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Crimes Amendment Bill (No 2)

In Committee

Wednesday 14 September 2011 Hansard source (external site)

Part 1 Amendments to principal Act

PowerHon SIMON POWER (Minister of Justice) Link to this

Part 1 of the Crimes Amendment Bill (No 2) contains the substance of the policy, and it is the part to which Parliament needs to address its special attention. This Government came into office with the specific intention of developing an appropriate response to violence against children. We are well aware of the incidents that have resulted in the horrific deaths and injuries of young and vulnerable children. Far too often the perpetrators, or the parents and caregivers of these children, are able to evade their responsibilities. An effective response is required. Part 1 provides a significant step towards making New Zealand a safer place for our children, and for vulnerable adults, by holding those responsible for the care and welfare of the vulnerable, as well as the perpetrators, to account.

This bill represents a small but significant step in responding to incidents of abuse of the most vulnerable in New Zealand society. Other measures such as those outlined in the Green Paper for Vulnerable Children, as well as a greater willingness by communities to prevent these incidents, are required if we are to seriously address the scourge of child abuse.

The bill itself spends a small amount of time looking specifically at the ill-treatment or neglect of a child or vulnerable adult. In particular, in new section 151, substituted in clause 6, the bill deals with the fact that “Every one who has actual care or charge of a person who is a vulnerable adult and who is unable to provide himself or herself with necessaries is under a legal duty—”. In new section 152, also substituted in clause 6, the bill deals with the “Duty of parent or guardian to provide necessaries and protect from injury”.

In particular, new section 195, substituted by clause 7, deals with “Ill-treatment or neglect of child or vulnerable adult”, and states that “(1) Every one is liable to imprisonment for a term not exceeding 10 years who, … intentionally engages in conduct that, or omits to discharge or perform any legal duty the omission of which,”—and the significance of the inclusion of matters that are omissions will no doubt be the topic of some discussion following the putting forward of the amendment by the ACT Party in respect of its concerns as to how those offences should be treated. That is where, no doubt, I will be looking to take another call to describe the subtle differences between omission and commission, and duty-bound statute and offences as opposed to those who may be involved in the actual commission of a serious or violent offence, which would attract strike provisions under the sentencing legislation. What section 195(1) does is to make sure that those who have oversight of a child or vulnerable adult, those persons “described in subsection (2)”, who are “likely to cause suffering, injury, adverse effects to health, or any mental disorder or disability to a child or vulnerable adult”—known as the victim in this part of the legislation—“if the conduct engaged in, or the omission to perform the legal duty, is a major departure from the standard of care to be expected of a reasonable person.”, will be liable to imprisonment.

New section 195A, substituted in clause 7, specifically deals with the issue of a group of people close to a household or in a household, who would basically be considered to be part of that household, and who “(a) knows that the victim is at risk of death, grievous bodily harm, or sexual assault as the result of (i) an unlawful act … or (ii) an omission by another person to discharge or perform a legal duty … and (b) fails to take reasonable steps to protect the victim from that risk.” Subsection 195A(2) states that those persons are: “(a) a member of the same household as the victim; or (b) a person who is a staff member of any hospital, institution, or residence where the victim resides.” For the purposes of clarification, subsection 195A(4) goes on to state: “(a) a person is to be regarded as a member of a particular household, even if he or she does not live in that household, if that person is so closely connected with the household that it is reasonable, in the circumstances, to regard him or her as a member of the household:”. In particular, “(b) where the victim lives in different households at different times, the same household refers to the household in which the victim was living at the time of the act or omission giving rise to the risk of death, grievous bodily harm, or sexual assault.”

In other words, it is no longer enough to simply turn away one’s mind, attention, or face from the harm, or the risk of harm, that is occurring in that household, and to say “It is nothing to do with me.” It is not enough for persons to say they saw nothing occur there, and that because they have no legal duty as a parent, or the equivalent statutory substitution, they attract no legal liability. This legislation says that that is not good enough. After the passage of this legislation eventually concludes, if the persons are members of that household, for the purposes of the legislation, and they know that the victim is at risk, the persons who have that knowledge will find themselves bound by a duty to take some responsibility for what is occurring in that household. No longer will a code of silence be able to descend over a family group who refuses to tell the police what has occurred in that household when its members can reasonably be expected to know.

This is a step that I hope Parliament endorses—as it did at the second reading by quite a substantial majority—in order to confirm that this Parliament is prepared to take the steps necessary to protect the children and vulnerable members of society who find themselves in those households, and who in a legal sense are unable to reach out to those who should know better and who should intervene in activity that is putting those children or vulnerable parties at risk. This is the first step in this process, but it is part of a wider piece of work that the Government has been doing to try to protect children and vulnerable parties. I look forward to hearing the debate on this issue in the Committee stage and at a later time in this part of the discussion, and I am happy to address the matters contained in the amendment that has been put forward by the ACT Party.

PrasadDr RAJEN PRASAD (Labour) Link to this

I am pleased to take a first call on the Crimes Amendment Bill (No 2)—it may be one of a number of calls—to respond to some of the points that the Minister in the chair, the Minister of Justice, has made, but also to talk about other matters that have to do with Part 1. Clearly, from the outset I say that we are supporting this legislation and the clauses in Part 1. We also want to join with the Government to give that very strong signal that the Minister wishes to give. There is no reason to withhold that. Clearly, that strong signal must come from Parliament, and we join the Minister in giving that message. That is not to say that this bill solves everything, that child abuse will go away, and that there are not still a number of practical issues that will come out of these clauses when they are put to the test in particular cases.

I will go through a number of clauses, clause by clause. Part 1 makes some very, very important changes, and I agree with the Minister that it is the nub of the policy proposals that the Government has put forward. I will talk first about clause 4(2) and the redefinition of “claim of right”. I will talk a little bit about the submissions the Social Services Committee received, because a number of legal people—learned people, if you like—applied their minds to what this clause was doing and expressed their uncertainty about some of the provisions as well. We are all aware of where this comes from, and we are all aware of why this has become necessary, because with the amount of damage that happened in the Waihopai case, where that defence was used, we ought to come back and look at that to see whether this is what was intended.

