Former National leader and current justice spokesman Simon Bridges unleashed on the judiciary. Photo / Mark Mitchell
OPINION:
The Government's decision to repeal the three strikes law may have been a simple decision but it will be anything but a quiet death; that much was clear from an extraordinary debate on its first reading.
Essentially about crime and punishment, the debate was also about whether the judiciary has been subverting what it thinks is a bad law.
The law removes some of their discretion in sentencing repeat serious violent offenders and requires them to set longer than standard sentences.
In perhaps the strongest attack on the judiciary from the floor of Parliament in recent years, former National leader Simon Bridges accused the judiciary of bending the law.
The repeal bill was "about the judiciary and a judiciary-pleasing Government that wants judges to decide, not this Parliament."
"There is a growing trend from our judiciary in New Zealand seeking to push back against Parliament and assert interpretations that aren't conventional on parliamentary statutes and powers for themselves that they have never had," Bridges said.
"In relation to sentencing of criminal justice, courts increasingly want to assert that a complete judicial discretion belongs and exists for them.
"Well, they are wrong.
"There is no such principle. Parliament and its sovereignty determines sentencing policy, as well as a raft of other things, not the judiciary."
Green co-leader Marama Davidson came alive in the first reading debate and gave one of her best speeches yet in supporting the repeal of three strikes.
She congratulated the judiciary for their contortions, or what she actually described as judges having had "to weasel their way around this stupid piece of legislation" and to perform "somersaults" in response to bad legislation.
Labour whip and former law professor Duncan Webb in his speech acknowledged that the Supreme Court had conducted some "inguistic somersaults" to get a particular third striker out of prison.
The Attorney-General, David Parker, was not in the House to defend the integrity of the judiciary against accusations of bending the law to suit their purpose – but nor could he have done so.
Last week on Newshub he himself said that "judges contorted themselves" to get around the three strikes law which said had been a failure. But he made his comments with tones of approval, not criticism.
It must be said that no matter what, Justice Minister Kris Faafoi has a duty to see the three Strikes Repeal Legislation Bill passed.
It was part of Labour's election manifesto, it has opposed it from day one, and there is no question that Labour has a mandate to repeal the three strikes law.
New Zealand First blocked former Justice Minister Andrew Little from repealing the law last term.
Former Justice Minister Simon Power originally introduced a much tougher version of the bill in 2009 which combined National and the policies of Act under Rodney Hide.
Law and order policy in the lead-up to the 2008 election had become something of a bidding war between the two parties.
National, for example, wanted the worst murderers to be able to get life without the possibility of parole, which was passed and has been used only once – on the Christchurch terrorist.
The hardliners in Act objected to Power, a soft-heartened liberal, being in charge of the bill, and John Key asked the then Corrections Minister, "Crusher" Judith Collins, to take it over.
It came out of select committee a watered-down version of the first extreme bill which had allowed for many crimes, not just murder, to get a 25-year non-parole sentence for a third strike.
Under the existing three strikes regime, which identifies 40 serious violent offences, a warning must be given by the sentencing judge after the first offence about what will happen if they offend again.
For a second strike, the offender is required to serve any sentence the judge determines, without automatic release for short-term sentences, and without parole for long-term sentences, unless the court deems it manifestly unjust. A final warning must be given about what will happen if they offend a third time.
For a third strike, the offender must be sentenced to the maximum penalty for the offence and without parole unless the court deems it manifestly unjust.
At the time Faafoi wrote his paper for Cabinet colleagues on the bill, 238 offenders were serving time: 220 second strike offenders and 18 third strike offenders.
Speaking at a press conference last week and last night, Faafoi repeatedly said that the bill was not working as a deterrent. But that is not what the evidence points to. It is inconclusive.
Faafoi in his own Cabinet paper says: "There is little evidence that the regime has reduced serious offending."
The latest advice of his officials said: "There is no substantive domestic or international that can conclude whether or not a three strikes regime reduces serious crime."
The one piece of research the Ministry of Justice published in 2018 said there had been a drop in second strike able offences since the law had been implemented. But further research was needed.
The same paper also said that since 2010 there had been 10,433 first strikes, 338 second strikes and just six third strikes, which National claims is evidence of the law working.
The advice of the Ministry of Justice appears to be fairly flexible, however.
In the 2018 paper it said: "Due to the length of time it takes to obtains a third strike, it is too soon to evaluate the full effects of the law," which seems a reasonable conclusion.
But in its 2021 advice it attaches a political motive to the same conclusion: "Proponents of the regime may argue it hasn't been applied long enough to demonstrate the effectiveness of punitive sentences on reoffending."
The biggest problem facing Faafoi and the Cabinet was what to do with the prisoners currently doing time for a strike able offence.
He gave his colleagues three options: do nothing for the transition; restoring parole eligibility to about 200 offenders who had been denied by the regime, or allow the least worse second and third strikers to apply for re-sentencing (about 58 offenders).
They opted for the do-nothing approach and Faafoi restated it last night: "Under this legislation, no one will have their sentences reconsidered."
And the Supreme Court's latest decision on a three strikes case has bolstered its decision, in having ruled a three strikes sentencing in the High Court unlawful and referring it back to the High Court for resentencing along standard lines.
Faafoi says that precedent – of ordering resentencing of the third striker along standard sentencing lines – can be used by others still serving time.
This is where Simon Bridges' accusations come into play, about the court allowing interpretations that were never intended by Parliament.
The three strikes law may be a bad law, but it is clear that it established extra harsh penalties for particular crimes, without exception.
Faafoi said as much when he announced the repeal last week: "This law as it stands, does not give any judges discretion on a third strike. They must sentence the offender to the maximum penalty available."
He was right. And yet in contradiction to that, the Supreme Court found a way to make an exception which is explicitly ruled out in the three strikes law, by the words "despite any other enactment…"
The court has not just interpreted the law, it has rewritten it in a way completely at odds with its original intent. It defeated the intent of the bill. As Simon Bridges would say, it has asserted a power it does not have.
The only member of the Supreme Court not willing to contort himself in the four-to-one decision was Sir William Young (who ran the Royal Commission of Inquiry into the mosque massacre).
In a withering assessment, he said the intent of the law was crystal clear, that the three strikes regime was intended by Parliament to impose sentences that were necessarily disproportionate and that the interpretation of his colleagues was more of a "statutory revision."
There has been no great condemnation of Supreme Court's judgment for two reasons: first, there has been tacit support by the current Government for judicial contortions if it ultimately aligns with its policy intent; and the judgment dealt with an extremely vexed case, Fitzgerald.
The case highlighted the inflexibility of the three strikes law to cater to individual circumstances, an offender with mental health problems convicted of indecent assault.
In that sense, it exposed like no other case has, what a bad law three strikes can be.
But Parliament has always had the right to make bad law, and to correct it, as Faafoi is doing.
The three strikes case has laid bare the ongoing contest between Parliament and the courts over how much power the courts actually have - and it looks like the courts are winning.
Karen Chhour weighs in on the incident at a South Auckland youth justice facility.