Little Andrew: Bail Amendment Bill — In Committee Third ReadingText is incorporated into the Bound VolumeLittle Andrew: Bail Amendment Bill — In Committee Third Reading[Sitting date: 27 August 2013. Volume:693;Page:12870. Text is incorporated into the Bound Volume.]ANDREW LITTLE (Labour): I rise to speak at this very important phase of the passage of the Bail Amendment Bill. As will be apparent from the earlier stages of the bill Labour supports this bill but with considerable concern and reservations about some aspects of it. We understand of course the growing community concern about the number of offenders who having been granted bail continue to commit offences while on bail and in particular those offenders who have previous convictions for serious offences who find themselves offending again and facing a bail application. So the legislation in response to community concerns now reverses the onus for an applicant for bail and requires in some circumstances the applicant for bail to establish that they should be granted bail or that they are not a risk should bail be granted.There are important principles that need to be balanced the least of which is the fundamental principle in criminal justice which is that a person charged with an offence is considered innocent until proven guilty. Next is the principle that the courts have responsibility in managing offenders both pre-conviction and post-conviction to protect public safety. One of the balancing factors that combines or draws those two together is that the minimum restraint necessary that is consistent with those two principles should be applied to a person so that a person who is charged with an offence yet to be established but who poses a risk to public safety should face the minimum restraint necessary to ensure public safety. Another very important principle in my view is that judges with the best information available to them must be regarded as being in the best position to judge the appropriate course of action. It has become increasingly common and popular for there to be widespread commentary on the decisions that judges take but the reality is we seldom see in the public arena all of the information that a judge has before himself or herself in making that decision. All those factors need to be balanced to determine what is an appropriate course of action to take in the contemporary or latter-day circumstances of the administration of criminal justice.On those grounds and on that basis we accept that there are grounds for reversing the burden of proof in an application for bail in some cases. One clause in this legislation refers specifically to the onus of proof being reversed in relation to charges of murder. The starting point is that bail will not be granted but that a judge may grant bail. Then there is the clause that deals with a range of very serious offences. There is a heightened burden for those offences as well. It needs to be made clear we accept that this bill should it be passed does not deny bail—it certainly does not deny bail automatically—to any offender but it does increase the threshold that has to be met by an offender before bail is granted where there is an obvious risk. That risk is usually established by looking at their past track record and reoffending while on bail certainly increases the risk which a judge is entitled to take into account. So we understand that and we accept that.We understand also that the bill ensures that police bail is now to be managed and treated in largely the same way as court-managed bail. So we accept those provisions. They strike a good balance of the principles that I set out earlier.There are three particular areas where we are concerned. They are the Supplementary Order Papers—one from the Minister of Justice and two from the member Richard Prosser. There are many technical changes in the Minister’s Supplementary Order Paper 339. There is one that causes me particular concern and that is the proposed new section 30E in the Minister’s Supplementary Order Paper. Whereas at the moment the police are responsible for monitoring those who are given electronic bail while on remand this Supplementary Order Paper says that the Minister of Justice can give the authority to manage electronic bail to either the Commissioner of Police or the Chief Executive of the Department of Corrections. It is not clear why both should be given this responsibility. But even if we were convinced that it was a good idea that it should be shared between those two departments who lie at the heart of our criminal justice system the next question is on what basis that discretion to grant authority for monitoring electronic bail should be given.There is no signal given in the legislation as to how the Minister would exercise that discretion. Is the discretion going to be exercised in relation to different regions of New Zealand? Is it simply going to be that the police can monitor electronic bail and the Department of Corrections can as well and they just sort it out amongst themselves? Is there going to be a memorandum of understanding between the two departments? What is the story going to be? What is the basis on which the Minister will exercise the discretion to give the authority for monitoring electronic bail to either department or both? I think it is fair that we hear what those grounds might be and what the distinction might be between the two departments. We might hear from the Minister what she considers would be the most effective arrangement and get a clear steer on how that discretion might be exercised. Is it going to be the police for some situations and the Department of Corrections for others and if so what? That signal is often given in the primary legislation and in fact it should be there in the primary legislation.In relation to Supplementary Order Papers 334 and 335 I simply want to record that we are opposed to those Supplementary Order Papers. They are Draconian. They do not achieve any sort of balance in the administration of justice when it comes to bail applications. They reduce the threshold against which bail might be granted. Supplementary Order Paper 334 deals specifically with the situation where somebody is charged with an offence but not yet convicted. The bill as it is at the moment says that if an offender has a conviction for the particular offence for which they are now facing another charge and are seeking bail then it is a relevant factor for the judge to say the onus starts with them and the starting point is that they do not get bail. Mr Prosser’s Supplementary Order Paper 334 however would say it does not matter whether or not the offender has a conviction; simply being charged is enough. That is so far contrary to the principle of innocent before proven guilty that in our view we simply cannot abide by that Supplementary Order Paper and we will not be supporting it.The second Supplementary Order Paper in Mr Prosser’s name Supplementary Order Paper 335 deals with younger offenders and the situation in which in terms of assessment of being a risk an offender has not been imprisoned for an offence but has a conviction for an offence for which imprisonment is a possible sentence. So they may not have been in prison at all which suggests that their offending would be at the lower end of the offending and does not suggest a greater risk if that offender is facing a subsequent bail application for a similar offence. We say that that simply draws the bow way too long and gets the balance way out of kilter so we will not be supporting those Supplementary Order Papers.On the whole bearing in mind the principles that we have articulated we support this bill but do simply remind the Committee that when it comes to criminal justice our job is to make sure that the law ensures not only that the guilty are convicted and are dealt with but that the innocent are treated properly and appropriately and their rights are properly protected.