Summary Proceedings Amendment Bill (No 2) — First Reading Second Reading In Committee Third Reading 
Summary Proceedings Amendment Bill (No 2) — First Reading Second Reading In Committee Third Reading 
[Volume:668;Page:15059] 
Summary Proceedings Amendment Bill (No 2) 
First Reading 
Hon KATE WILKINSON (Minister of Conservation)  
on behalf of the  
Minister of Justice 
: I move  
That the Summary Proceedings Amendment Bill (No 2) be now read a first time. 
 This bill addresses a misclassification of some minor property offences by adding them to schedule 1 of the Summary Proceedings Act 1957. It also validates the proceedings that have occurred without jurisdiction because of that misclassification. 
The way in which a criminal case proceeds through the courts in New Zealand is largely dependent on how charges are laid. Charges can be laid either summarily which means they are tried by a judge alone or indictably which means they are tried before a jury. Purely indictable offences can be tried only by a jury. There are certain limited exceptions to this rule such as when there is a threat of juror intimidation. Purely summary offences can be heard only by a judge alone. All offences in the Crimes Act are indictable offences. The exception is if the definition of the offence explicitly states that it can be tried summarily or if the offence is listed in schedule 1 of the Summary Proceedings Act 1957. Listing an offence in schedule 1 enables the offence to be tried summarily at the discretion of the prosecution. 
An amendment to the Summary Proceedings Act that came into force in June 2008 excluded some minor property offences in the Crimes Act from being in schedule 1 of the Summary Proceedings Act. The offences are theft of property not exceeding $500 obtaining by deception when the value of the property does not exceed $500 and receiving property not exceeding $500. The intention on the part of the previous Government was to make these offences purely summary offences that would always be heard by a judge alone. These offences were intended to be purely summary because they are all minor property crimes where the value of the property does not exceed $500 including shoplifting and theft from vehicles and are punishable by imprisonment for a term not exceeding 3 months. Therefore these offences fall below the current threshold for the right to a jury trial in section 24(e) of the New Zealand Bill of Rights Act 1990 and in section 66 of the Summary Proceedings Act 1957. 
Unfortunately excluding these offences from schedule 1 did not achieve the intended effect. In fact it achieved the opposite effect: it made the offences purely indictable offences. This means that since 2008 these offences should have been tried by jury in every case. Because many of these cases have been laid summarily instead of indictably those prosecutions have proceeded in the absence of sufficient legal jurisdiction. There have been approximately 46000 relevant summary prosecutions for the offences from June 2008 to date. This means that 46000 proceedings could potentially be challenged be deemed to have proceeded without legal jurisdiction and be nullified. This would have high cost and resource implications both in appeals and in future proceedings. In addition all future proceedings under these sections would have to be tried indictably leading to a significant increase in the number of jury trials. 
The misclassification is a technical error that does not undermine the fairness or appropriateness of the convictions but it is important that this misclassification is rectified as quickly as possible to minimise the impact that this would have on our court system. Two steps are involved in rectifying this issue. Firstly this bill will stop any more proceedings occurring without jurisdiction by adding the relevant sections of the Crimes Act to schedule 1 of the Summary Proceedings Act. Secondly the bill will validate any proceedings that have already occurred. 
This bill will also protect anyone who has already commenced proceedings by challenging his or her convictions on the grounds that he or she should have been tried before a jury. Anyone who appeals on that basis before the legislation receives the Royal assent can continue with his or her appeal. In any such case it will be left to the courts to decide whether the conviction was valid. This includes the case that brought this matter to the Government’s attention which is named in the bill. The bill will preserve the rule of law and maintain the separation of powers by allowing the judiciary to complete matters that are already before it when this legislation comes into force. 
In the longer term the proposed Criminal Procedure (Reform and Modernisation) Bill will abolish the terms “summary” and “indictable” along with the overly complex system of offence classification. That bill is due to be introduced before the end of the year. I commend this bill to the House. 
