Power Simon: Bail Amendment Bill — First Reading Second Reading In Committee Third Reading 
Power Simon: Bail Amendment Bill — First Reading Second Reading In Committee Third Reading 
[Volume:651;Page:501] 
Hon SIMON POWER (Minister of Justice) 
: 
 I move  
That the Bail Amendment Bill be now read a second time 
. I thank members of the House for their support for the Bail Amendment Bill despite some initial criticism from the lead Opposition party. I am pleased to see that sense has prevailed and that it has decided to vote for this legislation. Of course any position taken other than that one would be completely unsustainable in the medium to long term with the wider New Zealand public so in my view the right move has been made. It was interesting though that the Hon Clayton Cosgrove and the Hon Phil Goff could not quite bring themselves during their first reading speeches to say how the Labour Party would be voting on this legislation. It was left to my good friend the Hon Annette King who was placed in the difficult position of being third speaker to have to declare after all that to-ing and fro-ing that “We won’t be voting against it.” I am delighted that sense has taken hold in the Labour Party and that it will be supporting this legislation. 
As the House is in urgency and this is a relatively simple bill I do not intend to talk for long at this point. But I will address one or two things that were raised by members opposite in particular during the first reading. In particular I will address Mr Cosgrove’s point about the length of this bill. I say to the honourable member Mr Cosgrove that the bill is short because it amends only one section of the Bail Act. That section is the main provision governing the decision as to whether to grant someone bail or remand that person in custody. I know that the member considers himself to be a bit of a fighter in this regard so I hope he will take the time to understand the legislation that he comments on from time to time when it comes before the House. 
As well as the Hon Phil Goff and the Hon Annette King the member also raised the issue of Justice Heath’s comments and clarification around the tests for and provision of bail. [ 
Interruption 
] I take the Hon Annette King at her word; I refer these comments then to the Hon Phil Goff and the Hon Clayton Cosgrove. The High Court has actually been divided over whether and to what extent the real and significant test changed the threshold for remand and custody. Members opposite were right to refer to Justice Heath’s comments on and discussion of that issue. However for example I am sure members opposite will know that Justice Gendall in the Crown and Williams 11 November 2007 granted the defendant bail “if only because of the rather more stringent test provided in the Bail Amendment Act.” This bill is designed to make it crystal clear what Parliament’s intention—not judges’ interpretation but Parliament’s intention—is in respect of the bail legislation. That is why I am pleased that such a large majority of the House has considered this legislation worthwhile to support. 
This bill does arise from a difference in opinion about what the law on bail is intended to achieve. As I said earlier although the members opposite have referred to the very honest explanatory note on the front page of this bill where it states: “The amendments were intended to clarify the law rather than make any significant changes.” what all three of the front-bench members of the Labour Party failed to do was to read the next sentence which states: “However the New Zealand Law Society the Police Association the Police Prosecution Service and a number of High Court judges have all said these changes have made it easier for defendants to get bail.” It would have been helpful if they had read the full passage. 
Bail is one of the cornerstones of our criminal justice system. It impacts on the safety of the community and the integrity of the court process. It goes without saying that it is important to get it right. That is why this clarification is so definitely needed. In a civilised society people charged with criminal offending as I said in the first reading have certain rights. They have the right to be considered innocent until proven guilty and the right to their liberty. However as I said earlier there comes a point where an individual’s rights must give way to those of the wider community. In an individual case the court is in the best position to decide when the risk that a defendant poses to the community and the administration of justice outweighs the defendant’s right to liberty. The court receives a range of information about the defendant from both the prosecution and the defence. That includes information about criminal history any history of breaching bail or court orders any history of offending on bail and information about the defendant’s personal circumstances such as family and living arrangements and employment. 
The Bail Act as originally enacted recognised that the court is best placed to make the decisions on bail or remand. The Act gave the court a wide discretion simply requiring the court to consider whether there was a risk the defendant would abscond interfere with witnesses or evidence or offend on bail. It was up to the court to decide whether the defendants’ risk justified remanding them in custody. In 2007 as part of the criminal justice reform suite of changes to three or four Acts—legislation that had in its explanatory note a stated desire to contain the prison population and that included the changes to bail I say to Mr Goff—the previous Government limited the court’s discretion in two ways. 
First the previous Government prevented the courts from remanding a defendant in custody unless he or she posed a real and significant risk—quite different from the legislation that Phil Goff often proudly tells the communities of New Zealand that he was responsible for. He was responsible but since that time the legislation has slid well away from the tests and standards that he set as Minister of Justice during the third term of the previous Labour Government. Second the previous Government limited how the courts could take breaches of bail conditions into account. Under the 2007 amendments breaches could be taken into account only if they were relevant to assessing a defendant’s risk. The effect of those changes on judicial behaviour is unclear. In particular the High Court has been divided on whether the real and significant test reflected existing judicial practice or raised the threshold for remand in custody. However it seems clear from the statistical changes that the result has been fewer people being remanded in custody. 
This bill repeals the real and significant test restoring the court’s discretion to decide whether a defendant’s risk is unacceptable. We trust in our courts to make the right decision based on a full assessment of the relevant information. Equally significantly this bill also restores the court’s ability to remand a defendant in custody as a sanction for breach of bail conditions. As I have said before in the first reading of this bill this bill is not all that the Government is doing in regard to bail. We will be taking a close look at the bail system to make sure that it achieves the level of safety the public expects and deserves and that it contributes to an effective and efficient court system. 
I finish by saying that despite all the yelling and screaming by the Labour Party members in their objections through the first reading of this bill we are delighted that they have seen the error of their ways and learnt from their mistakes and that they will be supporting this legislation through its stages. I commend this bill to the House.