The Dunedin Community Law Centre raised a number of very important points. It referred to the longstanding tradition in common law that requires a person to claim that they had a belief—mistaken or otherwise—that their conduct was lawful. The law centre was really saying that perhaps since this particular rule was codified in New Zealand, the defence has really been restricted in order to prevent moral claims from being raised. The amendment to section 2 of the Crimes Act 1961 by clause 4 of the bill, in the law centre’s view—well, not in its view; it is a fact—would see the defence restricted further with the addition of a property right criterion, so that only defendants who believe that they had a proprietary or possessory right in the property could use the defence. The law centre believed that the amendment was unnecessary, because the defence already has limited use as it can be claimed only where it is an element of the offence, of which there are 14 in the Crimes Act 1961, and it is raised rather infrequently. They went on to say that this is a reactionary proposal; it reacts to the “Waihopai Three” being acquitted. And, really, they felt that prior to this case there had been no apparent issues with its scope or use.

The New Zealand Law Society also had some amendments to make, and it proposed those amendments. So although the new definition is supported, there is still some anxiety out there that this may not have solved it in its entirety.

I will talk a little bit about clause 5. I simply state that it gives us an opportunity to express our abhorrence at the whole area of sexual grooming—at what is happening to our most vulnerable. If covert operations are undertaken by the police to expose those who are involved in grooming, then this clause gives the police that protection, and so it should. It certainly gives us that opportunity to express our abhorrence at sexual grooming. Any action that stands to stamp that out from our society is to be supported.

The major parts of Part 1 are new sections 150A, 151, 152, 195, and 195A. I was reflecting on the submissions made to us by the Law Commission. It was not until I read the Law Commission’s submissions and then went back and read its report Review of Part 8 of the Crimes Act 1961 that I became aware of what the Law Commission was saying and it began to make some kind of sense. I guess there is a question to ask the Minister in the chair: is it the Government’s intention at some point to respond to the review of Part 8 in a much more comprehensive way? The law commissioners, when they were submitting on this part of the Act, expressed their disappointment, I believe, that a comprehensive response to the review of Part 8 had not emerged. They said that by taking some of their provisions out from the report and putting them in these particular amendments, in fact we tend to lose some of the coherence that they were trying to develop. I think their submissions also led, then, to a clarification that, indeed, by leaving out “discharge or” from new section 150A(2), we were losing a sense of what the amendment was designed to do, which is why that section is amended further. I just wondered whether the Minister might at some point make some comments about the other parts of Part 8 of the Act, “Crimes against a person”, of which this forms a part. When might we see those coming to the fore?

Certainly, when we are talking much more directly to the provisions around the requirement that those who are aware that vulnerable people—children as well as those who are vulnerable in other ways, like the elderly and the disabled—are experiencing abuse and neglect, there is a duty of care to do something about that: to take it to the authorities, to intervene, and to make sure that the kind of assistance that is required to alleviate the problems is actually provided. We very strongly support those provisions because they provide a legal duty and some requirements on those who are caught in that respect. However, we will see how this turns out in practice. In terms of the institutional arrangements, etc., we were wondering in the select committee who was caught and who was not caught. Would the gardener, for example, being aware of something that is happening in an institution, be caught by these provisions? If so, how?

The other point is that having placed a legal duty on those who are involved at the periphery or directly, how will they protect themselves? Would it be through reporting the particular incidents? Is there a possibility, then, that this is mandatory reporting by stealth? Would it not have been better to actually address that far more directly? Mandatory reporting will have other consequences. The Children’s Commissioner presented to the select committee.

BorrowsCHESTER BORROWS (National—Whanganui) Link to this

It is a privilege to speak in this debate and to reflect the view that came through from the public and agencies that we really need to do something. The public of New Zealand are ready to step up, in terms of the provisions of the Crimes Amendment Bill (No 2). They want to have the opportunity to actually hold to account people who choose to close their eyes and step back from those abhorrent incidents that happen right within view. We heard, for instance—or it was retold to us—the names of those on a tragic list of young people who have been abused and murdered in this country. We heard people recite shock at the neighbours of people like Nia Glassie. The neighbours saw her placed on the roof, they saw her on the clothes line, their children came home and reported the incidents of her being put in a dryer, and they stood back, did nothing, and took no action. Now they have to live with the fact that they did that.

This country is coming to terms very clearly with the belief that it is our responsibility to get involved. People use the quote—and it was used in the House last night—about it requiring a village to raise a family. Well, the village is ready to step up and take that role. I am pleased to see that we will receive support on this bill largely from across the House, and so it needs to be.

I will also reflect on other provisions within the bill that relate to, for instance, the new offences around sexual grooming. This is a fairly intricate provision. It means that it is a crime for a person who is setting about sexually grooming somebody in cyberspace whom they believe to be a minor—but who, in fact, may be a police officer or other investigator posing as a minor—to turn up in a situation or to arrange a meeting in a situation where they are preparing to commit a crime. The reason why this is not an offence at the moment is that it is not the penultimate act towards committing that crime, and it does not fit within the purview of the offence of preparing to commit a crime under the Summary Offences Act.

We needed to extend the law to take account of these advances in technology and the ways in which desperate, deviant people set about using information technology to attract their prey through sexual grooming and go on to commit sexual offences. We had a gap in the law that has been created by technology and that had not been filled by previous legislation. Offenders did not have the ability to contact victims or supposed victims in order to perpetuate their own deviant behaviour. So the amendment or addition to the Crimes Act that allows the investigation of this type of crime is very right and proper. I am also pleased to see that that particular part of this bill received wide support. I do not like it, but I understand that the Greens were supportive enough of this particular part, albeit they will not be supporting the bill in its entirety. I do not understand that in any way whatsoever.

The substantial part of this bill is around expanding the duties of care, as previously outlined by the Minister of Justice, to bring into line a community responsibility—which the community has flagged to the Government and previous Governments the need for—to extend, for instance, to those people who do not have a familial or blood relationship as a parent the need for them to take action when they see crimes being committed, when a crime of neglect is being committed, or when omissions are occurring that have a substantially criminal and detrimental effect on young people or, alternatively, on older people, who are the most vulnerable and in need of our care.

