Graham Kennedy: Courts (Remote Participation) Bill — In Committee 
Graham Kennedy: Courts (Remote Participation) Bill — In Committee 
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Dr KENNEDY GRAHAM (Green) 
: 
 I listened with considerable interest to what the Minister has just said by way of explanation. I have to say with respect that he has not persuaded me in any way at all. I think in my year and a half in the forty-ninth Parliament this is the most serious attack on constitutional rights that I have experienced. This Parliament has adopted 114 Acts reflecting Government legislation. 
Paul Quinn 
: Very busy. 
Dr KENNEDY GRAHAM 
: I concede it has been busy. I pay tribute to the hard work that goes into that. I think it is important while we are on this semi-jocular note that we do not denigrate the dignity of this discussion by introducing ad hominem endless interminable arguments about whether the previous Attorney-General was or was not a lawyer. That is a red herring and this issue is far too important to try to politicise it. 
The 114 Acts that have been adopted have basically reflected two main themes of this Government: firstly to be tough on crime and secondly to cut Government spending. The public voted in its wisdom in 2008 and that reflects the themes and priorities of this Government. This legislation stands alone in iniquity in its attack on constitutional rights. Clause 9 of the Courts (Remote Participation) Bill attacks the basic constitutional right of New Zealanders to be present at their trial. We can look at the historical sweep of constitutional guarantees that underpin this nation’s democracy inherited from England and honed by our own distinctive New Zealand experience. We go back to the Bill of Rights 1688 and the political rights that were enshrined which are now in New Zealand law: representation before taxation the election of the Sovereign assembly which is this and freedom of speech. We signed the Universal Declaration of Human Rights. Article 6 recognises a person before the law; article 7 relates to equality of the person before the law; article 8 relates to effective remedy against violation of constitutional rights; article 10 relates to fair trial particularly in criminal trials; and article 11 relates to the presumption of innocence. They have been translated into New Zealand domestic law in the Crimes Act 1961. Section 354 of that Act gives the right to a defence either by the person or through counsel and section 376(1) gives the right to be present at a trial. That latter provision the right to be present at a trial which has already been identified tonight and last night has been translated into the New Zealand Bill of Rights Act 1990 at section 25(e). It is a question of the interpretation of the right to be present. 
The Minister last night chose to define effective participation as the right to be present—effective through audiovisual links. With respect we fundamentally disagree with that. The right is an unsullied right to be physically present. There is no question in jurisprudential history that that is the correct interpretation in common law tradition. Clause 9(1) strips away that right and places it in the hands of the judiciary. It takes out that inherent absolute right. 
I understand the meaning of the word “absolute” and we have researched it. It is the difference between an absolute right and the absolute execution of a right. There is an absolute right and we touched on this point with Simon Bridges last night. In the second reading last night Simon Bridges spoke about the air of unreality that the Opposition parties were bringing to bear on this issue. He said he thought there were trials held where defendants had been in absentia. I challenge Mr Bridges the Minister and every member of this Parliament including every Government member to identify the criminal trials in New Zealand over the last 50 years that have been conducted in absentia. Let us find them. Let us identify the criminal trials in New Zealand over the last half century where the accused has been in absentia. 
If anybody is being unrealistic or has an air of unreality here it is the Government. It is as if the Government has been bitten by the tsetse fly and we have a form of sleeping sickness here whereby the Government is urging the New Zealand citizenry to sleepwalk its way into the surrender of a basic constitutional right to be present at one’s own trial. 
The second point Mr Bridges made last night was that the right was not absolute and the Minister has reiterated that. If that is the case what is the point of clause 9(1)? Last night the chairman of the committee explicitly conceded that there was a surrender of a right and I ask what the surrender of the right is. 
Hon David Parker 
: And the Minister did tonight. 
Dr KENNEDY GRAHAM 
: And the Minister reiterated it. We are surrendering something here so let us define what it is we are surrendering. We are surrendering the right to be physically present at a criminal trial if one is the accused. 
Just a moment ago the Minister told New Zealanders not to worry and that an incredibly high threshold is being brought into the judiciary and the registrar in making a determination. Yes that is a negative presumption. I understand; I can read clause 9(1). I know about negative presumptions. Instead of positive presumptions if we introduce a negative presumption we have ceded the absolute right. If we have an absolute guarantee it is 100 percent. The Minister is proposing that we cede that 100 percent guarantee and we introduce a 99 percent competence level so that the judiciary will do what it is meant to with a 1 percent chance that something will go wrong. I will not accept that 1 percent chance and I recommend that the Minister does not either. 
Let us reflect on this. What is it that is driving this Government on this particular point? Does the Government recognise the magnitude of what it is doing therefore it is trying to run it through? Or is it just oblivious to the magnitude of what we are doing here tonight? I ask what is driving this Government. Is it a motivation on saving? We are told the substantive motivation is cost savings and efficiency—a commercial price on a jurisprudential principle. 
Hon David Parker 
: It’s just stubbornness. 
Dr KENNEDY GRAHAM 
: I think there is a danger that it is turning into stubbornness. Let us diminish the level of tension a little because we might be making a very egregious mistake tonight if we proceed precipitously. Let us think about deferring this matter for a moment. I ask what is driving the Government on procedure that prompts it to bring in the Committee stage the day after the second reading with no notice. It was not on the Order Paper when I was at the Business Committee on Tuesday; it came in overnight and I ask why. 
I think that we need to reflect very carefully. We in the Green Party and I dare say other Opposition parties had indicated a readiness to support positively the introduction of audiovisual links into the courts system—no problem—but not at the expense of this constitutional right.