work? We already have sentencing guidelines. They already take into account precedents in relation to sentencing and they already take into account the facts. Instead this measure is some sort of attempt to get a whole pack of limp-wristed sociologists from Steve Maharey’s next workplace at Massey University to come along and tell judges what to do. That is who will be on that council—a whole pack of limp-wristed sociologists all about to tell everybody why a person is a mass murderer or why a person happens to have 16 convictions for attacking people and the last lot are for rape and murder. That is the sort of nonsense we will get from a Sentencing Council. 
 I am particularly concerned too about the sentencing guidelines which some of my colleagues have referred to today. We are not allowed to know about those guidelines but apparently the Government has sent them all around the country to various other people whom it wants to agree with it. But yet again those guidelines are all about cutting down the time that prisoners spend in jail. On the one hand the Government says that it will resile from its previous position and say that people cannot get parole until they have served two-thirds of their sentence—in other words the National Party’s policy and that is fine; we can share it with the Government—but on the other hand the Government is to make it easier for people to serve much shorter sentences in the first place. That is one of my concerns. I know that is why the Government wanted to keep victims out of parole hearings. It did not want victims like Mrs Croskery from my electorate and many others turning up and saying it is not fair to grant parole because people who have done the crime should do the time. 
We say there should be no parole for recurrent violent offenders. They should not be getting parole in the first place. Victims and their families should not be hauled in to come and tell the Parole Board what has happened to them. They should not have to relive that every single year and when there are multiple offenders on multiple occasions. Victims and their families should be able to get on with their lives as much as they can knowing that thankfully the perpetrators of crime are locked away in jail and should stay there. 
Dr WAYNE MAPP (National—North Shore) 
: 
 As I indicated earlier National notes that the Government has finally recognised the errors in the 2002 legislation when it introduced what was frankly one of the most outrageous law and order policies this country has ever seen. The reason I say that—for the benefit of the Minister in the chair the Hon Mark Burton—is that the Government was warned repeatedly at the discussion phase through the select committee process by the public and by parties informally that to introduce a policy that would allow the worst offenders in the country to get out of prison after serving one-third of their sentences was a betrayal of public expectation. 
The public had given the clearest possible indication to the entire House by an overwhelming majority that it wanted serious violent criminals to be more severely dealt with not more leniently dealt with as the Government delivered up. Yes the Government did make some amendments in the Committee stage in recognition of that but they were belated and feeble and the public saw that at the time. It has taken another 5 years for the Government to finally recognise its mistake and it has now restored the two-thirds parole provision. 
Of course it is all too late really because the public has moved on. Political parties across this House have moved on. The Government says: “Oh well it might be just knee-jerk responses by parties.” but it is actually a thought-through proposition. We have not said: “No parole for anyone at all.” We have been quite selective actually. We said there should be no parole for violent repeat offenders. That is a narrow class of people. In truth it is quite a lot of people and they make up a large percentage of people in prisons. [ 
Interruption 
] Yes they do. The Minister may not believe that but if he knew the figures he would know that those people make up a large percentage of people in prisons. 
Violent repeat offenders are the people whom the public wants to be protected from. They are the people who should not be getting parole. They should be serving the full length of their sentence and in fact that really means we should trust the judges to get their sentences right. Judges hear all the evidence they hear from the victims and in the courtroom they have information about particular offenders that we in this Parliament by and large do not have other than what we read in the papers. They decide what the sentence should be and the public ought to be able to trust that sentence. The public should be able to trust that when a violent repeat offender gets 9 years as a deterrent and to protect the public that person will serve 9 years. Clearly it is recognised that that person will ultimately get out and there needs to be post-sentence supervision and I know the Government has looked at that. But to wait 5 years for belated recognition that the two-thirds provision should be restored is actually missing the boat because things have moved on I say to the Minister and violent repeat offenders should not get parole. 
We say to the Government and to the public of New Zealand that in 2008 there will be a choice. People will be able to decide on the Government’s response which is parole for violent repeat offenders. This Government will give violent repeat offenders parole. It is in the legislation that it is attempting to pass in this House. 
Hon Mark Burton 
: Oh that’s nonsense. 