LockeKEITH LOCKE (Green) Link to this

On behalf of the Green Party I want to address clause 4 and its amendment to the claim of right, which is one that seriously concerns us. It seems that the amendment to the Crimes Act is motivated by the Crown losing a particular case, sometimes known as the “Waihopai Three” case, where the defendants used claim of right—sometimes called colour of right—as a defence.

Presently in the Crimes Act claim of right is defined “in relation to any act, means a belief that the act is lawful, although that belief may be based on ignorance or mistake of fact or of any matter of law other than the enactment against which the offence is alleged to have been committed”. The change in the bill before us is to make the wording a belief that “at the time of the act in a proprietary or possessory right in property in relation to which the offence is alleged to have been committed”.

I think it applies in its very restricted form to, for example, someone who picks up a bag off the conveyor belt at the airport, chucks it in the back of the car, drives off, then all of sudden finds blue flashing lights behind them because somebody saw them steal a bag off the conveyor belt. The person says: “Look, I must have picked up the wrong bag. It looks very much like mine.” Of course, they would not get away with that if the bag had been stolen from, say, a rich-looking tourist and was of a completely different type to their bag, but if they had a reasonable belief that it was their bag, they would get off the charge.

So there is an element of reasonableness in this amended law, even though the word “reasonableness” does not appear. If we look at the law that it is narrowing, we see it is also there implicitly, even if not explicitly. Sometimes colour of right or claim of right laws around the world do have explicit reference to reasonableness in terms of the mistake or belief. But in this case, in both the amended law and the original law, there is not that reference to reasonableness, but implicitly it is there. This is true internationally.

Another example, which now, unfortunately, is not covered by claim of right, is somebody who hears someone in the house next door yelling and screaming, and it appears that someone is being attacked. The neighbour breaks down the door and rushes in, only to find that the noise is coming from a television set. The owner of the house gets very upset and takes the neighbour to court for breaking down the door, criminal damage, etc. The neighbour may be able to get off if it is thought that they honestly believed that a person inside the house was in real danger and they made a genuine mistake.

The “Waihopai Three” case was in some ways an extension of that principle in that, in respect of the two cases I have mentioned, in the first case the person technically might have thieved the bag from the conveyer belt, and in the second case of breaking down the neighbour’s door the person technically might have committed damage to the door. In the Waihopai case, the defendants did not deny that they had technically damaged the covering of the satellite dish. The question is whether there was some reason, a genuine belief, that overrode that technical breach of the law. In the case of the “Waihopai Three”, they argued that they did it to abide by a larger purpose, a larger law—that is, to stop the continuing killing of people by the American Government in the illegal war in Iraq. The jury in that case, presumably, accepted that argument.

Some of those questions have been challenged in a recent decision by Justice Gendall in the High Court, and this has been covered a bit in the media. Justice Gendall went back to that case and assessed whether, in fact, there was reasonableness in what the “Waihopai Three” did. He brought out some very interesting points. He said that the defendants had not “identified imminent peril or danger to an identifiable person or persons”.

The defendants in the earlier case had argued that they were not specifying people. There was an ongoing war, an illegal war, where hundreds of thousands of people had been indirectly or directly killed, and the whole question of the legality of that war related to the legality of what the defendants were doing in damaging the dome at Waihopai.

The other element that Justice Gendall brought up was “the legality of a decision by the executive arm of government to go to war is beyond the capacity of the courts,”. That is, we cannot judge something if it is related to something happening in another country and being done by another Government, which I do not think was the way that the District Court jury had decided it in the “Waihopai Three” case. But that raises a whole interesting question of the relationship of New Zealand law to international law. Another point Justice Gendall raised was that although, clearly, it was an act of protest, he said that to qualify it had to be an act of rescue—of rescuing particular people.

So there is a whole controversial area there of whether the courts can accept that protests might have a good effect in terms of upholding international law and protecting lives in another country. It could be argued, if we look at the Arab Spring, that some of the mass protests there have ended dictatorships that were killing people, imprisoning people, torturing people. Although the protests might not have been a direct act of rescue, in Justice Gendall’s term, they were acts of protests that were helping to uphold the law and protect lives.

So there are a whole lot of controversial issues here, which is why I think of what Rajen Prasad said in terms of some of the submissions before the Social Services Committee. We should not really be rushing to change the Crimes Act provision for claim of right on the basis of just one case, when these issues are very much alive in debate. We should take our time. It is not as if there has been a whole pile of cases beyond property-related cases using the claim of right. We do not need to rush to change it, so the Green Party is very strongly against changing the law on that basis.

I think of the whole question of the relationship of domestic law to international law, and the extent to which not only Governments can help uphold international law, particularly law relating to aggression, the killing of people, genocide, and all of these things. It is not just Governments that have a role in upholding that international law; communities, protestors, and all kinds of people can engage in a similar exercise.

In fact, we have been celebrating the 30th anniversary of the anti - Springbok Tour demonstrations, where, clearly, by all accounts, including Nelson Mandela’s, the protest action then, some of which did technically breach laws, did help end the suffering of black people in particular in South Africa. In one sense, many of the defendants in those anti - Springbok Tour cases 30 years ago used a kind of claim of right defence, even if they did not actually spell it out that way, and were given light sentences, or no sentences, or community service, or whatever, for sitting on planes, on motorways, and God knows what. I think some people actually invaded Auckland Airport or Wellington Airport and sat on a plane. Today they would be carted off for a major terrorism offence, but they were given community service because their motive was helping people overseas. Thank you.

ShanksKATRINA SHANKS (National) Link to this

It is my pleasure to take a call on the Crimes Amendment Bill (No 2) this evening. In fact, it is not my pleasure. I am actually saddened and pretty sickened to take a call on this type of legislation. It saddens and sickens me that we have to pass legislation to protect our children and our most vulnerable adults from abuse and neglect in New Zealand. I do not know when we decided in New Zealand that it was in any form acceptable to abuse and neglect our vulnerable adults and children, but I know we do it and we do it very well in New Zealand.

