Labour’s justice system is dropping into further crisis with new figures showing a disturbing number of stays of prosecution in the past year, says National’s Labour & Industrial Relations spokeswoman, Kate Wilkinson.

The figures show there were 20 stays of prosecution for ‘systemic’ reasons in the courts.

“This is very concerning and mostly a direct result of the rapidly worsening log-jam in our courts.

“Three weeks ago I released figures showing big increases in the number of criminal trials outstanding and the median trial waiting time.

“At March this year there were 241 criminal trials outstanding in the High Court and 1,437 in district courts. The median trial waiting time in the High Court was 290 days, and in district courts 256 days.

“The fear with figures like these is that they will result in stays of prosecution, and that is exactly what is happening.

“The longer the waiting list for trials, the longer victims have to wait for justice, and the more people are walking away without trial because they are not being tried on time.
“Labour is failing to ensure justice is being served in a timely manner.

“Cases that have had a stay of prosecution because of systemic problems in the courts system include people charged with assault with intent to injure, male assaults female, unlawful possession of a firearm, fraud, breach of bail, importing drugs, wounding with intent, and perverting the course of justice.

“It is not good enough that people charged with these types of offences are not appearing in court because our courts are not geared to handle them.

“This issue goes to the heart of public safety, and Rick Barker must tell the public what he is going to do about it.”

Posted by staff at 14:21

National Party Labour and Industrial Relations spokeswoman Kate Wilkinson is calling for the Government to close a legal loophole which prevents employers from suspending employees who conduct “secret strikes”.

She is referring to an Employment Relations Authority ruling which upheld the rights of New Zealand Post Postal delivery workers to strike without their bosses knowing and that they were entitled to receive full pay for the time that they were on “secret strike”.

The decision last month revolved around posties who collected their deliveries then popped them back in public mail boxes, thereby frustrating mail delivery.

“The employer suspended the secretly striking workers only after learning of the strike. But the authority held that the suspension could only be prospective, not retrospective.

“Therefore, the workers who ‘re-posted’ the mail they were entrusted with had to be paid their wages.

“This farcical situation needs to be remedied.  If employers can suspend workers who openly strike they should similarly able to suspend workers who conduct 'secret strikes'.”

Ms Wilkinson posed questions on the issue to Labour and Industrial Relations Minister Ruth Dyson in Parliament today.

“Does she think it is fair that secret striking workers sabotaging a business cannot be suspended but striking workers who give notice can?”

Ruth Dyson confirmed that in her view ‘when a worker is on strike the employer must be able to suspend them’.

“Well, this case shows that currently this is not the case, and according to the Employment Relations Authority, the current legislation means that employers are ‘vulnerable to a sudden strike amounting to surprise or guerrilla tactics’. 

“Labour needs to fix this loophole.”

Posted by staff at 17:23

KATE WILKINSON (National): In speaking to the second reading of the Employment Relations (Flexible Working Hours) Amendment Bill I would like to preface my comments by saying that National believes that flexible working hours are a good idea in principle. We acknowledge the benefits of flexible working arrangements where possible, and we acknowledge that good employers who wish to keep their good employees may do so by offering such working arrangements-we believe in flexible working arrangements. We are not debating the desirability of flexibility; we are debating here the necessity of prescriptive legislation. Good flexible working practices, however, should not be enshrined in inflexible, rigid, unworkable legislated processes and procedures.

Good flexible working practices should be encouraged to position employers as more competitive employers are attractive to prospective employees. I was interested to read the words of the Law Commission in its statement of intent recently. It stated: "the Commission continues to be concerned that there is insufficient questioning of whether legislation is the most appropriate vehicle for giving effect to policy. Proliferation of forms of law making may result in unnecessary legislation and over-regulation, resulting in a body of legislation that lacks coherence and may work against the need for law which is both understandable and accessible." This is a classic example of the warning of the Law Commission. Can I also, however, congratulate the Law Commission, which has as one of its policies for 2007 and 2008 to develop and implement a flexible working practices policy. That is not to legislate, but to develop and implement a flexible working practices policy. We applaud that. That is so as to "position the Commission as a more competitive employer." It is not to legislate, but to position the commission as a more competitive employer.

