Third Readings — 
Text is incorporated into the Bound Volume 
Third Readings — 
[Sitting date: 24 July 2007. Volume:640;Page:10632. Text is incorporated into the Bound Volume.] 
Third Readings 
Hon MARK BURTON (Minister of Justice) 
: 
 I move  
That the Sentencing Council Bill the Bail Amendment Bill the Sentencing Amendment Bill (No 3) the Parole Amendment Bill (No 2) and the Prisoners' and Victims' Claims Amendment Bill be now read a third time 
.  
These bills together were previously part of the Criminal Justice Reform Bill. This legislation gives effect to measures arising from the Effective Interventions initiatives aimed at reducing criminal offending increasing certainty around penalties given to those who break the law and addressing the growth of the New Zealand prison population. The Effective Interventions programme works as three broad themes tilting the balance earlier to prevent crime using alternatives to prison where this is appropriate and adopting smarter uses of prison resources. 
New Zealand finds itself in the anomalous situation of having a rising prison population despite decreasing overall crime rates. The Government is determined to maintain its tough approach with serious and dangerous repeat offending. Let me be clear that serious and dangerous offenders should and will continue to go to prison and for a long time. The safety of the community remains our paramount consideration. However the legislation increases the range of non-custodial sentences available to the courts so that sentences for lower-level offenders can be used to fit the specific circumstances around the offence and the offenders to address the factors that lead to their offending. 
The Sentencing Council Bill will help to build safer communities by providing consistency and transparency in sentencing as well as ensuring that an appropriate range of sentencing options is available to the judiciary. Part 1 provides for the establishment of a Sentencing Council which will be responsible for producing sentencing and parole guidelines. I am confident that the council will increase consistency in decision making in these two important areas. New Zealand will be building on the example of the United Kingdom and several Australian jurisdictions in establishing a Sentencing Council. 
I want to address some of the issues that were raised by Opposition members during the second reading debate and the Committee stage. The positions adopted by these members were frankly contradictory. On the one hand they argued that there was no need for guidelines and on the other hand they said the Court of Appeal was perfectly well qualified to issue sentencing guidelines as it had already done in relation to a number of offences so there was no need for a Sentencing Council. As I say that is a contradictory point of view. First of all the Law Commission report established that there is a clear need for sentencing guidelines. Research carried out for the commission showed wide disparities in sentencing levels for the same types of less serious offending in different parts of New Zealand. Clearly this is unsatisfactory and unfair. The punishment an offender receives should not depend on the locality where she or he happens to appear for sentence. 
Secondly appellate court decisions are issued only in cases that reach the higher courts. They do not cover the full range of offences. Guideline judgments produced to date have been in relation to the most serious offences such as sexual violation and aggravated robbery. However these are not the offences for which the majority of offenders are actually sentenced to imprisonment. There is a need for a comprehensive set of guidelines and an appropriate council is needed to produce them. The argument that sentencing guidelines represent a challenge to judicial independence is in my view misguided. The guidelines will establish a framework for a judge to settle on the sentence in a particular case having given prior consideration to the seriousness of the offence and the circumstances of the offender. Where the interests of justice require the judge to depart from the recommended sentence the judge will be free to do so but he or she will be required to set out the reasons for this. This is not in my view unreasonable; nor is it an intrusion on judicial independence. 
The council will comprise a mix of judicial and non-judicial members and will be chaired by a judge appointed by the Chief Justice. Again this really makes a nonsense of some of the criticism levelled by some Opposition members as to the membership of this organisation. The non-judicial members further will be appointed by the Governor-General on the recommendation of this House of Representatives. It is my hope that this House will work cooperatively to ensure that suitably qualified people are selected for what is an important role. It is not an area where partisan considerations have any place. 
The legislation provides for the House to scrutinise guidelines produced by the council. It is right that Parliament should play a role in this important area of public policy. Once again I place on record my firmly held view that this House must exercise great care in consideration of the council’s guidelines. They will be the result of much careful work and it is crucial that they form a coherent whole. Accordingly I urge the House to exercise its power to dis-apply guidelines with great care. 
Part 2 of the Criminal Justice Reform Bill makes important amendments to a number of pieces of legislation: the Sentencing Act the Parole Act the Bail Act and the Prisoners’ and Victims’ Claims Act. The changes to the Sentencing Act will increase the range of non-custodial sentences by introducing three new sentences: home detention community detention and intensive supervision. Home detention is a proven successful measure for selected offenders and I am confident that the courts will in appropriate cases welcome it as a useful alternative to a short sentence of imprisonment. Home detention has low reconviction and low reimprisonment rates when compared with prison sentences and it has high levels of compliance by offenders. Community detention which involves an electronically monitored curfew can be viewed as a truncated version of home detention. The offender will be required to be at a particular address at a specified time. The judiciary has been very supportive of this new sentence and I am sure it will be a very useful addition to its menu of sentencing options. 
The legislation also includes measures to improve the effectiveness of existing community-based sentences. With community work for example probation officers will be able to refuse to treat up to 10 percent of the total hours of the sentence as hours completed where the offender fails to work satisfactorily thus underscoring the obligation imposed on the individual by the courts. 
The Parole Board has a crucial role in protecting the public and the legislation includes a number of measures that will enhance the board’s ability to perform this role. This is an important part of these measures. The Parole Act will be amended to make it clear that release on parole is a privilege not a right. It will state explicitly that consideration for release on parole—and I emphasise “consideration” for release on parole—carries no entitlement to release. The Parole Board will be given the power to summon witnesses and the power to make confidentiality orders that will help to ensure that the Parole Board is in possession of all the relevant information when it is considering a case. In addition the Commissioner of Police will be given the right to apply for the recall of a parolee to prison in limited circumstances. 
The legislation also includes an important change to parole eligibility that will take effect when the sentencing guidelines come into force. Offenders serving determinate sentences will not be eligible to be considered for parole until they have served at least two-thirds of their sentence. This will increase the certainty around sentences imposed in the courts. It will mean that all those involved in cases—the victims the police and of course the offender—will know that the offender will be serving the lion’s share of the sentence from the outset. 
Finally I will comment on the amendments to the Prisoners’ and Victims’ Claims Act 2005 that the Justice and Electoral Committee struck out. I am pleased that the Committee of the whole House saw fit to reinstate this provision as the Government believes that it is essential that the sunset clause as covered by the amendments be extended. This will give the time needed for the select committee inquiry into victims’ rights to report back and for any appropriate response to be made. In addition by 2010 it is anticipated that there will have been a new independent prison complaints regime in place that will both provide for a new complaints resolution forum and further greatly reduce the incidence of issues that currently lead to claims for compensation made by inmates. This should in turn remove the need for legislation such as the Prisoners’ and Victims’ Claims Act. 
Taken as a whole I am confident that the legislation will significantly improve the operation of the criminal justice system in our country. It will contribute to building safer communities for New Zealanders while helping to stem the growth of New Zealand’s prison population. I commend the legislation to the House. 
