Finlayson Christopher: Third Readings — 
Text is incorporated into the Bound Volume 
Finlayson Christopher: Third Readings — 
[Sitting date: 24 July 2007. Volume:640;Page:10648. Text is incorporated into the Bound Volume.] 
CHRISTOPHER FINLAYSON (National) 
: 
 Mr Chauvel Mr Tanczos and just now Dr Sharples have all praised the ideal of greater consistency in sentencing and so does the National Party. Indeed the National Party takes on board what Mr Tanczos said about the unacceptability of different sentences for essentially the same criminal offence depending on whether one is sentenced in Porirua or in Wellington Central. But it is in our submission no answer to endorse the proposed Sentencing Council as it is set out in this legislation in such an un-inquiring manner because one has to look at the detail of the legislation and when one does one can see that what is proposed is unconstitutional and odious. As a young person I used to sit in the public gallery in the months and years after Sir Geoffrey Palmer was elected in the by-election for Christchurch Central after Bruce Barclay’s death and I remember him time and time again caning the Muldoon administration for alleged unconstitutionality. But it seems that Sir Geoffrey in his later years has gone over to the dark side and what is proposed by the Law Commission and followed through by this Government in this legislation is as I have said unconstitutional.  
From the time of the first reading of this legislation I have focused on the wording of the bill and the structure of the council. The concerns I raised in my first reading speech still remain because in the Justice and Electoral Committee I took a good look at foreign precedents to see whether there was some way in which we could reach a middle ground that would be acceptable to all parties. 
Chris Auchinvole 
: Was there a way? 
CHRISTOPHER FINLAYSON 
: There was. The National Party moved a great deal from complete opposition at the outset to offering a model that would have achieved the Law Commission’s aims while still being constitutional. So we did look at some of the foreign precedents. Mr Chauvel said that the model we have is like overseas models but that is a superficial analysis. In fact that statement is wrong because there are three classes of sentencing councils as I apprehend it. The first comes from the Australian model—for example the New South Wales Sentencing Council which was established under the Crimes (Sentencing Procedure) Act of 1999. And as Dr Worth said— 
Chris Auchinvole 
: What did they do? 
CHRISTOPHER FINLAYSON 
: It is a body I say to Mr Auchinvole that is essentially advisory and consultative. It consults with the Minister in relation to the kinds of offences that are suitable for example for standard non-parole periods; it monitors; and it reports annually to the Minister on sentencing trends and practices.  
The other models from Australia are very much the same and I refer honourable members to the Victorian Sentencing Advisory Council and the proposal by the Tasmania Law Reform Institute to set up a modest sentencing advisory council. Then we have the model that I focused on mainly in the second reading and Committee stages—the English Sentencing Guidelines Council—which proposes a number of guidelines that are in fact designed to help judges to achieve the desirable goal of consistency. But more important the judges are required to have regard to the guidelines rather than to slavishly follow them as is set out in this model.  
The third model which was referred to by Dr Worth is the American model but the United States Sentencing Commission is an independent rule-making agency in the judicial branch of the Government. So Mr Chauvel is right when he says that there are other sentencing bodies but he is completely wrong when he says that what is proposed here is consistent with those models. That is superficial. That is wrong.  
The second point I wish to make is that when I proposed my sentencing council and expressed concerns about the judiciary Mr Chauvel selectively quoted from a letter to the select committee from the Chief Justice then tabled it. The evidence given by the judges was in private but not secret so as we know after that evidence had been given it may indeed be referred to. But whether the member exercised good judgment in doing so is debatable. I thought that what he did was disrespectful to the judges. Moreover it is apparent that Mr Chauvel failed to read the entire letter and to read the entirety of the judicial concerns. Rather than read from that letter I suggest that members get hold of it and read it for themselves. They will see that the judges were proceeding on the basis that if this body is to come into existence then at least these things need to be done.  
On my Supplementary Order Paper 126 which I put a lot of effort into the proposal was that the Sentencing Council be a body of the judiciary. Mr Chauvel ridiculed that suggestion and my submission that the body should be more like the Rules Committee. He said that the Rules Committee did not itself conform in respect of the separation of powers. Well he has only recently gone on to the Rules Committee as the Attorney-General’s representative. He is a true johnny-come-lately who has attended a few meetings and suddenly now he is an instant expert on the subject. But he fails to understand that regulating the practice and procedure of the courts has always been the exclusive and legitimate province of the judges. A guidelines panel along the lines of what I suggested is consistent with that.  
So the Sentencing Council comes into existence as the Law Commission advocated. It is unconstitutional. It is an affront to the separation of powers. It is unacceptable that we should have such a tame debate from the Government on this important issue. Indeed we have been told and it is consistent with the way the Government treats the Opposition—witness the election finance legislation—that guidelines are being produced by the Law Commission at the rate of two to three a week— 
Hon Member 
: In anticipation! 
CHRISTOPHER FINLAYSON 
:—in anticipation of this legislation coming into force. No one on this side of the House has been shown any courtesy by being given a copy of the guidelines to read. As I say that is the way Labour operates in Government and I am sure that it is not the way that we will operate; a Minister of Justice of the calibre of Mr Power will ensure that opposition parties are given this material so that there can be an informed and a principled debate.  
Dr Worth touched on clause 40 of the original Criminal Justice Reform Bill which inserts new section 21A in the Bail Act. Again it is totally unrealistic and totally wrong that the “Court must adhere to sentencing guidelines … must impose a sentence that is consistent with any sentencing guidelines … unless the court is satisfied that it would be contrary to the interests of justice to do so.” That is not the way sentencing takes place and that is why I proposed that the court should have regard to the sentencing guidelines.  
The other point that I object to is the retrospectivity something particularly raised by some of the submitters. That has not even been addressed. Clause 35 provides that the court will be able to sentence after the date on which the guideline comes into force “whether or not the guideline was in force when the offence was committed.” That is unacceptable.  
What we have in this Government is a group of people who consciously and in a determined way are undermining our constitution. A fully independent judiciary is fundamental to any free and democratic society but this Government does not care about an independent judiciary. In this as in other areas it only wants control. This lot pollute everything they touch. Members should look at what Government members are doing to the Civil Service. They are in the process of destroying an independent apolitical Civil Service. Members should look at the odious election finance legislation introduced on 23 July. There was never any consultation with the major opposition parties on that. This is the way the Government operates. It is unsatisfactory and it is unconstitutional and I believe that before long we will once again need to look at this vile creature this new Sentencing Council which regrettably is shortly to come into existence.