Crimes Amendment Bill (No 2) — Second Reading Instruction to Committee In Committee 
Crimes Amendment Bill (No 2) — Second Reading Instruction to Committee In Committee 
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Crimes Amendment Bill (No 2) 
Second Reading 
Hon PHIL GOFF (Minister of Justice) 
: 
 I move  
That the Crimes Amendment Bill (No 2) be now read a second time 
. The bill with amendments moved by the Law and Order Committee updates the sexual offence provisions of the Crimes Act. In particular it introduces the principle of gender neutrality; makes sexual connection rather than sexual intercourse the basis of most sexual offences; and improves the law’s protection of vulnerable groups from sexual exploitation. 
Ensuring that sex offences are expressed and applied in a gender-neutral manner meets the fundamental principle that everyone should be equal before the law. The one exception to gender neutrality in the redrafting of the law is the retention of the offence of rape as a category of sexual violation. Submissions to the bill were divided over that issue. In the absence of any consensus the majority on the committee has recommended continuation of the status quo whereby rape remains as a male on female offence and as a separate category of sexual violation. Both I and the committee however accept that all unlawful sexual connections have as serious a consequence for victims as rape as traditionally defined regardless of their gender or the gender of the offender. All such offences are subject to the same penalty under law and they should be treated by our courts as equally serious in terms of the sentences imposed. 
New section 98AA inserted by clause 6 is headed: “Dealing in people under 18 for sexual exploitation removal of body parts or engagement in forced labour”. That offence has been created to facilitate New Zealand’s compliance with the Optional Protocol to the United Nations Convention on the Rights of the Child on the Sale of Children Child Prostitution and Child Pornography. Amendments recommended by the committee further clarify what sexual exploitation means for the purposes of that provision so that the offence does not impact for example on artistic or cultural performances or on medical or health education and information matters. The amendments also provide a defence when the defendant can demonstrate a belief on reasonable grounds that the other party was over 18 years old. An amendment that the under-age person cannot be charged as a party to the offence ensures that the ability to prosecute older offenders is not compromised by persons under the age of 16 being exposed to criminal prosecution. That avoids those people being pressured by the risk of prosecution into not pursuing a complaint. 
Section 131 inserted by clause 7 deals with sexual conduct with a dependent family member. It is designed to provide protection for young persons from sexual abuse within the family and to promote the family as a sanctuary in which young people can grow up without being subjected to such abuse. That clause has been strengthened by not requiring the Crown to prove that the young person consented or that the defendant knew that the family member consented to the sexual conduct because of the defendant’s use of power or authority. The committee’s recommendation also clarifies the boundaries of the offence by qualifying the phrase “if they are living together in the same household;” to mean persons living in the same household as members of the family. Recommendations further require the person to have a responsibility for or a significant role in his or her care and upbringing. That will ensure that the offence cannot be applied for example to flatmates. 
In respect of sexual conduct with a young person aged under 16 the bill significantly toughens the law. The loophole protecting women against being charged with sexual offending against children is removed and women can now be liable to prosecution for predatory conduct. The penalty for sex with a young person aged 12 to 16 is significantly toughened with the maximum term of imprisonment increasing from 7 to 10 years. The current 12-month time limit within which a person having sex with an under-16-year-old can be prosecuted is repealed. 
The targets of those changes are those who behave in a predatory way towards those under the age of consent rather than teenagers of a similar age in a consenting relationship. No one believes that prison sentences are an appropriate response in the latter situation; in fact police as well as schools and parents have rarely sought to bring prosecutions when a sexual relationship is between two young people of a similar age. Many Western countries including Canada and states in Australia and the United States actually include a defence of similarity of age. However because of the intense politicisation surrounding this issue which wrongly portrayed that defence as lowering the age of consent that provision has now been removed from the bill. That avoids any misconstruing of that defence as condoning under-age sexual relationships. As prosecutions are not sought in those situations that should make little or no difference in practice. 
Better provision is made in the bill to protect persons whose mental health condition and/or physical or intellectual impairments may mean they are vulnerable to unwanted sexual advances. The current provisions are inadequate. They rely on an outdated definition of mental subnormality. They apply to certain types of sexual contact only and there is no allowance for consensual sexual relations with or between those persons. The difficulty was in finding a workable balance between the rights of persons with impairments to express themselves emotionally and physically and to make decisions about their lives and protecting persons who are likely to be vulnerable. The proposed offence is framed around the notion of exploiting a person’s vulnerability in order to engage in sexual activity. The aim is to focus on exploitative conduct so that the law does not catch situations where a person with these disabilities wishes to have a genuinely consensual sexual relationship with another person. The committee clarified that the Crown will be required to prove only that the accused had sexual connection with an impaired person by taking advantage of the impairment. The committee also agreed to expand “significant impairment” to include impairment to the victim’s capacity to understand the nature of sexual conduct. 
Finally in the Committee of the whole House I will be proposing by way of a Supplementary Order Paper a new offence dealing with what is termed as “sexual grooming” of any under-16-year-old. In particular I thank Marc Alexander of United Future who raised this issue with me and helped the Government in advancing the legislation. This offence will extend the protection of young people from sexual predators by covering situations where a person contacts and arranges to meet a child—for example over the Internet—with the intention of sexually abusing him or her. 
I commend this bill to the House. 
Hon TONY RYALL (National—Bay Of Plenty) 
: 
 I seek leave that Government order of the day No. 12 be discharged and that the Crimes Amendment Bill (No 2) be referred back to the Law and Order Committee for further consideration. 
The ASSISTANT SPEAKER (H V Ross Robertson) 
: Leave has been sought. Is there any objection to that course of action being taken? There is. 
Hon TONY RYALL 
: The National Party opposes this bill. There has been insufficient public involvement in and discussion of many of the bill’s proposals. Major changes are being made to the rules around “sexual conduct” with minimum public consultation. The bill provides significant changes affecting consent and sexual activity involving minors family members and people with particular disabilities. The National Party fears that because of this insufficient consideration the bill may lead to serious unintended consequences and risk disturbing settled case law and legal concepts and believes this could have been avoided if the select committee had spent more time on the bill. 
We are also concerned about the politically correct agenda that promotes part of this legislation. Official documents show that the Government’s advisers wanted to legalise brother-sister sexual relationships for those over 20. 
Opposition Members 
: Oh no! 
Hon TONY RYALL 
: Official documents show that the Government’s advisers wanted to legalise brother-sister sexual relationships for those over 20 and they also suggested that this might mean that a pregnancy arising out of a brother-sister sexual relationship would no longer be grounds for a lawful abortion. 
This is part of a politically correct agenda that has colonised the public service under the Labour Party. Fortunately those proposals did not make it into the bill. I do not know why Mr Goff and the Government would allow such a proposal even to be considered. With Labour anything goes. Ask Mr Tamihere! I ask the House whether it is prepared to have this legislation which was not sufficiently considered by the select committee go through the House knowing that the people who advise the Government wanted to legalise brother-sister sexual relationships for those over 20. 
Hon Phil Goff 
: Not in the bill. It was rejected. 
Hon TONY RYALL 
: Is the Parliament sufficiently confident to know that? It may not be in the bill but why did Mr Goff approve the release of the discussion paper? 
Hon Phil Goff 
: Because it was an issue. 
Hon TONY RYALL 
: Oh because it was an issue! The fact is that this Minister approved the release of a discussion paper showing that the Government’s advisers wanted to legalise brother-sister sexual relationships for those over 20 and he did not rule it out. 
The National Party and the public forced this Minister to drop his controversial similar-age defence for under-age sexual activity and this would have given a defence where there was consensual sexual activity between 12 to 15-year-olds. Officials advised the select committee on 19 March that this defence would have “effectively decriminalised some under-age sexual conduct but is seen as the best option”. This proposal was opposed by mainstream families the Law Society Crown Law the Chief Justice and the Commissioner for Children. It was supported by Phil Goff the Labour Cabinet the AIDS Foundation the Ministry of Social Development and Te Puni Kokiri. 
The bill proposes penalties for sexual conduct with a dependent family member under the age of 18. The equivalent existing provision is however for the age of 20. The Government’s proposals mean that it will no longer be an offence for foster parents to have consensual sexual conduct with their 18-year-old foster child for whom they have cared for many years. It would be more appropriate in our view to maintain the prohibition until age 20 to allow sufficient time to lapse and the dependant’s relationship to wane. The Government is passing “sexual grooming” amendments which we support but this provision grants an immunity to such groomers if they live with the victim. Most submitters wanted 20 years but the Government dropped the age to 18 to be consistent with the—wait for it—Care of Children Bill. This clause could lead judges to a much wider—unintended—view of dependent family members when one considers the differing cultural perspectives on the role of the wider family in child rearing. 
The commentary on the bill states that a person is a dependent family member of another person “if they are members of the same family whanau or other culturally recognised family group … that has a responsibility for … his or her care or upbringing.” I think this could lead to some unintended consequences. In fact officials themselves were confused. One described a whanau as: “people who live on a marae”. The bill proposes a far-reaching “reasonable belief” defence for sexual conduct for all people over 12. If a person believed that the other person was 16 or over and that person had taken reasonable steps to obtain the age of the person and the conduct was consensual then a defence would apply. Currently a similar provision exists only for an accused under 21. At present a 45-year-old man has no defence in law for sexual conduct with a 15-year-old girl. Under the bill’s proposals he will have a defence in law provided he reasonably believed she was 16 or older and for example checked her—false—ID. 
No committee consideration was given to alternatives for addressing the “genuine mistake” situation that the Government wanted to fix. Nor has there been sufficient discussion in the public about the merits or otherwise of the effect of this far-reaching proposal on protecting young people from predatory behaviour. In fact official papers show that Ministers themselves did not even want to do this until they were told it would be against the New Zealand Bill of Rights Act if they did not. 
At present it is a crime to have sexual intercourse with a woman or girl who is “severely subnormal”. In seeking to modernise this provision the bill risks creating confusion and uncertainty through new and unproven wording. The Law Society in particular warned of a “forensic lottery” as judges are confronted with arcane evidence from opposed camps of experts attempting to argue concepts like “understanding the nature and consequence of sexual conduct”. We do not believe that the proposed amendments will do anything to remedy this. Indeed officials advising the committee suggested leaving it to the courts to address the issue. 