Dr WAYNE MAPP 
: On our side we are saying that those people will not get parole. It is a clear choice. I have just heard the Minister say that that is nonsense. That says it all. The Minister simply does not understand the public mood. 
CHRISTOPHER FINLAYSON (National) 
: 
 I really enjoyed the spectacle that occurred about half an hour ago when after devastating contributions by Charles Chauvel and Lynne Pillay the Minister Mark Burton changed his mind from opposition to support. I was kind of hoping that those two members would reappear in the Chamber to make devastating speeches in favour of the Sentencing Council because I was holding my breath in the hope that the Minister would then stand up and say: “Well actually I oppose it.” 
The Sentencing Council is a vile creature. Parliament has given birth to a body that the public and the judges will react very strongly against. It is unconstitutional. It seeks to press-gang judges into the executive for wholly illegitimate purposes. Time and time again during the Part 1 debate I came back to clauses 9 and 10 and asked honourable members to focus on what exactly was being proposed. Really what was being created was a body that for example would facilitate the provision of information to enable penal resources to be effectively managed. When one looks at the functions of the council one sees that it is a body that is being created essentially to control the prison population or prison muster. So judges as part of this creature are required to provide information on the likely effect of the guidelines on the prison muster. 
That is not the function of the judiciary and I am deeply sorry that this Parliament has created such an unconstitutional creature. I believe that what has happened here is for the first time in the history of this Parliament the melding of the executive and the judiciary. I believe that this Parliament will have cause to regret that. It is a major constitutional outrage and I am very disappointed that good lawyers and members of Parliament like Mr Fairbrother did not stand up and oppose it. Mr Fairbrother was remarkably quiet during the debate because as a criminal lawyer he knows exactly what the function of the judge is in a criminal trial. He knows that a judge is not expected to be a mere automaton and simply apply sentencing guidelines but that the judge has a very complex task to perform— 
Russell Fairbrother 
: They would take part. 
CHRISTOPHER FINLAYSON 
: Well I would take Mr Fairbrother back to one of the many trials he has participated in as counsel for the defence. He knows that when the sentencing part of the trial takes place the judge is required to undertake a delicate balancing act in looking at the particular circumstances—looking for example at the seriousness of the offence and looking at whether the defendant has pleaded guilty thus obviating the necessity for a long trial. All those sorts of things are brought into the mix and then the judge makes a sentencing decision. Can that member honestly and sincerely stand up and tell this Committee that with the new Sentencing Council and with judges being press-ganged into obeying guidelines—as though they are organising timetables for German trains—we will see justice? 
Russell Fairbrother 
: Yes. 
CHRISTOPHER FINLAYSON 
: And can the member honestly say when focusing on new section 21A inserted by clause 40—these are rhetorical questions for which he is answering yes because I suppose he has to—that justice will be served when a judge is told that he or she “must adhere” to particular guidelines rather than take them into account or have regard for them? 
The whole situation is most unsatisfactory and what I find so disappointing about the Labour Party—and I have said it before in this place—is that 20 years ago we had in that party plenty of lawyers who would have stood up— 
Dr Wayne Mapp 
: Robust! 
CHRISTOPHER FINLAYSON 
: —in a very robust way as Dr Mapp says and complained most vehemently about this constitutional outrage. Sir Geoffrey Palmer would have been purple with rage and there would have been Frank O’Flynn—the well-known Wellington QC—Richard Prebble David Caygill—any number of them. But the apparatchiks on the other side have lost all sensitivity for constitutional matters. The end really does justify the means and if the executive and the judiciary are illegitimately melded that is just too bad. This is totally unsatisfactory. 
Dr RICHARD WORTH (National) 
: 
 Members on this side of the Chamber have repeatedly urged on the Government that this measure should not be passed. But with politics being all about numbers it seems that the Government does have the numbers on this occasion to pass this legislation. 
Mr Finlayson has just sat down after making a number of comments about the separation of powers and about how inappropriate it is to involve the judiciary in the executive function. That is a concept that should be obvious to members opposite just as the constitutional affront should be similarly obvious. It is interesting to reflect that in other jurisdictions there are Sentencing Council equivalents. For example in the United Kingdom there is a Sentencing Advisory Panel and there is a raft of legislation around that. But those structures are not in the same form as the structures proposed in this bill. 