This bill is one of the solutions that this Parliament can take to protect our children and vulnerable adults from assault, neglect, and ill-treatment. This bill is about protection—that is why we have this legislation here today. It is about holding to account people who do these terrible acts, or who turn a blind eye to these terrible acts, every day in our society.

This legislation will provide greater accountability for the acts of violence against, and abuse and neglect of, children and vulnerable adults. It will affirm that special status that children and vulnerable adults have under criminal law and will enforce the current obligations that parents and caregivers have to protect them from harm. It will recognise that other members of the community have responsibility as well for the well-being of children and vulnerable adults in certain limited circumstances.

When we talk about protecting our children and our vulnerable adults, I think it is important to acknowledge that the issue is not about just the immediate parents. It is also about the community taking that responsibility. I know that in the second reading of this bill we talked about the fact that it takes a community to raise a family and to raise a child. I think we all have to sit back and look at what is happening in our own communities, with our neighbours, and in our extended families, and take responsibility as well.

This bill is about breaking the code of silence that exists in our communities and it includes a new offence—the failure to protect a child or vulnerable adult. For me, this is a no-brainer, and for many people listening tonight this is exactly what we should be doing as we watch innocent lives being wasted and see lives being taken away from our youngest children, our most vulnerable in New Zealand, because we have not had action before. I do believe that this bill will turn round some people when they are sitting by, watching it happen. They will think that they can make a difference.

We had a number of submissions to the Social Services Committee that called for tougher penalties against those who abuse and tighter controls on at-risk families. It is about getting that balance right. The bill increases the maximum penalty for breaching a duty from 7 years’ imprisonment to 10 years, and it doubles the penalty for the offence of the ill-treatment of a child from 5 years to 10 years.

The Government is also carrying out a number of programmes aimed at improving the situation of at-risk families. Our initiative to address the drivers of crime is preventive, to ensure that women, families, and whānau are connected to the maternity and early parenting services they need when they need them. We know that early intervention is so important to making a difference in people’s lives.

Another important aspect of the bill is the inclusion of vulnerable adults. Clause 7 substitutes new sections 195 and 195A, so the provision in the principal Act was widened, and it was widened deliberately to ensure that the elderly, the disabled, and those who cannot remove themselves from a situation are also covered. I think it is terribly sad in New Zealand when we have to pass legislation to protect our elderly and protect our disabled from people abusing and neglecting them.

Age Concern gave a fantastic submission to the Social Services Committee in support of the extension of the legislation to include vulnerable adults. Our committee discussed in depth the qualifiers of being considered vulnerable. This is typically an area that New Zealand does not like talking about, but it is an issue that we must face, particularly as our population ages.

The key test in the definition of a vulnerable adult relates to whether a person is able to withdraw him or herself from the care or charge of another person as a consequence of that person’s age or any other cause. It is not a person’s age that results in him or her being vulnerable. However, it is that loss of independence, of freedom, that makes someone more vulnerable.

As a whole, the select committee worked hard to incorporate the suggestions of submitters during the select committee process, and we have come up with a bill that will go a long way to ensure that our most vulnerable are protected and that those who are responsible for abuse and neglect, and who watch abuse and neglect, are also held accountable. We cannot sit back and do nothing, and I believe that this bill is a part of the solution to make a difference in New Zealand. Thank you.

ArdernJACINDA ARDERN (Labour) Link to this

It is my pleasure to take a call on the Crimes Amendment Bill (No 2). It broadly covers several areas; I think roughly four. We have focused quite heavily on certain parts of this bill, and I will probably hone in on a couple of them as we traverse Part 1.

Before I do so, I will make a general statement. It has been referred to at different times by other speakers—that is, the very strong linkage between factors of poverty and violence. I think, ultimately, if we are to address issues of child abuse and child neglect in New Zealand, we need to look at these causal factors. Of course, I acknowledge that to seek to explain does not see to excuse. In my mind, there is never an excuse for child abuse and child neglect in New Zealand, but we cannot ignore that when levels of poverty and deprivation are at their highest, we also see an increase in the levels of child abuse and child neglect. That is a linkage that we cannot ignore.

I was very pleased that in the beginning of the term of the Minister in the chair, the Minister of Justice, he focused on the drivers of crime. This linkage inevitably would have been part of that focus, given that it is also one of the roughly five risk factors that we see amongst young people who come before our criminal justice system. I would like to see the issue of the drivers of crime stay on the agenda. It feels like it has fallen away a little bit when we start discussing, for instance, these kinds of bills, which are often band-aids for much wider problems. Also, we have a green paper. It will take us potentially 3 years to look into these issues, when, ultimately, I do not think that some of the work the Minister kicked off was intended to take as long as that. So I hope that is a mantle that whoever—actually, they would not need to, because Labour will just pick it up and continue what we did when we were in Government. We have unfinished business in the area of child poverty and child abuse.

Coming to the bill itself, I will go through some individual clauses of Part 1, starting with clause 4. I think it is important that as a select committee we separated out the reference to “vulnerable adult”. It is not just children we are talking about. Someone is implicit in a crime if they neglect to raise issues of neglect or abuse not only against a child but against a vulnerable adult. I think that was incredibly important. We have heard in the past some quite horrifying stories not only of elderly vulnerable people abused in aged-care facilities but also of abuse against disabled people who might be in receipt of home care. So I think it is important that the definition of “vulnerable adult” is listed in clause 4(1) as: “… a person unable, by reason of detention, age, sickness, mental impairment, or any other cause, to withdraw himself or herself from the care or charge of another person”. They are unable to remove themselves from what may be an abusive care relationship or even just periodic abuse. I am pleased that we are covering those people with that clause.

I come to clause 5, which actually jumps over entirely into the other area that the select committee covered. The select committee was the Social Services Committee. It was a little odd that we as a select committee considered this bill. As a member of the Justice and Electoral Committee, I know that this is the kind of bill we would usually consider. I am still not entirely clear why the Social Services Committee had this bill. Perhaps it may have been because the Justice and Electoral Committee had just a few too many things to consider. Maybe it was also because there was some discussion around three-strikes provisions. Three-strikes provisions, as we know, never go to the Justice and Electoral Committee; they go anywhere but the Justice and Electoral Committee. We discussed the three-strikes provision in relation to this bill; I will, at some stage, come to the amendment from ACT on that matter, which we will not be supporting. Clause 5—

RobertsonThe CHAIRPERSON (H V Ross Robertson) Link to this

I acknowledge the honourable member, Jacinda Ardern.

