'THE NATION'

SIMON POWER
Interviewed by DUNCAN GARNER

DUNCAN My guest this morning is Justice Minister Simon Power. I spoke to him a little earlier in Palmerston North, and started by asking him about the massive blowout in the legal aid bill, and whether he thought lawyers were wroughting the system.

SIMON POWER – Justice Minister
Oh look I think it's a combination of things. I think it's the way that legal aid is incentivised, I think draws proceedings out. We have looked at an increase over the last three years of about 45 million dollars, and this time next year that budget could well be blown out by over 60 million dollars. We simply cannot afford the current rate of legal aid and we have to be asking ourselves whether we should be setting fixed fees, capping the legal aid in some parts or tightening eligibility, and I'm not ruling out any of those options as we look forward over what's a very expensive piece of policy.

DUNCAN Is it that litigation’s too easy to get, cos if you just look at the Family Court for instance your figures show that the workload of case studies have gone up about 5% but the actual costs have gone up by about 33%. So are lawyers actually slowing things down in the court on purpose to fill their pockets effectively?

SIMON Well the legal aid system allows the processes to be slowed down. What I'm saying is if you weren’t paying on an hourly basis or based on the number of appearances for each hearing, then you might get some different incentives in place. If you bulk funded say for example a law firm to do as many legal aid cases as it could in one year, you might see some different practices emerging. If you set up, a set fee Duncan was going to be used for each particular appearance you might see some different practices emerging. The trick here is to think of this from the point of view of people who are in this process through no fault of their own, who find these really lengthy processes being drawn out. We've got to ask ourselves at each of the component parts of the trial process, how can we speed it up.

DUNCAN But do you think that lawyers have been going out of their way to slow it down, and given that you're now at kind of loggerheads with them, do you think that they will go along with your reforms or they’ll stand in the way of them, especially around legal aid.

SIMON No I actually have to say that since Dame Margaret Baisley’s report into legal aid and she did find some difficulties with the way some lawyers were accessing those funds, let's be frank about it, but since that time I have to say the profession has engaged with the legal aid agency, and with my office extremely constructively thus setting much different standards both for entry and ongoing practice for legal aid lawyers. They’ve been very positive and very helpful and I'm looking forward to working with them on all these changes which we've been talking about over the last few weeks as well.

DUNCAN She found that some of them were effectively wroughting the system, I mean is that something you think will be easy to knock out of the system at the moment?

SIMON I do, and I think that as we keep talking about competency being at a higher level, and we change the way that we fund some of these hearings, bearing in mind that we're doing it for the benefit of those people, victims, witnesses and the like who are in the system, actually I've found the feedback from the legal profession particularly in the last month or so to have been extremely constructive.

DUNCAN If you look at some of the other things you’ve talked about this week, you’ve signalled some changes around bail and around victims’ rights, and I want to get to that, and also I want to get to shortly some changes around parole. But just on bail, is the government looking at tightening the conditions around how some offenders would get bail?

SIMON We've already done that once, and we did that in the first two months, we came to office, we changed the test for getting bail to make it harder to get bail, but we are undergoing what I would loosely describe as a rolling review of parole, home detention and bail, because we have to be vigilant in making sure that the Justice system reflects the public’s expectation of what's fair and reasonable, so that’s really ongoing work Duncan.

DUNCAN But if you look at some of the figures around bail and I got these from your Ministry of Justice, 85% of people applying for it are actually getting it, but one in five currently are reoffending and of that 11% are serious assaults or violence. I mean that is something that surely is your target isn’t it?

SIMON That is exactly the target and that’s why the review since we tightened the bail laws has been ongoing, and we should be in a position to have a further discussion about that with the public towards the end of this year, early next year.

DUNCAN So does that mean then more people will stay behind bars as a result, fewer people will get bail?

SIMON Well in the end, the question is are the levels appropriate and are we seeing increased offending while people are on bail. The answers to those questions remain to be seen, but I have a feeling you will see some changes in that area.

