Simon Power interviewed by Guyon Espiner
GUYON Thank you Simon Power for coming in and
joining us this morning. You've had six months in the portfolio
now, you've made some initial changes around public safety, you've
looked more closely at the drivers or the causes of crime, we
understand now that you are looking at some significant changes in
the justice system and the court system, exactly what is under
SIMON POWER - Minister of Justice
As you say Guyon we've worked our way initially through the public safety elements with our legislative programme, we moved quickly into phase two to try and talk creative discussion about what was driving crime in New Zealand. Phase three of these packages is to sit back and give some consideration to whether our criminal justice system is working properly or not. This is a big undertaking and work that's been undertaken by the Law Commission and the Ministry of Justice for some time. Essentially what I'm interested in is having a broad discussion about three things initially. The first is the way our jury system works. Presently under the bill of rights if you're charged with an offence that carries a term of imprisonment of three months or more you can elect to go to a jury trial, I'm very keen to see that threshold raised.
GUYON To what?
SIMON Oh well I think three years would be appropriate. You would see a savings on jury trials about a thousand a year along with a couple of other smaller changes we could make in that area.
GUYON So just clarify that, a thousand fewer trials that actually go to a jury, these would be judge only trials?
SIMON They would, or in the event of course that many counsel are using the ability to elect to go to a jury trial for minor offences as a mechanism to slowing the process up, many of those cases could be dealt with very quickly and very appropriately at the lower level.
GUYON So unless you are charged with an offence which carries a punishment of more than three years, you would not have the option of seeing a trial by jury by your peers?
SIMON Correct, the situation in other jurisdictions like Australia, the UK where the common law provides in this area, Canada for example has a threshold of five years, we think that it's time to have a fundamental look at the way our criminal justice system operates.
GUYON But isn't it a fundamental right of anyone to be tried by a jury, by their peers.
SIMON Well it's a fundamental right of anybody to have a fair hearing, whether or not a jury trial is the most appropriate way of dealing with those particular cases is a really problematic issue for our justice system. A good example of that is 17 hundred people end up in remand on any one year waiting for a jury trial to come along or to proceed, it would seem to me that's not a good use of Crown's resources, which begs the question as to why all the delays occur in that system, which leads to a couple of the other reforms we're interested in as well.
GUYON I'll come to that in a second, but is part of the factor here that you're struggling to get jurors to actually sit on those trials?
SIMON No that wasn't part of the thinking, what was driving the issue was the delays that we've been seeing in our justice system, in the District Court for example, on average it takes about 12 months before a trial kicks off, in the High Court it's about sixteen and a half months over the 2008 year. We have to address this, this is not without controversy I accept that, but the fact is our criminal justice system has not been delivering justice served seen to be done in a timely and helpful fashion. Victims of crime find this process incredibly difficult.
GUYON So would it necessarily shorten the time that that trial takes?
SIMON I believe so.
SIMON Well you're talking as I say about a thousand fewer jury trials a year, that has gotta have an impact on the way the criminal justice system deals with these issues. Of course if you're charged with a more serious offence that carries a term of over say for example three years imprisonment, electing for a jury trial is an option. The question is, is it the best use of the court system to be using jury trials for what are essentially minor offences and remember the election to a jury trial is often used as a tactic to delay the process. We've just got to be in a position to ask ourselves the hard questions about this system.
GUYON What are the other two factors, you mentioned three main areas that you are actually looking at, is that the most significant one in the jury area?
SIMON Well I'll leave that up to you to decide, but the other two areas that I'm looking particularly closely at is this ability where somebody doesn't appear at a hearing the only sanction available to the courts in general at the moment is to schedule another hearing. There are some provisions under the Summary Offences Act that allow convictions to be entered for non appearance at trials. I think we need that souped up. I think we need to have a situation where the presumption shifts - if you don't show up, unless of course the circumstances would be manifestly unjust for good reason - if you're not showing up to a hearing to have your time in court, the court should be able to enter that conviction. Now that's different to sentencing where the accused would have to be present.
GUYON You would be convicted without hearing under that circumstance?
SIMON No, if your plea is entered and you don't turn up, the court should be able to go ahead, and under Section 61 of the Summary Proceedings Act the court is able to do that at the moment in exceptional circumstances. I'm very interested in whether or not the presumption should be if you don't show and you've entered your plea, the conviction can be entered.
GUYON How significant a problem is this, I mean are there large amounts of cases where people simply don't show up?
GUYON And so this again is all part of reducing the congestion in the justice system through the courts?
