Court employees have given electronically monitored defendants on bail permission to adjust their conditions but the law does not allow the courts to delegate this authority. Photo: RNZ / Jemma Brackebush
Parliament's first dose of urgency for the year was aimed at retrospectively fixing a law that has fallen behind common practice.
For a decade, court employees have given electronically monitored defendants on bail permission to adjust their conditions. Only recently Crown Law discovered that in fact the law did not allow the courts to delegate this authority.
Parliamentary urgency allows the government to pass legislation quickly. It allows a bill pass through multiple stages in one day, with longer sitting hours as required.
Urgency can be especially useful, but governments are wise to use it sparingly.
Constantly pressing the fast forward button on lawmaking isn't great for optics or democracy, especially as urgency allows the select committee stage to be skipped, cutting out the opportunity for public input.
When practice outpaces law
Standing Orders requires the government to justify urgency before the House can vote to allow it.
Leader of the House Chris Bishop said he was requesting urgency "not with any pleasure" but in order to "advance the bail amendment changes that we want parliament to deal with as quickly as possible, and for legal reasons we want to come into effect as quickly as possible".
The Bail (Electronic Monitoring) Amendment Bill is a legal fix. Governments occasionally pass bills to seal a loophole or fix a mistake. This case was more unusual.
Minister of Justice Paul Goldsmith is in charge of the Bill.
"Concerns have been raised that the current law may, in fact, require the courts to approve each and every absence for the roughly 2,000 defendants subject to electronic monitoring."
Goldsmith said this "would place an untenable burden on the courts and justice agencies… for this reason, this bill makes a targeted change to align the legislation with the practices of agencies and the courts for more than 10 years".
Minister of Justice Paul Goldsmith. Photo: RNZ / Marika Khabazi
Labour's Duncan Webb clarified, "The practice that has emerged is that the court says, 'yes, we can have electronic bail', and then we have these electronic monitoring assessors who do the fine tuning... 'yes, okay, you can change your day from Tuesday to Wednesday for picking up the kids from pre-school' - whatever it might be, all perfectly sensible.
"The problem is that these electronic monitoring assessors don't actually have the power in the current Bail Act to do what they're doing."
The Bail Act 2000 - which this Bill amends - says "a court may, when granting bail with an EM (electronic monitoring) condition, authorise the defendant to be absent from the EM address."
The Bill rushed through this week allows the court to delegate that authority instead. That authority also applies retrospectively.
All parties declared general support for the Bill, except Te Pāti Māori.
MP for Te Tai Tonga Tākuta Ferris. Photo: RNZ / REECE BAKER
MP for Te Tai Tonga Tākuta Ferris questioned the need for urgency and the resulting lack of opportunity for public consultation, especially from Māori, who are over-represented in the criminal justice system.
"The haste with which it is being put through the House in one day denies any Māori group... the opportunity to provide some commentary on the potential impacts on te iwi Māori, and in a country with a parliament and a constitution founded on Te Tiriti o Waitangi, where two equal constitutional partners agreed to work together, we just can't bring ourselves to openly endorse it," Ferris said.
Labour were sympathetic regarding the urgency, but had concerns about rushed drafting.
"I get why you want to fix this as quickly as possible, but it's got all the hallmarks of being drafted on the run," Duncan Webb said.
"I suspect while I speak, people are busily drafting amendment papers that we'll see on the table at some stage in the future. Sure, I've got a little bit of knowledge of the law, but this is just someone reading it from a position of-and I'm no expert on bail, I'll tell you that, but... it just doesn't seem to quite do what it really, really needs to do."
Bills that urgently fix errors require government drafters to show both speed and accuracy, avoiding unintended consequences or new mistakes. It would be embarrassing for MPs to find themselves back in the House fixing a law which was itself supposed to be a fix.
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