Whereas “consent” has a settled meaning in common law the bill deems certain conduct as not amounting to consent. Concern was raised by submitters as to the lack of precision of some of these subclauses. For example submissions noted that certain types of drugs associated with drug rape can lead to persons appearing completely in control and rational and that they may consent to sex in situations where they would normally withhold consent. The definition of what is not consent risks causing more confusion than clarity. 
The National Party opposes this bill. There are parts of it that we support but we believe that the matters we have raised in our report are sufficient to say to Parliament that this bill should be referred back to the select committee. We heard earlier from Mr Tamihere that this Government is very good at changing one word to change the entire intent of a piece of legislation. We think that this bill should be referred back to the select committee. We do not think that Parliament should be rushing the passing of this legislation when we consider the politically correct agenda that is behind much of what has gone on in this paper. The Minister approved the release of a discussion paper that would decriminalise sexual activity between 12 and 16-year-olds and put it the bill. The Minister approved the release of a Government discussion paper that would have legalised some brother-sister sexual activity when those parties are over the age of 20. Fortunately sound minds in Government departments and agencies across the country said that this was ridiculous and even the Ministry of Justice wrote that it is not likely that this would be consistent with public opinion. 
I have to tell the House that in no way is it what the public wants and fortunately it was removed from the bill. But the fact is that the PC agenda that has colonised the public service under Labour is alive and well in this bill and should be sufficient reason for this Parliament to send this bill back to the select committee to be sorted out. 
DIANNE YATES (Labour—Hamilton East) 
: 
 I think that the previous speaker loves to latch on to anything that is lascivious in each little piece of legislation. He said that the matters he referred to were withdrawn from the bill—they were never in the bill. They were never in the draft bill and they were never in the final bill that went to the Law and Order Committee. 
I have from time to time sat on the select committee which gave long and careful consideration to some very delicate issues about which there are some long and complex case studies. I particularly want to speak on the area of consent because the Crimes Amendment Bill (No 2) has incorporated a member’s bill I had had before the House on the issue of drug rape. 
I commend the select committee and the officials. My member’s bill was a short bill on consent of basically one sentence. That has now been transferred into at least 2 pages in the bill and defines the areas of consent. It states that people cannot consent to sexual activity if they are asleep unconscious or so affected by alcohol or drugs that they are unable to refuse or to give consent. It refers to those who are affected by an intellectual mental or physical condition and it refers to mistaken identity. I will concede that it gives a much better definition of consent and one that is more likely to guide the courts in the area of rape than the present law. Many and varied opinions were received on that. 
One of the difficulties in many of these crimes is that they are witnessless crimes. Nobody is there to see what happens and to give evidence and we rely on individual cases coming to court. We rely on the evidence of the victims and those who are before the courts. Those cases are very difficult and often about very delicate areas and much case law has informed the select committee. Having sat on that committee at various times I know that it agonised and worked backwards and forwards over and over in rewording and reworking to try to get the best decisions and the best wording that would stand up in court. 
I commend the legislation to the House but I am very very wary of those people who want to make political points about other people’s misfortunes. What we have to ensure is the safety of New Zealanders of all ages and that is the intention of this bill. It concentrates on the safety of young people and of people who might fall foul of others. So I commend the second reading of the bill to the House and look forward to its progress. 
RON MARK (NZ First) 
: 
 I rise to speak on behalf of New Zealand First on this bill. As my colleague Dail Jones has already said earlier today New Zealand First has on a number of occasions reaffirmed the view that whilst in Opposition we seek to be responsible and support legislation that we think is good and overall to the betterment of the country’s well-being and oppose legislation that we believe does not advantage New Zealanders at all. 
This bill is a mix of both. Its overall intent is meritorious. It is probably appropriate to congratulate Dianne Yates whom I have described before in this House as probably the luckiest MP in the place given the number of members’ bills she has had drawn out of the ballot. I congratulate her on the work she did with her member’s bill and on the part she played in seeing her legislation incorporated in the Crimes Amendment Bill (No 2) as her Crimes (Drug Rape) Amendment Bill was passed over. The issue she sought to deal with is one that New Zealanders are increasingly becoming worried about concerned about and angry about particularly in this day and age when certain politicians in this House chose to lower the drinking age and put more young women at risk in nightclubs and bars where the doping of drinks with party drugs regularly occurs. Such acts are carried out by despicable men who quite clearly do not have a social life and find that the only way they can actually get a relationship with a woman is to drug her into a state of unconsciousness then take advantage of her. New Zealand First abhors that sort of behaviour and would like to see these people reduced to what they actually are—and that is nothing more than pet food—and disposed of. But of course the only way we can do that is with this legislation by ensuring that the penalties are there for the justice system to be able to deal with them. This bill reflects Dianne Yates’ concerns and appropriately incorporates the necessary changes to the Crimes Act. 
But this bill also stands as a testament to what John Tamihere said. Do members remember John Tamihere? He said that men’s problems are dealt with by the criminal justice system and that women—and I will try to quote him as accurately as I can—“get a bloody Cartwright inquiry and millions of dollars thrown at their breasts and cervixes.” That was what he said and the one thing that stands out in this bill is that the politically correct feminist sisterhood brigade that is alive and well—and which John Tamihere spoke of so vehemently and passionately—decided in the Labour caucus to keep rape as purely a crime that can be committed only against women. That is amazing given the Labour members of the select committee who disagreed with that. 
The Greens said that rape is a crime whether it be committed against a woman or a man. For every woman who can tell us how violated a woman feels by rape it is just as possible to find a man—we need only visit some of our prisons—who feels precisely the same way about being violated. The Greens argued that rape should be defined as a crime against a man or a woman New Zealand First argued the same point United Future argued the same point the Labour caucus members who were on the select committee agreed on the same point and National agreed on it yet they were overrun by the very women in the Labour caucus whom John Tamihere so aptly described. 
That is an indictment and is clear evidential proof of what John Tamihere was saying about his own colleagues. It is clear evidential proof of what John Tamihere said so publicly so vehemently and so forcefully to the nation about the women in his own caucus. They despise men. They hate men. They do not like men. They spend every day they are breathing thinking of ways in which they can denigrate men and put them in their place. This is one little victory they have scored. Rape by legal definition in this day and age should be recognised as a crime that can be committed against a man or a woman. 
Judith Collins 
: Men can be victims. 
RON MARK 
: Men can be victims and it would be nice if some of the women in the Labour caucus—I am meant to say “wimmin” to be politically correct in this day and age—would accept that or come out of the closet and tell the country why they do not. It is sad. 
At the select committee we worked closely together struggling to come to terms with some of the very complex and detailed issues. The Hon Tony Ryall was quite correct when he said that this bill should have had more consultation. New Zealand First stated in its minority report: “Whilst the aim and intent of the bill is meritorious New Zealand First believes that the vast majority of the concerns expressed in the minority views of National the Greens and United Future are valid and as such New Zealand First is disappointed that the Government did not accept the need for wider community and legal consultation.” We cannot be fairer than that. We are saying here that the Government is trying to do the right thing. We are saying that it has recognised and identified some issues that must be dealt with. But what we are also saying here is that it is damn arrogant. 
The Labour Government is arrogant because it believes it has all the answers to everything. Despite what it says out there on the hustings about being a broad church and being inclusive and committed to consultation the one thing that this Government just did not 10 or 15 minutes ago was deny the opportunity to have this bill referred back to the select committee for further discussion. How can Helen Clark tell the nation that she is a believer in a broad church and wide community consultation while her Minister Phil Goff turns down and rejects such a proposal? How can Labour members say that they do respect men they respect the views of men they recognise crimes against men and that John Tamihere is wrong when they sit there and jealously hold on to one definition so that rape is a crime against women only? They ignore the fact that they have just passed legislation legalising same-sex marriages and that within those same-sex marriages a situation may well be happening now or have happened yesterday or might happen tomorrow where one homosexual man rapes his partner. But of course it is not rape because Jill Pettis says that men cannot rape men. 
Jill Pettis 
: When did I say that? I have not opened my mouth. 
RON MARK 
: The member is saying that by voting for it. She is saying that by what she said in her caucus. She is saying that by endorsing every one of the other Labour women who rejected the pleas of Mahara Okeroa and Georgina Beyer who said that the definition should be broadened. The Labour women— 
Jill Pettis 
: Oh you’re jealous of us. 
RON MARK 
: Jealous of them! Well that is one for the books is it not? John Tamihere just about summed it all up. 
There is one other area I will touch on. The Minister said that the bill takes into account a United Nations convention that seeks to provide protection against child exploitation and child prostitution. How rich is that given that we have child prostitutes walking the streets in Christchurch? Ever since this Government decriminalised prostitution it has not done one thing to get those child prostitutes off Manchester Street. There has not been one prosecution. Not one man has been convicted. A task force team has not been put together. This is a Government that talks about protecting children and stopping the exploitation of young women; that talks about preventing children from going into prostitution; that signs up to a United Nations protocol enshrines it into this legislation and expects to be applauded and patted on the back for it; yet turns a blind eye to the child prostitution that is going on in its own streets in Auckland Christchurch and Wellington. It has done nothing about that whatsoever. There is a word for that. We cannot use it in this House. It applies to so many of the things the Government has allowed to happen in this Chamber. 
It is with regret that New Zealand First has to criticise the Government on these points. We will support the legislation by voting for it. We will seek amendments in the Committee stage and we hope that the Government will be true to its word that it will listen and work with other parties and recognise that it does not have a franchise on what is right and on intelligence. 
SUE BRADFORD (Green) 
: 
 The Green Party is pleased to see the Crimes Amendment Bill (No 2) back in the House today and we will be supporting it through all its stages. It is the sort of legislation that deserves and I hope will get cross-party support right across the House dealing as it does with some really sensitive but unavoidable issues around rape incest and other forms of sexual offending. 
The genesis of the bill lay partly with Dianne Yates’ member’s bill on drug rape. I would like to acknowledge her as others have done for her role in helping to push her own Government further not only to improve on her original bill and to extend it as needed but also to take the extra steps necessary to update the original 1961 Crimes Act for our 21st century mores and realities. 