ArdernJACINDA ARDERN Link to this

I am acknowledged and I will continue. Clause 5 is “Meeting young person under 16 following sexual grooming, etc”. In a nutshell, right now we have law enforcement officers who, for the purposes of protecting young people online, will explicitly set out to approach those who might be seeking to groom young people online. I guess a comparison I could make is a mystery shopper exercise for under-age drinking, where a young person is sent into an off-licence or an on-licence to make a purchase. If someone makes a sale to that young person, then they are by virtue of the law able to be penalised for that. It would be totally inappropriate to do the same thing when it comes to the sexual grooming of a young person online. Even though, of course, we can hide a person’s identity, we would not want to put a vulnerable young person into that situation in order to seek out these offenders. Instead, this clause allows that if someone is fictitiously presenting themselves as a young person, the person they then draw out, who is defined to be a groomer, can be prosecuted even though, technically, that young person was not 16 or under. I think that is a common-sense provision. I think it is probably what the public would absolutely expect and I utterly endorse that particular clause.

I then come to new section 151 under clause 6. This section sets out that “Every one who has actual care or charge of a person who is a vulnerable adult and who is unable to provide himself or herself with necessaries is under a legal duty—(a) to provide that person with necessaries;”. I wanted to pick up on that. We are bouncing back again to the clauses that relate to anyone who might be implicit in the abuse or neglect of a child or vulnerable person. We have been explicit in that we have not said “the necessities of life” but “necessaries”. We have kept it much broader because we have seen examples in the past—aged care comes to mind—where people may have been provided with the necessities of life, but they were not provided with the standard of care that the average person would have expected. They were tied to a bed, for example, which is a complete loss of dignity and care and humanity for those people. So I think it is important that we have kept that provision broader than simply “the necessities of life”.

Coming to new section 152 we see here the first reference to a definition of “age” for these provisions. Section 152 states: “Every one who is a parent, or is a person in place of a parent, who has actual care or charge of a child under the age of 18 years is under a legal duty—”. We have put in there the definition of the child. But there is another provision that pretty much means that the only time someone under the age of 18 can be charged under these provisions is if they are a parent themselves. The select committee discussed that at great length. It was our decision that it was not appropriate for someone under the age of 18 who is not a direct parent to be covered by these provisions, particularly if, for instance, we have a situation where it may be a sibling of another child who is being neglected or abused. They may not be directly implicated themselves, but is it reasonable to expect that a child be drawn into this legislation? We thought not.

Coming to new section 195 in clause 7, we see the criminal penalty lifting from 5 years to 10 years, and there are some explicit subsections that implicate a staff member of a hospital, an institution, or a residence. We had quite a bit of discussion about how widely drawn the circle would become, but we think that the tests in this bill are adequate to ensure that it is a reasonable expectation. Someone actually has to be privy to, and aware of, abuse or neglect being perpetrated against an individual for them to be implicated in this legislation, and we felt satisfied by that.

Coming then to new section 195A, I highlight what the Minister has already talked about: who is considered to be a member of the household. We have been explicit here, and the select committee endorses that it does not have to be someone who is resident in the home.

ChauvelCHARLES CHAUVEL (Labour) Link to this

I want to direct some remarks to clause 4(2) of the Crimes Amendment Bill (No 2), which relates to the proposed modification of the defence of a claim of right. First, I agree with the comments that were made by the previous speaker, Jacinda Ardern. This amendment should not have gone to the Social Services Committee. I mean no disrespect to the members or the chair of that select committee, or to the advisers, in making this point, but quite why it did not go to an appropriate subject select committee so it could be considered in the context of the other justice reforms that the Minister of Justice is seeking to advance, I do not know. I can assume only that it has been wrapped up in a bill to toughen our anti - child abuse laws so that it would have the effect that it has had, of the Labour Opposition not voting against it, because it is a very bad proposal. I ask the Minister whether he has really thought about these amendments—in particular, the amendment concerning the claim of right defence.

I was talking to a barrister the other day who told me about a case he had taken recently. Here are the facts. His client was a young man just under the age to drive legally, who was working in a hardware store warehouse. It was Christmas time and the car a customer was driving broke down in the driveway of the retail warehouse, blocking the driveway and stopping all customers from coming in. The owner of the car walked off and left the car sitting in the driveway, broken-down. The owners of the store were distraught. They were losing custom; they could see cars just driving away and going to the store down the road. It was Christmas time, and people were at the height of the shopping frenzy.

The barrister’s client’s employer asked the employee to get the forklift and move the car out of the driveway, please. The employee said that he did not have a driver’s licence, and the car was partly on the open road. He could drive the forklift and could probably operate it reasonably safely, but he was not entitled to do so. The employer said that they really needed him to do it. There was nobody else who could do it, and they needed the car out of the driveway, because it was Christmas time. The forklift was duly operated, and the car was moved out of the driveway. The owner of the car eventually returned, saw a big scratch on the car where the forklift had caused a little bit of inadvertent damage, and rang the police. The police charged the employee with an offence, concerning which a claim of right or colour of right defence would have been available, and the colour of right defence was pleaded successfully.

That is what we are doing away with. It is a common-sense defence. It has practical application in certain circumstances. An argument should have been had in the select committee about the Government being a sore loser in the case of the “Waihopai Three”, and seeking to amend the law on a blanket basis to do away with all sorts of application of this defence in this type of circumstance. That argument ought to have been had, and it has not. I know, because I have talked to members of the select committee, and there was no such discussion.

I hope the Minister will listen to this sort of case. This employee had no proprietary interest in the car that he was told to move, and he would have no defence under the law if this legislation was passed. It is a bad idea to amend the law on a blanket basis when the Government loses a court case, because what we will inevitably do is do away with the defence where it was intended to operate in appropriate cases.