CHARLES CHAUVEL (Labour) 
: 
 I want to associate Labour members with what the Minister Kate Wilkinson said in her first reading speech on the Summary Proceedings Amendment Bill (No 2). It is the case at the moment that the way in which a criminal charge proceeds in New Zealand depends on how information is laid. There are two choices. As we heard from the Minister there is the summary jurisdiction where the case is heard by a judge alone or the indictable jurisdiction where a jury trial is required. As the Minister said that distinction which has long been maintained in New Zealand law is due to end when the Criminal Procedure (Reform and Modernisation) Bill comes before the House. In principle the idea of ending the distinction is one that I understand has the support of a number of parties; certainly Labour supports the idea of ending what is essentially now an archaic distinction. 
In respect of the mistake that Parliament will correct by passing this legislation as we heard the Minister explain there was an attempt to amend the Summary Proceedings Act—an attempt that came into force in June 2008—to exclude three offences from schedule 1 of the Act. The intention of Parliament was that that would result in those offences being able to be proceeded against summarily. But in fact it is quite apparent from a case decided by the District Court in Hamilton in June that the opposite effect was achieved to that which Parliament intended. As we have been reminded that does not mean in respect of the 46000 potentially ultra vires proceedings since 2008 that some unfair substantive result has occurred; it is simply an issue of having adopted the wrong procedure by which those offences had been tried. 
It is important to point out that there are two parts to the bill. First of all Parliament intends to remedy the problem and stop any more ultra vires proceedings occurring. Obviously that is appropriate given the error that has been identified here. Secondly all proceedings that have already occurred will be validated. There is an important aspect to that. If there has been a challenge to the way in which a prosecution has been brought then this bill will also preserve the right of a person to continue to bring that challenge. So no rule-of-law principles are offended. This is a classic example of how Parliament ought to rectify a mistake. It will have the support of members on this side of the House and I commend the amending legislation to the House. 
CHESTER BORROWS (National—Whanganui) 
: 
 I rise in support of this administrative procedure to undo a mistake that was made just a few years ago. It is the sort of thing that can happen in any parliamentary system where we as parliamentarians receive advice and act accordingly in wanting to simplify processes and sometimes the reverse occurs. So we are here today in urgency to put that matter right with the Summary Proceedings Amendment Bill (No 2). When that occurs in other contexts in respect of other bills that may have been brought to the House by esteemed members like Mr Paul Quinn legislation can get bashed around by members on the other side of the House but it is good to be here on an occasion when both sides of the House are able to understand that mistakes happen even in the most perfect of systems under the most ideal of Governments—little glitches and things occur that sometimes have to be fixed up. 
Hon Darren Hughes 
: How can a perfect system throw up that though? 
CHESTER BORROWS 
: Let us face it. It threw up a number of unusual beings on the other side of the House so we will be— 
Hon Member 
: Steady on! 
CHESTER BORROWS 
: Slap for slap. We are all here of one accord today. I am sure those listening and those watching from the gallery will be very pleased to see it happen. Thank you. 
SIMON BRIDGES (National—Tauranga) 
: 
 The Summary Proceedings Amendment Bill (No 2)—we can put it bluntly I think—is the result of a cock-up. Although the previous Labour Government made it National voted for it so let us all accept that and not sugar-coat it. 
I will not go through what the bill does; it has been very well explained by Minister Wilkinson and Charles Chauvel. Effectively I want to make the point that in correcting something that has happened we are acting retrospectively to take away the right I suppose we can say to have a jury trial. No injustice at all has been done in that act because common sense would suggest that the persons involved have done minor offences—theft and the like at a very minor level. They are summary offences and they should be summary offences but through the mistake we made they were indictable offences under the old law which we are amending. 
We are acting as I said retrospectively. A number of academic lawyers would take issue with that. There will be some hand-wringing about it. But in this very short call I suggest that the hand-wringing over retrospective legislation by academic lawyers is sometimes overdone. Some might say—and I do not necessarily say this—that it is because they see it as a problem with parliamentary sovereignty. They say it should be rule by lawyers—not necessarily rule by law—rather than as we are in this Parliament because we are democratically elected ruled by the people. 