That is what flexibility in the workplace should be about, not putting in place a mass of rigid processes and procedures that both the employer and the employee have to wade through. We think that common sense should be able to prevail. We have heard that this bill seeks to provide a statutory right to certain employees-not all, those working over 10 hours a week or 40 hours a month-and they can request a variation to certain terms and conditions of their working arrangements and place duties on their employers who receive such requests. Those employees who would be entitled to make such a request are those who have the care of children under 5, or disabled or dependent relatives. This is not a bill for everyone and in fact it could lead to employers employing those not caught by this legislation-not because they do not believe in flexibility but because that flexibility should not be at the expense of rigid processes and procedures. An employer under this bill must deal with such a request as soon as possible but within 3 months by advising whether the request is approved or refused and if refused by explaining the reasons for that refusal.

The grounds for refusal-and I admit they are reasonably sensible, are: inability to reorganise work among existing staff, inability to recruit additional staff, detrimental impact on quality, detrimental impact on performance, insufficiency of work during the periods the employee proposes to work, planned structural changes, burden of additional costs, detrimental effect on the ability to meet customer demand, and undermining, interestingly, the terms of a collective agreement where the work done by the employee making the request comes within the coverage clause. Employees at the moment can ask for flexibility and for a change in their working arrangements at any time. Employees have a duty under the good faith provisions of our existing legislation to reasonably consider that. Under this bill, the employee who has made such a request may not do so again for 12 months. Now, they can do it whenever they like, and it has to be listened to. Under this bill, it is limited to within 12 months of the request. That is rigid, inflexible, and does not make sense.

If the request, under this bill, is refused, then we have the processes and procedures. If the employee is dissatisfied he or she may refer the refusal to a labour inspector, then it can go to mediation. If mediation does not resolve it, it can go to the Employment Relations Authority, which may order the employer to reconsider and may also order compensation of up to 8 weeks' pay. There is also recourse, of course, to the Employment Court and to the Supreme Court. This is all because an employee and an employer are not being accorded the common sense to organise their own working arrangements for the mutual benefit of both. We are not convinced that this legislation is necessary or that this addition of yet another piece of prescriptive legislation will increase the number of persons getting flexible working arrangements because it does nothing. It does nothing to increase the ability of businesses to actually provide these arrangements.

It is also important, when considering passing legislation, that some consideration is given to the effect it will have, to the problem it is supposed to be addressing, and to the solution it proposes, and whether that solution will actually work, may work, or may in fact do the exact opposite of what it is trying to achieve. Do we actually have a problem of lack of flexibility in our workplace? It was noted during the select committee process-in fact, I think by the Families Commission itself-that this bill was to educate, and that legislation was not necessarily the best way to educate, and that no other alternative was considered. No other alternative other than legislation in relation to flexibility was even considered. This bill is not necessary.

National does believe, however, in education on the mutual benefits, and we do believe that education on those benefits of flexibility is necessary. I want to refer to what the author of the bill stated before-that much of the support for this bill seems to rely on the UK legislation. In fact, the commentary to the bill states "Our consideration was influenced by legislation introduced in the UK in 2003 upon which this bill is based." But there is a word of caution because the advice also included "there are questions as to the extent of the impact of the UK flexibility legislation because there are methodological inconsistencies in DTI sponsored research on the impact. The DTI results are not necessarily supported by research from other organisations. There is no accurate pre-legislation baseline of information to measure from and often the surveys do not distinguish between those eligible to request and those not eligible."