DUNCAN Touch changes would you keep people behind bars for longer do you think as a result of even those statistics alone?

SIMON Well where there's a risk they should not be in a position to get bail.

DUNCAN And do you think that too many people are getting bail? Is that why the review is coming?

SIMON Well it's not a matter of whether too many people are getting bail, it's a matter whether the right people are getting bail, or more to the point whether the wrong people are getting bail. So to that end we do have to be pretty vigilant in continuing to review the bail parole and home detention laws.

DUNCAN And you’ve also mentioned as a result of the Parole Board Chairman’s views on screening around parole, 70% of offenders going before the Parole Board are not getting parole. He's now suggesting some form of screening so people, don’t go – the victims are being revictimised in going through that process. Are you up for that are you? Are you going to make that a priority?

SIMON Yes look I've met with the Chair of the Parole Board since that speech, he's going to be writing to me very shortly outlining and fleshing out that idea. I'm very attracted to the notion of triaging parole hearings so that victims and witnesses, or victims particularly and victims’ families, are not rebrutalised by that process. It's a theme that we're running through the Justice reform process, so I think that you could expect some pretty speedy reaction to the Parole Board Chairman’s suggestions in that area. It's an idea I'm very attracted to.

DUNCAN When you say speedy are you talking about before the next election, changes around parole before the next election?

SIMON I think in terms of the screening process, it's something we could well look at in that timeframe Duncan.

DUNCAN And what about your response though to what the legal profession is saying, because they are not that happy with it?

SIMON Well in the end change is always going to upset a few people, but the trick here is, is the Justice system overall working for those people who find themselves in it through no fault of their own, and you would have to say when you're waiting 17 months for a High Court trial, or even more concerning, if you're under 17 years old and waiting 15 months for your matter to be heard through the court system, are we doing enough? Have those traditional systems worked? And the answer’s gotta be no.

DUNCAN So do you want to see, and I want to quote this to you Rita Croskery the mother of Michael Choi, he was a pizza delivery man and killed a number of years ago. She has been to a parole hearing 28 times. Is that the sort of thing you want to see stopped?

SIMON I think it's fair to say that where there is no prospect of getting bail at all, I would rather see the Parole Board concentrating on difficult cases that require a lot of consideration, rather than wasting resource on time, on areas where parole is clearly not going to be granted.

DUNCAN So what we've talked about so far, we'd have to see more prisons be built, because as it is already you’ve got about 8,829 odd prisoners behind bars. That’s the most we've ever had, according to the Prime Minister this week you're clearly planning for more prisons?

SIMON No, I think what I'm saying is where there is no prospect of somebody getting parole, and this is the suggestion that was made this week by the Chair of the Parole Board, where there's no prospect of that occurring, what is the value for victims and families of those people who have been affected by those offenders, going through that process, when there's no realistic prospect of parole being granted. I don’t see it necessarily leading to more prisons being built.

DUNCAN No, but the price of not putting people out on bail, the price of people not coming up for parole means people are behind bars, inmates are behind bars for longer. We're already stretched, the figures from the Justice Ministry show that there'll be another 2000 prisoners over the next eight years. Where do you put them Mr Power?

SIMON Well where you put them actually is you make sure that those that are on remand, that is being held in custody awaiting their hearings, and there are about 1800 to 2000 of those on any one day, you make sure that those matters are dealt with more swiftly through the court process, so that indeed the prison capacity to have to hold the people on remand as opposed to fully sentenced, frees up those spaces. So no I think these things can be done in a pretty imaginative way Duncan.

DUNCAN Everything we've talked about so far seems to go against what the Chief Justice Sian Elias talked about in her quite controversial speech in 2009 where she talked about cutting the length of sentencing, changing bail and parole laws to make it easier, and I quote ‘not harder’ and was talking about a greater use of community based sentences. But everything the government seems to be doing is against the advice of the Chief Justice. What's your response to that?

