Chauvel Charles: Crimes (Provocation Repeal) Amendment Bill — Second Reading In Committee Third Reading 
Text is incorporated into the Bound Volume 
Chauvel Charles: Crimes (Provocation Repeal) Amendment Bill — Second Reading In Committee Third Reading 
[Sitting date: 24 November 2009. Volume:659;Page:8253. Text is incorporated into the Bound Volume.] 
CHARLES CHAUVEL (Labour) 
: 
 The Justice and Electoral Committee has recommended that the partial defence of provocation should be repealed and that is a sentiment that has been echoed by the vast majority of the submitters on the Crimes (Provocation Repeal) Amendment Bill. It is also a position I have campaigned for since before my entry into this Parliament. 
There was a handful of submitters who raised some concerns about repeal and supported the retention of the defence. I would just like to use some time in this call on the second reading debate as an opportunity to respond to those concerns particularly as I understand that one party in this Parliament the ACT Party has decided to adopt the position of opposing repeal. No doubt judging by Mr Hide’s presence in the House tonight we will hear from him as to why— 
Hon Rodney Hide 
: Maybe or maybe not. 
CHARLES CHAUVEL 
: As he says maybe not. Maybe the issue is just not important enough for him to speak on. 
Some submitters were concerned that certain marginalised groups of people would be unfairly disadvantaged by the removal of the defence and those concerns were echoed back in 2000 when the Law Commission first began work on the reform of criminal defences. Attention was specifically drawn to battered defendants—victims of family violence who kill their partners because they perceive that if they do not they or their children will be seriously harmed—and also mentally ill or impaired defendants. In the case of battered defendants it was said by some submitters that there needed to be some acknowledgment of lesser culpability for what would otherwise be labelled as “murder”. Some submitters at the select committee felt that the defence of provocation was if not the best way to do this at least one way through which the law currently recognises that there are different degrees of blameworthiness that can be attached to a killing. I agree that it is inappropriate to label the victims of family violence who truly are left with no alternative but killing as “murderers” and that some law reform is needed in this area. But retaining provocation is not the appropriate way to deal with this issue because the evidence in fact is that in many cases it works against rather than for actual or potential battered victims. 
Similarly concerns were raised that defendants who are mentally ill or impaired could be unfairly disadvantaged by the repeal of the partial defence. But as the Law Commission’s excellent report on this matter dating from late 2007 demonstrates the use of the defence relies on the defendant’s ability to display the self-control of an ordinary person before the defendant is able to show that he or she lost that control. That at least is the legal or jurisprudential theory behind the defence. This means that defendants of reduced capacity simply do not fall within the criteria of those who are able to make use of the defence. So if a group of people simply cannot use a defence it is obvious that its repeal will not cause them undue harm or disadvantage. 
Another submitter the New Zealand Law Society—ordinarily a body entitled to great respect in law reform matters but sadly I think on this occasion acting as a trade union—opposed the repeal until such time as it is accompanied by the introduction of a “degrees of murder for diminished responsibility” measure. As I indicated I understand that that is now the position of one party in this Parliament. Before I briefly address the argument that was put forward by the society I would like to record my thanks to Simon Power and the Government for sticking with the form of the bill that Labour’s spokesperson on justice Lianne Dalziel originally introduced. It repeals the partial defence of provocation without such a modification. In a decent society “diminished responsibility” is not justifiable. Murder by lashing out is just as abhorrent as murder in cold blood. Murder conducted in self-defence or excused due to mental incapacity automatism or insanity is already covered by legitimate defences that recognise the differing levels of culpability that are manifestly evident in those particular situations. 
Furthermore even if we were to replace provocation with some sort of “diminished responsibility” defence we would still face the problems that we face now: confusing jury direction confusing legal tests that plague the defence and complications that inevitably lead to appeal. So to argue for the replacement of one confusing area of the law with an even more confusing one is an omission on behalf of the New Zealand Law Society. As I said earlier I think it is a manifestation more of that organisation acting as the union for the criminal defence Bar than proposing sensible legal reform. 
I hope that for all the reasons outlined by all those who will speak in support of this bill tonight it will continue on its speedy passage through the House. I believe that it is an important step towards a society where violence is condemned. Circumstances where unremorseful killers are given the opportunity to publicly impugn their victims and where the victims of crime are made to feel unsafe are hallmarks of a society that we need to move away from. I want to thank those who have worked to make this bill a reality. The members of the select committee deserve thanks as does the chair Chester Borrows for his work. I also acknowledge Margaret Wilson who I understand was the Minister of Justice who sent the reference to the Law Commission that led to its report on which this reform is based. In thanking the Law Commission I acknowledge law commissioner Dr Warren Young and the researchers at the Law Commission who were either employed or contracted to contribute to the report: Elizabeth McDonald Claire Browning Peter Williams and David Walsh. 
Lastly I remember those for whom this repeal comes too late. May they be the last to have their ordeals impugned in a court of law. Not one of their deaths has been tolerable and each of the victims whose killer has used the partial defence of provocation successfully or not stands as a silent witness to the reform that we are enacting tonight. In closing I pay tribute to their families and loved ones who will know that those lives were not lost in vain.