SIMON POWER (National—Rangitikei) 
: 
 We come to what is the last stretch for this legislation. Frankly the delivery of this legislation to its third reading in the House can be described only as a bit of a shambles. We saw at the Justice and Electoral Committee the removal of the Government’s desire to see prisoners’ compensation extended until 2010. The select committee said to the Government that it did not agree with the Government on that provision and that it would remove it. The Government then had to reinsert that provision into the legislation in the Committee stage with the assistance of some of the other political parties that agreed to the reinsertion of that clause and we now find that it is back in the legislation. Then we had the debacle over the ability of victims to appear before Parole Board panels that was played out last Thursday and we saw the Government yet again defeated by a body of Parliament—in that case it was the Committee of the whole House.  
Hon Mark Burton 
: It was unanimous for goodness’ sake! 
SIMON POWER 
: The Minister is quick to now rewrite history about what occurred last Thursday but the reality is that— 
Darren Hughes 
: We were there. 
SIMON POWER 
: The Minister might have been there in one sense but he certainly was not seeing it in the way that everybody else in the House did until he took off his socks and did the numbers. The point is that this has not been an easy path for such fundamental changes to our criminal justice system. One of the crucial reasons for National’s seeking of leave to have the vote divided into five questions so that each of these bills can be considered on a separate vote is that National agreed with some things in the original Criminal Justice Reform Bill. One of those things was the changes to parole. The fact that parole would be seen as a privilege not a right was an important statement to make in legislation. The fact that eligibility for parole had been returned to two-thirds of a sentence and not the stupid one-third of a sentence that the Government introduced in 2002 is something that National agrees with.  
Further as a party we were quick to support the Government’s original Supplementary Order Paper around confidentiality orders and around matters being brought before the Parole Board that may not have been proven but may have gone to behavioural aspects of that particular inmate at a crucial time when that inmate came before the Parole Board.  
Of course the ability to have a warden or the head prison officer on that Parole Board panel was removed in 2002. That was an error but let us hope that this legislation will go some way towards giving all the information to the Parole Board that it needs. I agree with the Government’s view that this is quite a large power and that it should be used only in exceptional circumstances but it would have prevented the Parole Board from not having information relating to Graeme Burton’s behaviour whilst he was incarcerated put before it. That is a positive step so National will support the Parole Amendment Bill (No 2).  
 National members will not support the Prisoners’ and Victims’ Claims Amendment Bill and have made lengthy speeches in this House as to why that is the case. We are concerned that all this bill does is to make victims relive—relive—the pain of the offence that was committed against victims in a situation where compensation has been awarded to prisoners because victims have to reapply to get a share of that compensation which is otherwise held in a trust account on behalf of offenders.  
Other avenues are open to an offender or an inmate who believes that he or she has been wronged in a prison—the criminal justice system leaps to mind the Human Rights Commission leaps to mind—and those are avenues that National believes should be explored by prisoners rather than our having a bill that requires victims to have to relive crimes committed against them in any application to access that compensation that otherwise might have been awarded.  
The Sentencing Amendment Bill (No 3) which introduces the stand-alone sentence of home detention is something that is to be—tentatively—welcomed. I believe that the ability for the right offender to be able to access this particular sentence is worth looking at. I am concerned of course that public safety remains the No. 1 consideration and like the matters around parole home detention as a separate sentence should be limited only to those minor non-violent and non-repeat offenders. National will be watching carefully as I know that Mr Mark from New Zealand First will be to see exactly how this new sentence is applied.  
This particular bill the Sentencing Amendment Bill (No 3) was a bit more difficult for us because part of the sentencing guidelines was included in it. We in National are opposed to the Sentencing Council and we will be opposing the Sentencing Council Bill today. I will come to that in one moment. We will be watching with interest to see how the sentences of community detention and the electronic monitoring of those sentences play out but we acknowledge that intense supervision in both these cases where the risk of reoffending is low and the risk of victims to crime is low is worth some—and I emphasise some—consideration. So we will be voting for the Sentencing Amendment Bill (No 3).  
We do not believe that the Bail Amendment Bill in many respects does a whole lot and we will be watching with interest if it passes to see how matters progress on that. I have done too much work over the last 18 months on the issue of bail to be convinced that it is being applied in anything other than a random and haphazard way. National will oppose the bail amendment portion of this legislation.  
That brings me to the Sentencing Council Bill itself. My colleague Chris Finlayson— 
Hon Pete Hodgson 
: Yawn! 
SIMON POWER 
: Well Minister Hodgson might want to yawn in the House when we are dealing with matters of the criminal justice system and sentencing. One of the issues that this Government has been consumed with has been reducing the prison population. I thought the issue was dear to its members’ hearts but it is obviously boring one of its senior ministers. I apologise if that is the case I tell the Minister but I say that this is actually pretty serious legislation.  
The Sentencing Council Bill which brings about the establishment of the Sentencing Council and the membership of the new Sentencing Council will be opposed by National. National members have said on many occasions that we believe that the Sentencing Council will do one of three things. Firstly it will provide a buffer between Parliament and the public on issues of sentencing. A fundamental role for the Government or executive of the day is to allow citizens to feel safe at the time that an offender has a sentence passed down. We object to the concept of a buffer being put between the people and the accountability of Parliament when it comes to the delivery of that sentence.  
I have said all the way through the progress of this bill and I will say it again now that the Sentencing Council will become the district health board of the justice sector. When an issue of sentencing concerns the public the Minister of the day will be able to stand on his or her feet in this House and say that it has nothing to do with the Government; it is all to do with the Sentencing Council. And that worries me deeply as does any impingement on the independence of the judiciary and the way in which the council could be formed differently—matters that Christopher Finlayson will go into in some detail in his contribution.  
One thing the Minister did not cover in his third reading speech and one thing I will be monitoring very closely— 
Hon Members 
: Oh!  
SIMON POWER 
:—well we have taken lesser scalps than those of the members opposite—is that if we see the length of sentences being reduced to accommodate the changes in the provisions around parole and the sentencing guidelines members can rest assured that the Government will be held to account by the Opposition for that particular manoeuvre. The length of sentences is not something the Minister has addressed in his third reading speech or at the Committee stage and we are yet to be convinced that this Sentencing Council will do anything other than separate the people from Parliament on such an important issue in our criminal justice system as sentencing. 
CHARLES CHAUVEL (Labour) 
: 
 It is a pleasure to rise in the third readings of the legislation arising from the Criminal Justice Reform Bill as this legislation was titled when it began its life. As the Minister observed and as the previous speaker also noted that bill has been split into five bills: the Sentencing Council Bill the Bail Amendment Bill the Sentencing Amendment Bill (No 3) the Parole Amendment Bill (No 2) and the Prisoners’ and Victims’ Claims Amendment Bill.  
It is a pleasure to be a member of a Labour-led Government committed to a society where all families young and old can be safe and secure. Of course central to this commitment is having a criminal justice system that protects our communities by more effectively rehabilitating offenders and by making better use of our prisons. It is great to see Mr Ardern on the opposite benches nodding his agreement because even he can see that this is bold and enlightened legislation based on the evidence and on the careful reports and research of the Law Commission.  