I say to this House that we are sovereign. Parliament is able to in appropriate circumstances retrospectively enact law that corrects things. Sometimes in a technical sense at least it does away with rights although with this bill it is a common-sense thing to do. We should not shy away from that. We should of course take care and we should not do it unnecessarily but there are appropriate instances—and this is such an instance—when we need to act retrospectively. We should not and academic lawyers should not conflate the “never act retrospectively” with the “take care when acting retrospectively” in this Parliament. It is a right that we have that we should jealously guard. 
As I said the changes we are making with this bill are the right thing to do morally politically and legally. We are talking about minor crimes that never should have come with a right to jury trial. We fix that cock-up today. 
CATHERINE DELAHUNTY (Green) 
: 
 Tena koe Mr Assistant Speaker. The Green Party did not support the 2008 Summary Proceedings Amendment Bill the flaws of which this current bill the Summary Proceedings Amendment Bill (No 2) is intended to rectify. We believe in taking care. The relevant Summary Proceedings Amendment Bill was part of the omnibus Criminal Procedure Bill which the Green Party opposed as deeply problematic and flawed legislation. As we opposed the primary legislation that this bill amends the Green Party will be abstaining from voting on the current bill. 
Hon HEATHER ROY (ACT) 
: 
 I rise to speak to the first reading of the Summary Proceedings Amendment Bill (No 2). The ACT Party will be supporting this bill as I think most other parties are except for the Greens who have just announced their abstention. It makes good sense of course to proceed with this rectification of a mistake that was made. Without wanting to apportion blame I think the best thing we can do is learn a lesson from this. The ACT Party puts a lot of store on regulatory responsibility. In fact we have measures in the confidence and supply agreement with National in that regard. Regulatory responsibility is something that each and every one of us in this House should take very seriously. There are some very basic questions that we should always ask ourselves I believe when we write legislation. They are questions such as what the intent is of this legislation what exactly it is set to achieve; what the costs will be both financial costs and societal costs; and most important some thought should certainly be given to what the unintended consequences could be looking forward. There are some lessons for us particularly in light of this legislation. We should be mindful of that when we put things forward in this House when we do our work at select committees and when we debate in this Chamber. We are happy to pass this bill under urgency today. It certainly is an issue that I think warrants urgency. It is not often that we in the ACT Party say that. 
The previous National speaker Simon Bridges also talked about the rights and wrongs of retrospective legislation. As a rule we in the ACT Party are opposed to retrospective legislation. Since I have been in this House since 2002 there have been a number of occasions when we have very vigorously opposed retrospective legislation. But in this case I agree with Simon Bridges when he says that occasionally there is an issue that warrants retrospective legislation being put in place. I agree with him that this is one such case. With those things in mind the ACT Party supports this legislation but we remind each and every one of our colleagues sitting in this House that regulatory responsibility certainly is something we should take very seriously. Thank you. 
A party vote was called for on the question  
That the Summary Proceedings Amendment Bill (No 2) be now read a first time. 
Ayes 94 
New Zealand National 58; New Zealand Labour 30; ACT New Zealand 4; Progressive 1; United Future 1. 
Abstentions 7 
Green Party 7. 
Bill read a first time. 
The result corrected after originally being announced as Ayes 99 Abstentions 7. 
Second Reading 
Hon KATE WILKINSON (Minister of Conservation) 
 on behalf of the  
Minister of Justice 
: I move  
That the Summary Proceedings Amendment Bill (No 2) be now read a second time 
. 
CHARLES CHAUVEL (Labour) 
: 
 For all the reasons that I referred to in my speech on the previous reading of the Summary Proceedings Amendment Bill (No 2) I commend the bill to the House. 
PAUL QUINN (National) 
: 
 I will take only a short call I promise. I just wanted to make a few remarks. The first is that I was always taught a little saying: “What goes around comes around”. The second little ditty was “Good things come to those who wait”. 
We have heard a lot about bad drafting of legislation of recent times. So let this be a salutary lesson to all of us that we can all make mistakes. In the spirit of cooperation and camaraderie and in friendship I have great pleasure in supporting the second reading of the Summary Proceedings Amendment Bill (No 2). 
A party vote was called for on the question  
That the Summary Proceedings Amendment Bill (No 2) be now read a second time. 