The Labour Opposition will, as it happens, be voting for this legislation in its entirety. No party will vote against the sort of motherhood and apple pie provisions that appear in the rest of the bill—

RossJami-Lee Ross Link to this

The Greens are.

ChauvelCHARLES CHAUVEL Link to this

I meant mainstream party. I do not want to labour the point but, given that I have tried to carefully put on record the sort of case where this defence ought to be able to continue to operate, and where it will not be able to operate, if this legislation is passed, it would be appropriate to hear from the Minister why such an approach is being taken. I would also like to hear why this Parliament is yet again, at his behest, doing away with the rights of the citizen without appropriate consideration.

BoscawenHon JOHN BOSCAWEN (Leader—ACT) Link to this

The Crimes Amendment Bill (No 2) is a relatively short bill. Of course, it has wide-ranging provisions. It deals with property offences, as we have just heard from Mr Chauvel, and it also deals with the ill-treatment or lack of defence provided to children and vulnerable adults. I will speak on the latter issue. The bill seeks to protect children and vulnerable adults—the elderly and the mentally handicapped—from assault, neglect, and ill-treatment. It does so by creating a liability for people who are not actively involved in the mistreatment, but who have frequent contact with a child or a vulnerable adult and fail to protect them from mistreatment by others while having knowledge of that mistreatment. So they are with these young children or vulnerable adults and although they may not be actively involved in the mistreatment directly, they are aware of it and they fail to move to protect those vulnerable children or adults. We have heard extensive arguments in the Chamber this evening in support of that position.

The ACT Party will be voting for this bill, and, as Mr Chauvel just said, Labour will be voting for this bill, but I take this opportunity to speak to a typescript amendment in my name on behalf of the ACT Party. Earlier this evening we were talking about the Spending Cap (People’s Veto) Bill being a consequence of the confidence and supply agreement that the ACT Party entered into with National soon after the general election. One of the early achievements of that confidence and supply agreement was our three-strikes legislation, which the National Government supported. That legislation has been an outstanding success since its introduction.

My amendment incorporates the provision for the failure to protect a vulnerable child or adult into the three-strikes legislation. Specifically, my amendment would add subsection (3) to new section 195 to define someone who intentionally engages in conduct that is likely to cause suffering, injury, adverse effects to health, or any mental disorder or disability to a child or vulnerable adult, or, equally, someone who engages in conduct and omits to do an activity that would bring that conduct to a halt. The penalty under new section 195(1) would impose a penalty of up to 10 years imprisonment. As the Committee will be aware, all offences that carry imprisonment terms of 7 years or more are defined as a “strike” offence. The ACT Party believes that the three-strikes legislation should apply to the provisions of the Crimes Amendment Bill (No 2), and I have put forward a very simple amendment for that.

I mentioned earlier that the three-strikes legislation had been an outstanding success, and I heard some sniggers from the Opposition—[Interruption] Now we hear them again. Opposition members should go out and speak informally to the judiciary. Certainly we in the ACT Party have feedback that the judiciary does support the legislation. It is having an effect. Members of the judiciary are using the opportunity when a judge registers a conviction against someone for the first “strike” to remind that offender of the consequences of repeating that offence. It has been a great success. It is having an impact on crime—

BoscawenHon JOHN BOSCAWEN Link to this

You can ignore it if you wish, but I would suggest to you—

RobertsonThe CHAIRPERSON (H V Ross Robertson) Link to this

Order!

BoscawenHon JOHN BOSCAWEN Link to this

Apologies, Mr Chairperson. I would suggest to members of the Opposition that if they have a genuine interest in crime, the causes of crime, and how we can reduce the incidence of crime—

RossJAMI-LEE ROSS (National—Botany) Link to this

I am happy to take a call in this debate on the Crimes Amendment Bill (No 2). I have to say, it is a little disappointing to have in front of us this amendment from the Hon John Boscawen. The three-strikes legislation is something that, like a good number of my constituents and a number of New Zealanders out there, I was happy to see being passed through the House, because it dealt with the sentencing of serious violent offences. But one would have to say, when one reads the provisions in new section 195 of the Crimes Act that are proposed in clause 7 of this bill, that they just simply do not fit with the crimes that fall under section 86A of the Sentencing Act. Let me just read out a number of those crimes. We have sexual violation, rape, murder, manslaughter, wounding with intent to cause grievous bodily harm, and aggravated injury. Those are all crimes that are acts of commission. The new section 195 is essentially, for the most part, about an act of omission. It is about a situation where an individual is not taking certain steps around children and vulnerable adults. Certainly, if the person was the one committing the child abuse, then absolutely that is terrible, and absolutely that goes a step further along the lines of what the Hon John Boscawen was talking about, but one would have to say that there is quite a difference between being the child abuser and being the person standing back and doing nothing about the child abuser. This bill is saying that it is wrong to be the person standing back and doing nothing about the child abuser, but it is a lesser offence than actually being the child abuser.

That is quite a critical point, because the three-strikes legislation was something that this Government felt was important to pass, but there is a difference between being tough on crime and going too far. I would say that the amendment that we have today goes just that step too far, because there is quite a difference between an act of commission and an act of omission, and what we are talking about here in new section 195 is an act of omission.

On a wider note, I will say how good it is that this legislation is being debated. Jacinda Ardern made a comment earlier in the debate. She said that Labour had unfinished business with this legislation. Well, this is something that Labour never did when it was in Government, and it has taken a National Government to come here and do this.

SepuloniCarmel Sepuloni Link to this

It took 130,000 children out of poverty.

RossJAMI-LEE ROSS Link to this

I hear Carmel Sepuloni, the woman who could not remember which reading we were on yesterday. She did not know which reading we were on yesterday. She thought it was a first reading, when it was actually a second reading that we were debating. She is claiming to be an expert on this. It took a National Government to bring this bill to the House. We are doing this because we are a Government that is about action. We are a Government that says that children are the most vulnerable members of society, that standing back and doing nothing about child abuse is not a good situation to be in, and that those people should be punished, as well.