Clearly the recent increase in prison inmate numbers in New Zealand is no longer sustainable financially or socially. New Zealand’s prison population has increased sharply over the last decade and it is forecast to increase further over the next 5 years. This peak has been reached even though—and this is an important point—the rate of recorded crime is at its lowest level in over 20 years. That is an achievement of which I and members on this side of the House are extremely proud. None the less we do have to do something about these increasing prison numbers. So it was that the Law Commission in its report  
Sentencing Guidelines and Parole Reform 
 recommended significant changes to our justice system not only to cut inmate numbers but to make sentencing more transparent and more effective in rehabilitating and punishing inmates.  
The Government as the Minister noted based its Effective Interventions package announced last August on the commission’s recommendations. This legislation—this series of bills—puts the Effective Interventions programme in place. That package contains measures that are significant and far-reaching and once passed the bills under consideration will create a much better justice and corrections system in New Zealand.  
I want to concentrate my remarks on the Sentencing Council. I know that the headlines will be all about the other bills which are more sensational in the short term—and probably many of the speeches will be about them as well—but I think that the Sentencing Council will be the most important and far-reaching of the reforms that we are considering in the House today. The legislation that constitutes the council is similar in fact to the legislation that constitutes similar entities in comparable jurisdictions such as England and Victoria. The prime reason that it has been deemed necessary to introduce a creature such as the Sentencing Council is the extremely regrettable situation we have in New Zealand at the moment whereby people with similar situations who come before different courts in different parts of the country or before different judges can actually receive different types of sentences. In the District Court in particular where 90 percent of all criminal sentencing occurs there simply are no guidelines issued by the Court of Appeal to those inferior courts for many of the offences they are required to adjudicate on. 
 So the judges try to do their best. We saw the trend as revealed in the Law Commission research that when people charged with car theft come before judges in Hamilton they are very likely to go to jail whereas similar offenders in other parts of the country are very likely at the moment not to receive a custodial sentence. How can anybody defend that position? It is scandalous that people who commit crimes of a similar nature and who have broadly similar circumstances should receive radically different measures of justice in terms of the punishment meted out to them simply because they come before different courts or different judges in New Zealand. The excellent thing about this legislation is that it will put an end to that practice and it ought to guarantee that all New Zealanders in all parts of New Zealand coming before all courts receive broadly similar justice. That is something that all New Zealanders should be pleased and proud about.  
The legislation is excellent. It is welcomed by a clear majority of the senior judiciary and also by the judges in the District Courts and by reputable commentators in the criminal justice sector. Finally as I have said we will have a consistency of sentencing in like cases across New Zealand.  
Christopher Finlayson 
: Who? 
CHARLES CHAUVEL 
: It is interesting to hear one of the members opposite asking who those commentators are. I would have thought he listened to the evidence that came before the Justice and Electoral Committee where judges and commentators—[ 
Interruption 
] It is a shame if he did not because the evidence before the select committee was overwhelming from those who knew what they were talking about—particularly the practitioners and the deliverers of justice; the judges themselves—as to the overwhelming need for this measure.  
It is interesting to look at this legislation in some detail. I listened with some interest to Simon Power’s contribution. He told us that he would outline the three objections that the National Party has to the Sentencing Council; I heard him outline only two. One of them was that in his words the council would become the “district health board of sentencing in New Zealand”—that somehow this Parliament would lose its accountability for sentencing. That is just not right. Clause 6 of the bill is very clear that the Sentencing Council is to be “an independent statutory body” and there is a very careful process set out in the legislation by which this House and its organs have the ability to scrutinise the work of the council as it goes forward.  
The Law Commission is making sure that the Sentencing Council has a corpus of jurisdiction before it right from the start in the form of the inaugural guidelines. Those inaugural guidelines will like the other guidelines and groups of guidelines that come before the House be subject to what will be called a disapplication procedure. Standing Orders will have to rise to the challenge of meeting this procedure but essentially what it envisages is that after wide consultation by the Sentencing Council a guideline or a group of guidelines will come before a subject select committee of the Parliament and be subject to further consideration in the—hopefully—calm and less partisan environment of a select committee. If that subject select committee is not impressed with the guidelines or part of the guidelines it will be able to recommend to this House that they be disapplied in whole or in part. That actually enhances parliamentary scrutiny of the way in which sentencing is to occur. It also enhances public input into the process. So if anything the public ought to be more satisfied rather than less satisfied with the sentencing process once we have this process in place.  
The other criticism voiced by Mr Power was that somehow there would be an impingement on the independence of the judiciary. That is just not right either. Not only is the council to be an independent statutory body but it is to have a majority of judges on its membership—five of them. Those judges will be a Court of Appeal judge a High Court judge two District Court judges and the chair of the Parole Board—by convention a judge—all appointed on the nomination of the respective head of bench by the Chief Justice of New Zealand and the chair who is to be a judicial member will have a casting vote. So there can be no impingement on the independence of the judiciary given the clear scheme of the legislation.  
This is excellent legislation. As I have said it provides for proper consistency and transparency in sentencing guidelines and parole guidelines. There are procedures in place to guarantee the independence of the body but at the same time on a complementary basis to enhance the participation of this Parliament in the formation of sentencing guidelines that will be fair and consistent across the country.  
In conclusion I would like to pay tribute to the Law Commission—in particular to the president Sir Geoffrey Palmer and the deputy president Dr Warren Young—for its hard work in coming up with the report; to the officials who advised the select committee; and to the chair of the committee who ensured that there was a careful but expeditious consideration of the provisions of this legislation. 
Dr RICHARD WORTH (National) 
: 
 National has reservations about this legislation and has not concealed right from the outset its deep dislike of it. It is not really a case of an Homeric nod by the Law Commission; rather it is the case of a massive blunder. I simply cannot agree with the earlier speaker who made comments about the attractiveness and excellence of this legislation. I would rather say that there is no place for sophistry in this legislation and that this legislation is unfailingly bad. 
It started off life of course as the Criminal Justice Reform Bill. I would like to emphasise that word “reform” because reform can have two meanings. Reform can simply mean change or it can mean change that has an element of added benefit and it is that latter sense we generally understand the word “reform” to refer to. But here in this criminal justice reform legislation there is no element of added benefit. I make three general comments about this legislation as it proceeds through its final stages and is split up into four or five parts. In that splitting up all pretence of reform is abandoned; in fact in these divided parts there is no mention of reform at all—none at all. 
I respond to some comments made by the previous speaker Charles Chauvel in relation to the Sentencing Council and the word “guidelines”. Guidelines are intended to be markers providing assistance but these are not guidelines in that same sense that we see in this legislation. Clause 40 of the original Criminal Justice Reform Bill introduces new section 21A which is headed: “Court must adhere to sentencing guidelines”. There is something very odd in the use of that form of the words “Court must adhere to sentencing guidelines” when guidelines are simply guidelines. The provision in fact reads: “When sentencing an offender a court must impose a sentence that is consistent with any sentencing guidelines that are relevant in the offender’s case unless the court is satisfied that it would be contrary to the interests of justice to do so.” 
I was intrigued when the Minister spoke by the view he propagated and that presumably we were asked to accept—because he is not legally qualified—that what was occurring with this legislation was something that was consistent with what is occurring in other common law jurisdictions. That is wholly wrong. Although others have a greater knowledge of this than I have I ask members to look at three jurisdictions—and I take New South Wales as a starting point. We find there that the role of the New South Wales Sentencing Council is starkly limited. It is not into the world that this legislation is involved in; it is more concerned with reporting to the Minister on sentencing trends and practices— 
Christopher Finlayson 
: And advising. 
