Ryall Tony: Crimes Amendment Bill (No 2) — Second Reading Instruction to Committee In Committee 
Ryall Tony: Crimes Amendment Bill (No 2) — Second Reading Instruction to Committee In Committee 
[Volume:625;Page:20032] 
Hon TONY RYALL (National—Bay Of Plenty) 
: 
 The National Party in Opposition has been highlighting what we think are a number of deficiencies in the bill. We have a very real fear that the Government’s intentions in this bill could very well backfire. We think there could be unintended consequences based on changing definitions and settled understandings in case laws. We think there are likely to be problems because of some of the new legal concepts being brought in particularly regarding dependent family members and people with disabilities. We are very concerned about those matters. 
I was on the Law and Order Committee. I know that we were working to a time line. I know that we had Government members forcing our considerations at every opportunity. Throughout that time the New Zealand First National Party and United Future members were saying that we should have more time on the bill that we should be calling for more submissions and that we should be making sure that we get it right. Many people including members of the Law Society lawyers involved in other matters and sexual abuse workers came before the committee and made the point that there could be new uncertainties created because of this legislation so the committee must get it right. 
We are genuinely worried that this bill will not achieve what the Government wants. We have no confidence that the officials’ advice is necessarily right nor that the Government has got it right. We asked one of the officials what the word “whanau” meant in the bill. Do members know what the answer was? It was: “People who live on a marae.” 
Ron Mark 
: That’s right. 
Hon TONY RYALL 
: That is what they said. Mr Mark confirms it. 
That is why we are so worried about the consequences of this legislation. Richard Worth was right when he said that many changes to the criminal legislation in New Zealand are done like a patchwork quilt. That is why we are saying that this bill should go back to the select committee and be worked on again. 
We are worried about provisions about dependent family members such as the age limit that prohibits sexual contact between those who have been in a care and protection type of relationship being dropped from 20 to 18. The reason why it was 20 was to allow for sufficient time to elapse and for the dependence relationship to wane. By the age of 20 most people will have moved away from home or had a couple of years of being away. Alternatively there are some issues about kids who come home from university study and about what sort of relationship that will be. So we cannot understand why the Government would drop that to age 18 and allow a situation where for example a foster parent will be able to have consensual sexual contact with an 18-year-old foster child for whom he or she may have cared for many years. The Government is also passing sexual grooming amendments but it seems to me that the potential of this provision needs to be looked at. Most submitters wanted the age kept at 20 but the Government chose 18 and we have not had a proper explanation of that from the Government. We do not know what impact this new definition of “dependent family member” will have. A dependent family member is someone who will be prevented from sexual conduct with members of the same family whanau or culturally recognised family group that has responsibility for his or her care or upbringing. 
The Maori members of our committee were also very concerned about this because Maori have a different view from that of the nuclear family that people are more aware of—depending on their background—on the role of relatives in the upbringing of children. I thought that was a valid point. We tested the officials and the Minister’s advisers as to what that would actually mean and I have to say that we were not comfortable with the answers we were given. We think there is quite a risk that judges may end up taking quite unintended views on what those matters are and that is why we raised those points. We are quite worried about them. 
We have not had an explanation from the Minister in the chair the Hon Phil Goff about the changes that have been made concerning people with disabilities. Currently it is a crime to have sexual intercourse with a woman or girl who is severely subnormal. It is understandable that the Government would want to modernise the language and concept in light of the much better attitudes people today have towards those with disabilities. But there is a real risk that this bill will create considerable confusion and uncertainty through its new and unproven wording. Frankly I do not think the select committee has done a very good job in getting to the bottom of what that wording is. We did not spent a lot of time on that and we should have spent more. 
The Law Society warned the select committee that there would be a forensic lottery—that is the term it used; a “forensic lottery”—as juries are “confronted with arcane evidence from opposed camps of experts” attempting to argue concepts like “an understanding of the nature and consequences of sexual conduct”. That is new. We are not sure how that will be applied in the courts—and one cannot be until it happens—but no member of that committee can stand here and say that he or she is confident that the intention of Parliament is enshrined in those words. Indeed the officials advised the committee that leaving it to the courts to address the problem would probably be the best course of action. Parliament should not be operating on that basis. 
The Minister also needs to have a discussion with the Committee on the issues relating to the changes made in the area of consent. Consent has a very settled meaning in the common law but this bill takes the step of deeming what does not amount to consent—and if one was going to take an approach I presume that would be it. Concern was raised by a number of submitters as to the lack of precision in these provisions. Although the Minister may not be aware submissions noted that certain types of drugs associated with drug rape can lead to a person appearing completely in control and rational and consenting to sex in situations where consent would normally be withheld. Lawyers came before us and said that the definition of what is not consent may cause more confusion than clarity. Again we think that referring the bill back to the select committee and calling for expert evidence would get that right. There are some arguments for pressing ahead with even flawed legislation but we fear that the risks associated with this legislation do prevail upon us to raise these questions and express these doubts about this bill. 
We think there are many meritorious provisions in this bill. We would have liked the opportunity to have a clause by clause debate and a vote on each clause. By doing so we feel we might have been able to make some progress in improving the bill and in getting to the core of the Minister’s motivations in the various parts. But we have been denied that opportunity. 
We are very worried about those unintended consequences and the changes that are being proposed in this legislation. We know that a discussion paper was released in 2002. We know that that discussion paper included proposals to decriminalise some sexual activity between 12 to 16-year-olds. That paper was approved by Cabinet. 
Dr Wayne Mapp 
: By Mr Goff. 
Hon TONY RYALL 
: It was put in the bill by Mr Goff and frankly— 
Hon Phil Goff 
: It was never put in the bill. It was a discussion paper. 
Hon TONY RYALL 
: Decriminalisation of sexual activity for 12 to 16-year-olds? The officials’ advice is here. 
Hon Phil Goff 
: No no you were talking about the other issue. 
Hon TONY RYALL 
: No I was not talking about that. I am very well informed about what is in that discussion paper. 
Mainstream New Zealanders do not support the decriminalisation of some sexual activity by those between 12 and 16 years. Ordinary people were outraged by the suggestion that that activity could be decriminalised. But what worries us more is the issue of what other little word changes in the bill there are that may cause trouble. I think that sending the bill back to the select committee for a few extra weeks would have given this Parliament a much better piece of legislation.