Franks Stephen: Crimes (Drug Rape) Amendment Bill — Second Reading 
Franks Stephen: Crimes (Drug Rape) Amendment Bill — Second Reading 
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STEPHEN FRANKS (ACT) 
: 
 The bill that Dianne Yates introduced appears to me to be a better bill and a bill more consistent in principle than the bill that is replacing it. The member’s bill is more conservative. I believe it is more respectful of the role of the common law and the difficulty that the law gets into in this area when lawmakers respond to emotion and try to make slogans or political statements in legislation. 
 So I am sorry to see this bill dropped because I think the replacement proposed by the majority of the Law and Order Committee is more dangerous to liberties and ultimately to respect for the law than what Dianne Yates proposed. Briefly she in very simple language tried to make sure that the law would catch people who applied something stupefying wilfully and without lawful justification or excuse. That left all the room needed for a court to deal with the complexities of those kinds of circumstances without directing the court to do what is now being proposed in the bill that the select committee has recommended proceed. That bill has a whole detailed list of circumstances deemed to negate consent. 
The problem is that those circumstances create a liability where there may be no fault. Ms Yates’ bill goes directly to the crime—trying to stupefy people—so that consent is irrelevant. The problem with the replacement bill and the reason I am sorry her bill has been dropped is that it then negates consent so that people who morally are entirely innocent and who do not even know that they are taking advantage of someone else’s act of stupefaction could be caught. 
We will no doubt debate that at the Committee stage of the other bill but I am sorry Dianne Yates was persuaded so gracefully and I assume easily to withdraw her bill when I think it would have been better left on the Table where it could compete as it ought with the product of the majority of the Law and Order Committee. If ACT had been represented on that committee I hope we would not have found ourselves on the side of the majority. We would have found ourselves with National New Zealand First and United Future in expressing concern about the approach that has been taken. 
I believe that once again we have an area of law involving sexual conduct whereby the making of fashionable political statements is seen as more important than retaining the kind of care and evolution in the law that is needed in these circumstances. 
The committee has been looking recently at another product like this of a rush of blood to the head. The changes to the Evidence Act in 1989 were made I understand in just such a climate of pious solemn concern—the sort of tone of almost funereal discourse: sadness and regret. Ron Mark mentioned that he thought he was at an Oscars ceremony; it was an Oscars ceremony without much joy. The attempt was made whether consciously or unconsciously to put those things beyond criticism or debate. This whole area needs a great deal of debate. I believe that the committee’s attempt to show its concern for the victims of these crimes—which is perfectly justified—and to show that it cared could lead to the sort of product we had in the late 1980s when we got rid of the requirements for corroboration and we empowered experts who turned out to be unreliable theorists to give what was effectively evidence instead of expert reports to the courts. As a consequence many of us have very serious doubts about some of the cases involving children’s evidence that occurred in the early 1990s. I warn this House against doing the same thing in the other bill in the same state of pious excitement. ACT will of course support the dropping of a bill that the rest of the House has decided will not proceed but we will certainly want to see a better scrutiny of the replacement. 
Debate interrupted.