Wilkinson Kate: Criminal Justice Reform Bill — Second Reading 
Wilkinson Kate: Criminal Justice Reform Bill — Second Reading 
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KATE WILKINSON (National) 
: 
 In speaking to the second reading of the Criminal Justice Reform Bill it is a shame—and it has been mentioned—that the Government has not heeded advice and agreed to split or divide the bill so that Part 1 dealing with the Sentencing Council which we have already mentioned as one of our stumbling blocks could be separated and dealt with separately from Part 2. As we have heard Part 2 deals with the amendments to the Bail Act 2000 the Sentencing Act 2002 and the Parole Act 2002 etc. Although some aspects of the bill relating to the parole structure the parole system and sentencing may actually be acceptable unfortunately the option to support part of the bill and not others has been closed to us if the bill remains in its current combined state. We would ask that the bill be dealt with separately so that at least the good parts of this bill can be duly put into law. 
Certainly in its current form and its current state we will have difficulty in agreeing as Mr Power said to Part 1 which deals with the establishment of the Sentencing Council. I want to deal for a moment with the Sentencing Council because that really is the big stumbling block for us in this bill. The inclusion of a politically appointed Sentencing Council is opposed by National and unfortunately it does overshadow any good otherwise shown in the bill. Had the Minister agreed to deal with that issue separately then we certainly would have had a better option but unfortunately he did not. 
We have a bill that provides for the creation of this Sentencing Council—a separate politically appointed Sentencing Council. I am not convinced that the need for such a Sentencing Council has been established—bearing in mind that I was not on the Justice and Electoral Committee at the submission time. Certainly it does not appear to me—having skimmed through the submissions—that the need for such a council has been established. 
We already have a comprehensive Sentencing Act which provides guidance to the judges when they are sentencing. We know that judges—and they should be—are given some flexibility and discretion when sentencing. We also know that this discretion is subject to higher superior courts also providing guidance from time to time. The purposes and functions of the Sentencing Council may be somewhat laudable but we do have major reservations about having such a politically appointed Sentencing Council. 
In New Zealand we have a fundamental principle of the separation of powers and I believe it is vital that we cling to that principle and we do not discard it for what may be seen as sinister motives. The separation of powers means that the legislature the executive and the judiciary must be kept totally separate from each other. This is done for a variety of reasons—to ensure accountability transparency and impartiality and to provide the necessary checks and balances. Judges who interpret the law do not create the law and nor should they. If judges make decisions that the executive does not think reflect the intention of the law then it is up to the executive to change the law. The executive should not have authority to direct the judiciary—in other words if the law is not working then we must change the law. 
But what this bill does is create that separate Sentencing Council a separate body corporate; a legal entity separate from its members and separate from the Crown. Yes some of its members are judges; half of them are appointed at the whim of the Government of the day. Over half of the Sentencing Council may be merely political cronies and this sets a dangerous precedent both in relation to the separation of powers doctrine and also in relation to accountability. 
Admittedly the actual membership of this Sentencing Council has been improved since the first reading of the bill. Now it comprises a Court of Appeal judge a High Court judge two District Court judges and the Parole Board chair who is also a judge. But five others—so that is five out of the 10—are appointed at the whim of the Government. The chairman of the council must be a judge—and again I can see that this is an improvement from the original bill—but then the deputy chairman can still be that political crony that lay person. 
We need to ask ourselves whether the Sentencing Council is actually needed. The prime purpose of the council appears to be to promote consistency in sentencing practice but if any apparent inconsistency actually does exist at present then why not just do as suggested by the New Zealand Law Society in its submission and resource either the Supreme Court or the Court of Appeal to deliver sentencing guideline judgments. That would make much more sense than introducing a separate Sentencing Council which would potentially violate our entrenched separation of powers doctrine and which would potentially be politically controlled yet it would add another layer of bureaucracy and cost. 
Sentencing should not ever be politically driven. To quote from the New Zealand Law Society submission: “once these sentencing guidelines have been provided to Parliament ‘If Parliament does not like the guidelines it may disallow them’. Accordingly all the expertise that is accumulated in the Sentencing Council counts for nothing if at the time the guidelines come to be considered the political climate is not conducive to those guidelines being implemented. With the proposed mandatory reconsideration by the Council of rejected guidelines the sentencing process may become a politically influenced process.” And that we submit is not a position in which we would want to be. 
I restate our minority view which is outlined in the commentary to the bill that although we may think there is justification for some kind of sentencing guidelines panel to provide guidance to judges on sentencing matters thereby improving consistency in sentencing across the country we are not persuaded that the model proposed in this legislation—the Sentencing Council—is indeed appropriate. It runs the risk of compromising judicial independence. 
I have said that although the bill has been amended so that a judge must be a chairman of this council which is certainly an improvement it is not nearly enough. This scapegoat council will be easy to blame for any criticisms on sentencing. It can take the blame for the Government’s lack of policies in relation to the reduction of crime. The priority must be to prevent crime in the first place not to put a bureaucratic council in place to act as a scapegoat and as a political tool and to hide the failure of this Government’s policies that are not addressing the problem of the increasing rate of crime. 
If this Government was really concerned about the passage of good legislation—and good criminal justice legislation—it would and could easily have done so. It could have split the bill into the two separate parts one regarding the contentious Sentencing Council and the other dealing with the other matters. Regrettably it did not and on that basis unless there are some crucial vital changes at Committee stage National will be voting against the Criminal Justice Reform Bill—which I have to say would be a shame because there are some good bits in it.