From Hansard

I will deal with the points that have been made by the previous speaker, Simon Bridges, and by the Minister in the chair, the Hon Wayne Mapp. Firstly, in dealing with the points Simon Bridges made, I tell the Committee that I listened carefully to his speech; he has been a trial lawyer. He is one of the few people in the Chamber who can speak on this issue on the basis of some practical experience. But here is the problem with the provision that he explained, and that the Minister referred to earlier: it provides a discretion to a judicial officer to say to somebody who is accused of a crime: “Don’t show up to your trial. We’re going to do without you and you can appear on the screen.”

The legislation then goes on to fail to confine that discretion in any meaningful way; it is simply left up to the judicial officer, who, for the moment under the provisions that we are dealing with, is a qualified judge, a tenured judge. But who knows what this Parliament might do if that discretion goes through this door? Who knows what further weakening might occur to the protections? We might end up with community magistrates, justices of the peace, or other part-time or temporary judicial officers exercising this power. If we do that, if we allow that power to go forward in this bill without defining very carefully the sorts of circumstances in which a judge might justifiably try people in their absence, and potentially sentence people to imprisonment in their absence, then I think we are making a major mistake. We are making a major mistake by trifling with people’s civil liberties.

It is true, as Simon Bridges said, that in some cases the common law finds practical ways to ensure that the proceedings of a court are respected and not disrupted. If there is a disturbed defendant, he or she can be removed from the court, but one never knows until the person is there in front of the presiding officer how he or she will behave. It would be a gross violation of people’s civil liberties just to say that because they misconducted themselves once, we will deny them the right to appear in a court ever again. We might say that we think it is likely they might behave in that fashion once more, so because we do not want to have that sort of behaviour in our court, we will just try them by video. That is the door that is being opened by the drafting of this legislation. The Minister in the chair is looking at me and shaking his head, but he knows as well as I do that unless the discretion that is provided by the legislation is better fettered, and unless we go through the bill and state the precise circumstances by which Parliament would be willing to countenance what is effectively trial in absentia—trial by video—then we are opening the door in that way.

My submission is that that is a very unwise thing to do. There is not a sufficient safeguard just to say that because it is a judicial discretion, it is OK. Scholars of legal history know that some of our judicial officers in the past have misconducted themselves. There is such a thing as judicial tyranny if judicial discretion is not defined. That is why we had the Bill of Rights in 1688. That is why there was a reaction to cases like the prerogative in saltpetre and the ship-money case. Those were judicial decisions. The King’s judges—the judges appointed by the executive—decided to abuse power. That is why originally it was decided that we actually needed constitutional protections.

I echo what Lianne Dalziel said—that this is a breach of a New Zealand Bill of Rights Act provision. There is no vet from the Attorney-General, and although I have some sympathy with what Kennedy Graham said—about the need not to get into some sort of degeneration of interminable ad hominem arguments about whether the Attorney-General this time is better qualified than the previous one—here is the point: it is the Attorney-General’s job to vet these bills. This bill clearly breaches the New Zealand Bill of Rights Act and it clearly breaches, in turn, the International Covenant on Civil and Political Rights.

The worst thing about that is that we can make up all the legislation we like, but if it is in breach of those fundamental standards, we know what will happen. We are a party to the Optional Protocol to the International Covenant on Civil and Political Rights. If somebody is treated in the way that is envisaged by this bill and there is unfair treatment, the person will go to the United Nations Human Rights Committee and complain. There will be a finding that New Zealand is in breach, and we will be told that we have to fix the law to make sure that it is consistent with our human rights obligations.

This entire exercise, supposedly a money-saving one, is just an enormous waste of Parliament’s time. It is an enormous waste of time and money, because we will be back here doing all this again if we are foolish enough to legislate in this way.

I just say in closing that I hope the ACT Party will not vote for this abomination. ACT likes to call itself the liberal party. Sir Roger Douglas is in the Chamber; I hope he will uphold that party’s traditions, uphold what he says is his respect for civil liberties, and join the other parties in the Chamber—as I understand: the M?ori Party, the Green Party, the Labour Party, and others—to vote this abomination down.