Little AndrewCRIMINAL CASES REVIEW COMMISSION BILLSecond ReadingHon ANDREW LITTLE (Minister of Justice): I move That the Criminal Cases Review Commission Bill be now read a second time. I'd like to acknowledge the work of the Justice Committee in deliberating on this bill and coming back to the House with an interesting conclusion they reached which was that they were unable to recommend that it be passed but they have recommended a number of amendments in the report. So I want to say that the amendments that they've arrived at are very helpful and I'll address those as I address the House in the next few minutes. This bill establishes the Criminal Cases Review Commission. This is about enhancing and improving the process that we have to deal with miscarriages of justice. It is not the same as any other appeal. It is to deal with those cases where somebody who has been convicted and often has served a sentence considers that they have been wrongfully convicted often because they haven't committed the crime that they've been accused of and convicted of. Therefore this provides just that extra important safety valve that goes beyond the ordinary appeals system to allow that act of justice where it is called upon to take place. The commission will replace the function currently carried out under the royal prerogative of mercy provisions which are in section 406 of the Crimes Act. The Governor-General who currently exercises that royal prerogative will however continue to exercise the power in relation to pardons and I expect once the commission is up and running that it will be the Criminal Cases Review Commission that will assist the Governor-General in conducting the appropriate inquiries into the exercise of a pardon. The significance there is that somebody who has died pending any determination of a claimed miscarriage of justice ordinarily cannot continue that but there may be a claim for a pardon and ordinarily we allow posthumous pardons and they therefore need to be investigated. So there will be some residual power left with the Governor-General. I know she would be reassured about that. Presently if a person considers they have a miscarriage of justice they apply to the Governor-General. By convention the Governor-General acts on the formal advice of the Minister of Justice. Work on the prerogative of mercy applications is in fact undertaken as you would expect by lawyers in the Ministry of Justice. Now occasionally they may brief that out to Senior Counsel but otherwise it is a matter controlled by the ministry. One of the points that is often made is that there is potentially a conflict of interest between the lawyers employed by the ministry who are also there to ensure that the court system and the judiciary are supported in the conduct of their role but an application for the royal prerogative of mercy is in effect a challenge to the determinations by the judiciary—not necessarily a single judge—through the peer process and therefore it does not sit comfortably with some people that it is lawyers in the Ministry of Justice who are charged with making the investigations and the inquiries. There is something else about this as well and that is that the powers that the Ministry of Justice have—in particular lawyers in the ministry have—and indeed those briefed out to conduct investigations to acquire relevant information to the investigation into a miscarriage of justice are those in effect that any citizen has. What this bill does for the Criminal Cases Review Commission is to provide additional powers to ensure that all the relevant information that there could be to bear upon—somebody who has claimed a miscarriage of justice can get that information and therefore a good determination can be made either that there is no miscarriage of justice or that there potentially is one and so it then gets referred back to the Court of Appeal as is the case with a successful application under the royal prerogative of mercy process. Now the existing process has worked reasonably well—there's no question about that—and there are people who have had that determination of a miscarriage of justice. It is equally true to say that those who have seen the greatest success of the exercise of that process are typically people who have champions in the community. People often on a voluntary basis but with a bit of wealth behind them and a bit of energy and momentum can bring some energy to bear on a claim for and a case for miscarriage of justice and that should not be the case. It should not be dependent on the luck of the draw that somebody else in the community is so interested in your case—or often a lawyer is so interested in your case—that it requires their personal commitment to see it through. The Criminal Cases Review Commission is a standing body that is there for anybody who claims a miscarriage of justice. There'll be an appropriate triaging process as you'd expect there to be and if the particular claim meets a threshold then an investigation will take place. Now we know that Māori and Pacific people are imprisoned in this country disproportionately to their presence in the general population. They make up 60 percent of the prison population and yet the rates of implication for the royal prerogative of mercy from these populations is estimated at somewhere between 11 and 16 percent. That seems also discordant with the way things are. If you're 60 percent of the prison population you might expect a higher incidence of claim of miscarriage of justice. So a standing Criminal Cases Review Commission has the ability to reach out to those communities and I've seen it happen that the Scottish Criminal Cases Review Commission actively goes into prisons and says This is who we are. This is where we are. This is what we do. If you consider you have a miscarriage of justice here is a process you can embark upon and you can seek justice or the next stage of justice through that sort of means." So this is an opportunity to improve the process that we have at the moment. As I've said a number of jurisdictions have already established bodies like this. I mentioned Scotland; there's also England—that also covers Wales and Northern Ireland—and Norway has one as well. Some of the changes that the Justice Committee have recommended—many of them I agree to. But the committee received 32 submissions all of which were given very careful consideration and I know the Law Society and the Criminal Bar Association and others made submissions and I think made some very helpful suggestions. So two of the committee's recommendations I turn to now. The first is a change to the composition of the commission's proposed membership. As an independent Crown entity the commission will be led by a board of between three and seven commissioners. The commissioners will make strategic decisions about the commission—for example about the development of its operational procedures—and with the support of its staff and its specialist staff including investigators the commissioners will decide which cases will be referred back to the court. So the ultimate decision of referral back following an investigation will be by the commissioners who are appointed to that task. At the moment clause 9 of the bill requires at least one-third of the commissioners to be legally qualified and in addition at least two-thirds of the commissioners must have experience of working in the criminal justice system or have other knowledge or expertise relevant to the commission's functions and duties. These requirements mirror those for equivalent commissions established in other jurisdictions. They're designed to ensure that there is an appropriate balance of skills: legal skills obviously; investigatory skills; and community knowledge and presence and understanding as well. The committee has recommended that in addition to the legal and criminal justice requirements the commission must also have at least one commissioner who has knowledge or understanding of Te Ao Māori and tikanga Māori. I agree with that recommendation. The bill as introduced required the Minister to take into account the desirability of the commission being able to draw on knowledge of Te Ao Māori and this proposed change in the recommendation that the committee has come up with will achieve that. The second change that I want to talk about too is the power for the commission to apply for a court order to disallow claimant privilege. Now this is a very potentially controversial area. The bill as introduced didn't provide the commission with the ability to access information that's protected by privilege or confidentiality. Unlike the royal prerogative process which relies on an applicant presenting the necessary information and the Ministry of Justice officials gaining access to information by cooperation and agreement this bill provides the commission with valuable information-gathering powers. The bill details that cooperation and consent should be the preferred means of obtaining relevant information. However there are circumstances where stronger powers may be necessary in order to get the relevant information and the committee has recommended that information-gathering provisions be amended to allow the commission to be able to apply for a court order to disallow a claim of privilege in certain circumstances and assess a claim of confidentiality. I think that's a very important recommendation too. I'm coming to the end of my time. I just wanted to address one point that was raised by members of the National Party on the committee which was their well-established concern about the place and role of victims. The point that they made in their minority report refers to those with criminal convictions causing further disquiet for victims of crime. The point about this is that if the criminal conviction is one that should never have happened in the first place it is an injustice upon injustice that they should not get access to a process that allows them to address that. On that basis I commend the bill to the House."