One of the worst provisions I would suggest is this new provision in section 21A inserted by clause 40 “Court must adhere to sentencing guidelines”. There is something very odd— 
Hon Mark Burton 
: Read the rest of it. 
Dr RICHARD WORTH 
: Yes I will; I will read the whole provision so that the Minister will not be embarrassed and he will have an opportunity to comment. Guidelines are guidelines; they are not mandatory instructions. But these guidelines are cast in mandatory terms. Why do I say that? The Minister invites me to read the provision and I will: “When sentencing an offender a court must impose a sentence that is consistent with any sentencing guidelines that are relevant in the offender’s case unless the court is satisfied that it would be contrary to the interests of justice to do so.” That is why Mr Finlayson myself Dr Mapp and others urge on members of this Committee the realisation that judges are being reduced substantially to the role of automatons. 
We know why this is being done. It is being done under a guise that there is significant inconsistency in the sentencing process. That is despite the fact that judges already have guidelines—in books they refer to and in cases that have been decided—that indicate what the approach should be in particular classes of criminal offence as to the appropriate penalty. I say that that is the guise under which this legislation is being launched because as others have said a key purpose in this legislation is to control the prison muster. The reality may be that in New Zealand there is an overrepresentation of people in prison. We do not come of course anywhere near the American standards but what—curiously I think—we have come to accept in New Zealand is the fact that prisoners must be housed in their separate cells. It is quite a rarity for prisoners in New Zealand to be sharing cells. In fact I understand that there are only about 1850 prisoners who are doing so. 
I reflect for a moment on my life in the navy as an ordinary seaman where on the mess deck for example of HMNZS  
Kaniere 
 my colleagues and I had—and I illustrate this in imperial terms—space of about 18 inches in which we swung our hammocks. On the particular mess deck that I shared as an ordinary seaman there were about 30 of us and we lived in highly cramped and rat-like conditions. The incentive to be commissioned and move to the officer corps was very compelling if only for that particular reason. This was the case in the army too. The army personnel in their barracks were often in bunkhouses of 20 people. But we have this curious idea that we have to have separate cells for each prisoner. 
What is driving all this is one of the numerical consequences of prisoner musters being measured in terms of the costs of building jails and we know that the cost of building jails is fantastic. If members think I am being over-imaginative on this issue they need only to look at clause 15 of the bill and the draft guidelines relating to prison musters. 
Hon MARK BURTON (Minister of Justice) 
: 
 I thank members for their various contributions. It has been an interesting afternoon in Parliament and generally the debate around what are important matters to do with the organisation of the criminal justice system has been worthy of Parliament. 
I say to the member who has just resumed his seat Dr Richard Worth that I do not for a moment agree with him that the Sentencing Council and sentencing guidelines in any way reduce the requirement of a high level of judgment and indeed wisdom on the part of judges. Of course the guidelines provide ranges for judges to operate within but it is interesting that the concept enjoys its highest level of support among the judiciary among those who make the most judgments— 
Dr Richard Worth 
: That’s not right! 
Hon MARK BURTON 
: It is entirely correct. 
One member commented earlier that somehow the Sentencing Council was going to be made up of appointees of the Government—that was clearly the inference that was suggested. Well I remind that member that the person who will have the single most influence over the composition of the membership of the Sentencing Council will be the Chief Justice and that 50 percent of the membership of the council will be judges. I think that the comments made by at least one member a little earlier on—not Dr Worth—cast rather unfortunate aspersions on the character of judges when we consider that they will play a very significant role on the Sentencing Council. 
I conclude by saying that although it is certainly the case that there are a raft of provisions in this legislation for community-based sentences to broaden the range of non-custodial sentences there is no question that this Government remains firmly committed to the policy that those serious repeat violent offenders who are incarcerated will need to continue to be so. There is no question of that. The issue is that equally through some of the measures in this legislation and elsewhere in the effective interventions package the community knows that better rehabilitation and better dealing with mental health and addiction issues are being addressed in the criminal justice system and in the corrections environment and that is equally important. 