Dr RICHARD WORTH 
: —yes—and advising as Mr Finlayson has said. I also made the point at the Committee stage that in the United Kingdom the structure and pattern of what exists there is completely different. I spoke about the Sentencing Advisory Panel. There is also the Sentencing Guidelines Council. In that jurisdiction there truly are guidelines that the judge is required to have regard to but it is not the case that the judge must follow those guidelines as is the case here. 
I look at what goes on in the United States with the United States Sentencing Commission. But of course that commission is a judicial branch of Government. In this legislation we have a very queer mix that constitutionally offends the separation of powers doctrine where the role of the Sentencing Council has aspects of the executive of the legislative and of the judicial. All of that is quite wrong and that is why I say that the Law Commission has made a massive blunder. 
Of course the sentence must fit the crime. Of course there must be broad-based consistency in sentencing. That is why we have an appellate structure; that is why we have a system of rules in place at the moment and the doctrine of precedent which is concerned with consistency. But let us not ever be blinded by the fact that cases are very similar. Each case so often turns on its own particular facts and on the particular circumstances touching the offender. But that is to be swept away. In fact I understand that much work has already been done on these guidelines. In discussions I have had with certainly one member of the commission I have been told that the guidelines are highly prescriptive. There is no room in many cases for any movement at all. So these are much more than guidelines. That is the first point. 
The second point which I believe is probably even more appalling is that there is an agenda in this legislation that is related to controlling prison numbers. And why does the Government want to control prison numbers? It is because of the costs of containment: the costs of building jails and the costs of keeping prisoners in prisons. That should never be a factor to be considered by judges in imposing appropriate sentences. That agenda is driven by a whole lot of things. The cost of building prisons—the cost of containment—is substantially about a view that prisoners should be separately housed in conditions of high creature comfort. I believe that to be quite wrong. Why is it that the military have to share barracks? Why is it that the navy have to sleep on mess decks? Why is it that prisoners are somehow deserving of treatment that is in every sense superadded? 
That is why I think it is very important just to focus for a moment on three provisions in the original bill that underscore the point I am making. The first concerns clause 9 which states in part: “The purposes of the Council are—(a) by producing guidelines about sentencing … to—(iv) facilitate the provision of reliable information to enable penal resources to be effectively managed:”. Sentencing is a discrete concept. It is the event that occurs after the finding of guilt; it has nothing to do with penal resources. Then in clause 15 where there is provision made about the “guideline or group of guidelines” this statutory directive occurs: “A draft guideline or group of guidelines that is available for inspection must be accompanied by a statement of the guidelines’ likely effect on the prison population.” Further in the provisions relating to parliamentary scrutiny there is comment about the fact that the Minister must present each guideline together with a statement of the guidelines’ likely effect on the prison population. All of that is constitutionally very very wrong but it seems the Government does not really care about those issues. 
So I criticise the concept of the guidelines and the way the Government has picked up that concept. I criticise substantially the fact that this bill has an indirect and perverse purpose—that is it proceeds on the basis of setting guidelines in the way the previous speaker has endeavoured to exhort to us but the reality is that there is this oblique and wrongful purpose. 
I would just like to say in the short time available something about parole. We have sat in this House since the time the Sentencing Act was passed and heard from Labour members opposite of how magnificent that legislation is on the issue of parole. As others have said in earlier speeches the deal in that legislation—much vaunted much praised by the Government—was that the rapist sentenced to 9 years’ jail could get out in 3. That is to be marginally moved so that under this legislation that same person will get out in 6 years. Truth in sentencing is the claim; I say “Not so!”. 
RON MARK (NZ First) 
: 
 I have to start by saying that the Criminal Justice Reform Bill was a rather hefty piece of legislation that has now been broken up into five bills. New Zealand First although it has not had anyone on the Justice and Electoral Committee has played some part in some pieces of the legislation. We support some of the provisions. We will support the legislation through its third reading as we have told the Government we will do but I signal very clearly and very loudly that we have some grave reservations about some of its aspects. We are putting the House and the Government on notice that we will monitor and watch very closely how this legislation actually rolls out in practice. 
Our observations of amendments to the Sentencing Act and the Parole Act in the past since I came to the House 11 years ago have been those of dismay and dissatisfaction generally. I must say to the House that there have been many occasions in select committees where we have sat and listened to criticism of bills being put through—be they members’ bills or Government bills and whether of a Government led by a blue party or of a Government led by a red party—and where citizens have expressed dissatisfaction and dismay at the legislation. 
What people sometimes fail to realise is that behind the legislation is a key number of advisers—advisers from ministries and advisory organisations be they the Law Commission the Law Society or whatever. It does not go without noting by New Zealand First that the wonderful advice many people gave about the Sentencing Act 2002 and the Parole Act 2002—which the Hon Phil Goff trumpeted would be the be-all and end-all of all our sentencing and parole problems for ever amen and which were enacted to serve the interests of the people who campaigned so hard in support of Norm Withers’ referendum for longer and harsher sentences—has proved to be contrary to the advice given by officials to the Minister and the Government of the day wholly lacking. This legislation has not been the be-all and end-all; it has not been the panacea. The very fact that we are standing here today and debating and amending those Acts is proof of that. 
It was interesting to hear Bill English in his great speech earlier this afternoon on a different topic asking where the accountability was. Well on behalf of New Zealand First I ask: where is the accountability for this? Here we are again amending legislation on the advice without a doubt of the very same people who advised the previous time 5 years ago. So what are we doing here? 
One of the bills we are amending is the reversion of the move that reduced the qualifying period of time for parole from two-thirds of a sentence down to one-third. New Zealand First opposed that move on the day. New Zealand First supports the reinstatement of the longer provision now. But we ask the question as to why the provision was ever changed.  
We are now supporting the reversion of some of the things regarding periodic detention that were repealed in 2002. New Zealand First opposed those changes. Let me give the House a couple of examples. Periodic detention was thought by some politically correct people both in this House and outside it to be too harsh too prescriptive and too imposing on the poor offenders who were having their poor little lives turned upside down by virtue of having to report at a time they were told and to do work and complete that work when they were told. So the Government went ahead in 2002 and repealed those provisions. 
What did we find? We have had probations officers and Department of Corrections staff tearing their hair out and saying: “We don’t know on any one day how many people are going to turn up to do their community work. We don’t know whether we’re going to have one or 101. We can’t staff for it. With this provision to allow them to complete their community work within 12 months they hold out hold out and hold out; they have got all the excuses in the world why they can’t attend. Then when the 11th month comes along they are rushing and panicking to try to get their community work done. They can’t and they end up back before the courts and it ends up being remitted.” 
Well this legislation seeks to overturn some of those stupid changes that were implemented in 2002. When we look at clause 58 and clause 59 of the Sentencing Amendment Bill (No 3) we start to see a little bit of common sense coming back in. That is why I say to Shane Ardern in answer to his question that that is why I am voting for this bill. It ain’t perfect Shane not by a long margin. Let me tell you Shane— 
The ASSISTANT SPEAKER (H V Ross Robertson) 
: Order! 