The Green Party also notes Minister Phil Goff’s very recently introduced Supplementary Order Paper which creates the offence of sexual grooming as part of this bill. We will support that as well given that it has become such an inescapable and recognisable part of the pattern of behaviour of paedophile offenders. 
Sadly sexual violence and offending of all sorts continue to be a problem of significant proportions in our society. In its submission to the select committee the Auckland Sexual Abuse Help Foundation suggested that research shows that up to one in four girls may have had an unwanted sexual experience before the age of 12 that one in seven boys may have had such an experience before the age of 16 and that around one in 16 women may be sexually assaulted each year. Just from my own experience of life I am also aware that far more women and for that matter men have been raped in some way than ever becomes known in either the public or private arena. Even though support services and police awareness are much better now than when I was young—thank goodness—I believe that the vast majority of victims still go unrecognised and unsupported thus sustaining lifelong trauma. 
The Auckland Sexual Abuse Help Foundation and other submitters noted the way in which reporting rates remain low. One international research project found that maybe one in 10 survivors makes a formal report while a local project found only one in seven victims had ever reported sexual violence against him or her to an official body of any sort. It is clear that even now the cases that make it to the courts are still the very small tip of a very large iceberg. 
At least in improving this legislation as we are doing here today I sincerely hope that we will be widening and strengthening the ability of the police to prosecute and the courts to convict on a broader range of sexual offending than currently applies. We still live in a society where all too many people particularly men think that date rape or taking advantage of people when they are drunk or under the influence of drugs or because they have asked for it so to speak is still OK. 
Unfortunately we have even a number of adults who still think it is acceptable to have sexual relations with children—related to them or not. That is despite the societal and religious norms shared by all of us that abhor such behaviour. I am glad that this bill strengthens the laws against incest the last great taboo. It remains a taboo partly because of the code of silence around it but unfortunately it remains a living reality for all too many children and young people. 
The existing Act is too narrowly focused. We support the widening of the crime of incest to become gender-neutral and to recognise that all children and young people need protection from exploitation from older family members who have power over them. The Greens certainly do not share National’s concerns over definitions of family in that respect. It is an extremely complex area and I think the new bill does a good job of trying to modernise and to define more clearly the range of possible relationships involved. 
Another area of the bill in which I have taken a particular interest is that which deals with sexual offending in relation to disabled people. I have totally supported Government moves to recognise the right and ability of people with impairments to make their own informed sexual choices while at the same time recognising that they can be particularly vulnerable to exploitation and abuse. 
 I am glad that the majority of the select committee saw fit to agree with the CCS submission that the use of the word “severe” in that part of the bill as originally drafted was inappropriate. That kind of negative value judgment comes from an era in which service providers and the families of people with intellectual disabilities in particular felt that they had a right to control and determine every aspect of people’s sex lives. It is good that we are finally moving beyond that and I congratulate organisations like People First IHC and CCS on the courageous steps they have taken in this area including their influencing and informing the amendments we are making today. 
However despite the Green Party’s overall support for this legislation there is one area where I like other members in this House think it has not gone far enough—that is in relation to the definition of rape. In putting the bill forward the Government stated that its purpose in making reforms in that area was to ensure that the law relating to sexual offences reflected changes in social attitudes that the law should be streamlined as much as possible and that offences provided for all victims of sexual abuse regardless of their sex and the sex of the offender. Despite that and despite a number of submissions on the matter the old definition of rape has been retained in the bill. It is not gender-neutral in that it states only women can be raped not men and that women cannot rape. It does not accept that rape can happen through penetration with an object and it does not accept that oral rape is rape. Those offences continue to be called unlawful sexual connection. 
The Green Party believes that the old definition retained in this bill is outdated in terms of society’s perceptions of what constitutes rape. It does not respect how victims feel about the reality of what has happened to them and it is also out of step with the latest definition used by the International Criminal Tribunal for the Former Yugoslavia. That definition itself was the result of a broad review of rape laws across many jurisdictions. 
I will therefore move an amendment which is available on the table now in the Committee stage of the bill today. It is aimed at defining rape as acts on men as well as women acts by women as well as men and acts that include anal and oral penetration and penetration with objects. Currently rape is vaginal only. 
I know that this is a viscerally difficult topic for us to talk about. Most of us do not find it easy to discuss these matters around the dinner table at home much less in our caucus rooms or in a public arena like this House. However given that the Government has given us the opportunity to update the rape laws we should have the courage to deal with this issue and not to run away from it because it is too hard to talk about. 
Some submitters found the strength inside themselves to talk to us at the select committee about these things. We should honour that and have the strength to deal with them properly ourselves too. Male on male rape does happen as does female on female and female on male. Many people who have been raped with an object will say that in fact the experience of that is even worse than rape with a penis. The idea that oral rape is not rape is equally incomprehensible to me. People to whom that has not happened may not understand how it can happen but I can assure them that it is a reality and that the impact is physically and psychologically profound. 
From my own experience and from talking with others who have had such experiences I do not understand how rape can be graded and coded so that it applies only in the limited way defined in this legislation. I do not think it honours women or our experience of rape to keep rape as a man-on-woman offence only. It flies in the face of reality to say that only women can be raped that only men rape or that anal and oral penetration are not rape. It is time that people in society even those who are lucky enough not to have gone through any of those experiences matured to the point where it can be more broadly understood and accepted that rape is rape. That offence should not be divided or lessened by a legal definition that makes some forms of rape seem less serious than others. 
I know there is some sympathy for our view from other MPs and parties in this House including Mr Ron Mark in New Zealand First and I hope they will support the amendment the Green Party is putting up today. I would love to see the Government supporting our amendment. I believe that many members of the Labour Party support it. Let us name rape for what it is—an act of power by one person over another committed through an act of violence in all the various ways by which that act occurs—and turn our legal definition into one that accepts that reality rather than takes the easy route out by leaving things as they are. 
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. 
MARC ALEXANDER (United Future) 
: 
 I rise on behalf of United Future to address the debate on the Crimes Amendment Bill (No 2) with some preliminary remarks before I get to the substance of the bill. The bill deals with a lot of sexual offending rape and so on and I will talk about that a little later in relation to grooming legislation. It addresses paedophilia in a number of respects as well. It is clear that the rate of offending particularly for child molestation and paedophilia is grossly under-reported. We hear bandied about regularly that rehabilitation is so wonderfully successful for those individuals that the reoffending rates are comparatively low in relation to other crimes. But that is actually not true. A study has shown that reoffending rates for sex crimes particularly for paedophilia can rise as much as over 70 percent over a 22-year period. What that seems to suggest is that a lot of the people who commit those crimes are smart. They learn from their mistakes and they do not get caught again in a hurry. So anything we can do proactively is I think a positive move because it is such an insidious crime and leaves its mark for decades on the victims. 
There are positives in this bill. First of all we welcome the Government’s decision to drop the “similar age” defence even though there was a lot of hubbub about what it might have meant could have meant and so on. A bit of mischievousness played along with that and we are glad to see that that part of it has gone and we can concentrate on the main strengths of the bill. We also welcome the strengthening of the current section 134 of the Crimes Act so that not only sexual intercourse but also sexual connection and indecency engender mutual penalties. That provision will be captured in clause 7 which amends section 134. Penalties will significantly increase to 10 years. We hope however that the parole process will not undermine that intent—which is something that tends to happen all too frequently. 
An amendment to clause 7 in relation to new section 134A is to be welcomed also because false and fraudulent representation will be added to the grounds for negating defence. The lifting of the under-21 age limit for the “reasonable belief in age” defence is to be applauded. It makes no sense arbitrarily to restrict such an offence to a particular age subset when it can easily be argued that the practical ability to differentiate age may actually diminish with age rather than increase. The “reasonable belief in age” defence may sound waffly but when we consider that the test is whether a reasonable person took reasonable steps to determine the age of the young person where there are no exclusions based on alcohol consumption use of drugs or any other self-induced impediments then no more can reasonably be expected I think from anyone. 
We also welcome clause 6 which inserts new section 98AA. It inserts a number of new offences relating to the exploitation of persons under 18 for sexual purposes the removal of body parts and what I consider to be slavery provisions. However we recognise a number of difficulties with this bill. I will talk about some that have already been addressed. Although supporting the bill’s purpose and intent United Future considers a number of its provisions to be somewhat problematic. Most important the aim to modernise the law in support of a gender-neutral approach has not been totally achieved in respect of the sexual offence of rape. I note that the previous speaker from the Greens also mentioned that. 
Rape remains a discrete form of sexual violation which only a male is seemingly capable of committing against a female by penile penetration of the female genitalia. That option is not compatible with the overarching gender neutrality underpinning the bill and United Future’s own policy. Given that the bill does at least address gender equivalence in terms of penalties applied for comparable offences—and for that reason we will support it—it is regrettable that widening the definition of rape was not supported. I have a member’s bill to that effect and I hope that that will be supported around the House. 
United Future also takes exception to the definitions of “family member” in section 131A(1)(a)(iv) which provides for an offence of sexual conduct with those under 18 where consent is given because of use of power or authority. The terms considered in the section include “members of the same family whanau or other culturally recognised family group” with specific reference to the responsibility for or significant role in the care and upbringing of the victim. 
 There is neither in my opinion a clear definition of what is meant by “whanau” nor any ring fencing of what constitutes a “culturally recognised family group”. For example it is unclear whether flatmates boarders or others not living as dependent family members are specifically excluded from the parameters of the offence. Similarly an exchange student brought into a family as a family member where the host family is expected to provide and care for that young person as parents would almost certainly be covered. However a foreign student paying board may not be covered depending on the arrangement and understanding entered into. The bill remains unclear as to how to determine one but not the other and I would ask that the Minister actually address this matter when he has the opportunity later on. 
We consider that if our criminal justice system must apportion a sanction to reflect under this provision the degree of responsibility commensurate with recognition for the significant role in the care and upbringing of the victim then the barometer of that measure should at least be better defined. 
