Penk ChrisCHRIS PENK (National—Kaipara ki Mahurangi): Thank you very much Madam Speaker. Obviously a very serious subject matter in these two bills. I'll just start by noting as I think the Minister did that there are two bills that are on the Table; they are being joined together as cognate bills as we say because they have a broad overarching purpose. I think considering the aims of these taken together as wanting to improve the experience of victims in our court system does allow us to treat them together. They're both worthy aims. No doubt every member of the House supports them. Obviously we can discuss you know the ways in which that best can be achieved and to some extent that will be part of the election campaign coming up. But as far as the measures are concerned that are in front of us today I reiterate the support that has been assured from our spokesperson the Hon Paul Goldsmith namely we do support the aims of the Government in relation to these bills. We will be voting in favour of them once the first reading debate has concluded. The courts' operation in this country has been for many years quite dysfunctional. The level of dysfunction has only increased in recent years so backlogs delays costs and other difficulties including the way in which victims must interact with the justice system—these problems are well known; they're agreed to a large extent including in the political environment and the difference of opinion I suppose tends to be about the measures that we should take and how quickly we should take them and so forth. So as a starting point I think it's positive that the problems of the system are acknowledged; however there is much that needs to be done. These bills fit within that context but they are not the whole answer by any stretch of the imagination. In the Family Court environment particularly we note that there is a longstanding discussion around the fact that some parties have at various times—and I mean parties to the litigation; I don't mean political parties—been accused by the other parties of making spurious allegations in a way that would see them gain tactical advantage in terms of how the proceedings play out. Obviously these are really complex issues. We grapple with the tension of wanting to allow people to bring matters to court to have their day in front of a judge or a jury as the case may be and to be able to have access to justice in that way but we don't want on the other hand to allow that to be a process by for which they conduct abuse or perpetuate abuse against the other person. So it is genuinely a difficult balance to strike. When we think about processes that themselves could be described as punishment I think it's fair to have the Parliament consider how we can reconcile those two tensions: on the one hand we want people to be able to state their case in court for the benefit in a Family Court environment where children are involved and if there was a real fear and a genuine concern that the young people involved might be subject to emotional or physical abuse of course it's appropriate for an order to be sought. We want that discussion to be had; we want the protection to be in place but at the same time we don't want the process and therefore the people involved to be abused with claims not being made in good faith.The distinction between what currently exists on the law and what is being proposed in relation to the family violence bill within the cognate bills as I understand it—and I'm not that au fait with the area of law but it seems to me that the difference between what we've got now and what's being proposed is that now a proceeding can be refused if the judge considers that it doesn't have any merit. But actually that's in a way a high bar because it might be the case that there is some merit in a case being brought but it is going to be brought in a way that is abusive of the process. So it might be multiple claims being filed as opposed to a single one so that the person who's on the receiving end might feel bombarded by those and of course that might be the point. Sadly there are those who are in whatever frame of mind that they think it's appropriate to try to exhaust the other party emotionally or perhaps in a financial way and wear them down and bring them to a negotiating table in a way that reflects the power imbalance—well almost invariably wouldn't reflect the best interests of the child. And of course that should be a litmus test for many of these types of proceedings and indeed our law already says that that must be the case.So the way that this tension is navigated by the bill is in the proposal that a new section 12B be inserted to the Family Court Act. So it says that the judge can effectively refuse that a person be able to bring a matter—that's not the correct wording but that's the gist of it—if two different things have happened. One is that the judge must be satisfied having regard to all of the circumstances that a party to the proceeding has exhibited conduct that is an abuse of the court. Having all the circumstances taken into account of course is what we want; we want the judge to be able to decide in his or her discretion or judgment so to speak that taking everything together that it would be an abuse of the court. I'll just focus on that for a moment because abuse of the court" is sort of how we describe things in the way that these matters come up in our judicial system. The fact that it's an abuse of the people involved is of course really the point but we talk about the court process and the system of justice as a whole needing to be protected so that's fine as far as it goes. I'd just note that along the way. So that's the first bit of the test—that all the circumstances indicate that an abuse of the court would be the result of the conduct that's been exhibited. Then also that the party has been given a reasonable opportunity to be heard and this is to square what would otherwise be a logical gap whereby if a person wants to have their day in court and thinks that they've got a case of merit how can they make that case without—you know if someone decides in advance that it's unmeritorious. So we've got to have the opportunity for that to be judged. So the decision maker—the judge in this case—has the opportunity to say "Well these two things have been satisfied." And that's basically the kind of analysis that was done. For example in the New Zealand Bill of Rights Act assessment by the AttorneyGeneral in relation to this matter he rightly turned his mind to the question of whether access to justice was being unduly impinged and he thought that it was a reasonable limitation on the right because of this kind of test this kind of balance that's being achieved. So that's as far as I can go or need to go I think on the subject of the litigation abuse as it's called. Talking now sadly about a different kind of abuse as is our duty in this Parliament. Unfortunately we do have to deal with such heavy subject matter as child victims of sexual conduct and other horrors. So it is that the Victims of Sexual Violence (Strengthening Legal Protections) Legislation Bill deals with the scenario that just seems so illogical that actually I for one didn't understand or didn't realise that such a gap existed and it just seems bizarre that it did. But kudos to the Government for recognising that and for moving to close that loophole if you will. What I refer to is what others have spoken about already which is that if a young person—a child indeed as defined—has been subject to behaviour if proven that would amount to abuse that they could be asked about the extent to which they had consented to it or even enjoyed it and that seems grossly inappropriate not only on a common-sense basis but even just in terms of the way that the law operates which is to say if you are young enough such that you could not have consented to the actions—in a way that is sometimes referred to therefore as "statutory rape" for example or equivalent actions—then it's an absurdity to be considering the question of whether consent was given because that's irrelevant. It's sort of strict liability in that sense; it's not relevant whether the young person might have been put in a position where they were being encouraged to consent or enjoy etc. such behaviour as that. So it's appropriate that the Government is moving to rectify that anomaly. The Minister I think gave a pretty good account of how those different parts within the existing law operate. We support that change. We support the other changes. As my colleague and friend the Hon Paul Goldsmith has said these things also do need to be considered carefully by a select committee. That will happen soon enough. It won't be during the term of this Parliament or at least submissions might be called for in the meantime and hopefully those who are interested in such matters will be able to have their say. There'll be lots of interesting insights no doubt from practitioners legal and otherwise as well as those who are so deeply affected by these matters. We welcome all that interaction; we welcome the valuable discussion and in the meantime we also welcome the first reading of these bills and commend them to the House."