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Rahui Katene: Bail Amendment Bill

Bail Amendment Bill
Friday 12 December 2008; 2pm
Rahui Katene, Mp For Te Tai Tonga

Getting tough on crime is always the hallmark of a new Government.

Roll the clock back to 1999 and one of the baby steps of the new Labour Government at that time was the introduction of the Bail Act 2000.

Eight years down the track, we have amendments proposed to get even tougher on crime, by amending that 2000 Act.

The effect of the 2000 Bail Act was immediate and severe.

• Between March 1997 and March 2007, the sentenced muster increased 35% - from 4, 493 to 6053.

• During the same time, however, the remand muster increased a massive 214% - from 550 to 1724.

Seven years down the track, conventional wisdom assisted by case law, suggested the original 2000 Act should be refined to clarify that the risk should be more than nebulous and insignificant and should be a real and significant risk.

This is a sensible suggestion I believe, to articulate a clear and concise interpretation of the law. Good legislation is tight legislation one would think.

And so last year, the 2007 change was made to better clarify the law in line with case law on the subject, particularly the Court of Appeal’s decision in R v Hines.

What this did, in introducing the concept of a ‘real and significant risk’, was to bring the legal consideration of bail into line with how the Department of Corrections currently does their risk assessment reports.

Again, a useful initiative one would think, to see links being made between two justice sector agencies.

But perhaps the most salient point of the 2007 legislation, was the obligation that it places on the Police, to provide evidence to the Court on risk. Now why is this so important?

The onus to show one’s evidence means that there is a process to counter any possible bias or prejudice. Decisions about granting bail are therefore made on the basis of evidence and a robust process.

The responsibility to prevent prejudice or bias being of undue influence is vital in order to counter the problems that have emerged when there are any elements of discretion in the system at large.

The unintended consequences of the use of discretion in the criminal justice sector is an issue which has concerned the Maori Party – but is an issue also of concern to many other commentators in the sector.

The recent work undertaken by the former Government called Effective Interventions, describes the fact that:

• four to five times as many Maori as Europeans were apprehended, prosecuted and convicted.

• six to seven times as many Maori were given a custodial sentence or were serving prison sentences, and

• eleven times as many were remanded in custody awaiting trial.

Breaking the remand statistics down further, in 2003, while ten out of every 100,000 European people were remanded in prison; the figure for Maori was 110 out of every 100,000.

But it gets worse.

Last year’s report of the Ombudsman, Mel Smith, investigating issues involving the criminal justice sector, revealed that there has been a marked increase in the volume of offenders who have been remanded in custody.

Between 1991 and 2006, the number of remands as a ratio of all inmates grew from 9.7 to 20 per cent.

Mr Speaker, these are all statistics in the wrong direction.

Twenty years ago, Moana Jackson, in his ground-breaking research, The Maori and the Criminal Justice System: He Whaipaanga Hou – a New Perspective recorded that when all necessary variables have been considered, Maori record instances where their sentence, or the rejection of a Maori-based alternative, can only be attributed to judicial insensitivity and prejudice.

Ten years ago, a joint Te Puni Kokiri and Ministry of Justice study found that:

• the court system is meaningless to many Maori;

• too many Maori are receiving poor quality legal advice;

• prosecution practices for Maori differ from that of non-Maori;

• lawyers, court staff and the judiciary have been found guilty of culturally inappropriate behaviour;

• Maori offenders are receiving inappropriate sentences;

• And imprisonment has been proven ineffective.

And then less than one year ago, the Ombudsman suggested a Commission of Inquiry is urgently required to undertake a comprehensive review of the criminal justice system.

One reason for his call for an inquiry is spelt out in black and white, in the Programme for Action for Maori in the Effective Interventions Programme pursued by the former Government.

In that report, a specific recommendation was introduced to investigate the impact of the exercise of discretionary powers in the criminal justice system.

The Ombudsman and the Chief District Court Judge have both publicly supported the value of the ‘real and significant’ provision.

Their argument is, that without this provision, too many people are remanded into custody unnecessarily – and this is particularly of concern for people who are facing low level charges or non-custodial sentences. And further to this, the Ombudsman suggested the 'real and significant' provision will need to be supported by other initiatives to bring about a much needed change in the statistics.

Given all this background then, Mr Speaker, the proposal to remove the words ‘real and significant’ from the Bail Act, reverting the legal position back to that prior to 2007, provokes further questions.

Why would one want to remove specificity from legislation, to deliberately return to the concept of risk and with it, the attendant problem of loose interpretation?

Why when the Ombudsman and key justice sector agencies all appear to agree that there is an element of discretion which works against Maori outcomes in the justice sector; would anyone seek to take the risk to introduce the possibility around even more discretion?

Mr Speaker, there is a very key issue that I believe every member in the House, and every party represented, would absolutely agree on.

That is the fundamental importance of public safety.

We must not expose the people to any element of risk, and we must do all that we can to restore a sense of peace within our communities.

But we can not agree to legislation which invites loose interpretation or an element of subjectivity or discretion – when there is a real alternative in sight.

That alternative was to tighten up the law, to make it more specific, by defining RISK as being ‘real and significant’, as the 2007 amendments did.

That was why, when the amendment to clarify and tighten the provisions came before the House last year as part of the Criminal Justice Reform Bill, the Maori Party supported the legislation.

We supported that legislation then, because we wanted to ensure that offenders are not unnecessarily remanded in custody rather than on bail.

Our policy position has always been that we seek initiatives to lower the incarceration rate and to reduce the use of prison as a response to offending.

We want to protect the public from harm, and the clarification of ‘real and significant risk’ does that in our estimations.

But we are also keen to engage in a much wider debate around the Government’s justice and law and order policies, and we anticipate, that Minister Sharples, in his capacity as Associate Minister of Corrections, will be an active participant in that debate.

The debate must consider these three issues posed by the Ombudsman last year:

• The wide philosophical issue of what is the purpose of a remand and whether and when bail or custody is appropriate;

• That the increase in prison muster is undesirable, in terms of the impact on offenders and families and its demand for increased government expenditure on prisons;

• the over-representation of Maori should be an area of significant focus.


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