Ardern Jacinda: Crimes (Provocation Repeal) Amendment Bill — Second Reading In Committee Third Reading 
Text is incorporated into the Bound Volume 
Ardern Jacinda: Crimes (Provocation Repeal) Amendment Bill — Second Reading In Committee Third Reading 
[Sitting date: 24 November 2009. Volume:659;Page:8255. Text is incorporated into the Bound Volume.] 
JACINDA ARDERN (Labour) 
: 
 I am pleased to take a call and follow on from the very useful contributions of my colleagues. I will be taking only a reasonably short call at this stage and perhaps during the Committee stage I will make more detailed comments on some of the discussions that took place at the Justice and Electoral Committee. As has already been pointed out Labour is obviously supporting this bill particularly given that it mirrors the bill that was put forward in the ballot by the Hon Lianne Dalziel. 
I reiterate and concur with the comments made earlier by the chair of the select committee Chester Borrows about the historical justification for the defence of provocation and about that justification being one of the reasons why repeal can in fact be justified. But there are a couple of additional reasons which I want to add into the debate. An additional reason for the removal of the provocation defence which was discussed at the select committee is that the evidence as to what allegedly incited a homicidal loss of control which in effect is what the defence of provocation must demonstrate is entirely in the hands of the victim and in almost all the examples in which provocation has been used as a partial defence in past years that witness—the victim—has of course been silenced for ever. 
The second point which I think is another very valid reason for the removal of the defence of provocation is that there is already a place for provocation to be taken into consideration in the weighing of aggravating and mitigating factors as part of the sentencing exercise. Having said that I note that there were suggestions during the select committee process as to whether there needed to be more explicit reference to that in the Sentencing Act 2002. The decision was made by the committee that that was not necessary and that that discretion already existed in the Sentencing Act although it was perhaps not set out quite as explicitly. 
In fact it was noted by the select committee that that discretion exists under section 102 of the Sentencing Act. It allows a judge to take into account the existence and degree of provocation-related considerations together with any other relevant aggravating or mitigating factors to determine whether a sentence of life imprisonment would be manifestly unjust. So we can see that discretion already exists at the point of sentencing which is the appropriate point for it to be taken into consideration—at the point when it is considered by the judge. 
There is though another issue that the committee spent a bit of time on and that is the term “manifestly unjust” in relation to a term of life imprisonment. The term “manifestly unjust” is a high threshold and I think in this case it is warranted particularly given the message that we are sending today in this House about the kinds of defences that can be used when a murder charge is being heard. But “manifestly unjust” is a high threshold and the select committee considered the way that cases and guidelines would develop around this threshold following the repeal of the defence of provocation. The select committee also reported back that “Following the abolition of the partial defence we would expect the courts over time to develop judicial guidance as to how such factors should be taken into account when determining whether a sentence of life imprisonment would be manifestly unjust for an offender convicted of murder.” 
That leads me on to the two final points I want to make. The idea of a Sentencing Council was raised many time by Labour members. It was established and provision was made for it by the previous Labour Government but it has since been abolished by the National Government. I think that is a shame because this debate has again demonstrated the very valid role that a sentencing guidelines council could play in the future. That is something I want to come back to later on in this debate. 
One final view that I wish to share is a sentiment I share with my colleague Grant Robertson. We are very pleased that we are here today to remove this partial defence and we all acknowledge that it is not a knee-jerk reaction to the Clayton Weatherston case. I believe that today we have been given plenty of examples with plentiful justifications as to why the House should have reacted in past years to some manifestly unjust cases that have involved members of the gay community. Two cases that have been raised are those of Ronald Brown and David McNee. I am glad that we as a House are making this decision to repeal this defence today. I am disappointed that it has taken us as long as this to get to this point and I look forward to debating this further throughout the evening.