Boscawen John: Criminal Procedure (Reform and Modernisation) Bill — In Committee 
Boscawen John: Criminal Procedure (Reform and Modernisation) Bill — In Committee 
[Volume:676;Page:21596] 
Hon JOHN BOSCAWEN (Leader—ACT) 
: 
 It is always a privilege to work collaboratively with parties on both sides of the House in discussing legislation. We have just heard from the Hon Rick Barker a very very good argument for passing the Criminal Procedure (Reform and Modernisation) Bill. Although he is a member of the Opposition as a former Minister for Courts he has set out some very eloquent arguments for passing this legislation. I also compliment the Minister of Justice the Hon Simon Power on the arguments that he put—in particular the way that he reasoned well his arguments for the Green Party to support this bill in its amended form. 
There are significant changes in this bill which I will be discussing shortly and the Minister acknowledges that. But I have to say that throughout the negotiations that the ACT Party conducted with the Minister we were incredibly conscious as I said to the Minister on many occasions that there are good things in this bill—there are good things in this bill. We recognise that the justice system is outdated and cumbersome. We recognise as the Hon Rick Barker just told the Committee that we have large queues of people turning up at the courthouse at 10 o’clock on Monday morning who are left waiting for many hours. Although there were important principles to stand up for we were also concerned not to throw the baby out with the bathwater and not to lose the considerable benefit of all the many years of work that have gone into this legislation. 
Like other speakers in this debate this afternoon I pay tribute to my parliamentary colleagues. As I have mentioned I have been involved in negotiations with Mr Power over the last couple of months and I thank Simon Power for the generous comments he made about me and about his negotiations with the ACT Party. Just recently I was talking with Kennedy Graham of the Greens but I have also had extensive discussions with Charles Chauvel. 
This is a wide-ranging debate. We are taking this bill as one question. So I would like to use this opportunity perhaps to make some wider comments on the submission process. I have been a member of Parliament for just going on 3 years. In the time that I have spent here it has always amazed me how easy it is for members of the public to make a submission on legislation that is before Parliament. In fact Parliament and civil society demand it. 
In the year prior to my coming to Parliament I ran a campaign against Labour’s Electoral Finance Bill. I made a submission I asked to be heard I turned up at the Justice and Electoral Committee which was chaired by Lynne Pillay and I was given 10 minutes to state my case. I found it an amazing experience that individual New Zealanders could make a written submission ask to be heard in front of members of Parliament and state their case. As a parliamentarian myself I know that sometimes submitters are not well listened to particularly if they express views contrary to one’s own but generally speaking submitters are treated courteously and their views are respected. 
We depend on people and organisations making submissions on legislation. Just yesterday the Justice and Electoral Committee heard urgent submissions on the Video Camera Surveillance (Temporary Measures) Bill. A number of organisations and members of the public had come together at relatively short notice to make submissions on the legislation. 
Coming back to the Criminal Procedure (Reform and Modernisation) Bill as Mr Power said this bill was with the Justice and Electoral Committee for 6 months. There were a number of submissions from no less a person than the Chief Justice herself from various Criminal Bar Associations from the Law Society and from practitioners. But I want to use this opportunity to publicly acknowledge three particular people who were involved in the submission process whom the parties that have been involved in negotiating this legislation are all very well aware of. They are Patrick Winkler; his assistant Samira Taghavi; and Roderick Mulgan. They are three barristers who believe so strongly in upholding the right to silence as a major constitutional principle that they have put an enormous amount of time into this legislation. I imagine they will have spent literally hundreds of hours preparing submissions studying the provisions of this bill and lobbying members of Parliament—in particular Mr Graham Mr Chauvel me the Maori Party and Mr Power. 
We need to pay tribute to those three people because I suspect with the exception of Mr Power no other people in New Zealand today have contributed more to the format of this bill than those three with the work they have done. I think Supplementary Order Paper 281 represents a back-down by National. It is a very important back-down and it is a back-down of major constitutional significance. This Parliament owes a huge debt of gratitude to those three people as it owes to other New Zealanders who come to this place to make submissions on legislation because they believe that in a civil society we need to have good legislation and they are prepared to spend their time on it. 
The Minister referred to the Supplementary Order Paper and to the major changes that it represents. Clearly as he outlined there is a difference in the view held by National and others in this House as to what contributes to or what in actual fact is upholding the right to silence. I will take just a few minutes to read from Supplementary Order Paper 281—in particular the section headed up “Issues in dispute”. That particular issue has drawn major concern from the ACT Party. It says: “Currently the Bill requires the defendant to formally identify the issues that are in dispute before the trial. If the defendant fails to identify those issues adequately the Bill allows the fact-finder (whether Judge or jury) to draw adverse inferences from that failure when deciding whether or not the defendant is guilty.” 
This 640-page bill when it came back from the select committee required a defendant a person charged by the State to tell the State—the police or the Crown Law Office whoever is bringing the prosecution—the aspects of the charges that the defendant disagreed with and what they disputed. If the defendant failed to do that the judge or jury was able to draw an adverse inference which means the judge or jury may have found that person guilty when they otherwise would not have. 
Why was it important that we take that provision out? I believe that Mr Chauvel outlined the reasons for that very very well this afternoon. He said that it is a well-known constitutional principle that when one is charged it is up to the State to prove beyond reasonable doubt that one is guilty. It is up to the State to prove the charges beyond reasonable doubt. It should not be incumbent upon the defendant to assist in their own prosecution. To put it another way it should not be incumbent upon the defendant to help to find that they are guilty. As this 640-page bill came back before the House that is exactly what we were setting ourselves up for. 
As the Minister well knows he asked the ACT Party for its five votes in support of this bill back in August. We had an option. We could have said yes that we would pledge those five votes and with those five votes this bill could have come back and it could have been passed through this House without any amendment whatsoever. Let me repeat what I said during the second reading debate. The five ACT MPs held solid on that issue. We were absolutely united that we were not prepared to support the legislation in that form. 
Finally I once again acknowledge the huge amount of work that Patrick Winkler Samira Taghavi and Roderick Mulgan put into convincing me and my colleagues of the importance of that position just as they put work into convincing other parliamentary colleagues. 
I am prepared to leave my contribution at that. Other speakers I know will want to speak in the debate. There have been a number of other changes and I referred to those during my second reading debate. On this occasion I have focused just on the right to remain silent. Thank you.