Clendon David: Bail Amendment Bill — Second ReadingText is incorporated into the Bound VolumeClendon David: Bail Amendment Bill — Second Reading[Sitting date: 02 July 2013. Volume:691;Page:11525. Text is incorporated into the Bound Volume.]DAVID CLENDON (Green):The stated purpose of this bill we are debating today the Bail Amendment Bill is “to improve public safety and to ensure the overall integrity of New Zealand’s bail system. The changes will make it harder for those accused of serious offences to get bail.”—and that is quoted directly from the bill of course. We are actually not persuaded that the changes that are proposed in this bill will achieve those outcomes. We cannot argue with the intention of the bill clearly. Those are perfectly sound aims. But really this legislation will not achieve those ends. It will compromise some of our commitments to our own New Zealand Bill of Rights Act and to various international conventions to which New Zealand is signatory and it will not overall achieve the preferred outcomes.In part we think the failure of what is intended in this bill to present a long-term solution to problems that undoubtedly do exist is in part arguably due to the fact that it is a very reactive bill. It seeks to amend to shift and to chop and change a few existing provisions in law. I think we could have taken a lesson from the Australians. We used to hear a lot from this Government about catching up with Australia. That language seems to have been a little more subdued of late. But in this instance we could have usefully looked to the New South Wales Law Commission which a year or so ago produced a very useful report in that context. It recognised that bail legislation in terms of the practice of the courts around issuing bail had been chopped and changed and much amended over time and it got to a point where it was not satisfactory and it was not fit for purpose. So the New South Wales Government took a clean sheet approach basically and thought “OK what’s the nature of the problem here?”. That is something we could usefully do here but unfortunately this bill does not take that approach. It does not take that clean sheet approach to say: “OK what is the problem? What are the issues? How can we best achieve the outcomes that we need to achieve?”.In the Australian example they came back to some basic principles asking what the purpose of bail law was how that purpose should be reflected in legislation. Then they looked at the workings of bail law in practice and how that might be amended and modified and generally made better. I think that is what is absent from this legislation: taking one step back taking the big-picture approach to looking at our bail laws. Some of the amendments have value clearly and we could support them but others we cannot support because they are substantial challenges to the constitutional and legal norms. As we have heard from Mr Goff for example the outcomes will actually be very marginal. It will not make significant difference to the outcomes. We think that there should be an approach of supporting a judiciary to interrogate some of the outcomes of decisions that have been made to seek to establish whether errors were made—errors of judgment—and to ask whether we can put in place means tools and processes that will at least reduce if not eliminate those errors that have led to some acknowledged tragedies over time.The New South Wales review came up with a set of key principles about bail law and suggested that those principles were public interest and freedom; securing justice according to the law; the integrity of the criminal justice system overall; the likelihood of harm or threat of harm to people in a relationship or in some other relationship with an offender or with an alleged offender; the protection and welfare of the community having regard to the likelihood that a person may offend or commit serious offences if released and not kept on remand; and the interests of that person and their family and associates. They seem to be some pretty sound principles on which to establish a comprehensive set of legislation around bail and its practice and whether or not bail should be allowed to individuals in individual cases.What bail does not and ought not ever be used to do of course is to punish offenders. The granting or not granting of bail ought not to be seen as a deterrent to offending. That is not its function; there are other mechanisms within legislative and judicial process to ensure those things. One sees hints of this in this legislation in the idea that somehow the likelihood of bail or reduced likelihood of bail will be a deterrent and indeed a punishment to people who are before the courts on charges and indeed quite serious charges.In that context I think it is worth recalling that the most recent numbers we have which I think come from 2006 to 2007 tell us that over half of people something like 56 percent of people who are remanded on charges and are not given bail are later found not guilty of whatever charges they were facing. That is more than half of people who are remanded are ultimately found not guilty despite the fact that they have by that point often spent significant time in custody. That is no trivial matter. The point was made earlier particularly with drug charges that it is perfectly common these days to have a year or 18 months on remand before a person actually gets their day in court before the matter is settled. If people are spending a year or 18 months in custody that is a huge cost to their family life their professional life and their employment. Inevitably people lose their income and end up in debt. The consequences of that are significant and ongoing and we need to think very carefully about the extent to which we are imposing that burden on people given that more than half those individuals are found to be not guilty of the charges that they are facing.It is not a trivial matter to deprive somebody of their liberty. It is the ultimate sanction of our legislative process our judicial process and to make it more difficult for individuals to get bail based on a response to a very small number of cases albeit tragic cases we think is not the way to make good law.The bill would undoubtedly compromise New Zealand’s international commitments to a number of conventions around human rights not least of all the United Nations Convention on the Rights of the Child which says very clearly that in this case 17-year-olds should not be treated as adults. Yet within this legislation we see a requirement that 17-year-olds who have previously served a term in prison will be treated effectively as adults; the reverse burden of proof will apply in those instances. We think that is very unfortunate. It is also an admission a quite explicit admission that imprisoning young people generally does not work in terms of dealing with their offending. We know that prison is actually a cause of crime and that provision acknowledges that having been in prison means a young person is much more likely to reoffend. Prison is not effective in rehabilitating young people. It does not deter them from crime on the whole. Most often we see that it actually is the first step to a career of crime. Over some 15 or 20 years typically a young person in prison will continue to offend until their mid-30s or beyond. The prison sentence has very little effect on them. We see that the provision in this bill around the expectation that 17-year-olds who haveserved a previous sentence in prison is unreasonable. It is an admission of defeat effectively an admission that prisons do not work.We believe that this bill and the provisions in it would reduce judicial discretion. There is always a tension between the rights and powers of this Parliament and the rights and independence of the judiciary—the independence of the judiciary to make its own decisions as it sees fit. We think some of the provisions of this bill take a step too far in terms of reducing the discretion of the judiciary. I forget for now the number of bail decisions that are made each year but it does run in the tens of thousands. Often the decisions are quite straightforward around relatively trivial matters but nevertheless judges do get it right most of the time and I think we need to acknowledge that. To the extent that this House seeks to limit the discretion of the judiciary I think that is unfortunate and we ought not to be going that way. The Greens will continue to oppose this bill.