Ayes 94 
New Zealand National 58; New Zealand Labour 30; ACT New Zealand 4; Progressive 1; United Future 1. 
Abstentions 7 
Green Party 7. 
Bill read a second time. 
The result corrected after originally being announced as Ayes 99 Abstentions 7. 
In Committee 
CHRIS TREMAIN (Senior Whip—National) 
: 
 I seek the leave of the House for the Committee stage of the Summary Proceedings Amendment Bill (No 2) to be taken as one debate with multiple calls. 
The CHAIRPERSON (Lindsay Tisch) 
: Leave is sought for that purpose. Is there any objection? There is no objection. 
Clauses 1 to 6 
A party vote was called for on the question  
That clauses 1 to 6 be agreed to. 
Ayes 94 
New Zealand National 58; New Zealand Labour 30; ACT New Zealand 4; Progressive 1; United Future 1. 
Abstentions 7 
Green Party 7. 
Clauses 1 to 6 agreed to. 
Bill reported without amendment. 
Report adopted. 
The result corrected after originally being announced as Ayes 99 Abstentions 7. 
Hon DARREN HUGHES (Senior Whip—Labour) 
: 
 I have made a mistake. I seek leave to correct that mistake. I should have cast a lower number than I did for Labour. So I seek leave to correct the vote. 
The ASSISTANT SPEAKER (Eric Roy) 
: Leave is sought to correct the vote. Is anyone opposed to that course of action? It appears not. 
Hon DARREN HUGHES 
: It should have been 30 Labour votes in favour of the first and second readings and during the Committee stage. I incorrectly cast a higher number and for that I offer a fulsome apology this hour. 
The ASSISTANT SPEAKER (Eric Roy) 
: The apology is accepted and the record will be corrected. 
Third Reading 
Hon KATE WILKINSON (Minister of Labour) 
: 
 I move  
That the Summary Proceedings Amendment Bill (No 2) be now read a third time 
. As the House has heard this bill addresses a misclassification of some minor property offences by adding them to schedule 1 of the Summary Proceedings Act 1957. It also validates the proceedings that have occurred without jurisdiction because of the misclassification. 
The misclassification was identified in a recent District Court case. An amendment to the Summary Proceedings Act 1957 that came into force in June 2008 had intended to make some minor property offences purely summary offences which are heard by a judge alone. The 2008 amendments aimed to do this by excluding them from schedule 1 of the Act. In fact it had the opposite effect making them purely indictable offences that should be tried before a jury. This misclassification should be rectified as quickly as possible to minimise its impact on our court system. It is not desirable to leave it to be dealt with by the courts as a matter of statutory interpretation. Leaving the question to be resolved by way of appeals would be a lengthy and costly process that would create uncertainty for the other 46000 cases. Further if it was ultimately found that these cases should be tried before a jury the costs associated with holding jury hearings for those minor offences would be a significant strain on our courts’ limited resources. 
This technical error does not undermine the fairness or the appropriateness of any convictions. It is appropriate that low-level offences of this nature be dealt with summarily. There are two steps involved in rectifying this issue. Firstly this bill will stop any more proceedings occurring without jurisdiction by adding the relevant sections of the Crimes Act to schedule 1 of the Summary Proceedings Act. Secondly this bill will validate any proceedings that have already occurred. 
In the longer term the proposed Criminal Procedure (Reform and Modernisation) Bill will abolish the terms “summary” and “indictable” along with the overly complex system of offence classification. The Summary Proceedings Act 1957 will largely be replaced to make court processes clearer and more efficient improving access to justice for court users and promoting public confidence in the system. That bill is due to be introduced before the end of the year. 
I close by acknowledging the cooperation we have had from members of the House in dealing with this matter expeditiously. I commend this bill to the House. 
CHARLES CHAUVEL (Labour) 
: 
 There have been a number of excellent contributions to the debate on the Summary Proceedings Amendment Bill (No 2) although it has been short. I will make a couple of references to those contributions in my third reading speech. 