Let me finish with this challenge to members: is there any member in this Parliament who can hand on heart take any joy in the notion that New Zealand has one of the highest levels of incarceration in the OECD in the developed world? Why would any member want to see an increase in the number of New Zealanders imprisoned? 
Our objective as a Parliament should surely be to protect society first and foremost through early intervention and crime prevention. I suggest to members opposite that that is by far the most effective form of intervention. It is certainly the best way to avoid victims becoming victims in the first place. So the package of interventions which is about early intervention about prevention and about rehabilitation is critically important because the interventions address the overwhelming majority I tell Dr Mapp of those who are in fact involved in the criminal justice system. As for the small minority in total who are indeed serious repeat violent offenders the community of course must be protected from them and it will be. This legislation addresses itself to the overwhelming majority for whom we simply must do better and I say to the Committee that the advancing of this legislation will enable us to do just that. 
JUDITH COLLINS (National—Clevedon) 
: 
 I rise to take a short call on this matter because the Minister has set out a challenge. He has referred to the membership of the Sentencing Council and I think he alluded to some comments that I might have made where I referred to the pinko sociologists of Steve Maharey’s friendship who will be appointed to this council. Actually I stand by those comments. 
When I look at clause 11(1) of the bill I see that the council will consist of “(a) 1 Judge of the Court of Appeal … (b) 1 Judge of the High Court … (c) 2 District Court Judges … (d) the chairperson of the Parole Board: (e) 5 members”—that is five members—“who are not Judges appointed by the Governor-General on the recommendation of the House of Representatives.” That is the same House of Representatives that will go ahead today to put forward this bill and pass it—in other words the Government and its mates. 
 Frankly when we have five members of the council who are not judges how can we not infer that the point here is to get a whole pack of sociologists who will be Steve Maharey’s mates when he is back at Massey University? I stand by those comments. 
The Minister today effectively alluded to the fact that this Government is trying to cut down the number of people in jail. This bill is about many things but primarily it is about cutting the prison muster. We do not want people in prison but then again we do not want people to commit crimes. But if they commit the crimes they have to do the time. 
It is a nonsense to put these five members in charge of the judges who hear the cases and who sit on the bench every day and understand what is going on. The Government will put them in with a whole pack of people—like all the Labour MPs who have just announced their retirement. 
A party vote was called for on the question  
That clause 1 be agreed to. 
Ayes 70 
New Zealand Labour 49; New Zealand First 7; Green Party 6; Maori Party 4; United Future 2; Progressive 1; Independent: Field. 
Noes 51 
New Zealand National 48; ACT New Zealand 2; Independent: Copeland. 
Clause 1 agreed to. 
The question was put that the amendments set out on Supplementary Order Paper 127 in the name of the Hon Mark Burton to clause 2 be agreed to. 
A party vote was called for on the question  
That the amendments be agreed to. 
Ayes 70 
New Zealand Labour 49; New Zealand First 7; Green Party 6; Maori Party 4; United Future 2; Progressive 1; Independent: Field. 
Noes 51 
New Zealand National 48; ACT New Zealand 2; Independent: Copeland. 
Amendments agreed to. 
A party vote was called for on the question  
That clause 2 as amended be agreed to. 
Ayes 70 
New Zealand Labour 49; New Zealand First 7; Green Party 6; Maori Party 4; United Future 2; Progressive 1; Independent: Field. 
Noes 51 
New Zealand National 48; ACT New Zealand 2; Independent: Copeland. 
Clause 2 as amended agreed to. 
Bill reported with amendment. 
The Committee divided the bill into the Sentencing Council Bill the Bail Amendment Bill the Sentencing Amendment Bill (No 3) the Parole Amendment Bill (No 2) and the Prisoners’ and Victims’ Claims Amendment Bill  
divided into Sentencing Council Bill Bail Amendment Bill Sentencing Amendment Bill (No 3) Parole Amendment Bill (No 2) Prisoners’ and Victims’ Claims Amendment Bill  
pursuant to Supplementary Order Paper128. 
Report adopted.