During the course of this bill’s progress through the Law and Order Committee I lamented what I considered to be an important omission in it which was provision to include sexual grooming as a specific offence. It was with that in mind that I drafted my Supplementary Order Paper 299 to amend the bill to include exactly such an offence. I am extremely pleased that the Minister of Justice has seen fit to pick up that initiative. I was invited to a series of consultations to help draft the initiative and I also went up to Auckland to meet some of the Minister’s advisers along with other interested parties. This has been brought about in a very constructive and collaborative manner. Of course my Supplementary Order Paper at least for that part has now been overtaken by the Minister’s Supplementary Order Paper 351 but I do not mind one bit. In fact I am pleased that the Minister has seen fit to raise the penalty from the 5 years’ imprisonment that I suggested to the 7 years’ imprisonment that he has put forward. I happily support that move. 
So I guess that my Supplementary Order Paper has served its purpose in the sense that it has been the architect of the grooming laws that we will debate later on. I applaud the Minister for picking up what I consider to have been a serious omission from the original bill. 
The fact of the matter is that paedophiles are incredibly underhanded. They weave a web of deceit building a trust with their intended victims and we should not have to wait until the body drops until we can go after those parasites. I am pleased to see that the grooming laws based on a United Future initiative that are being brought in by the Government will be one such measure to help the most vulnerable members of our society—our kids. 
MARTIN GALLAGHER (Labour—Hamilton West) 
: 
 As the chairperson of the Law and Order Committee I will take a reasonably short call. I take this opportunity to express my thanks to all the members of the select committee. I accept that such is the nature of our democracy here in the Chamber that some robust views will be expressed in terms of the processes around the committee. In terms of the interaction with officials the constructive comments and the constructive observations I thank all members of the committee. I particularly thank the officials some of whom are present in the Chamber for their excellent work and assistance to the committee and for their very tireless efforts in terms of doing their job in assisting the committee to draft what we obviously hope is good law. 
I take this opportunity to single out three people in particular who have played a very constructive role. One is my good colleague the member of Parliament for Hamilton East Dianne Yates. I thank her in terms of the initiatives she took on the issue of law reform in relation to drug rape which this bill implements. I think that the expertise Dianne Yates has in that area has been considerable and profound. Thanks to her efforts we will hopefully have better law in that area. I also take this opportunity to acknowledge the deputy chairperson of the Law and Order Committee Marc Alexander—who is not always charitable when it comes to certain aspects of Government policy and that is the nature of it—he is a very hard-working member of that committee and a hard-working MP. 
I want to acknowledge Mr Alexander’s Supplementary Order Paper which proposes a new offence—that of meeting a young person under the age of 16 in order to undertake an exercise of sexual grooming. As the Minister has said—and I certainly reiterate it—we thank him for pursuing that particular issue. As a result of in part the work that he has done there is a new offence and the provision in the bill will extend the protection of young people from sexual predators by covering situations where for example a person contacts and arranges to meet a child over the Internet with the intention of sexually abusing that young person. So I compliment Marc Alexander on his work on that issue. 
Finally—[ 
Interruption 
]. I say in response to that interjection that as chair of the select committee I will take at least 2 more minutes maybe 3 or 4 minutes. I also praise Sue Bradford. I personally express appreciation to her for her very insightful and very deep understanding of the issues raised in this bill. I think that she made a tremendous contribution in the select committee. It was a privilege and a pleasure to work with her. I also want to praise the speech that she has just made in this House which I assure her I listened to very very closely and I thank her for her insights. 
People have raised the issue of whether this bill needs to be referred back to the select committee. I want to highlight very succinctly one of the many examples that show why we need to get this bill through—and maybe the bill is not 100 percent perfect but it is 100 percent better than what we have. Under the current law a woman is not committing an offence if she has a consensual sexual relationship with a boy under the age of 16 but obviously a man who has a sexual relationship with someone under the age of 16 does commit an offence. Clearly that law is not gender-neutral. Even Ron Mark in the light of his robust contribution would be really keen to sort that anomaly out. That is just one example of the anomalies that this bill corrects. 
I also take this opportunity to honour and praise those people who gave private submissions to the committee recounting their very painful personal circumstances. To sit in front of a group of people whom one does not know takes amazing courage and perseverance and those submitters’ courage assisted members of the committee to look into the eyes of victims and to gain an insight. For those of us who do not have experience in that area—which by the grace of God is our good fortune—in terms of dealing with and talking to victims that certainly gave us some very very valuable insights and I thank those people for that. I look forward to participating during the Committee stage and the third reading debate. I look forward to the reasonably speedy passage of this bill. 
JUDITH COLLINS (National—Clevedon) 
: 
 I have been listening to all the speeches given on this bill this morning and I have to say that they have been very considered and very sensible. But they have actually left me very confused as to why all those speakers who have talked about the inadequacies of the bill are in fact putting their principles to one side and voting for it. That is despite the fact that although the bill contains some very good things it has some very very poorly addressed matters as well. 
 When I listened to previous speeches I thought there must have been a huge rush to get this legislation through. Then I found out that the bill came out of the select committee in October 2004. It is now April 2005 so the bill has been sitting around in the office of the Minister of Justice for the last 6 months and he has done nothing. He has had 6 months to talk to each of the parties represented in this House about the very sensible changes that they have asked for—changes that he no doubt agrees with. So what has he been doing in that time? 
What he has not been doing is listening to the very very sensible suggestions made in the House today. This is why my colleague the Hon Tony Ryall asked the House this morning for leave to refer this bill back to the select committee in order to get that work done. Instead we had Mr Gallagher say that the bill was better than the current law. Well he has to say that because he is only a man in the Labour Party and he knows his place. He is putting his hands up in horror; I say to Mr Gallagher that I am sorry but I do not believe that all men are evil. I actually believe that there are a lot of really good decent men so Mr Gallagher is OK with me and I say good on him for standing up. 
Of course the ladies in the Labour Party are very staunch on protecting women all right—until it is not in their best interests. Then what do they do? They roll over every time a good-looking bloke bats his eyelashes at them. They say: “Tickle my tummy John.” and he does. 
There are a couple of reasons why the National Party will not just give in to that sort of behaviour. We will not support the bill in its current form for various reasons but we do say good on Dianne Yates for bringing the issue of drug rape into this arena. And I also say good on my colleague Simon Power who I need to tell Mr Alexander back in 2001 was calling for that offence of the grooming of little children to be dealt with by the Minister of Justice. But in 2001 and 2002 that Minister of Justice completely dismissed that view. It was too politically correct—we could not have that! 
There are a couple of reasons why National opposes the bill. One is that under this bill it will be all right for some bloke to sexually groom a foster child—a child who has been living in the foster parent’s home or who has had the foster parent living in his or her home—until that child is 18 when miraculously that child will be able to consent to a sexual relationship. So he may not be able to groom the child on the Internet but by goodness he can groom the child in his own home or in the child’s home. He can do that and that is OK for Mr Goff—as long as the kid is 18. If that child has been brought up to think of that person as either a father or almost a father—his or her closest friend—that child will be in a very vulnerable position. 
Some people are children in many ways at 18 and are very very vulnerable. Many of us thinking of all the 18-year-olds we have known and thinking back to the time when we were 18 ourselves know just what a vulnerable time it is. An 18-year-old is often just as vulnerable as a 17-year-old and sometimes just as vulnerable as a 16-year-old. We have pointed out to Mr Goff that those are problems but he has just sat back for the last 6 months done nothing about them and said that he must know better. 
But this is of course the same Minister who thought it would be OK to allow 12 to 16-year-olds to have what he called “consenting sex” while ignoring the fact that under-16-year-olds cannot consent because they do not have the legal capacity to do so. He thought that that provision would be OK. It was only the work of my colleague the Hon Tony Ryall and other members of this House that stopped that nonsense in its tracks. 
One of the other reasons why we are opposing this bill concerns the “reasonable belief” provision. I am shocked to hear that Mr Alexander is going to agree to that sort of nonsense. I am shocked to hear that New Zealand First will support a bill that says a 45-year-old man can have sex with a 15-year-old prostitute who happens to be wandering around Hunters Corner Papatoetoe in George Hawkins’ electorate and that he can in fact get away with it if he has a “reasonable belief” that she is 18 or even 16. Of course there will be “reasonable belief” because supposedly under the Prostitution Reform Act she must be 18 or else she could not be a prostitute! So there will obviously be a reasonable cause of belief. Any lawyer could tell the House that—and I do. I understand that Mr Alexander thinks the prostitute will have an ID with her. Oh come off it! The police cannot even ask for an ID of a girl who is prostituting herself on Hunters Corner in Mr George Hawkins’ electorate. What makes the member think that that 45-year-old will ask to see her ID? 
I normally agree with Mr Ron Mark. Most of what he said today I agree with but I do not understand his statement that he is going to support the bill; Mr Mark must be far more generous than I am. He has pointed out that child prostitution is happening in Christchurch. Taking that on board I went down the other week to Christchurch to talk to members of the Prostitutes Collective about child prostitution. What did they tell me? I say to Mr Alexander that they told me they had talked to Tim Barnett about my coming to visit; they had to get their orders from Mr Tim Barnett. They said to me they did not like the fact that we had made it public there was child prostitution and the reason they gave was that it had brought more people into the area. The other thing they did not like about it was that it had really brought down the value of prostitution. Apparently prostitution is not very good as a living in Christchurch now that there are so many young prostitutes on the streets—because of this hopeless Government’s attitude toward child prostitution and child abuse. 
Ron Mark 
: It’s a career option. 
JUDITH COLLINS 
: Of course it is a career option as Mr Ron Mark says. It is a disgusting situation when we have 14 15 and 13-year-olds wandering round the streets in places like Papatoetoe in George Hawkins’ electorate and prostituting themselves with 45 and 55-year-old men yet we are being told that this bill means that those men will stop and ask for ID first. What a load of nonsense! 
Sometimes in this House we have to say that a bill is mostly OK. But the Government has had a 6 months’ opportunity to fix this bill and it has sat on its hands. The parties that are supporting the bill when they know they should not are weak. They have given in—they have forgotten all their principles and all they are doing is rolling over because Mr Goff has asked them to. I just think they are hopeless and they should not even bother to waste this House’s time by telling us anything. 
A party vote was called for on the question  
That the amendments recommended by the Law and Order Committee by majority be agreed to 
. 
