Franks Stephen: Crimes Amendment Bill (No 2) — Second Reading Instruction to Committee In Committee 
Franks Stephen: Crimes Amendment Bill (No 2) — Second Reading Instruction to Committee In Committee 
[Volume:625;Page:20013] 
STEPHEN FRANKS (ACT) 
: 
 I rise for the ACT party in the second reading debate on the Crimes Amendment Bill (No 2). This bill recasts quite a few of the definitions and provisions related to under-age sex offences. ACT was not represented on the Law and Order Committee so we have to rely on the committee’s report for the description of things that the committee considered. We listened carefully to the introduction given by the Minister and to the Minister’s media statements. I am not sure whether this is one of those situations where the Minister has announced his policy three or four times before Parliament even saw it. It could well be. Certainly “grooming” has been mentioned twice and still no words have been seen. I see that Marc Alexander has filled that gap or does the Minister have a Supplementary Order Paper?—[ 
Interruption 
] There is. I am glad to see that. 
We will have a lot to say on specific words during the Committee stage but in the second reading members should be taking an overview. My concern is that Parliament in giving this the attention that it is is wallowing in a form of insincerity. The effectiveness of the law really depends on what we do when the law is broken not on how carefully and elegantly or clumsily it is defined or on how much difficulty the odd offences at the margin—the ones out of the ordinary—give the courts. What will happen in the community and what the offenders take as the message that the community wants to send to them relates to how likely they are to be caught how likely they are to be convicted when they are caught how likely they are to get a serious sentence when convicted how likely they are to have to serve that sentence and whether anyone is enforcing the parole conditions at the end of the sentence. In other words there is a whole lot of parliamentary activity yet the police are not even investigating some rapes. Hundreds of files are not being forwarded because instead we are spending in this Parliament the time and money that the police need to look at the bad people. 
We make a whole lot of pious statements in Parliament about our anxiety. We hear the Greens urging everyone to pass all these laws knowing that the law is unlikely to be enforced. In a lot of family situations these laws will make absolutely no difference because the police quite rightly are prioritising. They are saying as any of us would that as they cannot investigate everything they will go for the obvious outrageous stranger crimes. Some murky situation inside a family where the evidence will be awfully contested and where even at the end of it the police will not be sure whether they are doing good or bad has to go on the back burner. Members of Parliament are standing up one after the other and taking seriously a bill for which the Government by its actions is showing a real lack of concern. What matters is enforcement penalties and whether the law means what is says; what we do matters hardly at all. 
During the Committee stage I want to hear Mr Goff explain why he has suddenly acquired such a concern about under-age sex when he pushed through against the proposed amendments of the ACT party prostitution legislation that increased the age of prohibition from 16 to 18 and then expressly prevented the police from enforcing it. He took out the power we had proposed for the police to be able to ask people’s ages. How can the police enforce a law concerning under-age sex when they are not allowed to ask the age of people involved in the offence? 
Ron Mark 
: They want it as a career option. 
STEPHEN FRANKS 
: Mr Marks says that Labour wants it as a career option. Labour wants to be able to pass laws make foaming speeches about how tough it is and make sure that Labour and its mates are not affected when the offences occur. 
Express amendments were proposed to that bill. The police brought forward their concerns about that legislation and their lack of ability to enforce it. We have since seen that their fears have been justified in spades. This bill was an opportunity to remedy it. In fact this bill expressly refers to the Prostitution Reform Act and says—cutely—that it is being monitored and will be left for a bit more experience. We know what is likely to happen when a bill says something is an offence but then expressly makes sure that the police cannot ask the obvious question about whether an offence is occurring. 
This bill also shares something else with the Prostitution Reform Act. It shares provisions saying that someone involved in under-age sex cannot be charged in a number of those circumstances. In other words it pretends that people are not responsible and do not know the law until they are 18. That is nonsense. I was glad to see that part of the National Party’s crime policy is to reduce the age of criminal responsibility to 12. I think that is New Zealand First’s policy too—and ACT’s. If we get the sort of Government that this country deserves after the next election there will be a very quick reduction. But there must be consistency. If we are treating children as being able to be responsible for their actions they should also be responsible when they are deliberately involved in breaches of this kind of law. Yet here is the Government solemnly pretending to be tough on under-age sex then it sticks in a provision that says that a party right up to the age of 18 cannot be charged in connection with one of those offences. 
What about cases in relation to the new formulation of defences that have been put in this legislation—where someone is misled deliberately misled and misled with complete calculation as with false documentation? There is no charge available. That shows whether the Government is really serious. That shows that this law is essentially slogans. The provisions may be better than what we have now which is why ACT is likely to vote for the bill but they are only marginally better and there is so much additional twaddle around them and so many threats to longstanding principles that it is a very close call. Indeed I will be listening to the debate in the Committee stage to decide whether my personal vote can support some of these measures. 
I was glad to see that Mr Tony Ryall’s participation on the Law and Order Committee meant that some notice was taken of the Law Society’s warning of a forensic lottery “as juries are confronted with arcane evidence from opposed camps of experts.” 
The Justice and Electoral Committee as Mr Goff will know is wrestling at the moment with some very dodgy convictions based on “arcane evidence from opposed camps of experts.” A law change rushed through in 1989 again by a Labour Government and again in response to a hysteria and in trying to look as if it were concerned about fending off well-merited suspicion about its real social agenda put through section 23G of the Evidence Act to give those experts a weight that traditional law would never have given them. 
This bill according to the Law Society will confront juries with “arcane evidence from opposed camps of experts.” Well the theories about sexual conduct are as various probably as the types of sexual conduct. The theories in my lifetime about the nature of rape—whether it is a power relationship an inherent sex drive people’s bad behaviour because there is not enough punishment or something everyone would do if he or she had a chance—are all just theories. Liberating the experts to determine the outcomes of trials is not the way our law should be going. Our law should be based on the observable evidence of acts. For example by eliminating—and I am not sure whether it does eliminate; the Law Society may have said—the ability to take into account whether there was a protest or objection we may well see a whole new category of unfair convictions and when we do that the law loses credibility. If people really want to undermine the horror that people feel about sexual offending and rape the quickest way to do that is to create more convictions that people believe may be unfair or unreliable. That is a sure way to undermine the social consensus that is essential to the enforcement of the law.