Dalziel Lianne: Courts (Remote Participation) Bill — Second Reading 
Text is incorporated into the Bound Volume 
Dalziel Lianne: Courts (Remote Participation) Bill — Second Reading 
[Sitting date: 29 June 2010. Volume:664;Page:12272. Text is incorporated into the Bound Volume.] 
Hon LIANNE DALZIEL (Labour—Christchurch East) 
: 
 It is a shame that we could not reach consensus on the Courts (Remote Participation) Bill because the underlying principle that the Government was trying to espouse when it used the expression “Justice must not only be done; it must be seen to be done.” is precisely the point that we on this side of the House have been making. Justice cannot be seen to be done when the accused is not able to represent himself or herself at the hearing. It is a fundamental breach of our New Zealand Bill of Rights Act. 
Of course Labour members agree with the principle that audiovisual links can play a useful role in interlocutory proceedings but not in substantive hearings and certainly not otherwise than by consent. That is the fundamental difference between the Government and the Opposition on this issue. Despite the statements from the Minister of Justice about the assessment of compliance with the New Zealand Bill of Rights Act the Human Rights Commission does not agree. I want to spend a bit of time going through the Human Rights Commission’s submission because it has some really important points to make. 
When I refer to the commission’s submission to the Justice and Electoral Committee I want to reorder its statement about why it does not support the bill in its current form. I want to put at the top as the first reason that the bill risks eroding important victims’ rights. We have had an entire discussion from two members of the Government that referred solely to the position of the accused but what about the victims’ rights to face those who have been accused of offending against them? There is a right that sits with victims that has been completely ignored by the Government. 
Let me read through all of the reasons why the commission does not support the bill in its current form and why it believes that it does not comply with certain rights in the New Zealand Bill of Rights Act and is incompatible with international human rights instruments “particularly the right to a fair and public hearing the right to be tried ‘in his presence’ and the right of the accused to defend himself in person;”. As I have said the commission believes that the bill risks eroding important victims’ rights; that beyond judicial review as affirmed by section 27 of the New Zealand Bill of Rights Act there is no provision to appeal a decision to use audiovisual links in a specific case; that the use of audiovisual links may impact on victims’ rights to participate in the proceedings and the longstanding principle that victims have the right to confront an accused; and that there has been no evaluation of the impact of the use of audiovisual links in criminal matters. My colleague David Parker explained very carefully to the House the risk of our going down a track based on advice that suggests far more widespread use of this particular technology in criminal trials—in substantive proceedings—than can be identified from the evidence. I think the Government will be asked to account for all of those matters as we proceed with the debate on the bill. 
Very few adjustments need to be made to the bill in the Committee stage to have unanimity on it across the House. It would not take very much for that little bit of extra work to be done and for us to achieve the outcome we would like to achieve. 
Hon David Parker 
: A simple amendment to clause 9. 
Hon LIANNE DALZIEL 
: A very simple amendment to clause 9 would do the trick. I was looking on the Internet before I came down to the House to speak on the bill and I noticed that Peter Dunne will vote against it as well for a slightly different reason from the ones I will expound on now. The issue of whether this measure is justifiable in terms of our response in this area is definitely on the line and it is something we still could fix. I hope that in considering the very good submission of the Human Rights Commission we get to that point. As my colleague David Parker has already stated the New Zealand Law Society has adopted a position very similar to that of the Human Rights Commission. 
Let me remind the House what the New Zealand Bill of Rights Act provides in relation to criminal proceedings. There are four specific rights: the right to be brought before a court following arrest the right to a fair trial the right to be present at trial and the right to examine witnesses on an equal basis to the prosecution. Those are the rights set out in the New Zealand Bill of Rights Act. Section 25(e) of the Act guarantees the “right to be present” and in the International Covenant on Civil and Political Rights that is described as the right “To be tried in his presence” and it is to present a defence. That is the right that is enshrined in our New Zealand Bill of Rights Act. The dictionary definition of the word “present” is “being in a specified place” so I am talking about the ability to bring people into substantive proceedings. I want to focus on substantive proceedings; I am not talking about some of the interlocutory matters which we all agree can be easily dealt with by way of audiovisual links. 
The Human Rights Commission stated that it acknowledged that the rights were not absolute but “the State’s duty to protect and uphold them may only be diminished where it is demonstrably justifiable in a fair and democratic society.” Well we have not had that justification because the Crown Law Office has essentially provided advice to the Minister that there is no question of a challenge to the New Zealand Bill of Rights Act yet on the face of it there is a challenge. I hope that as we go through the debate on the bill there will be some focus from the Government on why the Human Rights Commission has an entirely different perspective on the application of the New Zealand Bill of Rights Act in terms of this legislation from that of the Crown Law Office. 
In fact it is very explicit in the Human Rights Commission’s statement which states that the Crown Law Office “provided a report on this Bill to the Attorney General. In this report CLO determined that the Bill was not inconsistent with [the New Zealand Bill of Rights Act]. The Commission disagrees with the report and considers that the analysis provided is flawed. … In its advice CLO conflates practices in which evidence of witnesses can be given by AVL with that of an accused being entitled to be present and to give evidence in person.” Then the commission discusses the  
Maryland v Craig 
case which apparently was the justification for the position taken by the Crown Law Office. The commission states that that case “addressed only the giving of evidence remotely by a witness by AVL—not an accused.” That particular case is not relevant to the issue that we are deciding in this legislation and that is why the commission states that the analysis is misleading—because it “does not include the Court’s full and proper reasoning in that case but cites selectively from it.” That is an alarming statement and I hope we are able to have in-depth debate about that matter as the bill proceeds through its remaining stages. 
The commission states that it does not consider that there is an important public policy reason for the extensive use of audiovisual links in criminal matters and it was concerned about the reliability of any evidence given in that form given that there is a real risk of adverse inferences. Having sat on a select committee that has heard submissions by way of audiovisual links I can attest to this House—and I know that other members know exactly what I am about to say—that there is nothing like having the person give evidence directly in front of a committee. And those who give evidence by audiovisual links to a select committee say that they cannot tell how MPs are reacting because with the level of technology we have today they cannot read body language. I think it is a serious problem to go down this track without fully resolving this question and I do not think going down this track is justified. 
I hope the Minister will take seriously the suggestion that Labour members are happy to work with him on a relatively minor amendment that would achieve unanimity in my view across the House in order to have the bill passed and achieve its main goal which is to have audiovisual links apply more generally in procedural matters and not in the substantive hearing itself. We would not have to do much to fix the bill. 
I end by returning to the question of victims’ rights. The Human Rights Commission made it very clear that although the State has a duty to protect persons where a crime is committed against a person the victim has a corresponding right to demand that an offender be tried to participate in proceedings and to be present to observe the exercise of justice. It is for victims that the Government has to rethink its position on this legislation and I hope the Government does that.