SIMON Well you can continue to have a debate as a country about needing more judges, building more courts, or you can have a fundamental look at the way that our justice system is running. I think with the way the criminal justice system has been operating over the last 60, 100 years, it's time for that fundamental discussion to occur, this is not uncommon in other jurisdictions and I'm of the view that last minute adjournments when people don't show, and the effects on the criminal justice system and the victims of those offences, need to be dealt with.
GUYON How much of the congestion and the delays that we see is down to lawyer behaviour, and are you going to do anything about that?
SIMON Yes we are, which leads me neatly into the third issue which is that I think it's time that the courts were able to hold lawyers, both prosecution and defence to account, for not moving through hearings in a timely and appropriate way. I just think we're at the point now where the gaming of the system around the criminal justice processes has to be front footed.
GUYON Is that what court lawyers are doing?
SIMON Oh look I believe what we're seeing is the system being badly incentivised particularly around legal aid, to encourage multiple appearances on issues that should be dealt with in a short and timely way at first appearance.
GUYON So lawyers are clipping the ticket, making extra money by creating these delays?
SIMON Well as you know I've asked Dame Margaret Bazley to do an extensive look and review of the legal aid system, and I'm going to be very interested in whether or not that's the finding of her review. But Guyon this gaming of the criminal justice system has got to stop.
GUYON And how do you do that, how do you punish them for doing that?
SIMON Well the courts presently have available to them a mechanism to be able to fine a lawyer for gross negligence in the sense of bringing that case. My view is that should be more readily available to the courts, and if you're a legal aid lawyer, you should have your eligibility to do legal aid cases tested if you're not proceeding in a timely way. To simply not be ready, to not be available, and to not show up, are not good reasons. Look when I was admitted to the bar, many years ago in 1994, in my short time as a lawyer I was always told that a lawyer's first duty, his first obligation is to the court, and we have not seen that in the way that our criminal justice system has operated, it's time for some change.
GUYON Alright obviously you've got some major changes coming up in the coming months. I'd like to talk about something that's been more topical over the last few days, and that is gun control in the wake of the Napier siege. What are you doing if anything, to tighten gun control laws in New Zealand?
SIMON I spoke to the Police Minister this morning about where we're up to with this issue, she's asked the Police to produce for her, a series of options around gun laws. As you know the Commissioner himself is very concerned about this, but isn't a fan of arming the Police, but gun control itself and amnesties around the collection of firearms is on the agenda, as is this very vexed issue of the trading of firearms over the internet, something which is extremely complicated.
GUYON Should you be able to buy a gun over the internet?
SIMON Well that's a matter for the Police to have a view on rather than me, but I've gotta say that regulating in cyber space is difficult enough, I mean I've found that with Section 92 over the Copyright Act, let alone with firearms.
GUYON They tell me they do it in Australia and also Ebay, the American based website refuses to sell guns. Would you - for example we've this week looked at guns on Trade Me. Are you disappointed in Trade Me for selling guns on the internet?
SIMON I think it's an issue that needs serious consideration.
GUYON It sounds like you're against that, you don't think that that should actually be able to happen?
SIMON Well the Police will give us the advice, but I'm personally of the view it needs serious consideration.
GUYON What about the registration of firearms because this is a massive problem. Justice Thorp in 1997 recommended that as part of a wide review, nothing has happened. Why don't you register the firearms, this is the sort of situation that leads a guy like Molenaar to have 18 guns in his home.
SIMON Yeah it's a really interesting and difficult question.
GUYON What's the argument against it though Minister?
SIMON Well when we had the Arms Amendment Bill in 99 to 2002 a Select Committee considered this very point about six and a half to 7000 submissions from memory from all over New Zealand about how this would work. The question is if you license the firearm as opposed to the individual, how much buy in are you going to get from those people who wouldn't want to front up with a firearm in the first place, in other words are you seriously going to get the sawn off shotguns under the bed being brought in to be registered, and that's the question that you have to ask from a practical point of view. It wasn't an easy debate but in the end both major political parties in that term of parliament decided not to proceed with that legislation, but there's gotta be an answer. I tell you the development that's occurred since then significantly as you referred to Guyon, is this issue of internet trading.
GUYON But surely there are some other fundamentals like the buy back of military styles in the automatic weapons, I mean why does someone need a weapon like that in New Zealand?
SIMON Good question.
GUYON Well what are you gonna do about it?
SIMON Well as I said the Police are currently providing the Police Minister with advice on a range of options to consider this. One thing that we're really really cautious about is overreacting in what has been a tragic situation over the last ten days or so, we've gotta be very careful that we do this in a very considered and rational way.
