Flavell Te Ururoa: Crimes (Provocation Repeal) Amendment Bill — Second Reading In Committee Third Reading 
Text is incorporated into the Bound Volume 
Flavell Te Ururoa: Crimes (Provocation Repeal) Amendment Bill — Second Reading In Committee Third Reading 
[Sitting date: 24 November 2009. Volume:659;Page:8270. Text is incorporated into the Bound Volume.] 
TE URUROA FLAVELL (Maori Party—Waiariki) 
: 
 Tena koe Mr Deputy Speaker. Kia ora tatou katoa. I thank all of those who have contributed their korero tonight. I find it a bit strange to come back to the House today. I have been away all day at a tangi for a young man Hawea Vercoe who was taken just a couple of days ago in Whakatane. We are talking about provocation and I do not know what provocation caused that young man’s death but he lost his life at a very young age and leaves behind a young family. A couple of hundred people were at his marae today. It is a bit difficult to come back to the House and to think of him and to also think of the stories that other members have provided as background information this afternoon and this evening. No reira kia ora tatou katoa. 
As others have said tonight the aim of the Crimes (Provocation Repeal) Amendment Bill is to amend the Crimes Act in order to abolish the partial defence of provocation. I was thinking of how we would describe this concept in te reo rangatira in te reo Maori. “Whakakarangirangi” is to provoke. Or we might refer to “te mura o te ahi” the heat of passion. There are concepts that refer to an out-of-control state of being like wairangi which is the losing of all self-discipline—a state of mental disorder and chaos that leads to an offence. 
In the language of the street though provocation is a term that is associated with the myth most commonly associated with the attitude that he or she asked for it. In other words possibly the way that a woman looks the clothes that she is wearing the location that she is visiting the activity that she is involved with the time of the day when she is out and the look in her eye are all apparently sometimes valid reasons for taking advantage of her. The Maori Party states categorically that no one asks to be raped no one asks to be abused and no one asks to be killed. Nothing—I repeat nothing—that a victim does says or wears is any justification at all for an offence. 
It is absolutely appropriate to be debating this bill on the day after White Ribbon Day an international day of action on which we wear white ribbons to show that we do not condone violence towards women. In celebration of our families and our universal hope for their peace and safekeeping we will today take out the partial defence that has been used for the ultimate violence the violence of murder. 
As other speakers have noted provocation is a partial defence that when successful can reduce a charge of murder to manslaughter. In effect that means in practice that the charge laid against an offender can be reduced from murder to manslaughter if the offender can prove that the circumstances were enough to deprive him or her of self-control and that this induced the offender to commit murder. 
We were particularly persuaded by the logic of the Human Rights Commission which acknowledged that at the heart of the defence of provocation is the need to balance conflicting sets of human rights: the rights to life to justice and to a fair trial. The Human Rights Commission considers that the interests of victims’ families are of particular relevance and that this bill protects and respects their dignity. We were also interested in the views of the National Collective of Independent Women’s Refuges. The collective stated unequivocally that it is unacceptable for this defence to be used by people who have struck out in anger. All that it does is to reward a lack of self-control by enabling an intentional killing to be characterised as something other than murder. 
In the experience of the victims of family violence they have not benefited from this defence at all. Indeed perversely the defence has been used more often and more successfully by the perpetrators of family violence against their victims. We all know that reality having observed the highly televised ordeal of the family the whanau who had to suffer the indignity of witnessing their loved one being subjected to a horrific trial in which the one who had incurred the greatest injustice was unable to take the stand in defence. Her voice had been silenced and her truth was unheard while the offender had the luxury of the court of public opinion in which to put forward his version of events. I agree with Lianne Dalziel who said that the media fascination cum obsession with recent trials was certainly bordering on disrespectfulness towards the families who have suffered the humiliation of hearing their loved ones being insulted and degraded by an offender’s defence. 
In our consultation with Maori working in the law profession we found that there was support for repealing the defence of provocation provided that something is written into the Sentencing Act for judges to take account of provocation in sentencing and in doing so to have regard to an offender’s special characteristics when assessing whether that person was likely to have been provoked. We sought advice about the process by which we might make an amendment to the Sentencing Act 2002 to add the statement “and any special characteristics” when judges are considering circumstances such as provocation for sentencing after a conviction for murder has been given. It appears however that such an amendment is outside of the scope of this bill and is therefore out of order and unable to be tabled. In effect the bill is very narrowly focused; it simply repeals the provocation defence. To amend the Sentencing Act is to extend the scope of the bill which is not possible under the Standing Orders. 
Notwithstanding that advice we suggest that the cultural characteristics of a person should be brought into account when making the assessment for a sentence. We are aware that some things that are not hugely offensive for the average person might be highly offensive for a particular offender because of their particular Maori Islamic or other cultural background. We recall that section 16 of the Criminal Justice Act 1985 allowed an offender’s supporter to present information at sentencing about an offender’s ethnic or cultural background and about the way that it may have related to the offending and the way that it may help to avoid future offending as well. It may well be useful to look again at the application of that provision. 
I acknowledge the initiative taken by Lianne Dalziel—tena koe—Charles Chauvel and Simon Power working together across the House on such an important change to the legislation. We in the Maori Party are proud to stand with the other parties and say that there is no excuse for violence. Whether it be the questioning of sexual performance homosexual advances the lifestyle the clothes or the way of being there is no excuse for violence and provocation most certainly is no excuse not even as a partial defence for murder. The Maori Party is pleased to support this bill. Kia ora tatou.