Finlayson Christopher: Criminal Justice Reform Bill — In Committee 
Finlayson Christopher: Criminal Justice Reform Bill — In Committee 
[Volume:640;Page:10219] 
CHRISTOPHER FINLAYSON (National) 
: 
 I really look forward to the day when the House goes back to clause by clause analysis of bills in Committee because at least it would force members to focus on the legislation. Tonight we have had addresses that were as shallow as a bird bath from Mr Chauvel on two occasions that did not descend into the detail of the legislation. The first point he made which was wrong concerned the Rules Committee of the High Court. He said that the Rules Committee comprises certain members of the executive such as people like the Solicitor-General and a representative of the Ministry of Justice. It is well known and has been from time immemorial that the role of the Rules Committee as a part of the judiciary is to govern the practice and procedure of the courts of New Zealand—something that is well within the purview of judges. Certainly the case has always been that when the High Court Rules are reformed they are given a parliamentary imprimatur through statute. So the argument about the Rules Committee is totally misplaced. 
What I have tried to do in coming back to deal with this matter in a principled way through my Supplementary Order Paper 126 is to look at the establishment of the Sentencing Council. The National Party which was very concerned about the very existence of a sentencing council at the time of the first reading has taken a good hard look at the proposal and is prepared to live with a sentencing council provided that it is not a mishmash of the executive and the judiciary but is properly placed within the judiciary and provided that appointments to it are made under the supervision of the Chief Justice because that provides the protection needed. That is why we address key points about the establishment and the status of the council in my Supplementary Order Paper. 
The second key point emphasised in my Supplementary Order Paper concerns the purposes and the functions of the Sentencing Council whose primary purpose should be to promote consistency in sentencing practice between different courts and judges. As all members on both sides of the Chamber have said that is a legitimate cause for concern from time to time. The functions of the council are pared down. Rather than being set out in clause 10 of the bill they are focused on clause 10(1). 
The next aspect of the Supplementary Order Paper that we address concerns the membership of the council. Again I am not interested in whether people are Labour Party hacks but I am interested to ensure that we have a proper mix of lay people and the judiciary. If Mr Mark had read my Supplementary Order Paper he would see that I refer to judicial members of the Sentencing Council and in my proposed clause 6(1)(e) I also refer to: “Five members who are not Judges to be members for a special purpose appointed by the Chief Justice.” There I set out in clause 6(3) what those people should be qualified in in order for them to serve a special purpose. The criteria is picked up from schedule 1 to the legislation. 
If the body is structured in this way then I believe we can have a legitimate sentencing council that can actually do some good for the judiciary of New Zealand in providing guidelines that are sometimes necessary—and I come back to the purpose of the legislation—to promote consistency in sentencing practice. But with the way this body is structured at present it is unsatisfactory. 
The nub of it as was pointed out by Dr Worth is when one refers to clause 15. The statement to accompany draft guidelines “that is available for inspection must be accompanied by a statement of the guidelines’ likely effect on the prison population.” That is illegitimate; it is quite improper to have judges being parties to that particular matter. 
The very conflict that judges can get into as I said in the second reading debate is hinted at in schedule 1. I refer honourable members to clause 3(2) of that schedule because there is a way out for the judiciary. It states: “A judicial member may at any time decline to participate in or withdraw form participation … if the Judge considers it”—and members should listen to these words—“incompatible with his or her judicial office.” Many of the functions and the purposes set out in this legislation—