RON MARK 
: I say to Shane— 
The ASSISTANT SPEAKER (H V Ross Robertson) 
: The member knows that he cannot use the single name of a person. 
RON MARK 
: Point of order! 
The ASSISTANT SPEAKER (H V Ross Robertson) 
: The member is not challenging my ruling? 
RON MARK 
: I raise a point of order Mr Speaker. The  
Hansard  
will record that I said: “Shane Ardern let me tell you …”. That is very clear Mr Assistant Speaker; I was not addressing the Chair. 
The ASSISTANT SPEAKER (H V Ross Robertson) 
: Thank you. The member will be seated. I was of the impression that the member said “Shane Ardern” once but that the second time he said “Shane”. If I am incorrect then I stand to be corrected. But it was my impression that the member used the member’s first name only. I will take the member’s word for it. 
RON MARK 
: Thank you Mr Assistant Speaker; forgive me. I say to Shane Ardern that we definitely opposed those changes and that we support these changes back. But we are watching very closely and I tell Mr Ardern that if I find myself in the position where I have to work with him in the future and if there is a view that this needs to be further altered he should have no doubt whatsoever that I will be working to make these clauses even tighter still. It is a rather ludicrous little situation when an offender who is given a community sentence starts dictating the date and time at which he or she will actually complete it. It is even more ludicrous when offenders who fail to do the sentence within the time frame then end up pleading a case to have an extension or to have the sentence remitted. But this legislation seems fine. We now have a hierarchy of sentences there and we have laid out a smorgasbord from which the learned judge can pick and choose a sentence. 
Let us be clear about fines. Fines are effective only if they are paid. We have $550 million worth of outstanding fines. We have cases on the West Coast of the South Island where three boys had $240000 worth of fines remitted because they could not pay them. New Zealand First is gravely concerned that that straightaway undermines the authority of the justice system undermines the authority of the police and undermines everything that this bill says it seeks to do. 
We welcome the conversion of home detention into a sentence in its own right but our jury is firmly out. New Zealand First supported the National Government when it introduced home detention. We had no idea whatsoever that it was bringing in back-end home detention for violent offenders. We fought against that. We now see a move to wind that back. We will give our support towards home detention continuing as a sentence in its own right to be given by the judge who hears the case and hears the evidence at the time not by some Parole Board later on down the road whose members may not have been present to see the effect on the witnesses in the court hearing. Our jury is still out on home detention because the evidence is clear. One man took a girl’s pet dog hung it on the clothesline cut its throat in front of her and said: “That’s what will happen to you.” while he was on home detention. That sort of violent offender should never get home detention and New Zealand First will be watching to see that such offenders do not in future. 
Members should look at the controversy about the Sentencing Council. We note National’s concerns and we have heard the arguments. We actually feel a little bit comfortable because we have heard a lot of people out in the arena saying they are sick and tired of inconsistency in the judiciary’s responses to crime through sentencing. Some things are worth a shot. New Zealand First believes this council is worth a shot; that is why we will give it our support. But I say again to the honourable member Chris Finlayson that we have heard the debates heard the arguments and they are not lost on us. If at some time in the future there is a view that the Sentencing Council has not proved to be what it was said to be and there is a move to repeal it or look at it again then we will look at the evidence that has been produced as a result of its performance. I give the member New Zealand First’s assurance on that. 
In terms of the other issues in respect of the Prisoners’ and Victims’ Claims Amendment Bill I say that unfortunately a debacle is a debacle is a debacle and there is nothing that can be done to change that. With regard to inmates who have been assaulted by guards we should be clear that New Zealand First was the party that brought the focus to bear on the gangsterism that existed in Christchurch prisons and acted on prisoners through the activities of the “goon squad” and on the blind eyes of management who did not see hear or act. New Zealand First fought that issue for 4 years because it was right to do so. Let us be clear: if it is wrong and not appropriate to give compensation to a person who is assaulted on the street then it is clearly not appropriate to give compensation to the person who made the assault when that person is in jail and gets assaulted. Clearly there is a court and a judicial process that that person can go through but unfortunately we have the situation we have now. It is New Zealand First’s fear that if this legislation is not passed someone will get compensation tomorrow but victims will not get the chance to access that. 
We are not happy that this legislation is back here again. We would have preferred to see the necessary amendments made over the last 2 years but they have not been. The Government is on notice: we will not support this legislation or such amendments again. The Government now has a period of time to get its act together and to bring forth legislation to correct this situation. I hope it does so before the next election. That is our desire. 
NANDOR TANCZOS (Green) 
: 
 In the very few minutes remaining before the dinner break I begin my speech on this series of bills by saying that the New Zealand prison rate is simply too high. I think this is something that is widely recognised. We have the second-highest prison rate in at least the Western World—second after that of the United States of America. It is to our continuing shame that this is the figure we have to face the rest of the world with. 
It is interesting that some would have us follow the United States’ model as an appropriate way of dealing with criminals and of amending our criminal justice system. That seems strange because what is the example we would be following? It is simply a dead end. What we have in the United States and what we have all around the world is a self-perpetuating criminal justice system.  
Members may have been quite interested to attend the speech by Angela Davis when she came to speak in this country recently. I do not think I saw any other members of Parliament there. Were you there Charles? 
The ASSISTANT SPEAKER (H V Ross Robertson) 
: The member knows he must use the member’s full name. 
NANDOR TANCZOS 
: My apologies Mr Assistant Speaker. Members would have found the speech to be very interesting and thought-provoking because Angela Davis challenged us to think about the possibility of abolishing prisons. That is quite a radical challenge in this day and age when the demand seems to be to continually build more of them. She said that we have to start thinking about how we would develop a criminal justice policy that was not simply based around the few most extreme violent offenders but that was based around the majority of offenders. The majority of people who are currently in prison are non-violent offenders and most people in New Zealand prisons like people in prisons in the United States and I imagine in most countries in the Western World are in for non-violent offences. Of course that is exacerbated by the fact that even whether an offence is classified as violent depends a great deal on how the police lay their charges and that is another area of some concern to the Greens. 
I hasten to add that the Greens’ policy is not to abolish prisons but it is to start getting honest about our prisons and to start getting honest about what they do and what they perpetuate. We have to recognise that in most cases prisons are actually counter-productive. We know that by and large they do not reduce reoffending. 
Sitting suspended from 6 p.m. to 7.30 p.m. 
NANDOR TANCZOS 
: Before the dinner break I was speaking of the talk that Angela Davis recently gave in this country in both Auckland and Wellington. She talked about the prison industrial complex and pointed out that not only is it incapable of addressing issues like rehabilitation but it actually becomes a self-perpetuating system in its own right. We can question whether as a system it has an interest in rehabilitating at all because she argues the prison industrial complex is rather more about using the deprivation of rights as a punishment—as a way of reinforcing the rights of those of us who are not in custody and of reinforcing control and compliance—than it is about reducing crime at all. I think there is something to be said for that argument because when we look at it we see that prisons do not reduce crime and prisons do not rehabilitate. We have to start to wonder why we have an enormous dependency on prisons as a solution for criminal justice problems when they are so entirely and dramatically ineffective. 