I will talk about a few other matters that have not been covered yet in the debate today, and one is the increased penalty for carrying offensive weapons. We have not heard a lot about that, but that is another step that the Government is taking in this bill. We are increasing the penalty from 2 years’ imprisonment to 3 years’ imprisonment, and we will be doubling the penalty for child abuse under this legislation, as well. Those are some other matters that have not been debated so far, but they also need to be mentioned because they are important parts of this bill.

The final part of this bill that I will mention is the claim of right defence, and we heard Keith Locke talk about it earlier. I will refer to a comment that Metiria Turei made yesterday in the second reading debate. She said that the changes to the claim of right defence were an attack on civil rights.

PowerHon SIMON POWER (Minister of Justice) Link to this

I will respond to a couple of comments that have been made by the Opposition members during the course of the debate on the Crimes Amendment Bill (No 2). The first point is that one of the reasons that this bill was sent to the Social Services Committee was that the Justice and Electoral Committee had an enormous amount of work before it. The neglect and ill treatment of children and any changes that could be made to the law to protect them, or to extend duties for those who should be required to protect them, seemed pretty logical subject matter for the Social Services Committee to determine. That decision, and the fact that the Government was prepared to look for a select committee that had a like mind in respect of the issues contained in the bill, I think emphasises how serious the Government was about turning this matter round quickly, and not having it sent to a committee where four or five other big pieces of legislation were rightly consuming the committee’s time.

I thank the members of the Social Services Committee for their attention to this bill. Despite some of the comments that have been made by their colleagues who were not on that committee, I thank the Opposition members on that committee for their thoughtful contributions, and for the seriousness with which they have taken this matter.

I also take this opportunity—because I did not do so in my opening remarks—to reconfirm that this bill deals also with a change of definition to the claim of right defence. It also deals with some changes to the issues of sexual grooming. Clause 5 amends the offence of sexual grooming of an under-16-year-old by enabling a constable to covertly engage with a sexual offender to bring that particular person to answer for his or her alleged offending. Lastly—and I think Jami-Lee Ross may have been the only member to refer to this matter; I stand to be corrected—part of the Government’s response to an emerging trend of knife crime, and, in particular, young people and their use of knives, is contained in clause 8, which indicates that an offence that currently carries a penalty of 2 years’ imprisonment will now carry a penalty of 3 years’ imprisonment.

I will comment just briefly on the ACT Party amendment that has been tabled. I understand the reasons for the ACT Party wanting to table that amendment, and the abhorrence that I suspect those members hold for the type of offending this bill is trying to cover. Loosely speaking, those members want to place that offence into the three-strikes regime portions of the Sentencing Act. I certainly understand that motivation and I respect it, but according to the select committee report it spent some time considering this matter while it was working on the bill. It had this to say as part of the report back: “We considered whether or not these provisions should amount to an offence subject to the three-stage regime under sections 86A to 86I of the Sentencing Act 2002. All such offences”—that is, the offences from those parts of that legislation—“require a positive violent or sexual act by the perpetrator, which is fundamentally inconsistent with the offence provisions” contained in the bill that the Committee is now considering. In effect, the distinction could be summarised as being a duty, or an omission in respect of that duty, versus the commission of a serious violent or sexual offence. In other words, the committee’s view was that the fit was not quite right in that regard. The Government accepts the advice and will be following the advice of the committee.

SioSU’A WILLIAM SIO (Labour—Māngere) Link to this

Malo le soifua, Mr Chairman. Thank you for the opportunity. I accept what the Minister in the chair, the Minister of Justice, said about one of the reasons why this particular bill, the Crimes Amendment Bill (No 2), was referred to the Social Services Committee. However, given that this is his last term in Parliament, and given that we have indicated to him that we are supporting this bill but nevertheless we have reservations around some of the elements of it, I ask the Minister to take on board what my colleague Charles Chauvel said with regard to the claim of right defence. As I recall it, there were submitters who had some concerns and issues around that, so I would simply ask the Minister to look at that.

I think it is also important, I say to the Minister, that collectively around this House we all agree that violence in the home is an issue that needs to be taken seriously. As I have outlined in previous speeches, legislation alone will not solve this problem. The Minister should see this legislation as a legacy that he leaves behind for the rest of the parties here to build upon in the years ahead. I say those words as opening statements because I do not believe, one iota, that we will solve this problem overnight. Over many, many years we, as a country, have built up a culture that is almost immune to some of the violence that occurs in society and in our homes, being beamed through television channels, etc. I do not also believe that the bill will get on top of this problem, simply because when we link poverty with violence in the home we see that there are some real issues that need to be tackled.

I have several points. First, I ask the Minister to take on board what some of the submitters said about the claim of right defence and also what my colleague Charles Chauvel has said. The second point I make, and I know that the bill is narrowly focused on the package of how to deal with the perpetrators of violence, is to highlight for the Minister the submission of the Children’s Commissioner. Although the commissioner agreed in principle with the bill, he noted that tougher penalties and a broader range of offences would not provide a panacea, and that enforcement should not come at the cost of the broader social investment required to reduce child abuse and neglect.

I make the point that Labour opposes the amendment suggested by the ACT Party. I think ACT Party members’ heads are in the sand so far. As well as trying to be tough on crime—a political ploy leading up to the election—they need to listen to the organisations and the significant individuals who are leading the work on rehabilitation. The Social Services Committee members heard that putting people in jail is the last resort, and even when we send people to jail we need to engage with them. We also need to work out how we rehabilitate offenders so that they return to society and take up the rightful, positive role that they have to play in the long term if we are serious about this problem. This—screwing it up and throwing it away—is what I think of this amendment! I tell ACT members to pull their heads out of the sand and to play seriously when they are looking at this problem. I tell them to stop playing politics with it.

My third point is one that was belaboured in the submission of the Children’s Commissioner: we must provide support programmes for children and caregivers, and rehabilitate child victims of abuse. I can take this point further. One of the submissions that I will raise for the sake of the Minister is the submission made by the National Council of Women. It made the point that families are being marginalised. It believes we urgently need to find ways to recognise parenting as work and to create structures that enable all parents to opt for working at home as a parent, if they so desire.

