Faafoi KrisSEXUAL VIOLENCE LEGISLATION BILLThird ReadingHon KRIS FAAFOI (Minister of Justice): I present a legislative statement on the Sexual Violence Legislation Bill.ASSISTANT SPEAKER (Hon Jacqui Dean): That legislative statement is published under the authority of the House and can be found on the Parliament website.Hon KRIS FAAFOI: I move That the Sexual Violence Legislation Bill be now read a third time.Can I acknowledge the House for the way that it undertook the committee stage of this bill. From my understanding this bill has unanimous support in the House now following changes and assurances that were made at various stages of the progress of this legislation and I want to thank the House for that. I'm mindful of continuing concerns that parties may have indeed around the bill. Even over the bill's development and passage through the House we've seen clear confirmation that we need to do better by the victims of sexual violence researching showing low rates of sexual violence being reported and how often those who do report don't make it to court or conviction and studies also highlighting the way that complainants feel vulnerable in the process; they feel disbelieved and worn down by the system.The problems with sexual violence trials have been described as reform resistant and it is true that our approach to change needs to be both holistic and legislative to be effective. Special education and training for those who work and operate our courtrooms more fulsome and wraparound support for complainants and improvements to court facilities are all under way. Broader work to reduce sexual violence continues to be a priority for the Government and the national strategy and action plan for the elimination of family and sexual violence was launched last week—and we know that so much of the work to combat gender-based violence happens and needs to be supported on the ground and I'd like to acknowledge the co-leader of the Green Party and my ministerial colleague Marama Davidson and others for their work to get that strategy launched. But as a Parliament we must set the framework and send the signals for better practice in our courts and the changes in this bill have been long called for and it is timely that we act now. I do want to acknowledge my predecessors the Hon Andrew Little and Jan Logie for driving this work under the previous Government and I thank the Law Commission for the report that kick-started this bill.In the committee debate that I mentioned earlier some MPs sought a commitment to review this legislation and I want to assure the House that the Budget in 2019 included some funding for an independent evaluation of this bill and its changes. That will happen and the review will consider the impacts on both complainants and defendants and it will be undertaken once the reforms have bedded in. Again I thought the debate in the committee stage was mature and I think there are concerns from certainly the legal fraternity about some of the aspects and components of this legislation. Again reflecting the committee stage debate I think they are fair concerns to have but we believe we have built the balance and the safeguards in there for fair trial rights but the review itself will be able to deal with those issues and assess the progress of those components of this bill.However for the remainder of my time in this third reading I want to talk about two provisions for which there was obviously some debate—first of all around pre-recorded evidence because the bill entitles complainants to give their evidence in alternative ways; for example via the likes of audiovisual link from outside of the courtroom or by a pre-recorded video. The bill makes it clear that pre-recorded cross-examination is one of the options unless the judge decides to disallow it. This type of cross-examination was first used in Western Australia back in 1992 as an initiative to help child witnesses give quality evidence and move on with their lives earlier. It has happened in New Zealand though rarely since 2011 when the Court of Appeal determined it should be used only in exceptional circumstances. Since that time all other Australian states have now introduced pre-recorded cross-examination as has the United Kingdom either in successful trials or as fully fledged practices for certain witnesses. Scotland has also recently legislated for children to pre-record their cross-examination with powers to extend the process to vulnerable adult witnesses. I do want to emphasise that these jurisdictions share our fundamental criminal justice rights and our firm commitment to the rule of law.Concerns about these rights and principles were also raised in these places when pre-recording was introduced but the evaluations carried out in those jurisdictions do not provide evidence that those concerns played out in practice. The key is that the pre-recorded cross-examination is not mandated; it is an option to be used in appropriate cases and not to be used where it would jeopardise the fairness of a trial. And where it becomes apparent that pre-recorded cross-examination may present more of a risk than a benefit it will also be open to the prosecutor to change that mode of evidence. The concerns raised about pre-recorded cross-examination are understandable. That is why the legislation prescribes its use as an option rather than a presumption. In those cases where pre-recorded cross-examination would jeopardise trial fairness or where the benefits are outweighed by the risk of making things worse for the witnesses a different mode of evidence will be used. In the cases where it does neither of these things it should be an option.The other change which seems to have caused the most concern is the restrictions on evidence about the complainant's sexual history with the defendant. Currently this evidence can be admitted on the usual standard. Under the bill evidence about the details of that sexual history could still be admitted but only if it is so directly relevant that excluding it would be contrary to the interests of justice. The judge will usually make that decision before the trial which gives the complainant some warning about questioning that can be particularly difficult and what to expect. Again despite similar laws existing in most comparable jurisdictions some remain concerned about those same fundamental criminal justice rights. It has been argued that the new restrictions will mean that juries will be deprived of hearing crucial evidence but as the bill permits clearly if the evidence is crucial it will be admitted. We've always trusted judges to determine the value of proposed evidence to the usual standard and to this higher standard which already applies to evidence of other parts of the complainant's sex life. In any particular case there might be some really important context and history and in those cases the evidence will be admissible but if the evidence can be presented without considering if it is actually relevant we risk reinforcing those outdated ideas of continuing consent that we supposedly moved on from when we outlawed marital rape in 1985.I also acknowledge that these changes represent a significant shift and the legal profession has some concerns about the preservation of defendants' rights. Trial fairness is non-negotiable and it gives out justice system its legitimacy. It is not in anyone's interests to jeopardise the fairness and robustness of verdicts but I do not think that justice is a zero sum. Improving complainants' experiences procedurally does not automatically entail restricting defendants' fundamental rights. The interests of justice and the right to a fair trial are paramount and explicit consideration in parts of the bill that we have heard most concern about. The flip side must be: if a procedure is not contrary to the interests of justice and the circumstances of the case and if it does not risk the fairness of a trial how can we deny complainants the better treatment that these changes will provide? Complainants have an integral role in bringing perpetrators to justice thereby reducing future harm a societal benefit. They do so despite the harm that they have experienced. We have a positive duty to support them on that unavoidably difficult journey and this bill is one part of how we fulfil our duty to that. I commend the bill to the House.ASSISTANT SPEAKER (Hon Jacqui Dean): The question is that the motion be agreed to.