The Green Party supports most of these bills before us now that the Criminal Justice Reform Bill has been split because we see them as part of a package aimed at reducing the prison population. We know that the early intervention package although not legislative comprises part of this package of policies and we support that. We support the use of early intervention and effective ways of stopping people becoming criminals in the first place. The bills before us introduce a new suite of non-custodial sentences and that is something we are very supportive of. They also ensure greater sentence consistency through the use of the Sentencing Council. 
In terms of the non-custodial sentences—and I have spoken on this in previous debates on this legislation—the move to establish a very clear hierarchy of sentences and to put in place some new tools that the judiciary will have available to its members to be able to sentence effectively at a lower level than imprisonment is something we hugely welcome. When we consider that more than half of the people in prison are in for non-violent offences we have to start by saying there have to be some better and more effective ways of dealing with that kind of offending and so we strongly welcome this move. 
This brings to mind the discussion in the Law and Order Committee just the other day with Judge Becroft who gave some very useful information about patterns of offending particularly for young people and the kinds of initiatives that are most useful in reducing their offending. He pointed out that a lot of young people who offend stop offending in their early 20s even if we do nothing and just leave them alone. He was not suggesting we do nothing but he was pointing out that taking those people and putting them in prison actually puts them on a path to greater crime and more serious offending and that using non-custodial sentences is much more effective as is using other kinds of methods. That is where family group conferencing has such a lot to recommend it as have things like restorative justice education and work—decent work that is fulfilling and that earns people a living. Some of those basic things are possibly some of the strongest tools we have in order to deal with offending. 
The other thing is sentence consistency. Mr Chauvel talked about that at some length and we agree that there is a problem with inconsistency particularly at those lower levels of offences. We support the idea of having something that will promote greater consistency. In fact we would like to see greater consistency in things like the use of police diversion as well. We know that for example in Porirua people cannot get diversion for cannabis possession charges yet they can in Wellington Central. We have to raise the question of why that is so given that Porirua is predominantly poor and brown and Wellington Central has a different demographic. Why do we have these kinds of structural differences in the use of police diversion? That was a concern of one of the recommendations of the Health Committee when it did its inquiry and I have yet to see any response from either the police or the Government in relation to that. 
Before I finish I want to talk about a couple of things that we oppose. The first one is in relation to the parole legislation and particularly to the making of confidentiality orders. This legislation will allow the Parole Board to consider evidence that is secret. Not only can the person applying for parole not hear that evidence but the person’s lawyer cannot get access to that information. This is extraordinary; it is an entirely inappropriate extension of anti-terrorism legislation which is itself flawed in principle. We just have to look at the Ahmed Zaoui case to see how problematic those kinds of considerations are. But to extend that provision to parole is just extraordinary. I know that some members are starting to develop the habit of referring to criminals as domestic terrorists but we think that that is a rather strange approach to take. If we are going to do away with the basic principles of justice then on that basis I think that this House has to take a serious look at itself. We could apply the arguments in favour of that to the arguments in favour of torture but the rebuttal is the same. First of all it is abhorrent to the basic principles of justice; secondly any evidence thus obtained is unreliable. That is why we have these principles as much as anything else because if the evidence is secret and the defendant and his or her lawyer cannot have access to what the defendant is being accused of how can we have any confidence that the evidence will actually stand up to any scrutiny? 
Finally I say that the amendments to the Prisoners’ and Victims’ Claims Amendment Bill and the extension of the sunset clause are something we also strongly oppose. We think that the original legislation was a very poor piece of legislation and we think that it is time it came to an end. 
Dr PITA SHARPLES (Co-Leader—Maori Party) 
: 
Kua tau marika te wa kia tirohia nga huringa o te punaha ture taihara. Hei tera wiki hei tenei wa tonu ka kati nga tapaetanga mo tetahi arotakenga whanui i nga kaupapa here ma Aotearoa whanui. Ko ta te Komihana mo nga Tamariki i a ia e whakahe ana i ta Aotearoa Tuatahi pire tera e whakawakia ai e nga kooti nga tamariki i te wa e tino tamariki ana te hunga taiohi kia ata tautohetohetia nga take e pa ana ki Te Whai Ture mo nga Rangatahi. Kua whakautua e Te Komiti Uiui mo nga Take Maori ta Te Pati Maori kia kokiritia te rangahau e pa ana ki nga kaupapa katoa e hangai ana ki Te Tiriti o Waitangi a e whiriwhiri ana taua komiti i te rarangi o nga uiuitanga i tenei wa tonu. E uiui ana te katoa o te motu me pewhea nga kenge. I oti i Te Reo Irirangi Waatea he rangahau e whakaatu ana e 46 orau o te hunga i uiuitia e whakaaro ana me whakarongo tatau ki nga kenge ake kia taea e tatau te mahi tahi ki te whakakore i tenei mea tukinotanga. 
I waenga i te whakarongotanga i era tapaetanga me era arotakenga i tau mai a Angela Davis ki Aotearoa. I roto i tana pukapuka whakamutunga  
Kua kore he Take o nga Whareherehere? 
 ka kokiri mai a Ahorangi Davis i nga take hei tautoko i te mauheretanga kore—e akiaki ana i nga whenua o te ao ki te whakakore i te takahi i nga matatika tangata i roto i nga momo whareherehere kei reira te 9 miriona tangata e tukinotia ana. Ko tana e wero ana: “Kua whakahoahoatia nga momo whareherehere ki te whawhati i nga tangata kia huri ratau kia rite ki nga momo o tetahi whare kararehe—e tupou noa ana ki nga kaipupuri i nga ki engari ka noho tonu he mea tukino tetahi mauhere ki tetahi.” 
Heoi he aha te urupare e tika ana kia rere puta noa i Aotearoa mo te panga ki nga iwi katoa o te motu o te nui o te mauherehere? Ko nga pire e rima e tautohetohetia ana e tatau i te ra nei he huri i nga tikanga e pa ana ki nga whiu a-hapori ki te mauhere a-kainga ki te utu here ki nga ritenga tuku whakamatau me te whakatu Kaunihera Whakatau Whiu. Ko a matau i te wa e tere ana nga pire i te Whare Paremata he whakau i to matau hiahia kia matapakitia whanuitia e tatau katoa me mutu ta tatau whirinaki nui ki te mauheretanga ki te whakautu i nga hara. Na matau hoki i hura i te tauaki whakahurihuri tera i whakapaohotia e Te Tari Ture i roto i tana mahere mahi: Ehara i te te mea he tangata hara mehemea he tangata Maori.” 
Heoi ko te wero kei mua tonu i a tatau kia whakatauria enei pire hei ture ka pehea ka noho tonu ai enei matapono matua. Ka pehea tatau e noho nei hai whenua kotahi e aro ana ki te huarahi e kitea nei e tatau te maha rawa o te mahi hara o te whiu o te whakamauhere o te mahi hara ano? Ka pehea tatau e whakarite ai i tetehi punaha ture e whakakaupapatia ana ki te whakatika me te whakahoa kaua ki te whakawhiunga me te whai utu? Me pehea tatau e whakaohooho ai i nga iwi kia kitea ai ko nga kura me nga hapori ke nga kowhiringa mana kaua ko nga whareherehere me nga herenga pirihimana? Kia whakaturia he tahuhu rautaki e whakaritea ai ko te hauora me te painga o nga tangata katoa e noho matua ana kaua ko te pakanga hokeka ki te mauherehere i nga tangata ki ro rore? A i te wa e kaha tautohetohe ana ka pehea te wahi ki nga whanau ki nga hapu ki nga iwi e whakatakoto i te huarahi anga whakamua? 
