Finlayson Christopher: Criminal Justice Reform Bill — In Committee 
Finlayson Christopher: Criminal Justice Reform Bill — In Committee 
[Volume:640;Page:10559] 
CHRISTOPHER FINLAYSON (National) 
: 
 I just want to make a few comments about Subpart 3 of the Criminal Justice Reform Bill which deals with amendments to the Parole Act. These amendments were canvassed by the Justice and Electoral Committee at some length. They deal with the situation where there is an urgent application to the Parole Board for a confidentiality order. As can be seen by clause 83B which proposes to insert new section 13AA in the Parole Act 2002 applications may be made by the Commissioner of Police or the Chief Executive of the Department of Corrections and applications have to be supported by an affidavit sworn by the applicant—they are not applications in these extreme situations that would be served on either the offender or the offender’s lawyer. 
The important point I want to make is that when a confidentiality order is made that information may not be disclosed or published to either the offender which makes sense given the nature of the information that has been disclosed pursuant to the confidentiality order or to the offender’s counsel. Now there were a number of us on the select committee who had to think long and hard about whether that was appropriate because normally safeguards can be entered into to ensure that information can be given to the offender’s counsel in circumstances where one relies upon his or her professional obligations as an officer of the court. But it was decided that because of the nature of the information and the special circumstances that may cause the Commissioner of Police or the Chief Executive of the Department of Corrections to make such an application given the nature of the information it would not necessarily be forthcoming if the offender’s counsel was to be given copies of it. So I want just to emphasise that that is a very extreme measure and I hope such applications will be made in good faith because I note there is no requirement as there is with applications of a similar nature made in a civil context that they be certified to be true and correct. I would hope that such applications are going to be very rare indeed and will be made in good faith by those persons. 
The point is that solicitors and barristers have obligations to the court and it should only be in very special circumstances that they should not be entitled to receive that information. The only other precedent I know of and maybe Mr Fairbrother will be able to comment on it if he speaks is under the Terrorism Suppression Act where certain types of applications can be made under sections 35 or 55 of that Act and in very special circumstances the Attorney-General can make an application to the court that it is desirable to protect the classified security information and that the information not be given to either the entity that it is sought to designate under the Terrorism Suppression Act or any barrister or solicitor representing that entity. One can certainly understand in a terrorism context why one would not want to part with highly sensitive classified information. This is another step along the way and I want to assure the Committee that great care has been taken by me and others on the select committee to satisfy ourselves that such an application could result in an order whereby information may not be disclosed to the offender’s counsel. But it is a slippery slope and I would hope that we would not be making that kind of legislative change very frequently at all. 
The second point I want to make in this Part 2 speech deals with my proposed amendment on Supplementary Order Paper 126 to Subpart 2 which deals with amendments to the Sentencing Act. Yesterday in response to the statements that I made about my Supplementary Order Paper and the requirement that when a court was dealing with sentencing guidelines it should have regard to any sentencing guidelines rather than adhere to them as the proposed clause 40 inserting new section 21A suggests Mr Chauvel commented that one should read on a little further and go to the subordinate clause of new section 21A—namely “unless the court is satisfied that it would be contrary to the interests of justice to do so.” But that is with respect a rather superficial response because it is clear that the subordinate clause set out in new section 21A is to be the exception rather than the rule. Given the realities of sentencing practices as I have explained that subordinate clause will be the rule rather than the exception. The principal clause is going to be simply a redundancy because—I ask the Committee—how can one impose consistency when there is more than one guideline? 
I explained last night that the only guidelines the National Party has seen are the guidelines that were given to me when I was in England. No one from the Law Commission or from the Minister’s office has condescended to provide them for us although we know they are in existence in draft form. But we have a number of Sentencing Council guidelines. For example a judge sentencing a person may have to consider a reduction in a sentence for a guilty plea. A judge may also have to consider a guideline entitled “new sentences” or one concerning seriousness. If one is dealing with multiple guidelines provided by the council the only sensible thing one can do is to have regard to them and that reflects the reality of sentencing. What I have proposed is utterly consistent with the English statute. Section 172 of the Criminal Justice Act provides that every court must have regard to a relevant guideline. 
When one is sentencing one cannot simply rely on the provision at the end of new section 21A if it is enacted—namely that it can be applied because the court would be satisfied that it would be contrary to the interests of justice not to do so—and ignore in reality the first part of the section. If we are to be diligent parliamentarians the section should be drafted in accordance with the reality of sentencing practice and that reality is reflected in the proposals I have set out on my Supplementary Order Paper. 
I come back to the point that as drafted the provision is redundant in reality and I am also sure that as drafted it will be a recipe for meaningless appeals because there will be constant challenges to decisions made on sentencing with possibly both parties arguing that the sentence imposed is not consistent with guidelines. I think that if the provision is enacted we will have a recipe for confusion and unnecessary litigation.