Ardern Jacinda: Courts (Remote Participation) Bill — Second Reading 
Text is incorporated into the Bound Volume 
Ardern Jacinda: Courts (Remote Participation) Bill — Second Reading 
[Sitting date: 29 June 2010. Volume:664;Page:12279. Text is incorporated into the Bound Volume.] 
JACINDA ARDERN (Labour) 
: 
 I will begin by first referring to the contribution made by the Maori Party on the Courts (Remote Participation) Bill. That party was essentially seeking assurances from the Government that some of the issues that Labour had raised would be addressed. I say to the Maori Party members who at this stage are supporting this bill that we have raised those issues in the Justice and Electoral Committee and we have raised them directly with the Attorney-General but to date we have not reached a satisfactory conclusion. That is the reason why the Labour Party will not be supporting this bill. I urge the Maori Party to reconsider its position given that I am very sceptical that its members will receive the assurances they are seeking. 
Obviously other speakers have already traversed the background to this bill: the fact that when it was first presented to this House it was focused on the notion of the courts making better use of new and advanced technology and basically on the use of audiovisual links in criminal and civil proceedings. The Government’s criteria were put before us and Government members argued very strongly in favour of the use of audiovisual links for three substantive reasons. One was the cost: the savings that could be made. Then there was the argument based on efficiency grounds and finally there was the issue about the safety of other participants in a proceeding. For certain areas of criminal matters we agreed with that and we highlighted it in the first reading that for simply procedural matters—like remand etc.—we had no objection to audiovisual link technology being used. But what we do object to and what we will continue to object to strongly is the proposal that for substantive criminal matters audiovisual link technology could be used thereby removing the ability of accused people to be present at their trials. 
Why do we object to that? It is because we were not simply using a set of criteria that sat around cost efficiency and safety. We had in mind another set of criteria that is enshrined in our law and that goes well beyond even the history of this Parliament. Those are the criteria we would all know well: that when it comes to criminal matters there should always be a presumption of innocence the right to face one’s accuser and the right to be judged by one’s peers. Elements of this bill fundamentally remove those rights which were the set of criteria on which we judged this bill and on which it has failed. 
I will reflect briefly on the part of the bill that has become the most contentious. To those who may be interested in that I say it is clause 9 which states “AVL must not be used in any criminal substantive matter for the appearance of a participant unless a judicial officer determines to allow its use for the appearance of that participant in the proceeding—(a) in accordance with the criteria in sections 5 and 6;”—and I will go over those criteria because I think they prove a useful point—“and (b) taking into account whether the parties to the proceeding consent to the use.” Chester Borrows who is the chair of the Justice and Electoral Committee which considered this bill—and he is an excellent chair—raised what he considered to be the high bar that is set out in this part. But I think that in doing so he still demonstrated our point. There is a bar and of course any bar can be jumped over. In fact there is still the ability to have an accused person’s fundamental right removed via this clause. The judicial officer has complete discretion. That officer is able to take into account the views of other parties but there is no compulsion for the officer to take into account for instance the accused’s position against audiovisual technology being used for his or her substantive trial. 
I guess really that if we were to simplify this argument I would ask members of this House this: if tomorrow any of us were in a situation where we faced a trial on a substantive criminal matter and we were given the option of using audiovisual link technology to appear in or observe our own criminal trial would we opt to use it? I assume—because I know that certainly in my case I would not—that the position of many members in this House would be to say no. Why? I think the reason is quite obvious; in fact the criteria demonstrate the point. It is because the audiovisual link creates a detachment between the accused and the proceedings that are so vital to the trial that he or she faces. 
If we go through the criteria that a judicial officer is required to consider in determining whether audiovisual link technology will be used we find this is what clause 6 sets out: “A judicial officer … must also consider … (a) the ability of the defendant—(i) to comprehend the proceedings; and (ii) to participate effectively in the conduct of his or her defence; and (iii) to consult and instruct counsel privately; and (iv) to access relevant evidence; and (v) to examine the witnesses for the prosecution; and (b) the level of contact the defendant has with other participants; and (c) any adverse impression that may arise through the defendant or any other participant appearing by means of AVL and whether that adverse impression may be mitigated.” I find it interesting that those criteria set out all of the detrimental impacts that the use of audiovisual links may have in a substantive criminal proceeding. Clause 6 sets out all of the reasons why the use of audiovisual links could limit an accused’s access to justice in his or her own substantive trial. I think it shows and demonstrates the fundamental difference between appearing before the court and observing it from behind a screen. 
We can relate that to something that we all know well. I have already heard the experience of select committees being raised and that is a very good example. As select committee members we have experienced the wall that is generated by communicating with an individual via a video link. In the same way anyone who watches the proceedings of Parliament via television will not feel a part of the proceedings in this place compared with someone who is sitting here amongst us as a participant in what goes on here. I think that that is the best way to describe the distance between an accused who appears by audiovisual links and an accused who is able to be present at his or her own trial. That is without mentioning the access that that person has to his or her lawyer who of course will need to be present for the substantive trial and will not be able to communicate with the accused person via a video link as the proceedings occur. I think that sets out very clearly all the reasons why we should exercise caution with regard to this clause and that has not occurred in the way that it is set out currently. 
I want to very briefly raise a quick point. I find it contradictory that when it comes to the fundamental civil liberties of an individual the Government is willing to hand over discretion to the judiciary yet when it comes to “three strikes” it has removed all discretion from the judiciary because in that case the judiciary might somehow hand down a penalty that is not the maximum which is obviously what the Government now strives for in every case. The discretion of the judiciary is obviously something the Government will give and take at will. 
Other members have already talked about the fact that the Attorney-General appeared before the select committee and said he did not feel that there had been any breach of rights under section 7 of the New Zealand Bill of Rights Act. When the Attorney-General appeared before the select committee on another matter we raised this issue. We asked him to clarify that it was his intention when he first reviewed this legislation that for substantive trials an accused could be refused the right to appear. We have not yet had that advice back. I really would urge the Attorney-General to proceed quickly with giving his advice on that for the benefit of all members in the House. 
I highlight again that the New Zealand Law Society submitted that audiovisual links should not be used for substantive criminal matters as did the Human Rights Commission and that has been discussed at length. 
Finally I highlight the fact that in this case I had expected the Minister of Justice to seek an absolute majority on this significant issue. Instead he has chosen to exercise power rather than wisdom.