Kua tautoko Te Pati Maori i nga huringa o nga ture punaha taihara hei whakau i ta matau e hiahia ana kia wehe tatau i te huarahi whiu aupehi kia huri ke ki nga kowhiringa whai tikanga whakahou. I pohiri matau ki te whakahoutanga tera i puta i te wahi ki nga whiriwhiringa a te komiti i enei pire e pa ana ki nga matatika o nga marurenga—he whakatauiratanga i ta te punaha whirirua whakatinahia ana. I whakaorangia o matau ngakau ki te kite i nga ropu katoa e whakaae ana me mau tonu i nga marurenga o ratau matatika o te wa nei. Ko te whakau i nga matatika o nga marurenga ki te puta i mua i te Poari Tuku Whakamatau he mea nui i roto i ta tatau tikanga kawantanga whai poti. 
E whakamaumahara ana matau i te Whare Paremata i nga whakaaro o te Kaiwhakawa a David Carruthers—ko te tiamana o te Poari Tuku Whakamatau o Aotearoa—ko ta te tupu tauirakore o nga mauhere e whakaatu mai ana ko te panga ki nga whanau kua noho hoki ko ratau he marurenga o nga hara i te wa kua ngaro tetahi o ratau i roto i nga whareherehere. 
Ko te rongoa matua e huri ai te punaha ture e whakamanahia ana e nga Pire e rima nei ko te Kaunihera Whakatau Whiu. E tautoko ana Te Pati Maori i te whakatunga o tenei taiwhanga hou e rite tonu ai te panga o te tika ahakoa ka whiua tetahi i Whangarei i Otepoti i Te Tonga o Tamaki-makau-rau i Te Wai Pounamu. E kaha nei ta matau whakahau ko te tohungatanga o te tangata whenua me noho matua i te wa e whiriwhirihia ana nga mema mo te Kaunihera nei. 
E hoki nei au ki oku whakaaro ki ta Ahorangi Davis i ki  
Kua kore he Take o nga Whareherehere? 
. E whakaarangia ake ana e ia te wero kua pera te tere o te tupu o te tauporitanga o nga whareherehere o Amerika kia penei ai tana korero: “Ka nui ake te tuponotanga he tokomaha nga tangata o nga hapori mangumangu Paniora tangata whenua ka mauheretia i era ka whai i te matauranga pai.” E toko ake ana te whakaaro e tere nei ta tatau whakaeke ki tera tuahuatanga i konei. I roto i te toru tau iti iho i peke te tokomaha o nga mauherehere Maori mai i te 2883 i te tau 2002 ki te 3481 i te tau 2005. Engari i taua wa tonu i roto i te purongo a-tau 2005-06 a Te Ara Poutama i kumea kia toru o nga kaupapa e rima i taea ai e nga whanau te whai panga ki nga mahi kia tautokohia ketia ko “etehi kaupapa nui ake”.  
Ko te uruparetanga te mea nui ko te whai wahi o te katoa i roto i taua uruparetanga ano hoki. Ki te piki haere te tokomaha o tetahi hapori e mauheretia ana he aha tatau e kore ai e patai ki taua hapori me pehea e kaupare atu ai te waipuke? Me matua whakarite te uruparetanga mo nga huarahi pai ake e whakaitia ai te maha o nga Maori e tukinotia ana e nga mahi hara. Me matua matapaki e tatau kia whiriwhiritia ai nga rautaki whai hua ki te whakaiti i te tokomaha o nga Maori e mauheretia ana e whiua ana e tukuna ana ki nga whareherehere i roto i te punaha ture. 
E tautoko marika ana matau i nga whakaaro o Ahorangi Davis e wero ana i te ahu mahi wharehere - te hangaanga e pupuri ana i te tokomaha o o tatau iwi ki te whai i te oranga wawata kore. Ko te whakahou i te Ture Taihara he mea me whai i nga tuahuatanga hou rawa kia hou ai o tatau whakaaro kia kaua nga ritenga mo te ture a-hapori e whakakaupapatia ki nga wharehere hei whakahaere hei whakatikatika ranei. 
E wawata ana matau ko nga amenamana ki te Ture Whakarite Whiu ma reira e tika ake ai te wahi ki te mauhere a-kainga ki nga whiunga a-hapori e heke iho ai te maha o nga mauheretanga. E kaha nei ta matau tautoko i te aronga ketanga ki te whakatupu o nga pukenga mahi tuapapa o nga pukenga whai oranga hei wahanga o te mauhere a-hapori me te tikanga mo te tino matakitakitanga. Tena koe Mr Speaker. 
[An interpretation in English was given to the House.] 
[ 
The time is absolutely right for looking at the reform of the criminal justice system. This time next week submissions close on a wide-scale review of the policing directions for New Zealand. The Children’s Commissioner in speaking of her opposition to New Zealand First’s bill to prosecute younger and younger children before the courts has called for a debate on youth justice. The Maori Affairs Committee has picked up the call from the Maori Party to initiate an inquiry into all aspects of the Treaty process and is currently considering the terms of reference. New Zealanders up and down the country are asking what we should do about gangs. A recent poll conducted on Radio Waatea concluded that 46 percent of those polled believed we should listen to gangs themselves to ensure that we can all work together to make the changes necessary for eliminating violence. 
In the midst of all these submissions and reviews Angela Davis walked into Aotearoa. In her recent book Is the Prison Obsolete? Professor Davis argues for “decarceration”—urging nations to confront the human rights catastrophe in our jails and prisons that is being experienced currently by some 9 million inmates. Her challenge is: “Jails and prisons are designed to break human beings to convert the population into specimens in a zoo—obedient to our keepers but dangerous to each other.” 
So what should be the conversation that we have in Aotearoa about the impact of mass incarceration on the populace? The suite of five bills we are debating today change procedures around community sentences home detention bail and parole conditions as well as the establishment of a Sentencing Council. Our contributions as the bills have proceeded through the House have emphasised our preference for instigating a wide-ranging discussion about how we can increase our over-reliance on the use of imprisonment as a response to crime. We also exposed the revolutionary statement issued by the Ministry of Justice in their programme of action: “Being Maori does not make a person an offender”. 
The challenge that remains therefore once this bill is passed and made into law is how to ensure that these two central principles are retained. How do we as a nation address the staggering rates of offending conviction incarceration and reoffending? How do we achieve a justice system based on reparation and reconciliation rather than retribution and vengeance? How do we actively inspire the people to hold a vision in which schools and communities are the most powerful alternative to jails and police cells—an overarching strategy in which the health and well-being of all citizens is our ultimate priority instead of the frenzied battle to lock people away in cages? And through all these debates what involvement will whanau hapu and iwi have in helping to set our direction forward? 
The Maori Party has supported the reform of criminal justice legislation in our commitment to move from a punitive and repressive regime towards restorative justice alternatives. We welcomed the innovation that took place at the committee stage of this Bill regarding victims rights—a model of MMP in action. It was heartening to see all parties agree to enable victims to attain their current rights. The endorsement of victims' rights to appear before the Parole Board is an important tenet of democracy. 