Ayes 91 
New Zealand Labour 51; New Zealand First 13; ACT New Zealand 7; Green Party 9; United Future 8; Progressive 2; Maori Party 1. 
Noes 27 
New Zealand National 27. 
Amendments agreed to. 
A party vote was called for on the question  
That the Crimes Amendment Bill (No 2) be now read a second time. 
Ayes 91 
New Zealand Labour 51; New Zealand First 13; ACT New Zealand 7; Green Party 9; United Future 8; Progressive 2; Maori Party 1. 
Noes 27 
New Zealand National 27. 
Bill read a second time. 
Instruction to Committee 
Hon PHIL GOFF (Minister of Justice) 
: 
 I move  
That it be an instruction to the Committee of the whole House on the Crimes Amendment Bill (No 2) that it take the bill part by part. 
A party vote was called for on the question  
That the motion be agreed to. 
Ayes 71 
New Zealand Labour 51; Green Party 9; United Future 8; Progressive 2; Maori Party 1. 
Noes 47 
New Zealand National 27; New Zealand First 13; ACT New Zealand 7. 
Motion agreed to. 
In Committee 
Part 1Amendments to principal Act 
Hon TONY RYALL (National—Bay Of Plenty) 
: 
 Part 1 is the substantive part of this bill. It covers the significant changes that are being proposed to the rules around sexual conduct. The National Party view is that these changes are being made with insufficient public consultation and we do not think that sufficient consideration was given in the select committee process either. We are worried that there may be serious unintended consequences and the risk of disturbing quite settled case law and legal concepts. We think that some of the provisions in the bill are meritorious and we are disappointed that the part by part motion means we cannot support the Minister’s amendments in the areas we think are particularly important. 
Much of this legislation is based on a discussion paper that was approved by the Minister in 2002 and released to a number of Government departments and groups. I wonder whether the Minister would take a call and tell us which organisations and departments received copies of the 2002 discussion paper on the proposals in the bill and what sorts of submissions were received particularly on the proposal to effectively decriminalise some under-age sexual conduct. Who was in favour of that and who was against it and did the Government really have to carry on with it? Could the Minister take a call and explain why he approved the release of the discussion paper which included a proposal to legalise brother-sister sex for those over 20? I know that the Minister does not support that but I do not know why he allowed it to remain in the discussion paper. Surely Mr Goff should have said to the Ministry of Justice: “That is not Government policy. Don’t put it in there. It’s not going to happen.” Maybe the Minister could take a call to explain that. 
We are also looking for an explanation from the Minister about the issue of dependent family members and protecting young people from the predatory behaviour of those who may have some sort of power or influence over them. Essentially his proposals mean that it will now no longer be an offence for foster parents to have a consensual sexual relationship with an 18-year-old foster child for whom they have cared for many years. I wonder whether the Minister could explain why the current prohibition relating to age which is age 20 at present should be dropped to age 18. 
Could he also explain in relation to his proposed sexual grooming amendments—which we would have liked the opportunity to support through the bill—why he would allow that sort of grooming to happen if it ever were to happen. 
I would also like the Minister to answer some questions about the potential unintended consequences of what a dependent family member is. I think there is some confusion about that because section 131A(1) in clause 7 states that family members are “… of the same family whanau or other culturally recognised family group …”. One of the Minister’s own officials told the Law and Order Committee that a whanau was people who lived on a marae and I am wondering how on earth that sort of advice could form the basis of this legislation. 
So there are I think quite considerable matters that the Minister needs to address and over the next hour or two of this debate members from this side of the Chamber will be seeking an explanation from the Minister on a whole lot of issues including the “dependent child” matter and the “reasonable belief” defence for sexual conduct. Right now a small provision exists for accused persons under the age of 21 whereby if they believed that the other person was 16 and they had taken reasonable steps to ascertain that person’s age and the conduct was consensual then there is a defence. The Government is proposing that that defence apply to everybody. It now means that whereas at present a 45-year-old man has no defence in law for sexual conduct with a 15-year-old girl under the bill’s proposals that chap will have a defence in law provided he reasonably believed she was 16 or older and he had for example checked her false ID. 
The reason we wanted this legislation to go back to the select committee is that no consideration was given to alternatives for addressing the situation of a genuine mistake which I know that the Minister has considered such as having it included as a mitigating factor at sentencing. The select committee did not look at any of that and there has been insufficient discussion with the public about the merits or otherwise of that provision. 
Dr WAYNE MAPP (National—North Shore) 
: 
 I appreciate that members of the public may be wondering why National is voting against this legislation. I have to say that we cannot possibly support legislation that would allow—and this is the reality of it—a 45 or 50-year-old man to approach a child prostitute then claim he had a defence. That is not possible under the existing law. That is the important point: it is not possible under the existing law. 
That prohibition—that the defence does not apply to those aged over 21—has never caused a problem but now the Government seems to think it should be extended right across the board. Government members then wonder why New Zealanders are deeply worried about the values of this Government and about the direction they are taking this country. 
 We saw that in the John Tamihere article. He merely articulated the concern of mainstream New Zealanders that this Government simply has no idea what people think. It runs its narrow agenda based on I guess the common rooms of the universities—the discussions that occur there and that essentially should stay there. But no this Government wants to make those minority agendas the widespread views. 
One of the features of that frankly is sexual liberation. That has always been one of the fundamental agendas of the politically correct. It undermines family life. That is the reality. The Government will look at each and every part of the law. How does it undermine family life? How does the politically correct agenda undermine family life? Well these are some of the ways: by allowing broader defences by allowing more licentiousness by allowing prostitution by making it easier for predators to escape punishment and by allowing defences. That is what the Government has done in this legislation. 
The Government may say that we are simply exaggerating. But we have seen since the Prostitution Reform Act a huge increase in child prostitution. The Government has only to ask the simple question of who preys upon those child prostitutes. My colleague who lives in south Auckland sees the problem on the streets. She knows the answer. Ironically the Minister of Police living in the same place was not even aware that that police district had 1000 uninvestigated cases including 11 cases involving rape. That indicates the complete disconnection of this Government from the real problems facing our country. When we see these kinds of amendments being put into the law we know that this Government is totally driven by a narrowly focused politically correct agenda that it intends to foist on the entire country. 
I would like to think that the other parties in this Parliament that are supporting this legislation will at least in respect of this particular provision say no. 
Ron Mark 
: What about the amendments? 
Dr WAYNE MAPP 
: I tell Mr Mark that my colleagues have been doing amendments. This is the sort of thing that should be stopped. The law as it exists at present is satisfactory. It takes into account the difficulties that young people may have. That is why the application of the law is limited to those aged under 21 and that is where it should stay. That is why we are voting against the bill. 
DEBORAH CODDINGTON (ACT) 
: 
 I am pleased to take a call on this legislation which ACT is supporting. It is not perfect; there are flaws in it. I would like the Minister to take a call to explain some particular points to me and the reason why those issues are in the bill because ACT did not have a representative on the Law and Order Committee. 
I am always supportive of anything that goes anywhere towards protecting children against sexual abuse by adults. There are two main areas that concern me. Firstly I am pleased that the definition of “family” has been extended. I recently went to a tangi in south Auckland. One of the Maori women there sat down beside me because she knew about the books I had written. She said that at a meeting at the marae a few weeks earlier the women had been discussing how not one child on that marae would not have been sexually abused by other people on the marae and how they could not do anything about it. 
The thing that concerns me about extending the definition of “family” is that it could extend the ability for perpetrators to get name suppression. One of the reasons why name suppression is sought is to protect the victim. It is usually given automatically if the victim is “a family member”. That is often the fault of the media because when a person has interim name suppression the media will report for example that the victim was a 12-year-old niece. If the media did not report that and stated that it was a 12-year-old girl then it could report the name when name suppression was lifted. But when name suppression is subsequently lifted the media cannot report it because that would identify the victim. I argue that we should have something in this legislation or it could come in at a later date—and I urge members to consider this—stating that name suppression can be given only when victims specifically request it or when victims are under the age of 16 and could be identified. By extending the definition of “family” there is a danger that more accused people will get name suppression. 
I would like the Minister to explain why the age of consent has gone from 20 to 18 when family members are concerned. I have some difficulty over that. In the case of doctors for instance if a doctor has a sexual relationship with a patient no matter what age the patient is that doctor can be struck off or will go before the Medical Practitioners Disciplinary Committee. For a doctor to have a sexual relationship with a patient is a real no-no no matter what age the patient is. Could the Minister take a call to explain why the age of consent has come down from 20 to 18? For me it is not a reason to oppose the bill but I am curious as to why that provision is included. 
I do not agree with the National Party about the defence for a 45-year-old man having sex with a 14-year-old girl. I do not believe that the way the legislation is drafted is as loose as that. I would like the Minister to explain it. As far as I can see leaving aside this issue of whether the girl is a prostitute section 134A(2) in clause 7 states that it is not a defence if “the consent of the young person concerned was obtained by a false and fraudulent representation as to—(a) the nature and quality of the act concerned;”. To me that does cover areas. That is used a lot in sexual abuse cases where stepfathers foster parents or someone who is known to the victim has said: “All fathers do this. This is what love means. All families do this. Don’t tell.” That is obtaining consent on a false representation. 
Finally I was recently in the United States. I just remind the Committee of the effects of child molestation. From some research done in the United States it has been estimated that the annual direct costs—admittedly it is not a definitive figure because of the under-reporting and under-prosecution of child abuse—in the United States including medical police court and welfare costs of all child abuse is $24 billion. If we look not just at the financial costs we find that 26 percent of abused and neglected children become juvenile delinquents and that 13 percent of violent crime can be linked to earlier child maltreatment. If we are serious in this country about getting tough on crime we have to be serious at looking at why— 
Hon PHIL GOFF (Minister of Justice) 
: 
 I would like to take an early call just to answer some of the questions that have been raised by in particular Mr Ryall but also to note the comments that Deborah Coddington has just made and to thank her for her support on a number of those issues. 
