Worth Richard: Crimes Amendment Bill (No 2) — First Reading 
Worth Richard: Crimes Amendment Bill (No 2) — First Reading 
[Volume:615;Page:11474] 
RICHARD WORTH (National—Epsom) 
: 
 Mr Speaker I start by saying that I have been in the House for most of the afternoon and I have observed—and I am not wishing in any way to flatter you—your facility with the Standing Orders and the way in which you have rapidly come to grips with the new Standing Orders and with in particular the recently published  
Speakers’ Rulings 
. 
I wish to deal directly with the Crimes Amendment Bill (No 2) and to indicate that the National Party will support this bill going to the select committee. In saying that National offers that support while conscious that there are very major changes proposed by this legislation. Criminal law is dramatically impacted by these new provisions and the real possibility exists that much of our case law—the body of law that has been built up by judges—will be no longer applicable. In consequence it may well be that the legislation has been drafted in a way that will expose loopholes which will require prompt remedial action by any Government. So it is—and I am glad that the Associate Minister of Justice is here because he may wish to make a comment on this particular issue—that National seeks an assurance from the Minister that if there are inconsistencies if injustices in the way in which the legislation has been drafted are revealed then remedial legislative action will be introduced and advanced without delay. We are in a circumstance where it seems likely that the life of the present Labour Government is moving to a close. National gives an assurance that if when it enters office in 2005 there are gaps of the character and nature I have described it will close those gaps forthwith. It is absolutely critical for the maintenance of a legal system—with all the imperfections that surround such man-made systems—that the law is certain clear and easy to apply. 
This bill represents the first overall review of the provisions of the Crimes Act since 1961. That 1961 legislation was in many respects patterned without change on the earlier codification of the criminal law in 1908. That is why it is appropriate to say that the current structure and sex-based nature of Crimes Act offences are largely derived from events at the very beginning of the 1900s. Some offences can be committed only by a male and some offences contemplate only a female victim. 
The provisions relating to sexual crimes are not being altered in their entirety. The bill makes it clear that the thrust of the changes is related only to sections 127 to 138. I find that surprising because there was an opportunity to completely redraft that part into modern language. A number of offences remain in old language. Those offences deal with things like indecent acts between a woman and a girl indecencies with boys under 12 anal intercourse bestiality indecency with animals and similar offences. It is a pity that the opportunity was not taken by the Parliamentary Counsel Office to revamp the whole part so that we could have a set of offence-creating provisions that reflected current social mores and values. 
I say with some sadness that I am hugely unimpressed with the general policy statement that forms part of the explanatory note of the bill. It is right to say that the explanatory note will disappear as soon as this legislation moves further steps in Parliament. When the law is finally passed the explanatory note will generally not be available to anyone other than students and historians who are interested in the history of the passage of legislation. I mention that because the opening words of this document and I am reading from the explanatory note of the bill are these: “The overriding aim of criminal law in regard to sexual matters is to recognise and encourage respect for the sexual integrity and personal autonomy of all members of the community.”—so far so good. But then the draftsman has written this: “The law can help to achieve this by”—and this is the very first item that is mentioned—“reinforcing that people are entitled to enjoy a fulfilling sexual life with other persons of their choice irrespective of their sex:”. That is not what the criminal law is about. The criminal law is about setting up a legal system with codified crimes and in the present context ensuring that persons who sexually abuse others are liable to prosecution and punishment according to their culpability. 
I think it is a great shame that in an area like criminal law the drafters presumably with Government assent have chosen to embark on a path that reeks of political correctness. I have to say that in these black-letter law areas this Government is particularly prone to error. We see in its identifying the policy aim here an element of that stain. We need only to look—and we touched on this in the debate on the bill that preceded this one—at legislation like the Prostitution Reform Act to see that the impacts of that legislation that we forecast are now coming true. When we look at the Judicial Matters Bill that is currently progressing its way through the House and at the Supreme Court Act we see in these black-letter law areas errors of judgement that are perpetuated by this Government. Why it is appropriate to say in legislation of this type that this is all about “reinforcing that people are entitled to enjoy a fulfilling sexual life with other persons of their choice irrespective of their sex:” beggars belief. These sorts of statements should have no place in an explanatory note. They should not be the thrust of legislation that is concerned with crimes against morality and public welfare. So I am surprised and saddened that the Government still thinks that these sorts of approaches are appropriate. 
I turn briefly to the new section 128A to discuss the difficult situation that emerges from it. It is headed: “Allowing or agreeing to sexual connection does not amount to consent in some circumstances”. It is an attempt and a clumsy attempt to codify the present criminal law. One of the subsections states: “A person does not consent to sexual connection if the connection occurs while he or she is asleep or unconscious.” These are difficult areas to codify. These issues are best left to the common sense of the judges either sitting alone or advising a jury upon the particular circumstances of a case. Often criminal breaches of the law occur under the influence of alcohol; whether that influence is partial or total will be an issue to be decided in the particular circumstances of the activity. But this particular subsection is scripted in a way that I believe will not be productive of benefit to society. Also section 128A(4) states: “A person does not consent to sexual connection if he or she submits to or acquiesces in sexual connection while so affected by alcohol or some other drug that he or she cannot consent …”. This whole aspect of informed consent in criminal law is difficult and does not lend itself to codification of this type. 
Those who hold out the merit of the bill can properly say that the bill will assist in developing a safer social environment for persons vulnerable to sex abuse and will secure more just outcomes. That may be so but it is important that the legislation be carefully worded and properly applied.