SIMON No I don’t believe everything the government is doing is against that view at all. In fact just this week we've announced sweeping changes to alcohol laws. Those alcohol law changes are critical in getting what drives crime down to a level where it's manageable. We know for example that alcohol’s involved in about 30% of all police incidents. We know it's involved in about 34 to 35% of domestic violence cases, So we are looking at all parts of the crime process.

DUNCAN But you're clearly at odds because she has talked about the government lurching from one increasingly punitive and expensive reaction to another. You are at odds Mr Power, do you accept that around penal policy, around Corrections policy, not around alcohol?

SIMON No I don’t believe we're at odds, but the government’s job is to create policy and to put it in place, that’s what we're doing and we're handling all aspects of that crime tunnel, right from pre-arrest, pre-handcuff, with alcohol reform, right through the court process being reshaped to be better for victims and witnesses, right through to rehabilitation and education in prisons, and we're looking at the whole pipeline.

DUNCAN Do you think that she stepped over the line in terms of giving some kind of advice to the government on that, did she overstep the mark?

SIMON Oh look I said at the time that it's for governments to make policy, I stand by those comments. The judiciary have a role which is quite separate to the legislature, quite separate from the executive, and I think both the judiciary and the executive understand where those conventions require us to step and not step.

DUNCAN Would you at any time consider, and this is one other thing that she said in that speech, executive amnesties, where the government would allow very very low risk prisoners out of prisons, so other people can take those beds. Would you rule out executive amnesties under your watch Mr Power?

SIMON Yes.

DUNCAN Okay, I just want to go in to the last part of some of the comments you made this week, I mean it was around the adversarial versus inquisitorial nature in the court. Is this something you're determined to do?

SIMON Yes it is, it's something that I have seen occur particularly for children in other countries, where the rebrutalisation of putting children through being cross examined over an offence that may or may not have occurred 15 months ago at the very least, having their knowledge tested as a seven year old for example as compared to a five year old. I don’t believe that works well for victims or witnesses, particularly children who are victims and witnesses. We will be looking very closely at bringing a far more inquisitorial model, that is experts asking children questions about what occurred as close to the time of the alleged offence as possible, to avoid that rebrutalisation in the court room, and to make that process more acceptable to those children.

DUNCAN Is this something you'd like to see across the board in the Justice system? I mean you’ve seen some of the legal reaction this week, I mean you’ve brought a bit of a fight with the profession over this. Some of them say it's a retrograde step and you know you really do need to be able to test the evidence in the court. What do you say to the lawyers?

SIMON I say I look forward to working with the lawyers constructively, it's not a retrograde step at all. The testing of the voracity, incredibility of the evidence under an inquisitorial model occurs very close to the time that the alleged offending occurred, meaning that the memory lapses or the rebrutalisation process which can occur from having the voracity or the credibility of that evidence tested some 15 months later, is no longer a factor. Remember what we need to think about is what does the Justice system look like from the point of view of those children, and that’s the point of view I'm coming at these changes from.

DUNCAN And just in terms of the point you're coming at, your government is making a lot of cost cutting measures right across different departments, how much of this can you put down to cost cutting right across the boards?

SIMON No, it's not cost cutting. I tell you what it is Duncan, it's a matter of making sure that these cases are dealt with in a timely manner. Presently the system is just not incentivised to see that. When I first became the Justice Minister everybody told me the only way to solve that was to build more courthouses, and appoint more judges. Now I've sat down actually and thought about whether the policy around and the incentives around how we pay for it and the timeliness of it is working. The simple fact of the matter is, if you're under 17 and you're caught up in the Justice system, on average it's taking out 15 months of your life to have that matter dealt with, that is unacceptable.

DUNCAN Alright Minister, Simon Power, thank you very much for joining jus on The Nation this morning and making your time available.

ends

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