The first issue raised by Mr Ryall and something he proposed during the second reading debate was that the bill should be referred back to the select committee because it had had insufficient consideration. I draw to the attention of the Committee that this bill was introduced to Parliament more than a year ago and was referred to the Law and Order Committee more than a year ago. A total of 21 hours and 36 minutes were given to consideration of the bill. It was in the hands of the select committee whether it wanted to ask more questions and to take more time over those who made submissions. I received no complaints from people that they did not have the opportunity to be heard or to have their points raised with the committee. The select committee had every opportunity to cross-examine and ask questions of anybody appearing before it. That was in the committee’s hands not my hands. The concept that this bill has been rushed through is just bizarre on the facts of the case that I have just explained. 
Secondly Mr Ryall raised his concern that there was a discussion paper that raised the question of the status of incest and he rightly—to be fair to Mr Ryall—acknowledged that I was against narrowing the definition of incest. I think we need to maintain incest as an offence not because of the classical reason of preventing inbreeding but because children in a family who are dependent have to be protected regardless of whether there is a blood relationship or any other relationship. In fact what we have done is much strengthen the definition of incest. At the moment incest covers not simply sexual intercourse but any form of sexual connection. The member will be aware that under the old law all sorts of sexual abuse could have occurred if the child was over the age of 16 and it was totally lawful. Now we are providing greater protection. 
Mr Ryall asks why we allowed a different point of view to come out in a discussion paper. I have to say that if a discussion paper was to reflect only everything I believed and I did not tolerate it including anything I did not believe it would not be much use as a discussion paper. That is why one has a discussion paper. One has within it different and sometimes controversial views. That is exactly what the Australians did and other jurisdictions. Of course after seeing the discussion paper and hearing some views our Cabinet made a very clear cut and unanimous decision that yes of course not only would we retain the law on incest but we would strengthen the law on incest. 
I thank Deborah Coddington for her comments that she is pleased that the definition of family has been extended. Mr Ryall was having some trouble with the definition of family. New section 131A in clause 7 sets out the classical family membership in terms of parents step-parents foster parents siblings etc. then refers to members of the same family whanau or other culturally recognised family group. As Deborah Coddington rightly pointed out that broadens out the definition to provide protection where it is needed. The section goes even further to include a situation where the child is living with the other person as a member of the other person’s family and that other person has power or authority over him or her. Yes of course we have broadened the definition because our kids deserve the protection that that wider definition gives. Every child should be able to grow up in this society in a family that protects him or her—where the family however it is defined is a sanctuary—and not be subject to the sorts of appalling things we know have happened in the past and regrettably still do happen. 
In relation to the “reasonable belief” provision once again we have toughened the law. I refer to the defence of “I reasonably believed that she was over 16.” It is too easy to say: “I reasonably believed that to be the case.” Now a person has to go through the steps that that person took to ascertain whether the person was 16 or over. So this law is again tougher in protecting those who are under age. 
Mr Ryall raised the question of a particular change that will be made. Under the previous law if a person was 1 day over the age of 21 there was no defence at all even if one could demonstrate that one had reasonably and genuinely believed that a person was not under age—say one had asked for her driver’s licence had checked it and it had stated that that was so. Unfortunately there is the situation—and I think Mr Mark agrees with me on this—where some young women some girls out there can look a lot older than 16 and do use false identification. If a person acts in good faith but is conned by an under-age person why should there be no defence to protect that person? Of course there should be a defence and it should not be arbitrarily restricted to those who are under the age of 21. 
I have no better authority on that than David Farrar who is the co-chairman of the liberal group within the National Party—with Katherine Rich I think—a former staffer of Don Brash a long-time member and supporter of National and a worker in the office of Leader of the Opposition who made the point that I have just made. It is nonsense to say that a person who is 21 years and 1 day old has no defence at all if the young woman concerned looked like she was 18 and presented the person concerned with a driver’s licence that stated that. That is why the old law did not make sense—not just the fact that the arbitrary threshold was contrary to our New Zealand Bill of Rights Act. 
RON MARK (NZ First) 
: 
 I want to go through a couple of points and I also start by thanking the Minister for taking a call. Members come into this Chamber so often for the Committee stage and the Labour Ministers tend to sit there and do nothing. I actually saw one here one evening doing her knitting at that table as opposed to doing the work she is paid $140000 a year to do. I congratulate the Minister on taking a call. It is a welcome change. 
I have gone through some of the aspects of Part 1 that New Zealand First cannot vote against. As difficult as some of those clauses may be to read for some of us we have had to deal with that in the 21 hours the committee sat. I take issue with the Minister when he said we had enough time. Twenty-one hours to consider the bill particularly as the debate unfolded and we had more and more questions was not sufficient time. Twenty-one hours is less than 2 days. Yes the bill has been in the House for a year and it has had 21 hours—less than 2 days—for discussion analysis and taking of submissions. As we got deeper into the bill and further towards its close most parties here said they needed more time. Unfortunately the Government chose to use its strength and numbers and run over the top of people and that was sad. 
What is good about this bill? If members look at the new definitions of what is legally recognised as genitalia in clause 3 in Part 1 they will find that the Government has simply done what it has had to do. We have recognised transsexual and transgender situations that have occurred. Ironically the law has never protected those people. Georgina Beyer’s view at the select committee was valuable and important to us. I do not think looking to my right here that my colleagues in the National Party can seriously say that they object to rape being made unlawful against people who have had sexual reorientation surgery. Certainly they cannot vote against that. To be raped has to be abhorrent for a person who has had sexual reorientation surgery as for anyone else in New Zealand. So clearly one has to agree with that part of the law change. 
What we do take issue with is the definition of sexual connection that rape with an object is not rape. I have to ask the Government again whether those young boys in Hamilton who took to the young boy with the broom handle raped him. This Government and the Labour ladies except for a couple I know who obviously argued against the commonly held view in caucus say that raping men with a broom handle is not rape. They say that it is a lesser crime. They say that the young boy in Hamilton who was violated with a broom handle who was raped was not raped. Why? Because the Labour ladies want rape to be an exclusive crime that can only ever be perpetuated against a woman—not against a male—with a bodily part and not with an object. 
Ask the young woman who laid complaints against the police that she was raped with a police baton. Is that not rape? No according to the Labour ladies whom John Tamihere so accurately described in the media they do not think that being raped with an object is rape. 
 We have tried to argue that. We have tried to get them to change the legislation. I guess it just means that in a future coalition Government that New Zealand First is leading we will have to come back to that issue and amend the bill. I know there are members in the Labour caucus—Georgina Beyer Dover Samuels and Mahara Okeroa I believe—who do not agree with the Minister’s view and definition of rape. Yet they are being forced to accept their party’s decision and sit there quietly. At least they know how to display unity; Mr Tamihere does not seem to be able to. But they know that their party is wrong they know that it is taking a politically correct approach to this and they know that rape with a broom handle a beer bottle or rape with a police baton is rape—end of story. But this legislation states that it is not. 
Let us look further down in the legislation at all the information and the detail that pertains to dealing with people under 18 for sexual exploitation. We will support those law changes. I make no bones about it we will support the Government in passing this bill. But now I have a question from New Zealand First. This Government has a habit of passing laws and imposing more workload on the police but never doing a risk analysis or an assessment of what extra resources will be required for the police force and giving the police those resources. 
It is one thing to pass this legislation here today and say it is a crime to exploit young people under the age of 18 to put them into prostitution or to hire them—to use them. But this Government does nothing about resourcing police so that they can get young women who are being exploited as prostitutes or as child prostitutes in the Manchester Street area in Christchurch off the street. It does nothing. Ask the police how many extra policeman they will get to reinforce this law they will say that they will get nothing. They will have to do this plus 2.7 million hours of traffic duty. 
If one asks the police whether they ever got extra resources to police the lowering of the drinking age they will say no. If one asks whether the police got any extra resources to police the decriminalisation of prostitution they will say no. Then how will the police do this? The Minister in the chair Ruth Dyson should look at the great list of new sections in the bill. Clause 6 “New section 98AA inserted” is a page and a half of what the Government will make illegal when it comes to exploitation of under-age women and under-age men. Where are the resources? This means absolutely nothing if the resources are not given to the police to enable them to get out and police the law to prevent the crimes to catch the perpetrators to prosecute them and to put them in jail. 
What this becomes is lip service to preventing child prostitution. The Government can say that it is complying with the United Nations charter against exploitation of children and it can preach that all over the country but it means nothing if the police do not get the resources to put this law into effect. What it tends to do is to reinforce our view that it quietly condones it that it thinks it is OK and that it actually does not care. It gets away with telling the public that it does care and that it is going to stomp it out because it passed a law. But it means nothing because it does not allocate resources to bring the law into effect and that smacks of the “h” word which we are not allowed to use in parliament. 
I move to clause 7 “New sections 127 to 138 substituted” which inserts new section 128A “Allowing sexual activity does not amount to consent in some circumstances”. Subsection (3) is Dianne Yates’ contribution—and a good contribution it was: “A person does not consent to sexual activity if the activity occurs while he or she is asleep or unconscious.” That gets to the heart of the issue that Dianne Yates brought to the House and those are the aspects of the bill that New Zealand First wants to support and see passed into law. But again we want to see the police and the resources put into the justice system to enable prosecutions against people who break this part of the law to be brought to court and to enable these people—whom I describe as pet food because that is the only purpose they serve in this life—to be put in jail. 
 It means nothing. Dianne Yates’ good work for all those years means nothing if the Government does not resource the police accordingly and if the Government continues to insist that what the police should be doing is issuing traffic tickets. They have spent 2.7 million hours doing that—386 hours per policeman and policewoman regardless of whether they are sitting in police headquarters shining their seats or are out on the road dedicated to doing traffic duty and not this kind of stuff. This is real hard-core crime. 
We will be looking with interest at the Budget to see just how many dollars and how many policemen and policewomen will be devoted by this Government to ensuring that clause 6 is enforced—not just passed and enacted. There have been no prosecutions for exploitation of child prostitutes in Christchurch. I am looking forward to hearing next year that there have been 15 20 or 30 prosecutions particularly in the Minister of Police’s electorate because the bottom line is that if there are child prostitutes in his electorate how many more are there throughout the rest of the country? 
