Mapp Wayne: Criminal Justice Reform Bill — In Committee 
Mapp Wayne: Criminal Justice Reform Bill — In Committee 
[Volume:640;Page:10209] 
Dr WAYNE MAPP (National—North Shore) 
: 
 I listened carefully to Mr Chauvel’s reasoning on the previous speech and I have to say that one wonders whether he has turned his mind to clauses 17 and 18 because in both clauses there is a statement of a point. Firstly under clause 17 the council must present the guidelines to the Minister and secondly under clause 18 those guidelines have to be scrutinised by the House of Representatives. I draw the Committee’s attention to that because it demonstrates Mr Chauvel’s confusion about the separation of powers. Quite clearly in this instance that is blurred because we have allegedly a judicial function being delivered straight back to the Minister and indeed being offered for parliamentary scrutiny. A greater integration of the three branches of Government would actually be hard to imagine. 
I want to make it quite clear here that National is fundamentally opposed to the Sentencing Council. It is certainly true that my colleague Mr Finlayson has sought to ameliorate the very worst effects by his amendments but those are intended really to try to cause the Government to at least think twice—that is if the Government is absolutely insistent on having a Sentencing Council then at least Mr Finlayson’s proposals would moderate the serious constitutional harm that would be wrought by the Government’s proposal as it stands now. The purpose of Mr Finlayson’s amendments are essentially to keep the Sentencing Council entirely within the judicial role. 
I draw Mr Chauvel’s attention to another point. He said that it was a bit like the Rules Committee and that the Rules Committee after all has appointments made to it by the Minister reports to the Minister and so forth. What he fails to understand is that the purpose of the Rules Committee essentially is procedural. It does not set out the substantive powers of the court but rather how the court operates in its procedural format. So in that sense it is simply not comparable with a Sentencing Council which is actually intended to set guidelines for the extent of sentencing. 
 But when we think about it we recognise that it is the duty of Parliament to set out sentences and as my colleagues Simon Power and Judith Collins have both observed it is the duty of judges to undertake sentencing based on the information they have at hand. The Court of Appeal regularly issues guidelines and tariffs which involve judicial conferences and discussions as to appropriate sentencing. That is proper because it keeps the sentencing function within the judicial role. In short it observes the separation of powers. This bill blurs that distinction. No matter what the Minister in the chair Mr Burton or Mr Chauvel might say about that they cannot deny that reality. 
I would go further and say that the Sentencing Council proposal is really a fundamental admission of failure by the Government. Would it even be proposing this legislation if the Sentencing Act 2002 had worked? The answer is no it would not. Surely the lesson then is that the Government should fix up the Sentencing Act deal with the range of sentencing and give instructions to judges through the legislative provisions of the Sentencing Act itself. That would be the proper course to ensure consistency and so forth. We should not have this intermediate body that is neither in the realm of the judiciary nor in the realm of the legislature or the executive. As I say it effectively fuses elements of all three branches of Government and we are treading in dangerous territory to do that. 
I can only assume to be charitable to Government members that maybe they do not really understand what the problem is. Maybe those members have never really turned their minds to the issue of why the Sentencing Act itself has failed and why it did not have a specific enough direction within it for the judiciary to be able to provide consistent sentences. That is what they should have turned their attention to not this half-arsed attempt at this Sentencing Council.