Ardern Jacinda: Sentencing (Offender Levy) Amendment Bill — In Committee 
Ardern Jacinda: Sentencing (Offender Levy) Amendment Bill — In Committee 
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JACINDA ARDERN (Labour) 
: 
 I am pleased that we now have the opportunity in the Committee stage to expand on some of the debate on the Sentencing (Offender Levy) Amendment Bill which started last evening. I think that Part 1 sits at the core of some of the debate that was had particularly at the Justice and Electoral Committee. Part 1 sets out the order of priority for the payment of the various types of infringements—or punishments for want of a better word—that can be imposed on an offender at the time of sentencing. 
There was quite a lengthy discussion at the select committee about what order the levy existing fines and reparation should go in and also about whether judges should take into account in the payment of each of those the ability of an offender to pay. I want to highlight something here when I refer to the ability of an offender to pay. I am not undermining the importance of an offender being held to account for the crime that that offender has been found to have committed. Of course that is the primary purpose of an offender being brought before our judicial system and reparation is a very important part of that. But I do see a role for a judge in taking into account the financial circumstances of an offender—the offender’s ability to pay—when awarding reparations fines or in fact a levy. That is important because if a judge awards reparations or a fine that is completely ludicrous and outside the realms of possibility of the offender’s ability to pay that undermines the system. It not only undermines the system but also creates an expectation for a victim in an unfair way if the reparation is unable to be paid. So I think there is a balance to be struck between accountability and keeping the viability of a scheme. I guess that in the view of the victim it is about a level of magnitude but I wanted to make that point. 
The discussion that was had at the select committee was very much around the impact of the levy on reparation. I think the select committee agreed that reparation was probably the most important payment that was awarded by a judge because it is a direct payment from an offender to a victim. Not only does it highlight the accountability question but also it is a direct restitution of sorts to the victim in a way that an offender levy never will be. But although the reparation will remain the first thing that must be paid the judge also cannot take into account the awarding of a levy when reparation is awarded. 
We had a big discussion at the select committee about whether it was possible to enforce that. It was a big question. I just want to highlight the way in which it has been set out in Part 1. The proposed new section 12(1A) inserted by clause 4 states: “When considering undue hardship or other special circumstances … a court must not take into account that the offender is required to pay a levy under section 105B.” How does one do that? How does one ensure that when a judge is making a decision on the size of reparation the judge is not taking into account the payment of the levy? Some might argue that the levy is so small in size that it would not matter but that raises the question of what the purpose of the levy is in the first place. It is something that the select committee had a significant discussion about. 
Clause 6 talks about determining the amount of a fine. It states: “Section 40 is amended by adding the following subsection: ‘(5) When considering the financial capacity of the offender under subsection (1) the court must not take into account that the offender is required to pay a levy …’ ”. So we see that the primary aim of the Government is to have a broad-brush levy and that it is not to take into account whether the majority of offenders will be able to pay the levy. I think that risks spending an inordinate amount on chasing levies—small levies—across the entire spectrum of offenders before our courts. That raises a question about the legitimacy of the scheme because if the primary aim of the scheme is to help victims surely we would try to set it up in an efficient enough manner that we reduce the administration costs as much as possible and we maximise the use of the levy as much as we can. Therefore we would surmise that the best way for the Government to do that would be to do what we do with fines and reparation and that is to take into account the offender’s ability to pay. 
That leads me to believe that perhaps building a pot of money for victims is not the sole aim of this bill. In fact I think there is a political message here. The Government is sending a political message that it is tough on crime because every single person who comes before the court will be fined a $50 levy. Perhaps I would have more sympathy for that if it were not for the facts that it will cost $7 million over 4 years to administer a political point and that we will probably get only $7 million into a fund for victim support at great expense and with a great administrative burden. Perhaps it would be better for the Government to look at different ways of ensuring that Victim Support has greater funding and support or reparation— 
Paul Quinn 
: Obviously failed School C. maths! 
JACINDA ARDERN 
: That is my rough memory of the calculations made before the select committee. 
Paul Quinn 
: Well they’re completely wrong. 
JACINDA ARDERN 
: I may have them slightly askew but there were also estimates that it would take 30000 offenders for this account to break even. 
Paul Quinn 
: You sure you’ve got those right? 
JACINDA ARDERN 
: I would be happy to provide Mr Quinn with those figures because they were quoted in media reports. There are many other greater ways in which we can ensure we support victims. 
I find it slightly contradictory that we are here discussing this bill given the changes to accident compensation and in the light of changes to the criteria for who is eligible for counselling in relation to the victims of serious crimes. I think it is unfortunate that the Minister will not acknowledge that there is a significant difference between the rules that have previously been issued and those that are being administered now. 
Sitting suspended from 6 p.m. to 7.30 p.m. 
JACINDA ARDERN 
: Before the dinner break we were discussing the split in cost between how much would actually be collected and returned to presumably the victim support scheme and how much would go into administration fees. I will clarify some of the figures I was talking about before the dinner break. Originally it was thought that perhaps this scheme could collect up to $5 million a year for victims but that was scaled back to a prediction of about $13.6 million over the first 4 years. Then of course we need to subtract what was estimated at $1.3 million—the cost to set up the levy—and an estimated $1.5 million per year in order to run it. That was the point at which I was previously talking in rough terms about a halving of the amount that was collected and the amount that would flow on through. That was something I wanted to clarify for the benefit of members on the other side of the Chamber. 
In regard to Part 1 we have already talked about the order of priority between reparations the levy and fines. I will touch briefly on the amount of the levy. Externally it may seem that the blanket choice of $50 as a levy is quite an arbitrary figure. I would be interested to hear the Minister’s explanation as to why $50 was chosen as the amount that we would apply across the board. I wonder whether it was thought that at $100 one would then have to switch to adding in the disclaimer regarding the ability to pay or whether that would considerably reduce the number of people who would pay. I am interested in the explanation behind that and I am also interested in the following questions. If we treated the levy in the same way that we treat fines and reparations by factoring in the ability to pay would we have been able to considerably increase the amount that the levy could be and could we have also significantly reduced collection costs? 
We would carve out some of the costs if we were already taking into account whether we would spend half our time chasing people around the country and potentially arresting them and locking them up for not paying their levy. Perhaps we may have found ourselves in the situation where we would not be talking about such a considerable chunk being taken out for administration costs. Perhaps we could have talked about putting significantly more—more than $50; something more meaningful—into a pot of money set aside specifically for victims. Perhaps we would not be—unnecessarily in this case—raising expectations for victims about what they might receive.