Dr RICHARD WORTH (National—Epsom) 
: 
 I will start by saying that reform of the criminal law is always serious and significant work. The Hon Tony Ryall in his comments in the Committee stage said there were a number of questions that the Minister of Justice Phil Goff should properly explain and he elaborated on some of those questions. But I doubt that the Minister has the ability to provide the answers to even a few of those questions. In the one outburst he did deliver he described incest as a defence. Even a first-year law student would know that incest is in fact a crime. It is also a pity that the Government wants to bolt through this bill in urgency and has not accepted the view of the Opposition that it would be appropriate for the debate to be taken on a clause by clause basis. If that had been possible National could have indicated where it supported particular provisions. Instead we are having a part by part debate on a bill that has only two parts. 
The reality is that this bill is like the curate’s egg—good in part and bad in part. The current minority Labour Government expresses a nominal commitment to law and order but that commitment is long on rhetoric and short on action. If members of the Committee are wondering whether that is fair comment I would say that it is because political correctness seeps through the agenda of the Government in this area as it does in many others. I will give four quick examples in the short time I have. 
We have already heard that the Minister approved a discussion document legalising brother-sister sexual relationships. Now it is quite correct that that discussion document and the specific proposal did not find its way into the bill. But a wise-thinking Minister in this particular area of the criminal law should never have allowed that proposition to emerge in a Government discussion document. [ 
Interruption 
] Because I am being interrupted I say again what it was that the Minister approved. He approved a discussion document proposing to legalise brother-sister sexual relationships for those over 20. In the end the Government backed off. That proposal should never have been advanced. 
Another example a timely one in the context of one member sitting in this House is the Human Rights (Gender Identity) Amendment Bill—a member’s bill albeit sanctioned by a majority of the Labour caucus—that would permit on a basis that would not permit discrimination cross-dressing in the police the military and classrooms. 
 The third example relates to the similarity of age defence for under-age sexual activity. National and the public forced the Government to drop that highly controversial clause. It would have given a defence when there was consensual sexual activity between 12 to 15-year-olds. It was opposed by mainstream groups but supported by the Minister in charge of this bill Mr Goff the Labour Cabinet and the AIDS Foundation. If I take a final fourth example it is the proposal to scrap rape as a gender-based offence. In the result the Government has backtracked on that because a majority of the committee endorsed: “… the offence of rape being retained as a gender-based (male-on-female) form of sexual violation effected by penile penetration of a woman’s genitalia.” But there was a proposal to cast away that offence of rape and instead merge it into a wider grouping of sexual offences. 
I would like to speak for one more minute about what troubles me about this legislation in a broad way. It is well identified in the general policy statement that lies behind the bill. The general policy statement reinforces the view: “… that people are entitled to enjoy a fulfilling sexual life with other persons of their choice irrespective of their sex:”—I am reading from the general policy statement in the explanatory note. Most of us would think that what we are really about is significant reform of criminal law in the area of sexual criminal activity. To paint the legislation as being an entitlement for people to enjoy a fulfilling sexual life with other persons of their choice irrespective of their sex is incredibly irresponsible. 
This is supposed to be criminal legislation. It is intended to deal with offences that violate community standards and are abhorred by right-thinking members of the community. It should not have policy objectives of that particular type. National has said repeatedly in the short period the Committee stage has occupied that the bill should have been subject to more consultation. There should have been far wider community and legal consultation. The Government had an opportunity to do that. It chose not to do so. I believe that there will be as a result of that decision significant unintended consequences. 
We see in so much of the legislation that has been before Parliament in this session instances whereby significant errors have occurred through inadequate consideration. This bill will prove to be one of those examples. Another illustration is the Foreshore and Seabed Act. As that legislation was originally enacted there was a provision that vested all the reclaimed land of the Wellington City Council in the Department of Conservation. That all had to be undone at the rate of knots in legislation passed a few days later. Again we see obvious multiple flaws in the Building Act. 
The problem in simple terms is this: when one goes about reforming criminal law it should not be done on a patchwork basis. Why do I say that? Because chunks of work should not be taken out for separate consideration. Criminal law in general terms should be seamless. If it is broken up in the way that this bill has done with different parliamentary counsel engaged in different sections of the work the result obviously will be that errors are likely to creep in. And so they will. 
GEORGINA BEYER (Labour—Wairarapa) 
: 
 I am pleased to take a brief call on the Crimes Amendment Bill (No 2) in the Committee stage. I first of all acknowledge what Ron Mark said in his speech and refer to some of the matters he raised. I have to say that I agree with him regarding rape. I am certainly glad that we had the possibility to include the transgender and sexual reassignment provisions in the bill regarding that issue. I did take a universal view that rape was rape whether by bodily penetration or with an object but there is a difference between rape and sexual violation in the law. I was informed at the Law and Order Committee that sexual violation still held the same punitive penalties; it is just the title that differs. So I did obviously end up supporting that view although I was uncertain about it at the time. 
I will just refer to Mr Richard Worth who—kindly or not—raised the issue of my member’s bill the Human Rights (Gender Identity) Amendment Bill. He seems to be going on with this mantra about cross-dressing. I would remind the member that decades ago now it used to be against the law for men to wear women’s underwear. That was absolutely ridiculous; the law is long gone from the statute book of this country. I have known people who were arrested for that. I know of transgender people who used to have to go to Mojo’s drag nightclub in Auckland dressed as a man they could dress as a woman and do their entertainment show there and they had to change back into men’s clothes again when they left. That is absolutely ridiculous. The Government of the day obviously thought so 30 or 40 years ago and it repealed the law. The way that Mr Worth made reference to cross-dressers with that real “Ew yuck!” flavour to it really shows just how minimal his knowledge of cross-dressing is. 
Of course one thing I remind the Committee of is the famous photograph of a former member of the National Party John Banks—who now hopes to be the leader of the ACT party—in his tutu when he was a Minister in this Parliament I understand. He was a great example but would we have wanted him discriminated against for doing that? Some may say “Yes”. There was also a very celebrated police commissioner by the name of Rob Moodie who wore kaftans. He was celebrated and famous for it. That could be termed cross-dressing. Should he have been discriminated against? No I do not think so. 
Anyway I will not continue on that line because it is a little off the bill. But I look forward to the debate when my Human Rights (Gender Identity) Amendment Bill has its first reading hopefully after the next election. 
JUDITH COLLINS (National—Clevedon) 
: 
 It has been a very interesting morning listening to all the contributions. I will take just a moment to correct the member who just spoke Georgina Beyer. Rob Moodie was the president of the Police Association as I recall not the police commissioner which is quite a different role altogether. I cannot quite imagine the current police commissioner in a kaftan but one never knows. As long as it does not hurt other people it is fine with me. 
I come back to the more serious issues. I have been wondering why the Government has not changed this bill given all the very good contributions from members about the deficiencies in it. Even members who will support the bill have pretty much the same complaints about the deficiencies. I wondered why the bill had been on the Minister’s desk for the last 6 months and then the answer came to me as clear as a bell. Mr Tamihere told us what it is. It is because the Labour caucus is so split down its politically correct lines that it cannot get the bill back to caucus for agreement. Obviously that is the answer. 
The Hon Tony Ryall mentioned some of the offending parts in the official documents on this bill. I will read them out for the benefit of the Committee: “The ministry proposes however that any brother-sister sexual connection involving abuse of trust authority or dependence where one of the parties is under 20 be covered under the proposed offence of sexual connection.” In other words for anyone over the age of 20 brother-sister incest would be just fine. 
 This is the sort of nonsense that a politically correct Government driven by various special interest groups would go along with. How many people who voted Labour in the last election—nice decent people who look after their kids and pay their taxes—would have signed up to that sort of nonsense? But we should say: “Good on you!” to the Minister because he did say eventually that he would not go for that—we know he did not agree with it. But by goodness we know how this Government works. It puts up these ideas then we come out and say: “That’s shocking.” then the Government sees what the people want to do then it looks at the polls and then it decides whether it will go ahead with the idea. This Government has a real problem making any negative value judgment—that is what it calls it; a “negative value judgment”—on any sort of lifestyle issue. 
Dr Wayne Mapp 
: Anything goes. 
JUDITH COLLINS 
: Anything goes and the only time it makes a negative value judgment is when somebody stands up and says: “No actually it’s not OK to do that to our communities.” 
I say again to the parties in this House who are voting for the bill that I cannot understand what in the bill they could possibly vote for. Indeed there are some good things in it but they are so small compared with some of the bad things in it. My colleagues Dr Wayne Mapp and the Hon Tony Ryall have both put forward substantial amendments to try to make the provisions in this bill a little more sensible. But the Minister will not vote for them. We know that. He will not vote for anything like that because it is a bit too sensible. He does not want this bill to go back to the select committee. He talked about how the committee had spent 1 day—24 hours—on this particular provision. 
Ron Mark 
: It was 21 hours—less than a day. 
JUDITH COLLINS 
: Oh it spent 21 hours on it. It spent less than a day’s hearings on it spread over 2 days. That is nothing compared with how important these provisions are. It is a remarkable thing that the Minister can say the select committee had plenty of time. I certainly sensed from the plaintive little cry from Martin Gallagher the chair of the committee—the plaintive little male cry from the back benches of the Labour Party—that there was not sufficient time. He certainly came across that way when he made comments like: “We really did have a lot of good discussions.” and “I’d really like to sort of thank everybody.” and “There were lots of issues that we couldn’t quite resolve.” He came across as saying: “There are lots of issues that aren’t particularly right but I got bullied into it because I can’t take it back to caucus.” Poor old Mr Gallagher! What else can we say. 
DEBORAH CODDINGTON (ACT) 
: 
 The previous speaker said she did not know why some parties were voting for the bill and no it is not a perfect piece of legislation but it has been around for a year. In my view a consideration of 12 months is not indecent haste. 
If the bill goes back to select committee and if it goes on with more public consultation more children will be abused while that happens. While we delay and kick the child sexual abuse issue around like a political football more and more children are abused and the effect on those children for the rest of their lives is absolutely appalling. This is not a crime like any other crime. The effects are far-reaching and they affect all of society. 
Victims of child abuse do not care about whether crime legislation is being overhauled on an ad hoc basis or on a perfect basis; they do not take those sorts of things into account. All they think about is what they are going to do next—even how they are going to get out of bed in the morning. Children do not have the vote. It is our responsibility to protect them; they do not march down the street and demand better laws. 
