Finlayson Christopher: Criminal Justice Reform Bill — Second Reading 
Finlayson Christopher: Criminal Justice Reform Bill — Second Reading 
[Volume:640;Page:10002] 
CHRISTOPHER FINLAYSON (National) 
: 
 There are two issues I wish to address in this second reading speech. The first issue is as to the constitution of the Sentencing Council and the second issue relates to the proposed amendments proffered by the Minister of Justice and in particular clause 83B which introduces a new section 13AB. 
But first let me look at the Sentencing Council because as Mr Power said the National Party does have concerns about the proposed body. Mr Fairbrother and Mr Tanczos raised some very interesting issues in their speeches about the proposed Sentencing Council and in deference to them and out of respect for their views I want to respond to some of them now. 
Let me make it clear that there is no debate on the issue of the need to have greater consistency in sentencing. There have been differences in sentences passed in different parts of the country in different District Courts and we in the National Party acknowledge that the situation is unsatisfactory. 
We also acknowledge that it is an inadequate answer to say that the Court of Appeal can from time to time issue guideline judgments. Certainly that is what the Court of Appeal has done over the years but it is an inadequate response to the problems facing the courts because the Court of Appeal has issued guideline judgments only in some areas of the criminal law. In many areas of the criminal law some cases do not get to the Court of Appeal so that the Court of Appeal can give guideline judgments. Many cases in fact get no further than the District Court or on occasion the High Court on appeal from the District Court. In any event and this is the third point the Court of Appeal does not have the resources to do a comprehensive job on guideline judgments. 
There is no debate about the need for a guidelines panel of some description. The real issue and the one that concerns the National Party is whether the model proposed in this legislation is the right one. National says it is not because it compromises judicial independence. Let us be clear about this issue. It is not an arid or an academic constitutional argument. From time immemorial the separation of powers has been seen to be essential to our democracy and this Parliament must zealously safeguard the separation of powers. 
How could the council be improved? I think quite easily. I refer to the Judicature Act 1908. The Sentencing Council could be a creature of the judiciary just like the Rules Committee of the High Court. That body has a diverse membership. The members are appointed at the pleasure of the Chief Justice. The membership set out in the Rules Committee would be too narrow a membership for a Sentencing Council. One could have essentially the same people serving on a Sentencing Council but the body itself rather than being a mishmash of the judiciary and the executive would be a creature of the judiciary. What is wrong with this model? What we heard from both Mr Tanczos and Mr Fairbrother was a discussion at a high level of abstraction but it is necessary—and we will go into greater detail when we come to the Committee stage—to look at clauses 9 and 10. 
Clause 9 sets out the purposes of the council and National has no problem at all with clause 9(a) which says that one of the purposes of the council is to “promote consistency in sentencing practice between different courts and Judges:”. We say that is absolutely correct. That is the key provision and that is a legitimate purpose for members of the judiciary to be involved. But when one looks at paragraphs (b) (c) and (d) one sees purposes that are illegitimate for the judiciary. It is not for the judiciary for example to take steps “to enable the development of sentencing and parole policy to be based on a broad range of experience and expertise:” or “to inform members of Parliament and policymakers about sentencing and parole practice …”. These are properly the functions of the executive. 
Then one looks at the functions of the council. I would ask Messrs Tanczos and Fairbrother before the Committee stage to take a good look at this clause. Clause 10(1) is a legitimate function for a body involving the judiciary—to produce guidelines relating to sentencing principles sentencing levels and so on. But it is not for the judiciary to do some of the other things that are set out in that clause. To provide a statement of the guidelines’ likely effect on the prison population is not for the judiciary; nor is it for the judiciary to give advice on sentencing and parole to collate information on sentencing practice to collate information on parole decisions or to provide information to the public about sentencing and parole. These are not legitimate functions of the judiciary. These are the clear responsibilities of the executive. 
That there is a conflict or at least a potential conflict is hinted at in clause 3(2) of schedule 1 which states: “A judicial member may at any time decline to participate in or withdraw from participation in any particular function or activity of the Council if the Judge considers it incompatible with his or her judicial office.” So we face the possibly farcical prospect of judicial members walking in and out of meetings of the council depending on the nature of the issues and leaving lay members of the council to get on with the business. In my submission it is best to recognise that there is an inherent conflict in the nature of the judge and the Sentencing Council. 
Let us look also at clause 40 which we will consider in greater detail when we reach the Committee stage probably tomorrow. That clause sets out a proposed change to section 21A of the Sentencing Act and states that the court must adhere to sentencing guidelines. That is quite different from the English legislation which provides that the judge must have regard to the sentencing guidelines. Sentencing as Mr Fairbrother said involves more than the judge robotically applying guidelines like some kind of nodding automaton. A sentence will depend obviously on the law the guidelines the facts of the particular case and any other relevant information such as the matters referred to by Mr Fairbrother. If we are to have a Sentencing Council and if the judges must adhere to the sentencing guidelines one wonders why we simply do not have computers to deal with sentences under the new regime. 
In the National Party’s view there are two distinct functions of the new council: producing guidelines for the judiciary which is a legitimate function for judicial involvement; and providing advice to the executive which is not a legitimate function for the judiciary. As I say the distinction between the judiciary and the executive must be zealously safeguarded. So that is where the House is going to divide. 
The second point and it was touched on by Mr Tanczos relates to the application for the confidentiality order. We are a little bit concerned about this proposal because there are some circumstances where a confidentiality order may be applied for and the information may not be provided to the offender—that is obvious and that is fair enough—or to the offender’s counsel or other representative of the offender. I have a niggle with that because it seems to me that if a person is a solicitor or counsel for the offender then it will be a very extreme situation when that person should not be entitled to look at information bearing in mind that person’s oath to the court as an officer of the court and the consequences of breaching any order. 
 I do not know that adequate safeguards are set out in this proposed section. I refer members to the situation that applies in a civil case where one can apply for an ex parte order and before doing so the person who applies must sign a certificate saying that the application complies with rules of court and that there is a proper basis for the making of such an order. I think there should be opportunities in the Committee stage to tighten up this kind of situation. I can conceive of situations where confidentiality orders may be necessary but I think the mode of application should be toughened up considerably.