Chauvel Charles: Criminal Procedure (Reform and Modernisation) Bill — First Reading 
Chauvel Charles: Criminal Procedure (Reform and Modernisation) Bill — First Reading 
[Volume:669;Page:15755] 
CHARLES CHAUVEL (Labour) 
: 
 Labour agrees with the Minister of Justice but only to an extent. Some aspects of our law surrounding criminal procedure are inflexible and out of date and they require reform so to the extent that the Minister is tackling those issues we congratulate him. We will support the referral of the Criminal Procedure (Reform and Modernisation) Bill to a select committee which I understand is not a universal position as far as other parties in the House are concerned. But in doing that we are concerned that some of the changes could have major ramifications for people’s rights. Because of this we intend to apply very close scrutiny to the bill at the select committee to ensure that if we do achieve greater efficiency then we will not sacrifice fairness. I see that the Minister is nodding with approval. Presumably that means he tried for a much more equitable package before the Cabinet process and was knocked back so we will do what we can to make sure that his original aim of fairness above all is restored in the bill. 
I will do a couple of things in this call. The first thing is to talk a bit about why we agree that reform is necessary to some extent the second is to talk about our hopes for the select committee process and the third is to raise some of the concerns that lead us to have the reservations that I have expressed. 
As to the need for reform poor quality justice is delivered to many defendants victims and other participants in our justice system as a result of excessive costs excessive complexity and excessive delays and we have heard some of those catalogued in the Minister’s speech. The fact that inequitable outcomes were being reached was acknowledged in the 2007 Criminal Procedure (Simplification) Project and many of the recommendations of that project have made their way into this bill. Some of them are common sense and they merely bring the law into line with modern context—a good example is allowing court documents to be filed electronically—but there are others that could have much more serious consequences. 
Achieving efficiency in our justice system should never come at the expense of our basic freedoms but unfortunately many of the provisions contained in this bill look as if they may curtail some of those freedoms and the Attorney-General’s comments in the New Zealand Bill of Rights Act vet indicate that those fears are well-founded. One example he gave of a contravention of the bill that cannot be justified is a provision that allows a real risk of letting trials proceed without the presence of the accused. Obviously when issues as fundamental as that are at stake this is an occasion for the House to take real care. 
In proceeding to the select committee process I think Labour members would particularly like to use this occasion to ask Government members to do a few things during that process: first the Government should listen to the experts and secondly it should take their advice seriously. When basic democratic freedoms are at stake we have a serious justice issue on our hands. If we need any evidence of that we need only look back at the ACT Party’s “three strikes” legislation when it was being pushed into law when the police were appointed as advisers because they better matched the tone of the law and order dog whistling than the Ministry of Justice officials who should rightly have been advising on that bill. Another example was the fiasco over Paul Quinn’s Electoral (Disqualification of Sentenced Prisoners) Amendment Bill which as we now know had completely the opposite effect to the one that its mover intended. Those are the sorts of mistakes that we have to avoid when we deal with this legislation. 
The other thing I would ask Government members and Government Ministers in the House today is for them to keep an open mind and remember what they have said in the past on these issues. I remember when I was first elected to this House and Simon Power and Christopher Finlayson were in the Opposition. They were calling for drastic reforms of our justice system and in particular our criminal justice system. They must have had more in mind than this reform which is somewhat far-reaching but I think it could not be described even with the most charitable motives as a thoroughgoing overhaul of the system—it is not. 
If this Parliament was serious about really overhauling the justice system delivering justice to ordinary New Zealanders and looking at the problem we have with very very well-resourced superior courts but actually pretty scungy courts at the District Court level both in the civil and the criminal jurisdictions then it ought to be dusting off that 2004 Law Commission report on the structure of the courts and looking at the very careful systematic recommendations in that report. I see that the Minister is smiling. Yes it ought to have been done earlier than this; it ought to have been done by Labour but it was not. But here is a great opportunity for him to get a reputation and a deserved reputation for being a reformer of the system by going back to those first principles and looking at how we can make justice much more readily accessible to the ordinary users of the system. That 2004 report is by far and away the best starting point that anyone has come up with in recent times in New Zealand. Its title says it all:  
Delivering Justice for All: A Vision for New Zealand Courts and Tribunals 
. Some very very good policy recommendations in there have been lost and should be considered. 
There are a number of provisions in the bill that members on this side of the House will not take a final position on until after the select committee process but I would like to mention a few of the points of concern. The first is the proposed change to the threshold for jury trials as of right. It is serious at least because it involves an amendment to the New Zealand Bill of Rights Act. My understanding is that there is still some discussion at officials’ level about just how to change the threshold whether it should be a brightline test moving from 3 months to 3 years’ minimum imprisonment or whether some other slightly more complex test should be adopted and I think the select committee will hear more about that. Certainly our preliminary view would be that if there is to be change—if there is compelling evidence that our threshold is outdated and too generous with reference to international experience then that should be clearly established at the select committee—then there should be a very clear brightline test as to what the new threshold should be. Also we should take real care in amending the New Zealand Bill of Rights Act. It is not an ordinary statute; it has become an important part of our constitutional arrangements. It is not satisfactory to be able to amend it with just a simple parliamentary majority in the ordinary course. There should at least be a convention around striving for consensus before we touch the provisions of that bill. 
Another provision of concern is the provision that would allow jury trials to proceed with only 10 jurors. It has to be said that that is a serious impingement on the right to a fair trial. What happens next? 
Hon Simon Power 
: But they can now. 
CHARLES CHAUVEL 
: The Minister says that they can now but the reality is as he would concede that this bill makes it much easier. It makes it much easier to become the norm in the event that a judge decides that it is fair. We have real concerns about whether that practice will become the norm under the provisions in the bill. It is another question that will have to be addressed as is the removal of a defendant’s right to be present at his or her own trial. Unlike the previous provision where a discretion is rested with a judge here is a provision that says the courts must proceed without a defendant if that defendant does not have a reasonable excuse for their absence. So the discretion of the judge to do justice is curtailed. That is a matter that the select committee will have to look at very carefully. 
I am sure my colleagues will raise more concerns about various other aspects of the bill. I hope that the House will note that our concerns are sincere. We will proceed in good faith in the select committee to seek to have them addressed. We are somewhat disappointed that this is not bold reform—the sort of bold reform that the Minister and his colleague the Attorney-General called for in Opposition. They talked about a system in crisis—a system that was broken. This sort of piecemeal reform will not fix it all. 
Hon Simon Power 
: Piecemeal? It’s 500 pages. 
CHARLES CHAUVEL 
: I say to the Minister that we do not weigh reform judging by the number of pages we have been clever enough to come up with in a bill. We need to look at the coherence of the proposals and whether they will be fit for purpose. Until we get principle-based reform root and branch from the ground up in the justice system my fear is that we will not get that and this bill certainly does not deliver that.