2017/18 Estimates for Vote Attorney-General and Vote Parliamentary Counsel

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1 2017/18 Estimates for Vote Attorney-General and Vote Parliamentary Counsel Report of the Justice and Electoral Committee Contents Recommendation 2 Vote Attorney-General 2 Vote Parliamentary Counsel 4 Appendix 6

2 Vote Attorney-General and Vote Parliamentary Counsel Recommendation The Justice and Electoral Committee recommends that the appropriations for the year ending 30 June 2018 for Vote Attorney-General and Vote Parliamentary Counsel, as set out in Parliamentary Paper B5 Vol. 7, be accepted. Vote Attorney-General Introduction Vote Attorney-General is administered by the Crown Law Office (Crown Law). The Attorney-General, Hon Christopher Finlayson, is responsible for the vote. Total annual and permanent appropriations sought in 2017/18 are $ million, which is a 5.7 percent increase from $ million estimated actual expenditure in 2016/17. The specific appropriations sought for 2017/18 are: $ million for legal advice and representation to departments, Crown agencies, the Attorney-General, and the Solicitor-General, which is an increase from the estimated actual expenditure of $18.5 million in 2016/17 $ million for public prosecution services, the same as the estimated actual expenditure in 2016/17 $3.278 million for the conduct of criminal appeals, which is a decrease from estimated actual expenditure of $3.281 million in 2016/17 $4.760 million for law officer constitutional and criminal law duties. This is an increase from $4.553 million estimated actual expenditure in 2016/17, mainly because of departmental revenue funding from the Ministry of Foreign Affairs and Trade for the 2017/18 Pacific Islands Law Officers Network Litigation Skills Programme $985,000 for the Government Legal Network, the same as the estimated actual expenditure in 2016/17 $627,000 for capital expenditure, a decrease from the estimated actual expenditure of $843,000 in 2016/17. Crown prosecution services Budget 2016 provided Crown Law with additional funding of $19.7 million over the fouryear period 2016/ /20 for Crown prosecution services, particularly to ensure that they are sustainable and effective. We asked whether the Attorney-General was satisfied that this additional funding is enough for the demands of the Crown prosecution services. Although the Attorney-General said that he is satisfied with the current level of funding, he considers that further additional funding may be necessary in upcoming years. 2

3 Oversight of public prosecutions Once a New Zealand court has convicted and sentenced an offender, Crown Law can appeal the sentence. We asked how Crown Law determines when to appeal a sentence and whether it takes the public interest into account. We heard that a prosecution is conducted according to the Solicitor-General s prosecution guidelines. 1 Crown Law will appeal if it considers that the public interest in the case requires that a higher court determine the matter. We asked whether Crown Law had any specific work programmes to determine the effect of racial bias on Crown Law s prosecutions. We drew the case of Thomas Tawha to the Solicitor-General s attention and noted that the sentence in this particular case had raised concerns. 2 The Solicitor-General acknowledged that part of her role is to engage with the public about how the justice system works so that more New Zealanders understand the judicial process. She said that this is part of her work programme and considers it essential to reduce cynicism about the system. However, the Solicitor-General noted that she could not comment on individual judgments because they are at the discretion of the judiciary. We agree that work to help the public understand the judicial process is important, and we look forward to Crown Law s efforts in this area. We heard that Crown Law is assisting all Crown solicitors to increase their commitment to te reo Māori and tikanga, and is particularly focusing on increasing its support for Māori prosecutors. We think that creating strong support networks for Māori prosecutors and aspiring judges is critical for creating trust in the justice system, and we will monitor progress in this area. The role of victims in sentencing We asked whether Crown Law is conducting work on what role victims should play in sentencing offenders. We heard that the prosecution guidelines require that Crown solicitors consider how prosecution decisions could affect victims but do not specifically advise prosecutors on how to approach victims. The Attorney-General agreed that it is very important to find an appropriate level of involvement for victims but noted that this was a policy question for the Minister of Justice. Expanding oversight of public prosecutions to regional councils and agencies Various departments and agencies may conduct prosecutions within New Zealand. Although the Attorney-General is directly responsible only for prosecutions taken by Crown Law, he agreed that he had an overarching responsibility to ensure that every department and agency that carries out prosecution services does so in accordance with the Solicitor-General s prosecution guidelines. Crown Law s current focus is on supporting government departments, with initiatives such as the Government Legal Network helping to ensure that departments conduct prosecutions to an adequate standard. Given the outcome of stage one of the Havelock North inquiry, we asked whether Crown Law would consider including regional councils and agencies into its oversight and 1 The Solicitor-General s prosecution guidelines 2013 can be found at 2 Thomas Te Rake Tawha v Fish & Game New Zealand [2015] 3

