Dalziel Lianne: Courts (Remote Participation) Bill — In Committee 
Dalziel Lianne: Courts (Remote Participation) Bill — In Committee 
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Hon LIANNE DALZIEL (Labour—Christchurch East) 
: 
 I wish to challenge the Government to explain to the Committee why this legislation is being pursued in the way that it is. We had the second reading debate of the Courts (Remote Participation) Bill yesterday and in that debate members on this side of the Chamber made it very clear that only one element of this bill stood in the way of unanimity in terms of its passage through this House—just one factor—which is in relation to the use of the audiovisual link in substantive proceedings in front of the court where the accused has the right to be present at the trial. 
I made the point in my submission that the bill should have been vetted by the Attorney-General. I relied specifically on that occasion on parts of the Human Rights Commission submission—which I do not now have in front of me and that is why I am struggling to refer to it. Instead of referring to that submission I will refer to the New Zealand Law Society submission because it made the same point as the Human Rights Commission. The point is that this bill should have been the subject of a vet under the New Zealand Bill of Rights Act and the fact that it got through the system without having a question mark raised— 
Hon Trevor Mallard 
: Another slackness from the Attorney-General. 
Hon LIANNE DALZIEL 
: Well I do not think that the Attorney-General took as much notice of this particular provision as he should have. That is a problem because the legislation clearly breaches the New Zealand Bill of Rights Act. The New Zealand Law Society submission makes that clear as does the submission of the Human Rights Commission. I think that the submission of the Human Rights Commission should have been relatively compelling in terms of the obligations of a Government—or an Attorney-General in this case—to put on the Table of this House a report noting the inconsistency. And there is inconsistency. The New Zealand Bill of Rights Act states absolutely explicitly that there is an obligation in terms of being present in court to have an individual present at his or her trial. That is a right under the New Zealand Bill of Rights Act. There is an absolute obligation for the Government to take heed of that. I do not believe for a minute that we should let go of something that forms the basis of the rule of law we believe is so fundamental to our democracy here in New Zealand and that we should allow this bill to continue in the way that it is proceeding. 
I was incredibly disappointed that the Government had put this bill on the Order Paper for its Committee stage today. Why would the Government do that? We raised all of these issues in the second reading yesterday. I was absolutely shocked to find that this bill was down for its Committee stage today because I felt that the Minister of Justice was prepared at least to listen. But no there has been no listening at all. In fact suddenly there is a desire to push this bill through. What is the urgency? I ask why we cannot take the time to report this bill back and essentially deal with what is a very fundamental issue. 
The Government has completely ignored the submission of the Human Rights Commission—my copy has come back; miraculously it is now in front of me—but the point that the commission makes and which I think is the most important thing is that the bill does not comply with certain rights in the New Zealand Bill of Rights Act. It is “incompatible with the international human rights instruments particularly the right to a fair and public hearing the right to be tried ‘in his presence’ and the right of the accused to defend himself in person;”. 
But the most important point—and I think that this is the point at which the Minister was starting to listen—is that the rights that are destroyed by this bill are those that attach to the victim; the victim has the right to confront an accused. If the accused is able to avoid his or her responsibility in fronting up to the court—as the Human Rights Commission states both at the first instance and then at the trial itself—there is no question in my mind that the victim is having his or her rights reduced by the Government’s decision to allow that to be done without consent. It is simply unacceptable to members on this side of the Chamber for the Government to be switching the onus and saying essentially that the New Zealand Bill of Rights Act can be overruled in this way. 
Two Supplementary Order Papers have been tabled to address this issue as I understand it. One is in the name of the Hon David Parker and the other is in the name of Dr Kennedy Graham. David Parker’s Supplementary Order Paper 149 has the advantage of simplicity. It adds a new clause 9(2) which states simply: “Despite subsection (1) AVL must not be used in any criminal substantive matter for the appearance of the defendant unless the defendant consents to the use.” That resolves all of the problems and it actually addresses the issues that the Government was raising with this bill anyway. 
Members on this side of the Chamber are entirely onside as far as this bill goes in respect of procedural matters. Nobody objects to people not being ferried to and from the prison in order to attend to an interlocutory matter. It is not important that they are actually there in the court and if they want to see the matter dealt with then they can simply use the audiovisual link. But I am concerned and we on this side of the Chamber are deeply concerned that there could be a fundamental breach of the New Zealand Bill of Rights Act. The use of an audiovisual link should be purely on the basis that the defendant would consent to that use in the particular circumstances of the occasion. We can all think of occasions when it might be appropriate but if we take that right of choice away from the defendant we will also take that right away from the victim of the defendant. I do not think that the Government has actually given enough attention to the Human Rights Commission submission which I thought had some very important points to make. 
Another point that the Human Rights Commission made in its submission was that the New Zealand Bill of Rights Act provides rights in relation to criminal proceedings. They are the right to be brought before a court following arrest the right to a fair trial the right to be present at trial and the right to examine witnesses on an equal basis with the prosecution. The commission’s submission states that the Crown Law Office in providing its advice to the Attorney-General unfortunately managed to conflate practices in which the evidence of witnesses can be given by audiovisual link and the evidence of an accused who is entitled to be present is given by right in person. The Human Rights Commission then has a serious challenge to the quality of the advice that was provided by the Crown Law Office and I think that that concern needs to be addressed by the Government. The Government has to stand and respond to the very specific concern about the nature of the advice that was given on this matter. 
I know that the Attorney-General will have to be concerned about the level of challenge that the Human Rights Commission is giving to this analysis. The analysis itself appears to be based on a case that was determined in 1990—the United States Supreme Court in  
Maryland v Craig 
—which addressed the giving of evidence remotely by audiovisual link by a witness only not by the accused. Unfortunately I do not think that the Attorney-General has actually appreciated the extent of the difference between the two. Giving evidence as a witness by audiovisual link has challenges but in many instances it is the appropriate step to take and with children it is virtually automatic. But I think that nobody has really taken into account the fact that the rules that have been established in case law in respect of the use of an audiovisual link in relation to witnesses are quite different from those in relation to the use of an audiovisual link by an accused. A number of people have raised serious issues on this matter.