HideHon RODNEY HIDE (Minister of Local Government) Link to this

I listened most carefully to the Minister of Justice’s speech, and have some sympathy for his position regarding the three-strikes amendment of the ACT Party to the Crimes Amendment Bill (No 2), but, with great respect, I think the Minister is wrong. I also think Jami-Lee Ross is wrong, and Labour, too, is wrong. If I may take my time, I will explain why.

We are introducing a new offence in this bill. We are reflecting society’s desire that if someone stands by and does nothing, and allows a young child to be hurt, to be maimed, and to be sexually molested, that person has committed an offence. That is what we are saying in this bill. We are saying that for that crime an offender can be put away for 10 years. That is how seriously Parliament is taking such a new criminal offence, and we are right to do so, because the public is sick to death of people saying: “Oh, it wasn’t me. I couldn’t do anything.”, when we know they could have done something. We are saying that although the offender did not commit the crime—they did not physically go over and hurt the little baby—they stood by and did nothing when they could have stopped it. Parliament is saying that is a criminal offence, and society is saying that is a criminal offence. That is what we are doing in this bill.

We are saying that the offence is as bad as if the person committed the crime, because they can be put away for 10 years. But, hang on, we are saying—Jami-Lee Ross said this, the Minister said this, and Labour is saying this—that in our criminal code, standing by while a little baby gets molested is not as bad as aggravated burglary. Why? It is because we will not allow the three-strikes provisions to apply. If people commit aggravated burglary and are convicted in New Zealand once, they get just the sentence, twice, they get no parole, and three times, they get the maximum sentence. What Labour is saying, what the Minister is saying, and what Jami-Lee Ross is saying is that if an offender sits by and allows a young baby to be maimed and molested, it is not as bad as aggravated burglary. If they do it once, they get just the sentence, if they do it twice, they get just the sentence, and if they do it three times, they get just the sentence. That process does not reflect what the people of New Zealand believe. They want to see this crime dealt to. They do not want to say that aggravated robbery is up here, and standing by while a little baby gets molested is down there.

The Committee tonight is creating an anomaly. It is saying that for a violent offence the three-strikes law applies if the sentence of imprisonment is for more than 7 years. But for this crime—sure, I accept it is a crime of omission, but we are saying it is as bad as if the person committed the crime, because they could easily have stopped it or called the authorities, yet the person did nothing—we are saying it is a lesser crime. We are failing in our duty. Yes, we have rhetoric, but let us back it up by saying that standing by and not calling the authorities when a little New Zealand baby is being maimed and sexually molested is as bad as aggravated robbery. Whatever members think about the three-strikes law, it should apply in this case, because if it does not, then the actions of members tonight do not match their words in saying they are getting serious and sending a signal. The Committee is not doing that.

LockeKEITH LOCKE (Green) Link to this

I want to take just a short call to follow up on Charles Chauvel’s comments on the claim of right defence. I think, in essence, and I think that others have indicated, there is quite a contradiction in the Crimes Amendment Bill (No 2) between the major part of it in terms of the number of clauses that are concerned with helping children who have been abused, even though there could be a few problems with the clauses, and the claim of right defence, which is trying to penalise people who are trying to help others. A lot of the use of the claim of right or colour of right in defences historically, going way back, was beyond property-related matters for which the defendant has a proprietary interest in the property, which is what the bill is restricting the claim of right to. When we go beyond that, most of the cases relate to people doing things for good motives and, often, to help people.

I think Charles Chauvel’s example is a case in point: a young chap was faced with pressure on him to remove a car that was blocking the way into the forecourt of a business—I think it was a retail business—during the Christmas period. He was doing it for totally good motives. He had no proprietary interest in the car he removed and scratched, but he could use the claim of right as a sort of broader catch-all provision that covers people doing things for very good motives, even if in this case he might have been technically driving under age and scratched a car, or whatever it was. The same applies in the case that I used of someone going next door, hearing yelling and screaming and thinking someone was getting beaten up, so they break down the door of the neighbour’s house. Of course, the person doing that has no proprietary interest in the door of the neighbour’s house, but they could use the claim of right as a defence. That is similar to the “Waihopai Three”, who were trying to do good for the people in another country, in Iraq, who they saw were being killed partly as a result of the information being provided by the Waihopai satellite communication station. The information was being provided to the American Government and could have been of use to it in the Iraq war.

I am concerned about the rush to remove a claim of right or colour of right defence after the one or two centuries it has been operating in common law; it still operates in the law of many countries. It is true that in some countries it has been restricted and its application has been narrowed, but there is still a tendency internationally to use it to protect people who for the best of motivations technically break a law. Even at this late stage I appeal to the Government to take that bit on claim of right out of the legislation. The Minister of Justice, after these appeals from Labour and the Green speakers, could just admit that. He said it was put in the bill for practical reasons and that the Justice and Electoral Committee was busy, but it does not really fit with the legislation. It deserves more attention from the legal profession and the public before colour of right is removed from our legislation or is narrowed right down to property that people have a proprietary interest in.

The question was put that the following amendment in the name of the Hon John Boscawen to clause 7 be agreed to:

to add to section 195 the following subsection:

(4)An offence under subsection (1) is a serious violent offence as defined in section 86A of the Sentencing Act 2002.

A party vote was called for on the question,

That the amendment be agreed to.

Ayes 5

Noes 115

Amendment not agreed to.

The result corrected after originally being announced as Ayes 5, Noes 111.

Link to this

A party vote was called for on the question,

That Part 1 be agreed to.

Ayes 109

Noes 11

Part 1 agreed to.

Part 2 Amendments to other enactments and transitional provision

RobertsonThe CHAIRPERSON (H V Ross Robertson) Link to this

The question now is that Part 2 stand part. But before we put that we have a new clause 9A. It is the Hon John Boscawen’s typescript amendment to insert a new clause 9A. I wish to advise the member that this is out of order, contingent on an amendment previously negatived.

Part 2 agreed to.

Clause 1 agreed to.

Clause 2 agreed to.

Clause 3 agreed to.

Bill reported without amendment.

Report adopted.

Speeches