She said it was a response to feedback including a “large number of emails”. Three were sent to her, while seven more were forwarded from other MPs and ministers.
Only three of those were addressed to her, while seven were sent to otherMPs and ministers who then forwarded them to McKee.
Labour’s justice spokesman Duncan Webb, who requested the emails under the Official Information Act, added many of them were from Kiwiblog readers and Act supporters, which was “hardly a representative poll”.
The number of emails made a mockery of McKee’s comment about a “large number”, he said.
“You don’t outright tell fibs. When you’re a Minister of the Crown, it really devalues the status of that office,” he told the Herald.
McKee did not respond to the accusation of fibbing, saying Labour wasn’t focused on the purpose of the law: to punish repeat serious violent or sexual offending.
“The Opposition seems solely focused on relitigating the number of people who provided me with feedback when this bill went to select committee, much of which was also reflected in submissions made to the select committee,” she said in a statement.
Associate Justice Minister Nicole McKee. Photo / Mark Mitchell
The return of Three Strikes
Three Strikes 2.0 was passed into law at the end of last year with the support of the governing parties.
It has 42 qualifying offences, which add a strike to the offender’s record if their sentence passes a specific threshold (12 months’ jail for strike one, 24 months’ jail for strikes two and three).
An offender will be given a normal sentence with a warning with their first strike, a normal sentence but no parole for a second strike, and the maximum sentence for a third strike offence with no parole.
Judges will have wriggle room under the “manifestly unjust” clause, which can be applied to the length of the sentence as well as parole eligibility. Guidelines on using this clause say the sentence should not violate the Bill of Rights Act protection against severely disproportionate punishment.
How judges draw the line between what is disproportionate and what is severely disproportionate remains to be seen.
The law will also apply retrospectively, meaning the strikes on criminal records under the old law will apply in the new regime, as long as previous strike sentences pass the thresholds in the new law.
Asked why the change of heart, she told the Herald it was in response to “not only select committee submissions but a large number of emails that I’ve received in my office”.
Labour Party justice spokesman Duncan Webb. Photo / Mark Mitchell
‘Not a representative poll’
Almost all of the 10 emails sent directly or forwarded to McKee’s office about the proposed Three Strikes law wanted it to be toughened.
At least one email was from an Act supporter – “NOT GOOD ENOUGH,” it said – after receiving an Act Party newsletter about Three Strikes, while three referenced National Party pollster David Farrar and his comments in various Kiwiblog posts.
That includes one where Farrar described the new Three Strikes proposal as “so watered down it is next to useless”.
“If Mr Farrar is correct, and he is seldom wrong, then you stand condemned,” the emailer said.
One email was from a purported judicial officer asking for an offence (wounding with intent to cause grievous bodily harm) to be included as a strike offence (it already was).
Webb said 10 emails was a far cry from McKee’s claim about a “large” number of emails (he also said McKee referenced a “flood” of emails on RNZ, though this is not reflected in the RNZ stories).
He added that responses to Act newsletters and from Kiwiblog readers were “hardly a representative poll”, though he acknowledged previous polls had shown majority support for version 1.0.
Two-thirds of the 749 submissions to the select committee wanted the proposals in the Three Strikes bill to go further; 58% were based on a Sensible Sentencing Trust (SST) template calling for a tougher law.
Of the remainder, 10% also supported a harsher regime, 5% agreed with the bill in its current form, and 25% opposed it because it was too harsh, or would be ineffective.
Webb said the results reflected “who’s organised better on the day with their supporters” rather than “opinion in the community”, though he added the SST-based feedback was valid and shouldn’t be dismissed simply because it was template-based.
But he said it should be up to the committee to consider the submissions, instead of the minister and Cabinet signing off substantive changes to the bill – projected to lead to 800% more third strikers – after public submissions had closed.
McKee said Webb “appears happy to totally disregard one group who made submissions”.
“To say that submissions based on a template do not reflect the opinion of the community is incredibly insulting and demeaning to those people who felt strongly enough about Three Strikes to want to have their voices heard.”
She added that Webb was on the select committee that unanimously agreed to the committee’s changes to the bill, though Labour and Green committee members opposed the bill overall.
Feedback on Three Strikes illustrates the divide between popular opinion and legal experts. Which way should politicians lean is an open question. Photo / 123rf
The divide between the people and the legal experts
The legal groups opposing Three Strikes were listed in the Labour Party’s comments in the select committee report: the NZ Bar Association, the NZ Law Society, the Pacific Lawyers Association, the Māori Law Society, the Law Association, the Human Rights Commission and the Children’s Commissioner.
So should Parliament implement the will of the people, even if it goes against the advice of experts and officials?
Some political parties prioritise the former, which leads to accusations of populism. Others, including former District Court judge David Harvey, liken this to bringing the accused to the town square in front of the local mob.
“And somebody says, ‘What are we going to do with this guy?’ And so the mob rules. Is that the way you want your criminal justice system to work? That’s why we have judges,” Harvey previously told the Herald.
Retired District Court judge David Harvey. Photo / Jason Oxenham
Act leader David Seymour, however, previously described the judiciary’s interpretation of version 1.0 as “judicial activism”, with version 2.0 aiming to fill the chasm between what the general public and the judiciary considered to be the right kind of sentence for certain recidivist offenders.
Webb conceded a poll of Three Strikes 2.0 would probably show majority support for it, but that didn’t mean it should be implemented.
As version 2.0 is retrospective, he said it would be a “mess” trying to reconcile the differences in sentencing thresholds between the new and the old law, and in applying the “manifestly unjust” clause.
But he wouldn’t commit to Labour repealing it.
“I suspect the amount of people who are actually sentenced to a third strike will be very, very small.
“Whether [repealing it] is top of the agenda [in a future Labour-led Government], if no one gets to a third strike, it might be that we have more important things to do.”
Derek Cheng is a senior journalist who started at the Herald in 2004. He has worked several stints in the press gallery team and is a former deputy political editor.
