Graham Kennedy: Third Readings — 
Text is incorporated into the Bound Volume 
Graham Kennedy: Third Readings — 
[Sitting date: 04 October 2011. Volume:676;Page:21643. Text is incorporated into the Bound Volume.] 
Dr KENNEDY GRAHAM (Green) 
: 
 We have come to the end of a long road with the third reading of this legislation. Both in the second reading and in the Committee stage I paid tribute to the Minister of Justice the Hon Simon Power for his achievement with this legislation and I shall not repeat myself here. Suffice it to note that the impending adoption of this legislation is generally recognised as a seminal moment in New Zealand’s judicial legislation the kind that occurs every half-century or so. 
The legislation has ploughed a tortuous path and no greater convulsions have occurred than those in the last 2 weeks. The changes made recently have resulted in new-found support from three parties—Labour the Maori Party and ACT—and the legislation is about to pass. The only question now is whether it passes unanimously or by majority. Unanimity on important legislation is desirable and in the Committee stage the hope was expressed that the Green Party would support it a hope expressed not only by the Minister but also by the Green Party. 
In the Committee stage we moved amendments on three issues. The first two addressed the absence of a defendant in court and procedural non-compliance. These were narrowly defeated but neither was a sticking point for us. That left the jury trial threshold where we proposed an amendment that would retain the 3-month threshold for the right to trial by jury rather than the proposed change to 2 years. We had indicated that the Green Party would not compromise on that yet our proposed amendment was also narrowly defeated. 
The Minister appealed to us to drop our insistence on this issue and join the other parties in supporting the bill. Should we do so at this late stage? Those favouring the change include not only the Government but also the principal legal bodies in this land the Law Commission the District Court judges and the Law Society yet those against it include the Criminal Bar Association the community law centres and the Human Rights Commission so I trust that the Minister will concede that the issue is neither simple nor straightforward but complex and finely balanced. 
The central argument for raising the threshold is judicial efficiency. The low threshold it is contended causes three problems in particular. The sheer number of jury trials causes unjustifiable delays is expensive and inconveniences jurors. The Government believes the 3-month threshold is so low as to have had a profoundly negative effect on the conduct of criminal litigation in this country causing serious delays in the criminal justice system. Such delays may in themselves raise concerns about access to justice. The Minister argued in the Committee last week that justice delayed was justice denied. So the issue revolves round the tension between efficiency and fairness. Is the right to elect trial by jury a matter of constitutionality or of convention and if it is purely convention should it none the less still be retained? 
Trial by jury is not a universal right. New Zealand will not be breaching its international obligations under the International Covenant on Civil and Political Rights by raising the threshold because the right to a jury trial itself is not recognised. The universal right is to a fair trial not the mechanism by which that goal is attained. The civil law system for example does not provide for trial by jury and it represents perhaps half of the judicial system of the world. The British Human Rights Act has no express provision for the right to a jury trial because the European Convention on Human Rights makes no mention of jury trials. In the common law system of which New Zealand is a part the precise threshold varies from 3 months in New Zealand to 5 years in Canada. The issue is not one of non-derogable human right or of constitutionality in New Zealand but rather one of national judgment. 
In a ruling just last year a New Zealand judge observed that there seemed to be nothing particularly sacrosanct about 3 months. So why should we not raise the threshold? It is a question of whom we have in mind when we make that decision—the stronger elements in society or the weaker. It is where law and morality intersect. Justice delayed may as the Minister points out be justice denied but justice unduly sped up may as the select committee chairman points out be no justice at all. It was the moral philosopher John Rawls who in his seminal work  
A Theory of Justice 
 argued that social arrangements are to be evaluated from the standpoint of the worst-off in a society. In the case of criminal justice that is the defendant along with the victim and a balance must be struck between those two. If a legal perspective promotes efficiency a human rights perspective protects the vulnerable. 
This is a matter that the Green Party takes to be of fundamental moral concern—the relationship perhaps between jurisprudence and natural justice. The English jurist Lord Devlin once observed that 12 commonplace minds may reach a sounder solution than two or three brilliant ones. Juries bring a plurality of ethnic gender and socio-economic composition into the judicial system. In New Zealand the lack of such diversity within the judiciary makes a jury more important than elsewhere. It was Denning who separately observed that trial by jury has been the bulwark of English liberties for too long for anyone to seek to alter it. “Whenever a person is on trial for serious crime …” he concluded “trial by jury has no equal.” The right to trial by jury is seen as providing a safeguard against the arbitrary or oppressive enforcement of the law by Government. It is commonplace that when jurors perceive a prosecution to have oppressive characteristics they are likely to acquit. The jury is seen as standing between the accused and the State in a way that judges who are sworn to apply the law are not always seen to do. 
Although it is not a universal human right the idea of trial by jury in New Zealand is unlike in the UK explicit in our New Zealand Bill of Rights Act. In other words we judged it 21 years ago to be a national human right. That Act is as close as this country gets to enshrining a constitutional right. It is only our fabled No. 8 fencing wire preference to trust ourselves rather than to entrench principle that keeps such rights in the vulnerable realm of parliamentary legislation. How easy is it for the executive in a unicameral Westminster system that has no codified constitution to enter the arena and trample upon those rights? Raising the threshold to 2 years will require altering the Act. This has been done once before but this new amendment would limit a citizen’s right for the first time. 
Are we sure that we wish to do this simply to speed up trials and cut costs? We have examined the crimes within the 3-month to 2-year bracket. They include serious offences where the right to a jury trial should be available. Charges within that bracket can include those with some political colouration. We need only cite Waihopai and Urewera on the one hand and the foreshore and seabed on the other to see the extent to which politics can invade the judicial terrain. Judges by their nature temperament and training are less likely to empathise with or even comprehend the political-moral basis of civil protest than the plain folk who compose a jury. The bracket can also include defendants on a second or third charge for whom a jury trial may prove more critical in terms of natural justice than a summary proceeding. 
So if as the Government argues the matter of raising the jury trial threshold is not one of universal human rights but rather one of national political judgment the Green Party contends that such judgment should favour natural justice rather than State efficiency. It should sanction the rights of the defence rather than strengthen those of the prosecution. It should respect the conscience call to civil disobedience rather than promote the power of the State. It should protect the weak rather than empower the powerful. 
This legislation that is about to be adopted will amend the New Zealand Bill of Rights Act and diminish the current right of a New Zealander to elect trial by jury. For that reason and that reason alone the Green Party will vote against it.