We were further advised that the current set of labour market, economic and social conditions in New Zealand does not present a close enough match to any of the countries considered in this analysis for that country's solution to be the obvious choice. I think it is dangerous, therefore, to rely solely on the UK legislation as a precedent for our country. We should be making laws that are suitable for our employees and our employers. I have to ask: what is the problem? What is the mischief that this bill sets out to fix? We have heard-and some of the figures differ a wee bit, but I am not going to dispute those-that a survey of around 500 employers showed that flexibility in the workp1ace was implemented by 83 percent of companies; 83 percent of companies already implemented flexibility in the workp1ace-83 percent. Some of that was through reduced work hours, some through working from home, and some of that was study time. There was a New Zealand Herald survey, which members would know, that asked: "Do you agree to flexible working hours?" Eighty-six percent said yes, they did agree to flexible working hours, and so do we. To the question "Should flexible working hours be voluntary or mandatory?" 98 percent said flexible working hours should be voluntary, and that is what National agrees with.

Can I quote from an example, because I have had a lot of traffic of mail opposing this bill? One employer said: "Put simply, I do not believe this amendment is necessary for our company or the great majority of companies in New Zealand. In our workp1ace any requests for changed workp1ace arrangements are considered carefully and we always go out of our way to assist whenever we can and we do this voluntarily. We do not need a law to tell us to do this. We recognise our business could not operate without happy and valued employees. Many of our staff have young families and over the past few years I have strived for work -life balance for our staff."

Flexibility may be the way forward; legislating for it is not.

Posted by staff at 16:36

KATE WILKINSON (National): The Family Courts Matters Bill is one that National will be supporting to select committee where it can, and must, be duly and properly scrutinised. This bill amends legislation to increase the openness of Family Court proceedings. It is also to improve the efficiency and effectiveness of the Family Courts by making changes to certain processes and procedures. But most important, it opens up the Family Court proceedings to the public. I want to refer to a couple of comments that the Minister made when he was delivering his first reading speech on this bill, which I have to say was somewhat incredulous. He said that the bill is largely
technical-

The ASSISTANT SPEAKER (Ann Hartley): Could the members please keep the noise level
down. It is very hard for the speaker.

KATE WILKINSON: At the time of the first reading the Minister stated: "The bill is largely technical", and that: "It is not designed to be a major overhaul of the Family Courts, it is tidying up of legislation." That I find is somewhat at odds with his statement 3 years' earlier when he referred to the bill as: "The wide-ranging changes are designed to improve transparency in the court without compromising family proceedings." The changes to this bill are not minor, they are not mechanical, and they are not technical. The opening up of the Family Court is a matter that must have the proper scrutiny of the select committee. I think the explanatory note of the bill issues a suitable caution: that any change to the openness of Family Courts must strike a balance between open justice and the privacy of the individuals, children, and families who are involved. Family law matters dealt with in the Family Courts are largely private, often sensitive, and involve highly personal information.

Parties may be reluctant to give evidence in public. Publicity around the case can heighten stress and have harmful effects on children at the centre of the disputes. That balance between openness and privacy is one that deserves full and proper scrutiny of the select committee. We must also bear in mind the increasing tendency to compare our jurisdiction with overseas jurisdictions while sometimes ignoring the important differences. Because the Australian Family Courts may be open to the public that does not mean that we necessarily have to follow suit. For example, in our Family Court jurisdiction matters relating to the appointment of managers under the Protection of Personal and Property Rights Act are appointed. It is not in the public interest, and in fact it is none of their business, what the assets of a dementia-afflicted grandmother are, because that is exactly what would be discussed in such an application under the Protection of Personal and Property Rights Act.

I also understand that adoption, paternity, child protection, domestic violence, and some property matters are dealt with in other courts in Australia, not the Family Court. Accordingly, comparisons between the jurisdictions need to be treated with extreme caution. The importance of privacy is also balanced with the view that sunlight is the best disinfectant. People can certainly hide behind closed doors for whatever reasons and that may not be in the best interests of justice or the family.

