Ardern JacindaJACINDA ARDERN (Labour): I want to acknowledge the comments that have been made from colleagues on both sides of the House. I think the Hon David Parker made a very astute observation when he noted the fact that the Evidence Act 2006 was really the first version of a consolidated Act to dictate and govern the use of evidence in court. The fact that this is our first attempt to review the Evidence Act following on from the Law Commission's work in 2013 I think demonstrates that the original drafting was actually very very good. So I want to begin by acknowledging that.Other speakers have briefly touched on the substantive amendments that this bill makes. They include enabling more previous consistent statements to be admissible in evidence. We had quite a bit of discussion around the way the law dictates the use of admissible and consistent/inconsistent statements to be used in the court and extending the privilege that currently applies to settlement negotiations and mediation in civil proceedings to include plea discussions in criminal proceedings. I think it is useful here to clarify that the Evidence Act is really just stipulating what is already practice and that is privilege covering plea discussions in criminal proceedings.But when I read this it did trigger something that I want to use this opportunity to put on record: plea discussions in criminal proceedings. Plea discussions—or what has been termed by others as plea bargaining—in the New Zealand justice system is not new. We do not adopt plea bargaining when it comes to sentencing but when it comes to discussions in criminal proceedings around charge it does happen. It has happened for some time. It is not new. It has however been somewhat controversial in recent times and I would argue for good reason because some fundamentals of our justice system have changed and that includes I would say the way that legal representation is incentivised to operate. In 2009 the legal aid system moved to what the Government probably would have deemed to be a more cost-effective way of working. It has moved to a fixed fee for legal aid lawyers which has resulted in an absolute decline in the availability and accessibility of legal aid lawyers on the one hand but on the other hand questions have been raised around the quality of the legal aid assistance and advice that people are now receiving as a consequence.As the Criminal Bar Association vice president said I think it was last year: You're incentivised to do a shoddy job to enter a guilty plea at the fastest moment to cut corners and cut everything to the bone because there's no way you can do the work in those time frames. But because the system hasn't entirely imploded the ministry assumes 'all is well'." The Evidence Amendment Bill allows plea discussions and criminal proceedings to for all intents and purposes remain privileged because in practice they currently are. These discussions around entering guilty pleas—we anecdotally have fed back to us—are occurring much more frequently because the system has incentivised that to occur. Sometimes that will be appropriate; sometimes that will stand in the way of a person accessing the full ambit of the justice system. It may stop someone even from accessing the ability to go before the court and argue against a charge that they have not committed. This is fundamental to our justice system and I just want to use this opportunity to raise the fact that it is our view that it is time we absolutely review the impact of the 2009 law reforms.I want to come to two of the more substantive parts of the Evidence Amendment Bill though which have been touched on briefly but which I want to expand on just a little bit. They are both changes that we absolutely support. One is the creation of a presumption that all witnesses under the age of 18 shall give evidence by means other than sitting in the courtroom. We absolutely support that. Anyone who has sat through the court process has been a witness in a case or has been a jury member will know what an intimidating and difficult environment it is for anyone let alone a child. A lot of thought went into how to make sure that we put the balance right in that change and I think that the Ministry of Justice has done a good job in conjunction with the Law Commission.The second element is the bill's move to require defence counsel to give advance notice if they intend to bring evidence about the sexual history of the complainant in sexual offence cases. Look we know that one in five women in New Zealand will experience a serious sexual assault. Those numbers are staggering but on the flip side of that we also know that only 10 out of every 100 sexual abuse or violent crimes are being reported to the police and even fewer than that are coming before our courts. We have to look at the full ambit of the way that those cases are treated from the moment they are reported to the police right through to the way they are processed through the courts.But when it comes to the process through the courts we know of course that the ability to bring up sexual history in the court process obviously acts as a form of deterrent—there is no doubt. The question then becomes how we can deal with that in a way that allows full access to all the aspects of natural justice before a court while also balancing the very important needs of the victim. I think that on balance we have got it about right. I want to reference that on 26 July 2009 there were media reports of the dire consequences that defendants being able to bring up sexual history in a court can have on a victim and indeed if that victim is deceased on their family. There is no better example than the Sophie Elliott case where it was reported that there was visible distress from friends and family in the courtroom. Sophie Elliott's mum said: "I still feel upset her life was played out there so publicly."It was argued by Simon Power at that time that getting rid of the provocation laws would reduce the likelihood of sexual history being raised in a court in the way that it was in the Sophie Elliott case. I actually do not think it would have been the case; even if the defendant in that case was not using the provocation defence I imagine that would have been used anyway. So we do need a provision like this and this section as it is currently worded will mean that the interests of justice will require the evidence of sexual history to be excluded unless the case for inclusion can be made—so the balance sits on exclusion unless the case can be made to the judge that it is reasonable to include that evidence. However there is a bit of an exclusion and that is when it covers evidence of a complainant's sexual history with the defendant. I think we need to keep a close eye on the way that that is utilised.I want to just refer to one of the Ministry of Justice statements on this part of the exclusion. It said: "The Law Commission did not consider it appropriate to expand section 44 to cover all evidence of a complainant's sexual history. It reasoned that cases involving a prior sexual relationship between the complainant and defendant overwhelmingly turn on the issue of consent or belief in consent to which a prior relationship will 'almost inevitably' be relevant." We know that in a number of cases cases of sexual violence will involve someone whom the victim knows. So the exclusion here around a complainant's sexual history and relationship as it relates to a defendant is likely to be enacted on a reasonable basis as in frequently. I think it is incumbent upon us as a Parliament to make sure that we really keep an eye on the way that this provision works and on the cases where it has not applied to ensure that we have got the balance right in the way that section 44 applies. It is something that we need to keep a keen eye on. Ultimately all of this is likely to be re-examined when we have the Government's formal response before Parliament. We saw a quick response to the Law Commission's report on alternative trial processes for sexual violence. We probably need to look at all of this again as a whole when some of that substantive report comes out. I think it is very likely hopefully that we will be debating the option of both court processes and non-court processes and giving victims greater choices around how they pursue cases of sexual violence against them.All in all I think the process around examining this bill has been excellent. It has been a good example of a select committee working well together and it was a really helpful report from the Law Commission."