We remind the House too of the views of Judge David Carruthers the chair of the New Zealand Parole Board that the unprecedented growth in imprisonment numbers has also seen increasing impacts on family members who become in themselves victims of crime through losing one of their members to jail. 
The key measure to bring about change in the justice system as mandated by these five bills is the Sentencing Council. The Maori Party supports the establishment of this new forum to ensure a consistent application of justice whether one is sentenced in Whangarei or Dunedin; south Auckland or the South Island. But we hasten to suggest that tangata whenua expertise must be considered a core priority in considering the appointment of membership to the council. 
I return to the thoughts of Professor Davis in Are Prisons Obsolete?. She throws up the challenge that the population of the United States prisons has increased with such rapidity that “Many people in black Latino and Native American communities now have a far greater chance of going to prison than of getting a decent education.” I have to wonder whether we are fast approaching a similar situation here. In less than 3 years the total number of Maori inmates leapt from 2883 in 2002 to 3481 in 2005. Yet in this same time period the 2005-06 annual report for the Department of Corrections withdrew three of the five initiatives for whanau involvement projects due to a “shift in focus” for “initiatives of a higher priority” 
So what should be the conversation that we have in Aotearoa about the impact of mass incarceration on the populace? It is all about having the debate—and making sure that we are all part of that debate. If numbers are rising from a particular community why not ask that community for ideas about how to stem the tide? We need to see the debate take place about the best ways to rapidly reduce the number of Maori who are victimised by offending behaviour. We need to see the debate happen about the most effective strategies to reduce the number of Maori who are arrested convicted and imprisoned through the criminal justice system. 
We absolutely endorse the sentiments of Professor Davis in confronting the prison industrial complex—the structure that is restricting so many of our people into lives without hope. Criminal justice reform should include radical reforms of our thinking wherein the notion of social justice is not reliant on the institution of the jail for methods of control and punishment. Criminal justice reform should include radical reforms of our thinking wherein the notion of social justice is not reliant on the institution of the jail for methods of control and punishment. 
We are hopeful that the amendments to the Sentencing Act around home detention and community-based sentences may provide greater incentive for reducing the incarceration rate over time. We strongly support the increased emphasis accorded to the acquisition of basic work and life skills as part of community detention and intensive supervision. Thank you Mr Speaker. 
] 
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. 
HEATHER ROY (Deputy Leader—ACT) 
: 
 I rise to speak to the third reading of these five bills on behalf of ACT New Zealand. I am pleased to see that the legislation that started off life as the Criminal Justice Reform Bill has been broken down into five separate bills because ACT will be opposing three and supporting two of the bills.  
Many of the comments I would ordinarily stand up and make at these third readings have already been made while I was listening to the debate on my radio in my office. ACT is opposing the Sentencing Council Bill the Bail Amendment Bill and the Prisoners’ and Victims’ Claims Amendment Bill and is supporting the other two bills. I will confine myself to the Parole Amendment Bill (No 2) and I will just revisit for a moment if I may the amendments that I put in the Committee stage last week with regard to victims’ rights when it comes to making a presentation to the Parole Board.  
ACT feels very strongly about victims’ rights as I know some of my other colleagues in this House do and there seemed to be a lot of confusion. ACT members did not have the joy of being on the Justice and Electoral Committee—we do not have a position on this particular committee—but I know that many victims and many victims’ rights groups presented submissions to the select committee on this portion of the combined legislation. It seems from my having talked to many of those people and from reading the commentary that most of their concerns were completely ignored by the select committee. Certainly there is no mention of their submissions in the commentary and very good submissions they were too. One is left thinking that very little credence was given by the committee to any thoughts or worries that those submitters may have had as a result of its hearing their submissions.  
My former ACT MP colleague Stephen Franks needs to be mentioned in this debate. He played a large hand in having the amendments come forward. He spoke to me about the victims’ rights that he felt were about to be lost. As a result of that conversation with him I put forward the six amendments last week. The situation in the legislation as it stood on Thursday when I came to participate in the Committee stage of the bill was that perhaps victims would be invited to appear before the Parole Board when their offenders came before it. There would have been no automatic right for them to appear as currently exists but they would be invited to appear. My amendments were intended to remove those invitation clauses—for want of a better word. I think that is very important.  
Victims certainly feel very strongly about this matter. They feel that they have been wronged. In many cases far too often they feel they are hung out to dry although the rights of the offenders are given paramount importance. So I was delighted when the Committee voted to support my amendments so that the status quo would be retained in this instance. Victims now automatically have the right to appear before the Parole Board when the parole of offenders comes up for consideration. My thanks go to Mr Ron Mark of New Zealand First and ultimately every other member in the Committee for voting for these amendments.  
The other reason I am pleased to support this Parole Amendment Bill (No 2) is that the legislation talks about the privilege of coming before the Parole Board because that is exactly what it is. These offenders these criminals have been sentenced. They have been given a sentence but before that sentence is fully served they receive the privilege of appearing before the Parole Board and having a cut in their sentence considered. That is indeed a privilege; it is not a right. I am pleased to see that at least in this case the right wording has come before this House.  
I will support the Parole Amendment Bill (No 2) and I am very happy to do so. Victims play a very important role in this whole procedure and their concerns and worries are very often paid little heed. I think that is a sad indictment on our society and we as legislators have a core role in leading and promoting victims’ rights.  
The Criminal Justice Reform Bill was very wide-ranging legislation and quite rightly it has been divided into five separate bills. I will not talk about any of the other bills. As I mentioned when I stood up to speak I think all the comments I could have made about those bills have been reflected in other speeches particularly in those made by National members. I share their concerns particularly with regard to the three bills we oppose.  
When it comes to the voting I think that ACT can be proud of the fact that it has always been consistent on the issue of crime and justice. No one I think will be surprised at the voting when that happens. 
A party vote was called for on the question  
That the Sentencing Council Bill be now read a third time. 
Ayes 70 
New Zealand Labour 49; New Zealand First 7; Green Party 6; Maori Party 4; United Future 2; Progressive 1; Independent: Field. 
Noes 51 
New Zealand National 48; ACT New Zealand 2; Independent: Copeland. 
Bill read a third time. 
A party vote was called for on the question  
That the Bail Amendment Bill be now read a third time. 
Ayes 70 
New Zealand Labour 49; New Zealand First 7; Green Party 6; Maori Party 4; United Future 2; Progressive 1; Independent: Field. 
Noes 51 
New Zealand National 48; ACT New Zealand 2; Independent: Copeland. 
Bill read a third time. 
Sentencing Amendment Bill (No 3) read a third time. 
Parole Amendment Bill (No 2) read a third time. 
A party vote was called for on the question  
That the Prisoners’ and Victims’ Claims Amendment Bill be now read a third time. 
Ayes 64 
New Zealand Labour 49; New Zealand First 7; Maori Party 4; United Future 2; Progressive 1; Independent: Field. 
Noes 57 
New Zealand National 48; Green Party 6; ACT New Zealand 2; Independent: Copeland. 
Bill read a third time.