Ironically one of those contributions at least in substance if not in form came from Paul Quinn. He pointed out that this sort of mistake is easily made and that observation has been made by others as well. One of the things we need to consider as a Parliament is why we make these sorts of mistakes given that we have a number of checks and balances in the system. We have excellent officials—that is generally agreed across the House—both in the department and in the Parliamentary Counsel Office advising on the form and substance of these sorts of changes. It probably is appropriate to reflect on whether omnibus criminal law reform is a good idea. Clearly the previous Government thought it was on this occasion. As has been pointed out the Opposition at the time supported that notion. But it is the case that criminal law changes dealing with the detail and the minutiae of the classification of offences for example are complex. They involve a level of detail that sometimes we gloss over in the House particularly when there is consensus on an issue and I think it is appropriate to reflect on whether we do pay enough attention to these sorts of issues all the time. 
It is particularly appropriate to consider that at the moment because as the Minister of Conservation has reminded us we have amending legislation coming into the House this year—if the Government’s legislative programme advances to plan—to remove the summary/indictable distinction so we will be revisiting this issue. We have the Legislation Bill before the Regulations Review Committee at the moment which would introduce a new streamlined procedure for legislation that is certified by the Attorney-General the Clerk and others to be simply procedural in nature. That legislation would be enacted through a different form from the first second and third readings and Committee stage that we have become used to under the Standing Orders. We need to be very sure that before we adopt that sort of procedure we have in this House sufficient safeguards to make sure that that sort of streamlined enactment procedure is appropriate for legislation that will not get the sort of detailed scrutiny that frankly as we now see—thanks to Judge Marshall’s decision—this legislation should have had and did not get. As was said it could have happened on anyone’s watch but we need to look at why it happened and at how we can do our best I think through the safeguards we have in the form of the officials and the select committee procedure and through our decisions as parties to vote in particular ways on particular legislation to safeguard against this sort of mistake being repeated too often at least. 
The only other thing I wanted to say was to reflect on the comments that have been made about retrospective legislation. It is generally offensive to legislate retrospectively but here it is pretty clear that the safeguards have been observed. There has been a real attempt in the drafting of the legislation to preserve rights as they exist at the time of the giving of the Royal assent or as they will exist when that assent comes to be given to this legislation. There will be the preservation of rights to challenge proceedings that have been mounted to question the ultra vires of any proceedings under the amending legislation and that is appropriate while taking a validating approach going forward. 
With those concluding comments I indicate that Labour members continue to support the validating legislation. 
KANWALJIT SINGH BAKSHI (National) 
: 
 It is my privilege to contribute to the third reading of the Summary Proceedings Amendment Bill (No 2). This bill fixes an anomaly in a 2008 amendment to the Summary Proceedings Act 1957 and ensures that only offences that are punishable by more than 3 months’ imprisonment are eligible for jury trial. 
I agree with Charles Chauvel that there are many mistakes in legislation that need be fixed. In the debate on my first member’s bill the Military Manoeuvres Act Repeal Bill I mentioned that many statutory bills are not used for many years. I had a few meetings with the Attorney-General and hopefully he will look into those bills that have not been used for many years and we will fix that in the coming time. I commend this bill to the House. 
CATHERINE DELAHUNTY (Green) 
: 
 I will take a brief final call. The Greens the only party that is abstaining from voting on the Summary Proceedings Amendment Bill (No 2) echo many of the comments that we have heard. I am a new MP and I am not a lawyer but omnibus bills seem to me to be particularly problematic in terms of consistency. The issues are all over the place often in terms of people recognising the consequences of the provisions. We as legislators have to recognise that not only do we have to write fair law but also it has to be seen to be fair. So when we do make mistakes owning those mistakes and recognising who bears the consequences of them is a very important part of what we are here to do. Although the two major parties may have supported each other on the previous legislation we certainly did not. We are also very committed to being consistent. We agree with the need to tidy up and rectify the legislation but we do need to abstain from voting in this instance out of consistency a commitment to fairness and the desire to be seen by the public to be fair. Thank you very much. 
A party vote was called for on the question  
That the Summary Proceedings Amendment Bill (No 2) be now read a third time. 
Ayes 94 
New Zealand National 58; New Zealand Labour 30; ACT New Zealand 4; Progressive 1; United Future 1. 
Abstentions 6 
Green Party 6. 
Bill read a third time.