Finlayson Christopher: Criminal Justice Reform Bill — In Committee 
Finlayson Christopher: Criminal Justice Reform Bill — In Committee 
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CHRISTOPHER FINLAYSON (National) 
: 
 This is a major constitutional debate tonight. It is not simply a question of looking at the criminal law. It raises fundamental questions about the importance of judicial independence. I go back to what Alexander Hamilton who was one of the framers of the US constitution had to say. 
Ron Mark 
: I raise a point of order Mr Chairperson. I offer sincere apologies to the honourable member—I do not mean to interrupt his speech needlessly—but Mr Chairman I have noticed from sitting here that you have given three calls in a row to National. Each time Charles Chauvel has stood to take the call and you have ignored him. I thought the convention was that the call went from side to side or around the Chamber in some sort of order. It is highly unusual for any chairperson to give three straight calls to one party one after another in this Chamber. I ask you to consider the wider vision that you may not have tonight. 
The CHAIRPERSON (H V Ross Robertson) 
: I thank the honourable member for that but National actually had two calls in a row. I did not notice Mr Chauvel rise to his feet but if he does so next time he will certainly get the call. 
Charles Chauvel 
: I am grateful for Mr Mark’s intervention but in fact I did fail to take the call. It is my omission. I will certainly be trying for the next one. 
CHRISTOPHER FINLAYSON 
: I appreciate Mr Chauvel’s sentiments. It is a shame that on a major debate like this there are stupid pettifogging points of order like that from Mr Mark. 
This is an important debate. I was going to tell the Committee what Alexander Hamilton said: “there is no liberty if the power of judging be not separated from the legislative and executive powers … liberty can have nothing to fear from the judiciary alone but would have everything to fear from its union with either of the other departments;”. 
 Bearing those fundamental principles in mind let us look at Part 1 and at the purposes of the council as expressed in clause 9. Paragraph (a) contains a perfectly legitimate purpose of a Sentencing Council which is to set out guidelines to “(i) promote consistency in sentencing practice between different courts and Judges:”. Subparagraphs (ii) and (iii) likewise are perfectly acceptable. But when we look at the other paragraphs we see in them functions that are properly the preserve of the executive. It is not for judges to enable the development of sentencing and parole policy to be based on a broad range of experience and expertise. It is not for judges to inform members of Parliament and policymakers about reform options or to inform and educate the public. Judges are there to judge and the Ministry of Justice as part of the executive is there to undertake the executive responsibility set out in those paragraphs. So it is when one looks at the functions of the council in clause 10. Paragraphs (a) and (b) in subclause (1) are legitimate but the rest are totally illegitimate because those functions are properly the responsibility of the executive. 
What we propose in Supplementary Order Paper 126 in my name is to recognise that a Sentencing Council does serve a purpose but that it should be independent of the executive and indeed should be part of the judiciary as indeed the High Court Rules Committee is. I propose to examine these clauses to set out the National Party’s thinking in that regard. 
Clause 6 is the primary clause. We propose that clause 9 be omitted along with clauses 6 and 7 which set up the status of the council. My proposed clause 6 sets out very clearly how this Sentencing Council is to be constructed. It is to comprise a judge of the Court of Appeal one judge of the High Court two District Court judges the chairperson of the Parole Board and in order to ensure there is layperson representation on this council subclause (1)(e) proposes that five laypersons—people who are not judges—be members for a special purpose. Instead of being appointed by this Labour Government those persons would be appointed by the Chief Justice who would be required to take into account certain skills before they could be appointed. I have picked up the qualifications that are set out in the schedule so that the laypersons who are appointed to the council represent a group of laypeople—