Cosgrove Clayton: Sentencing (Offender Levy) Amendment Bill — In Committee 
Cosgrove Clayton: Sentencing (Offender Levy) Amendment Bill — In Committee 
[Volume:658;Page:7139] 
Hon CLAYTON COSGROVE (Labour—Waimakariri) 
: 
 I want to touch on an issue that Simon Bridges raised when he spoke as a learned lawyer and I am told a former prosecutor in his own home town— 
Chester Borrows 
: I think he was. 
Hon CLAYTON COSGROVE 
: Well yes. We were having a discussion about how judges would deal with the issue of hardship and whether—let us be blunt about it—they would try to find a way around the imposition of a levy through say downgrading fines or commuting fines to community service. I found Mr Bridges’ comments quite astounding because of course we know that judges get around laws—I say bluntly—that are put forward in this Parliament. I will use the analogy of the law I passed a few years ago about boy racers. Judges took away cars permanently from offenders in only 2 percent of cases or fewer. I had advice from the police and learned folk all over the show that this would not happen—that judges would be tough and use the mechanisms within the law we passed—but they did not. 
Then Mr Bridges made a very interesting statement which I was quite astounded at since it came from a learned Perry Mason - like lawyer and prosecutor. 
Hon Member 
: No no. Perry Mason was a defender. 
Hon CLAYTON COSGROVE 
: He was a defence lawyer was he? OK. Essentially Mr Bridges said that judges would do their job and adhere to the principles of this law because the levy was $50 but that if the Government had set the levy at $200 then they probably would not adhere to the law; they would get around it. I do not think judges normally act that way and I am very surprised that Mr Bridges a learned prosecutor would make such a claim. In essence he substantiates the point I make: judges will have flexibility through the fine mechanism. Mr Borrows the chairman of the Justice and Electoral Committee said in a very valid point right at the start of his speech that fines can be commuted to community service prison or whatever. 
I come back to the point that this is in my view quite unworkable legislation. It will be interesting to see how judges will interpret this law because no one can guarantee how a judge will implement it. I make this claim again: I am not defending the offender but if an offender comes before the court and makes a so-called legitimate plea of hardship—and there is a combination of perhaps reparation fines and the compulsory levy—then a judge quite legally and quite rightly from the judge’s point of view has the ability to alter the fine mechanism if the judge so chooses to commute a fine to community service. That would be an easy way to do it and still adhere to the law. There would be the 250 bucks. The judge would say: “Johnny cannot pay that. I will make him do community service but I have to put on the $50 levy which I will do.” 
I ask the Minister in the chair Simon Power who I am told is also a learned lawyer whether he will rise to tell us how he can guarantee that judges would not use that mechanism which is in adherence with this law does not break this law at all— 
Hon Simon Power 
: Contravene. 
Hon CLAYTON COSGROVE 
: —it does not contravene this law. I knew he was a good lawyer; he knows the big words. How can he guarantee that that will not occur? I am quite happy to ask him now; in fact I will ask him now. I will yield to the Minister if he would like to tell us how he can guarantee that a judge will not get around this levy by simply doing what I have said. It happens every day in respect of fines and reparations if a judge feels that the reparation is going to be too tough. Sometimes it is for very practical reasons perhaps a lack of ability to pay which is noted in this law. I would love the Minister to get up. I am happy to yield to him through you Mr Chairman. I am happy to give him 10 15 20 minutes or half an hour tonight—as long as he likes—to convince this Committee that this bill will be absolutely operational in the fashion that he has committed to both in his pre-election policy and tonight. He cannot give that guarantee. He is a learned lawyer and a bright chap I am told and he knows that it is impossible because he is not a judge. Judges interpret nearly every law and often interpret them differently. 
I recall as Minister for Building and Construction after we passed the second generation of the weathertightness legislation on compensatory damages the learned judge Justice Lynton Stevens I think decided to interpret the law quite differently. I thank Mr Chairman for the further call but I am happy to yield to the Minister if he has changed his mind and wants to answer the question. In that case in respect of damages the judge had interpreted the law and from memory struck them out or made certain classes of people ineligible for them which was in my view directly contrary to Parliament’s intentions. I recall that we did a very very rare thing: we actually suspended the Standing Orders which is very rare for this House and literally punched through a bill with a couple of clauses in it to effectively reverse it and clean it up. We had been advised by the officials that the judges would interpret the law in the way Parliament intended. Well they did not. I make another prediction. I suspect that the Minister will be faced with a choice where he has to come back to this Chamber and tighten up this law. We will see from the figures—and it will be quite easy to analyse—where judges are at in terms of commuting fines as a basis of lessening the overall cost to the offender based on a hardship plea. 
This bill’s intent is injecting money from offender to victim—from court if you will to victims’ groups. We do not need the Secretary for Justice to set up bank accounts as in new section 105G or to make decisions about distribution. We have an organisation just one of many organisations called Victim Support. The Minister could go to the Minister of Finance tonight—he might be at his house cleaning it perhaps—and ask for 60 million bucks a year. The Minister of Finance might tell him to hang on as he does not have that money. Mr Power could then tell him to take half the money he was going to give to private schools and dish it out to victims. There we go. Done! Just like that. Tonight. If we take $16 million off the $35 million to private schools we still can give a bit of money to private schools and we could directly inject the rest into Victim Support and the other agencies that unlike that member over there are highly skilled in terms of dealing directly with the needs of victims. There would be no bureaucracy. [ 
Interruption 
] As the member for Coromandel bleats on I say that there would be no bureaucracy and no need for this legislation and we could use the courts to go and chase the fines defaulters and others. We could do things like Labour did when in Government such as stop people at the border and say that they are not going overseas until they have paid their fines. We could do that directly tonight with no bureaucracy. This Minister and this Government railed against red tape and railed against bureaucracy. But if we were really serious we could make an appropriation of $16 million—or however much the Minister claims the revenue would be; I suspect it would be a lot lower—and inject it directly and contract directly with Victim Support and other non-governmental agencies that help victims today and are skilled in that area. 
I say to this Minister because it is a very important question that I invite him to stand up and give a guarantee that judges will not contravene this law. If he cannot give that guarantee then the game is over. Somebody asked what the point is of being here tonight. The game is over and it is over for victims because this is a sham. Using the words of the former Prime Minister of Australia Paul Keating I say to Mr Borrows and the other members who interjected on Labour speakers asking why we are supporting this that it is because in accountability terms we will do this legislation and this Government slowly. It will be debated here again next year and the year after as we prove to victims that Simon Power and his Government tugged at the heartstrings and raised expectations and then the member for Coromandel and her ilk let them down. 
If the Minister is prepared to rise tonight and give that guarantee as a lawyer then we will have another look at it. Labour will support this bill. 
Sandra Goudie 
: People had their chance. 
Hon CLAYTON COSGROVE 
: The people had their chance and had their say and rendered their verdict on this legislation. Every victim who is let down by this legislation will render a verdict on that member on the Minister and on their Government. I do not believe whatever one’s political colour that we should tug at the heartstrings of the most vulnerable—we have heard about accident compensation—and then try to pull a fast one with this legislation. 
Labour will support the bill to use it as a point of accountability with this Government. The truth is that the Government cannot live up to the pledge it has made unless as I have said it does the honest thing and makes an appropriation.