Likewise people can exploit publicity, which also may not be in the best interests of justice or the family. I note the New Zealand Law Society comment in 2004 following the Law Commission report that-incidentally-did not recommend opening up the Family Court. That Law Commission report on delivering justice for all was commented on by the New Zealand Law Society which stated: The society appreciates the arguments in favour of increasing public scrutiny of the courts.
Justice needs to be seen to be done. However, it remains of the view that Family Courts in particular should remain private. The personal tragedies and tribulations of families, which affect no one apart from family members, should not become a matter of public debate. In general, the media should not attend chambers' hearings and the current restrictions on obtaining information from the courts should remain. Removing restrictions tilts the balance between the privacy of the parties, which is important in initial stages before a decision to go to a full hearing in public is made, and the public's right to know-in reality, the media's right to know-too far in favour of the media."

I think it is also timely and appropriate to quote the view of the English Law Commission: "What is more serious is that the parties, and more especially, their innocent children whose identity is frequently revealed as a result of the details, which can be published, suffer the disturbing experience of having the most intimate details of the family life exposed. While it may be said that the parties have only themselves to blame, no such argument can apply to the children whose privacy the law takes pains to protect in other cases."

Those changes recommended by this bill in relation to the opening up of the Family Court proceedings are, I believe, the most important changes that need to be scrutinised. Without a doubt there are some other changes provided in the bill and some of them, I would have to say, are reasonably inconsequential, and some of them could be technical. Do people really care whether a Family Court judge wears a gown? I would have thought it was far more important to ensure that there are enough family legal aid lawyers available to do the work because there certainly is a problem regarding legal aid availability. It is all very well to have a judge there-gowned or otherwise-but justice is not served if the applicant or the respondent does not have a legal representative to help him or her. I have noted some of the criticisms of this bill by the honourable member Judy Turner that suggest that parenting rights are usually granted to whoever applies to the court first. This matter has not been addressed in the bill. I would have thought that, whoever made the application, the most important thing is that the welfare of the child is paramount, and the welfare of the child must be paramount. The statistics given were interesting: the figures show that the mother gets the children in 64.5 percent of cases, the father in 11.5 percent of cases, and shared parenting is granted in only 12 percent of cases. Of course, there may be many good reasons behind these statistics and it is foolhardy to take statistics at their face value. But having said that, there is certainly a good argument that this bill should be looked at by the relevant select committee when scrutinising.

The honourable member Judy Turner also pointed out that this bill fails to address the inability of the Family Court to order paternity tests. Again, maybe this is an issue that is appropriate for the select committee to consider. I think the argument that some of this bill is mere tinkering around the edges is a valid one, but, there is that most important provision relating to opening up the Family Court. I have said before that legal aid, in particular family legal aid, is an issue especially when the number of family legal aid providers has plummeted from about 2,000 to 1,000 in just 12 months, and especially when victims of domestic abuse seeking protection orders are unable to find a legal aid lawyer to assist. As we know, they end up, in places like Blenheim, filing the applications themselves, often with the help of Women's Refuge. Then the victim ends up having to face the abusers in court because he has objected, and that is far too hard a process to expect an already vulnerable and abused victim to go through. It is no wonder that those victims give up on the process, give up on the justice system, and have no faith or confidence in the Family Court, and this bill does nothing for those women.

This bill does nothing to address the family legal aid crisis that we have, while the Minister just turns a blind eye. Court delays is another vexed issue for this Government that it does not seem just to be able to get its head around, and this bill does nothing to address that issue, as well.
We do need to have a full and complete discussion on opening up the Family Court. It is a major shift; it is not a minor, mechanical, or technical matter. As I have said, we will be supporting the bill going to select committee. We hope that some of the gaps in the bill will be filled and, most important, that robust consideration will be given to the opening up of Family Court proceedings.

Posted by staff at 12:31