Chauvel Charles: Criminal Justice Reform Bill — In Committee 
Chauvel Charles: Criminal Justice Reform Bill — In Committee 
[Volume:640;Page:10208] 
CHARLES CHAUVEL (Labour) 
: 
 National has made it very clear through the speeches we have just heard and in the second reading debate that it will vote against this bill. As a member of the Justice and Electoral Committee what I find strange about this decision is the basis of its opposition so far articulated in the debates tonight by Mr Finlayson and to a lesser extent by Mr Power and Ms Collins. 
The problem with the position they are taking is that it is both incoherent and internally inconsistent. National members are saying to the Committee that the bill is unconstitutional because it gives judges inappropriate tasks. They say it breaches the principle of the separation of powers. Well this argument is not only nonsense; it is as Jeremy Bentham would have said “nonsense on stilts”. 
The first point to make is that the doctrine of the separation of powers is not seen to any degree in New Zealand’s constitution. [ 
Interruption 
] I am sorry to have to read the member a lecture but here it is. New Zealand like all Westminster systems is an affront to the separation of powers because in order to be a Minister a person has to be an MP. There is no separation there. 
It is true that the principle is important in terms of the judiciary being separated from both the executive and the legislature. This is a principle that the bill observes strongly. The important point here is that the executive will have virtually nothing to do with the council. Indeed the bill goes to great pains to ensure that no executive power is available to direct or influence the council. 
As to the involvement of Parliament clearly it is the responsibility of Parliament to control overall sentence severity levels. Parliament has to retain ultimate authority. Parliamentary sovereignty is the bedrock principle of the New Zealand constitution not the separation of powers. This is an important point for members to understand. 
Mr Finlayson says that the body that sets guidelines—and he supports the idea of guidelines unlike Ms Collins—should do so in the manner of the High Court Rules devised by the Rules Committee established under the Judicature Act 1908. What he does not say is that the Rules Committee is essentially a legislative body responsible for making subordinate legislation. How does he explain that it is permissible for judges to control a legislative function? On his argument the Rules Committee does not conform with the separation of powers. What is worse there are representatives from the executive—the likes of the Solicitor-General and the Secretary for Justice—on the Rules Committee. How in Mr Finlayson’s universe can it be proper for the judges to consort with them? And why can judges meet with the executive in the Courts Executive Council and a whole range of other committees like the Criminal Practice Committee on a regular basis? All of this makes a mess of Mr Finlayson’s arguments about inappropriate functions in clause 9. 
I just want to tell members present who were not at the select committee that judges came to the committee. They discussed the idea of a Sentencing Council and were in favour of it by a big majority. They made it clear they did not favour a Rules Committee structure and preferred that the council be constituted as proposed in the bill. They saw no advantage in Mr Finlayson’s proposal at all. So if the judges see no merit in Mr Finlayson’s position who or what is he trying to protect? Is it possible that he understands neither judicial independence nor the New Zealand constitution? 
The bill is entirely appropriate as far as our constitutional arrangements are concerned. The Sentencing Council will be an excellent innovation as far as the fairness and overall uniformity of justice is concerned and I commend it to the Committee of the Whole House.