GUYON But how much consideration do we need, 12 years since the Thorp report, National and Labour governments have sat on their hands, can you commit to us this morning that this government that you're part of is not going to do the same thing?
SIMON I'm confident that when the advice comes from the Police to the Police Minister she will have suggestions for the Cabinet.
GUYON Okay, can we move on to another issue which is often hotly debated and that is the sale and control of alcohol, it seems as though you are against actually raising the drinking age back up to 20, is that completely off the government's agenda?
SIMON No I've as a conscience vote always voted to - at least in recent years - to keep the purchase age of alcohol at 18. I've said on this show to you before that the thing I consider to be the most pressing issue in the area of liquor form is the regulatory environment itself, that is the number of liquor license that are available, the hours that those liquor licenses are able to operate for.
GUYON So in practical terms are we going to see bars closed earlier? I walked up to the studio at TVNZ this morning and there is a bar open at seven o'clock in the morning, 20-30 drunk people outside. Do we need bars to be open to five, six, seven in the morning?
SIMON It was eight o'clock in the morning when I walked past the same bar on the way here and I stood at the pedestrian crossing thinking to myself, I wonder if Guyon's going to ask me this question. The reality is, I don't think that any reform of liquor which we'll know a substantial amount more about in July when the Law Commission reports 12 months ahead of time like I've asked them to, that sort of situation has gotta be right under the magnifying glass.
GUYON So you don't believe that bars should be open all day and all night as they are at the moment?
SIMON I think there is significant room for reform in that area.
GUYON A compelling argument that Geoffrey Palmer has for the Law Commission is increasing the excise on alcohol, increasing the tax on it. I mean what is it 800 million dollars a year from that alcohol excise, yet the harm done by alcohol as Paul Holmes said in the intro here, is five billion dollars a year, you've got a massive disconnect from the money that you take in versus the money that we actually pay for this problem, why not increase the tax on alcohol?
SIMON Look I think that's one of the options that Sir Geoffrey's put in his report.
GUYON Is it an option that's acceptable for you to consider?
SIMON I will consider it, and the government will look closely at the recommendations when they're tabled in July and you'll have a full government response at that time.
GUYON Do you think that we're taking too long for this though, I mean there's been this debate that's gone on and on and creates such a problem, I think the Police tell us that 90% of their callouts between say 10.00pm and 6.00am are alcohol related.
SIMON Oh look the one thing that came through in the Drivers of Crime meeting that Pita Sharples and I co-hosted in April, was that alcohol is a crucial factor in the commission of crime, no question about that. Sir Geoffrey's going to make a range of suggestions, I don't think it's too slow, I've brought it forward 12 months from when the last government wanted to report on it, and I want it done at the same time that the Sale of Liquor Bill which is currently before the House is done. One crack at it, a thorough crack at it and make sure that we don't have to keep going over this conversation year after year.
GUYON Well one thing he talks about, Geoffrey Palmer, is not making it a conscience vote. I mean you get into this ridiculous situation where 120 odd members of parliaments each individually get lobbied, very very hard, and we end up with a shambles of a legislation.
SIMON Look I think what you saw with the Sale of Liquor Bill that's just gone to a Select Committee was that it was voted on party lines. Whether or not something's a conscience vote is a matter for each caucus, not for the executive or the government, and the age of purchase I think will continue to be a conscience issue. The wider regulatory regime in my view is much more likely material for party and government positions.
GUYON Just before we leave it can I also ask you about another area of the criminal justice system I guess that does affect a lot of people and has been very hotly debated, and that is the anti smacking legislation. Will the government respect the result of the referenda on that piece of legislation?
SIMON Yeah, the postal referenda, I've got oversight of that as Minister of Justice, it's due to occur July/August over a four to six week period from memory. All I'm aware of is that once the referenda is completed the government will consider it.
GUYON Will you stand by the result of it though, will you honour the result of that referendum?
SIMON Oh look I think you know a significant amount of how we have to consider the issue will be reflected in the referenda, it's a matter for the Prime Minister to comment on more generally.
GUYON A strong opponent of that legislation, Christine Rankin, was appointed to the Families Commission this week, did you support that appointment?
SIMON Oh look I'm not going to tell you what was discussed in Cabinet, the Cabinet supported that appointment, therefore I did.
GUYON Can I give you the opportunity now to say that you did support it?
SIMON The Cabinet supported the decision Guyon, I'm in the Cabinet, that's the end of it.
GUYON Right, that's the end of our time, thank you very much Minister for coming in and joining us this morning/
SIMON Pleasure, thank you.