4 supervisory role. Although non-public prosecution agencies do not fall within the Solicitor- General s oversight function, Crown Law s approach is to offer informal assistance to those agencies. Crown law engagement with Pacific Island nations The Parliamentary Counsel Office plays an important role in supporting legislative drafting in Pacific Island nations. We asked whether there was also an opportunity for Crown Law to engage with prosecutors working in the Pacific Islands. We heard that Crown Law plays a leadership role in the Pacific Islands Law Officers Network (PILON), which meets annually. PILON focuses on legal issues in the law and justice sector that other Pacific policy forums do not address. Crown Law has recently partnered with the Ministry of Foreign Affairs and Trade to provide the PILON Litigation Skills Programme under the New Zealand Aid Programme. Funding will be provided for five years of training for Pacific-based Crown lawyers. These sessions include input from New Zealand experts in litigation from the private and public sector. Although there is potential opportunity for Crown Law to further involve itself with prosecutions in individual Pacific Islands, Crown Law is conscious of respecting national sovereignty and will offer help only if requested. Vote Parliamentary Counsel Introduction Vote Parliamentary Counsel is administered by the Parliamentary Counsel Office (PCO). The Attorney-General is responsible for the appropriations in the vote. Total appropriations sought in 2017/18 are $ million, up from $ million estimated actual expenditure in 2016/17. The specific appropriations sought for 2017/18 are: $3.5 million for access to legislation (which provides free public access to legislation and other legislative instruments online), supplying Government bills and Supplementary Order papers, and publishing and distributing legislation. This is an increase from the estimated actual expenditure of $3.351 million in 2016/17 $ million for law drafting services, which is an increase from the estimated actual expenditure of $16 million in 2016/17 $2.830 million for PCO capital expenditure, which is an increase from the estimated actual expenditure of $2.2 million in 2016/17. This increase is because of a forecast change in capital expenditure on the New Zealand Legislation System and the start of the PCO s Access to Subordinate Instruments Project. Drafting legislation in te reo Māori Te Ture mō te Reo Māori 2016 (The Māori Language Act 2016), enacted in 2016, is the first Act to be drafted concurrently in te reo Māori and English. We asked whether the PCO was building capacity to draft other legislation in te reo Māori. We heard that, ideally, legislation should be drafted concurrently in te reo Māori and English from when it is first introduced. This is the method used in Canada, where legislation is drafted in English and French. Drafting in te reo Māori requires a specific 4

5 skillset, so the PCO is determining how to attract fluent Māori lawyers. It is also developing a language plan with Te Taura Whiri I te Reo Māori (the Māori Language Commission). We look forward to progress in this area. Drafting and support for Pacific Islands The PCO provides legislative drafting assistance, training, and mentoring to officials responsible for drafting in Pacific Island nations. This work occurs in the Cook Islands, Niue, and Tokelau, but it also covers other areas when resources permit. Currently, the PCO is also providing assistance to the Solomon Islands. The PCO has entered a new Memorandum of Understanding with the Ministry of Foreign Affairs and Trade, which means that the PCO will continue providing drafting and support to Pacific Island nations for five years from 1 January The PCO provides the fulltime equivalent of one experienced drafter, who will also do in-country visits on request. The current focus is on training and mentoring Pacific Island drafters. We asked whether the PCO assists with drafting in the native language of each island. We heard that, as in New Zealand, the Pacific Island nations lack the resources required for concurrent drafting. Legislation is initially drafted in English, then translated into the language of the island and enacted. Access to Subordinate Instruments Project At present, any New Zealand legislation that is not primary legislation is difficult to identify and locate. The PCO has set up the Access to Subordinate Instruments Project (ASIP) to provide a single, official, public source for all of New Zealand s legislation. This means that all subordinate instruments will be made available on the New Zealand Legislation website. On 30 June 2017, the PCO will have completed the establishment phase of ASIP. The next step is to develop a Microsoft Word template for agencies with drafting responsibilities and test the publishing software. We asked whether the PCO had enough resources for ASIP. The PCO indicated that it was prepared to make a 2018 Budget bid but said that it will be in a better position to determine the financial implications of the project once the next step has been developed and then approved by Cabinet. 5

6 Appendix Committee procedure We met on 8 June and 29 June 2017 to consider Vote Attorney-General and Vote Parliamentary Counsel. We heard evidence from the Attorney-General, Hon Christopher Finlayson, and received advice from the Office of the Auditor-General. Committee members Sarah Dowie (Chairperson) Jacinda Ardern Chris Bishop Paul Foster-Bell Marama Fox Jono Naylor Denis O Rourke Maureen Pugh Metiria Turei Louisa Wall David Clendon replaced Metiria Turei for this item of business. Evidence and advice received In addition to the standard Estimates documents, we considered the following evidence and advice during this examination: Estimates 2017/18 briefing paper, prepared by committee staff, dated 8 June Office of the Auditor-General, Briefing on Vote Attorney-General, received 8 June Office of the Auditor-General, Briefing on Vote Parliamentary Counsel, received 8 June Crown Law Office, Response to standard Estimates questionnaire. Crown Law Office, Response to additional questions, received 27 June Parliamentary Counsel Office, Response to standard Estimates questionnaire. Parliamentary Counsel Office, Response to additional questions, received 27 June