I support what Ron Mark said that men who use child prostitutes should be prosecuted. They should have the full force of the law brought down on them. But who can say that being a child prostitute is a lifestyle choice? The reason those girls are child prostitutes is that they have been sexually abused in the past usually by family members or someone known to them. That is how the majority of child sex crimes occur; they are committed by people who are known to the victim. The people who snatch the Teresa Cormacks off the street are rare. Those offences are usually committed by clergyman teachers doctors JPs—respected honoured members of society. If we go on delaying legislation like this just because it is not perfect those children will continue to be abused. 
ACT will be supporting the amendments on sexual grooming. That is an insidious crime and we need only to look at the actions of one Peter Liddell to see the destruction that that man has brought about. For example with regard to Jenny Anderson’s talkback show on Radio Pacific when Peter Liddell had name suppression lifted in the Court of Appeal that came on the news at 1 o’clock. At quarter past one a woman rang. I will not say her name but she did say it on air. She was crying and she said she had just heard the news that the name suppression on Peter Liddell had been lifted. She talked about her son who had been counselled by Peter Liddell. He was a young Maori boy and Peter Liddell favoured vulnerable young Maori boys. Her son kept coming home saying that Peter Liddell was sexually abusing him but the woman said: “We didn’t believe him. Peter Liddell was the man in the white coat the trusted counsellor.” This woman had just found out that her son had been right. Jenny Anderson asked: “Where is your son now?” and the woman said: “He killed himself because no one would believe him.” That was the most damning indictment I have heard on sexual grooming. 
I also support the amendment that makes rape gender-neutral. I do not see why men should not be convicted of raping other men. 
The matter that concerns me in this legislation is that we seem to be over-addressing issues that are already taken into account by the courts. For instance there are already convictions for mistaken identity. 
If we look at some of the cases in my books we see that there are cases of men who have been prosecuted because they have climbed into bed with a woman when she has been asleep. She has often gone to sleep because she has drunk too much but that is no excuse for someone to get into bed and start having sex with her pretending he is her husband. When she has woken up and discovered the person is not her husband the person has been prosecuted and sent to jail. The same outcome has applied to cases concerning drugs. Judges have taken the view that those people could not consent because they had drunk too much or been drugged. 
We have moved on so far in this country when it comes to the prosecution of sex crimes because once we would have had the attitude that those women deserved it. Thank goodness we do not have that attitude any more and that we do take the attitude that no matter what a woman does—whether she goes out wearing a short skirt and a low cleavage whether she drinks too much or whatever—she does not deserve it just as a man who walks down the street in an Armani suit with a wallet-full of money does not deserve to be robbed. We do not take that attitude. 
The other irony while I am on that subject is to ask why it is interesting that when men wear skirts they are cross-dressers but when women wear trousers they are not. 
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. 
Hon PHIL GOFF (Minister of Justice) 
: 
 I listened carefully to the member who has just resumed his seat and by and large he was of course repeating comments he made in earlier calls. I have answered a great many of those so I will not repeat myself in that regard but I raise just the question of the age of consent. I think every member in this House believes that the age of consent should be at least 16. Children who engage in sex under that age risk doing real damage to themselves emotionally rather than simply physically because they are not ready for the emotional side of that sort of relationship. So naturally I would take offence if the member was intending to say that any other member of this House believed that under-age sex was a good thing—we do not. 
What I have done in this legislation is considerably toughen the penalties for having a sexual relationship with somebody under the age of 16. We have increased the penalties. The maximum jail sentence has been increased from 7 to 10 years. We have removed the protection that people had before whereby if one did not bring a case within 12 months then the offender would escape scot-free even if there had been a predatory relationship between a much older male and a young girl. So we have taken the law further than it has ever been taken before. But we also made the point that of course it was not our intention to see two 15-year-old teenagers experimenting in a sexual relationship locked away for 10 years. Nobody in the House thinks that that is a sensible idea. Nobody in the country thinks that that is a good idea and that can be taken from the fact that the police simply do not bring prosecutions. Parents do not take kids to court because they are indulging in under-age sex. Schools do not try to take this matter up through a pathway of prosecution. 
Originally the bill contained the same defence that California has that Victoria has that Canada has and that a great many Western jurisdictions have which is to say that if there is a close similarity of age then that would be a defence that might prevent imprisonment. I would have stuck with that defence if I had thought it was necessary because I do not want to see 15-year-old kids who are experimenting in sex locked up in jail—nobody does. Nobody in this House wants to see that. I know that basically the police will follow the same practice as they did before and they will not take that action but the “similarity of age” defence was a protection against that happening. That was deliberately misconstrued. 
I have a quote here from Russell Brown a well-known media commentator who says: “I’m afraid Ryall knows very well that what he is saying is untrue and scurrilously so.” I think we all know that that was politics but the politics played out its role. We have removed that provision and kids will not be prosecuted when they should not be. The member should not pretend to the Committee that this was anything other than simply a bit of grubby politics because that is obvious to all of us. 
The member raised a question about unintended consequences. I thought Mr Ryall wanted answers to his questions but clearly he does not. He has walked out so I will not bother with him. I would like to come back to the point made by Deborah Coddington. 
Hon Tony Ryall 
: I raise a point of order Mr Chairperson. A member— particularly a Minister who has been out of the debating chamber during most of the debate on his own bill—cannot refer to the absence of a member. 
Hon PHIL GOFF 
: Speaking to the point of order Mr Chairperson I was answering the member’s questions in good faith. I have a list of the questions he has raised and I was going to go through them point by point. Surely under the Standing Orders it is grossly discourteous for a member who has asked questions and taken up the time of the Committee then to walk out as soon as the Minister gets to his feet to answer them. 
The CHAIRPERSON (Hon Clem Simich) 
: It may be discourteous but it is wrong and against Speakers’ rulings to refer to a member leaving the Chamber. We will just proceed as we were. 
Hon PHIL GOFF 
: I was about to address my comments to Deborah Coddington who I thought made some very sincere and good points about the legislation what it intends to do and about the appalling situation that occurs in our community including the case of Peter Douglas Liddell whom I tracked earlier in my career in Parliament. I was appalled at the incredible damage done by a man like that. In my opinion no law can be tough enough to deal with a man who blights people’s lives and in the incident she referred to led to the suicide of a young man who was offended against and then disbelieved. People who act in this way as predators act in a way that gives them credibility. They are often respected figures. He was a counsellor at King’s College and a child would not be believed against a man in that position. I deplore that sort of behaviour and this legislation in so far as it toughens up the penalties against those people is well merited and I will be pleased to have the support of members for it. 
Deborah Coddington raised a question about suppression orders. Suppression orders generally should not be relied on. In fact only in about 0.4 percent of cases suppression orders are issued and they are largely in cases where it is the intention of the court to protect the victim. However I think that Ms Coddington made the fair point that sometimes the victim does not want that form of protection and the court is imposing it against the will of the victim. That is why I amended the Criminal Justice Act back in 2002 to require the court when seeking name suppression for the accused to take into account the views of the victim. 
Clearly that was a message to judges. If the victim says: “Look I might be the daughter of this person who is supposedly a respected pillar of society but I want the world to know what he has done and if the price of that is to expose me as the victim I am prepared to pay that price.” then the court should heed the views of the victim. I think that that is very important. 
Finally I will just touch on the question of the definition of rape. I know that a number of members—Sue Bradford Marc Alexander and I think Ron Mark has indicated support—have in good faith said that they wanted a change to the definition and that a variety of other things should be regarded as rape. The select committee considered that very carefully and I have no fundamental opposition to what each of the members is asking for but each of the solutions has inherent in those solutions its own problems. 
The fundamental point is that whether it is rape or sexual violation by unlawful sexual connection the penalties are exactly the same and I think everybody understands that. I want to put on record for the courts which do refer to the  
Hansard 
 of the debates that this is the intention of Parliament and whether it is a male sexually violating another male or whether it is oral anal or vaginal the penalty should be the same regardless of the gender of the offender or the nature of the penetration that is committed. The law provides that the offence is the same in every case. So we get down to what terminology we should use. We thought about extending the definition of rape so that it could include male on male and I looked very carefully at Sue Bradford’s amendment but then I am left with all the questions at the end of it. Yes I could live with all of that but then what about penetration with an object? Should that be rape? That is not covered by the member’s amendment which I have looked quite closely at. Maybe it was intended to be covered. 
Sue Bradford 
: Yes subsection (1)(a). 
Hon PHIL GOFF 
: I will take the member’s word for that. But in the end there was not a consensus on this matter at the select committee and in an area where I believe we should try to find a consensus if we cannot do so we stick with the status quo. I am comfortable with the status quo in the sense that it does not affect the penalty that applies to any of the forms of offending that have been discussed by members and in their amendments. I respect their points of view. I am not strongly opposed to what they are advocating. I have searched for a consensus. The wider consensus at this stage that I have found is around maintaining the status quo. I accept that and for that reason I will with some regret not be advocating support for the amendments moved by various members on that issue. 
RON MARK (NZ First) 
: 
 I wish to take just a minute to reply to the Minister whose sincerity I accept. I actually know him personally and I think I have a very good understanding of his views but I have to say that it is not good enough to say there was a majority in the select committee that supported the status quo. If one looks at the party situation the Labour Party members were the only members on the entire committee who held that view. The select committee is made up of members of the United Future Party the Green Party the New Zealand First Party the National Party and the Labour Party and it is on record that four of the five parties said that this definition should change. 
Labour can get away with a little bit of fudging here but the fact remains that it has stacked the committee with its numbers. It has stacked the committee so that it gets the outcomes it wants and it is bullying its way through this. The Minister should take a wider view. If four of the five parties in this Parliament can agree that generally what the Government is doing is right but that on this particular definition it is wrong then why can the Minister not be magnanimous accept defeat and go with the majority party view? 
We know that the Government has the numbers and can force its way. It does not have to because when we get outside this Chamber it will be dealing with it anyway because United Future the Green Party the ACT party the National Party the New Zealand First Party and the Maori Party will all be out there during the election saying that Labour was wrong. There will be only one party that says that the definition is right and that is the Minister’s party. The tragedy is that within his own caucus we know there is a difference of opinion and he should listen to it.