Ryall Tony: Crimes Amendment Bill (No 2) — Second Reading Instruction to Committee In Committee 
Ryall Tony: Crimes Amendment Bill (No 2) — Second Reading Instruction to Committee In Committee 
[Volume:625;Page:20006] 
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.