Prasad Rajen: Crimes Amendment Bill (No 2) — In Committee 
Prasad Rajen: Crimes Amendment Bill (No 2) — In Committee 
[Volume:675;Page:21326] 
Dr RAJEN PRASAD (Labour) 
: 
 I am pleased to take a first call on the Crimes Amendment Bill (No 2)—it may be one of a number of calls—to respond to some of the points that the Minister in the chair the Minister of Justice has made but also to talk about other matters that have to do with Part 1. Clearly from the outset I say that we are supporting this legislation and the clauses in Part 1. We also want to join with the Government to give that very strong signal that the Minister wishes to give. There is no reason to withhold that. Clearly that strong signal must come from Parliament and we join the Minister in giving that message. That is not to say that this bill solves everything that child abuse will go away and that there are not still a number of practical issues that will come out of these clauses when they are put to the test in particular cases. 
I will go through a number of clauses clause by clause. Part 1 makes some very very important changes and I agree with the Minister that it is the nub of the policy proposals that the Government has put forward. I will talk first about clause 4(2) and the redefinition of “claim of right”. I will talk a little bit about the submissions the Social Services Committee received because a number of legal people—learned people if you like—applied their minds to what this clause was doing and expressed their uncertainty about some of the provisions as well. We are all aware of where this comes from and we are all aware of why this has become necessary because with the amount of damage that happened in the Waihopai case where that defence was used we ought to come back and look at that to see whether this is what was intended. 
The Dunedin Community Law Centre raised a number of very important points. It referred to the longstanding tradition in common law that requires a person to claim that they had a belief—mistaken or otherwise—that their conduct was lawful. The law centre was really saying that perhaps since this particular rule was codified in New Zealand the defence has really been restricted in order to prevent moral claims from being raised. The amendment to section 2 of the Crimes Act 1961 by clause 4 of the bill in the law centre’s view—well not in its view; it is a fact—would see the defence restricted further with the addition of a property right criterion so that only defendants who believe that they had a proprietary or possessory right in the property could use the defence. The law centre believed that the amendment was unnecessary because the defence already has limited use as it can be claimed only where it is an element of the offence of which there are 14 in the Crimes Act 1961 and it is raised rather infrequently. They went on to say that this is a reactionary proposal; it reacts to the “Waihopai Three” being acquitted. And really they felt that prior to this case there had been no apparent issues with its scope or use. 
The New Zealand Law Society also had some amendments to make and it proposed those amendments. So although the new definition is supported there is still some anxiety out there that this may not have solved it in its entirety. 
I will talk a little bit about clause 5. I simply state that it gives us an opportunity to express our abhorrence at the whole area of sexual grooming—at what is happening to our most vulnerable. If covert operations are undertaken by the police to expose those who are involved in grooming then this clause gives the police that protection and so it should. It certainly gives us that opportunity to express our abhorrence at sexual grooming. Any action that stands to stamp that out from our society is to be supported. 
The major parts of Part 1 are new sections 150A 151 152 195 and 195A. I was reflecting on the submissions made to us by the Law Commission. It was not until I read the Law Commission’s submissions and then went back and read its report  
Review of Part 8 of the Crimes Act 1961 
 that I became aware of what the Law Commission was saying and it began to make some kind of sense. I guess there is a question to ask the Minister in the chair: is it the Government’s intention at some point to respond to the review of Part 8 in a much more comprehensive way? The law commissioners when they were submitting on this part of the Act expressed their disappointment I believe that a comprehensive response to the review of Part 8 had not emerged. They said that by taking some of their provisions out from the report and putting them in these particular amendments in fact we tend to lose some of the coherence that they were trying to develop. I think their submissions also led then to a clarification that indeed by leaving out “discharge or” from new section 150A(2) we were losing a sense of what the amendment was designed to do which is why that section is amended further. I just wondered whether the Minister might at some point make some comments about the other parts of Part 8 of the Act “Crimes against a person” of which this forms a part. When might we see those coming to the fore? 
Certainly when we are talking much more directly to the provisions around the requirement that those who are aware that vulnerable people—children as well as those who are vulnerable in other ways like the elderly and the disabled—are experiencing abuse and neglect there is a duty of care to do something about that: to take it to the authorities to intervene and to make sure that the kind of assistance that is required to alleviate the problems is actually provided. We very strongly support those provisions because they provide a legal duty and some requirements on those who are caught in that respect. However we will see how this turns out in practice. In terms of the institutional arrangements etc. we were wondering in the select committee who was caught and who was not caught. Would the gardener for example being aware of something that is happening in an institution be caught by these provisions? If so how? 
The other point is that having placed a legal duty on those who are involved at the periphery or directly how will they protect themselves? Would it be through reporting the particular incidents? Is there a possibility then that this is mandatory reporting by stealth? Would it not have been better to actually address that far more directly? Mandatory reporting will have other consequences. The Children’s Commissioner presented to the select committee.