Sentencing (Offences Against Children) Amendment Bill

I move, That the Sentencing (Offences Against Children) Amendment Bill be now read a second time. This bill was the subject of some very worthwhile debate at its first reading, and that debate usefully crystallised some of the issues for the House. I thank the House for its unanimous support of this legislation. I think it was the Hon Annette King who made the statement that, from time to time, Parliament and politicians get it right when issues that matter come before us. I note the bipartisan offer from the Leader of the Opposition and the deputy leader of the Labour Party to work on issues of child abuse and crimes against children. I know that the offer was genuine, and I will certainly take that into consideration. I thank both the Leader of the Opposition and the deputy leader of the Labour Party for that. I also thank all members for the genuine way that they have approached the legislation. That is not to say I have agreed with everything they have said, but I believe that everybody has approached the issue in a way that has lent some weight to the discussions.

Offending against children that involves violence or neglect is far too common in our society, and the root causes of such offending are much more diverse and fundamental than can be targeted by sentencing in the criminal courts alone. No one today is suggesting otherwise. However, sentencing for such offending must, as I said earlier, reflect society’s abhorrence of child abuse and the far-reaching impacts it can have.

The Sentencing Act already lists some aggravating factors to be taken into account at sentencing that apply to offending against children. But this bill takes that further. The new factors will be considered alongside the existing factors, and can be distinguished from them, albeit subtly. I raise this issue because of the point that the Green member Metiria Turei made during the course of her contribution. Defencelessness can be distinguished from vulnerability by, for example, focusing on the degree to which the victim could find protection from an offender, rather than the fact that a particular child is more easily harmed or is somehow to blame in a situation of conflict, such as in the circumstances raised by the member. More important, the inclusion of the extra factors provides a clear signal to the courts that Parliament intends to take offending against children very seriously. Obviously, how the independent judiciary chooses to respond to that signal is, of course, entirely in its own hands. But I think the unanimous support in the House for this legislation today makes it clear what the representatives of the New Zealand public think about that issue.

If the House passes this bill, the new law will come into effect in a matter of days. The court will take the new factors into account when sentencing all those who offend against children from day one. The reason the new provision could, I guess, be applied in that sense is that it does not amount to a penal enactment. Section 5 of the Sentencing Act provides that the Act will apply to offences committed before and after the commencement of the Act, with certain exceptions.

The bill is a first step, and I accept the contributions from others who stated that there is much more to be done. Early next year I will be introducing a bill that deals with offences and maximum penalties available when children are the victims of offending. Other Government initiatives in the criminal justice area, such as denial of parole for the worst repeat violent offenders, will also have an impact on those who offend against children. However, we are dealing with sentencing today, and I will now turn to the policies behind the bill. Section 7 of the Sentencing Act provides that sentencing has several purposes. One is to hold the offender accountable for the harm his or her actions have done to the victim. Another is to promote in the offender a sense of responsibility for, or acknowledgment of, the harm he or she has caused. A third is to denounce the conduct in which the offender was involved. There are several other sentencing purposes listed, but I see this bill as furthering those three in particular.

When a child is a victim of violence or neglect, the offender has a lot to be held accountable for. Studies have shown that, by the age of 18, physically abused or neglected children may have impaired interpersonal skills, problems with academic performance, aggressive and violent behaviour, an increased risk of youth offending and suicide, and potentially a range of psychiatric disorders. Offending against a child can blight the victim’s entire life and can have disastrous consequences for those who interact with him or her for years to come. That is why the bill expressly provides that the court must take into account the harm caused to the victim by the offending, including any serious or long-term physical or psychological harm. Offenders need to have it brought home to them what damage they have done, and the time for this to happen in any real and tangible way is at sentencing.

Another factor to which the bill draws the court’s attention is the magnitude of the breach of the special relationship of trust that should exist between a child and an adult. A caregiver has responsibilities towards a child and a child has legitimate expectations of a caregiver. Sentencing should reflect the degree to which the caregiver has abandoned his or her responsibilities, and the sentencing process should work to force the offender to confront the level of harm that the offending has caused. As we have seen in recent cases, some offenders seem to consider violence against children as a normal part of being a caregiver. The sentencing process provides an opportunity to challenge that attitude. Finally, another purpose of sentencing is the denunciation by society of certain conduct. The level of penalty imposed by the court is a reflection of society’s condemnation of particular conduct. A harsh penalty indicates that certain behaviour is unacceptable and demonstrates that it will not be condoned.

Few crimes are more unacceptable to a civilised society than attacks on its most defenceless and vulnerable members, which children undoubtedly are. This is aggravated when the offender has actual responsibility for the defenceless victim. Such conduct is unacceptable not only because of the harm it causes to the victim and, in the longer term, the community but also because such conduct is worthy of condemnation in its own right—it is just wrong. Society needs to constantly reaffirm its repudiation of violence against children, because that repudiation is a mark of a sane, healthy society. We do that most concretely through sentencing for offending against children, and this bill strengthens that commitment.

As a father, I want New Zealand to be a great place for kids to grow up in, where they are all safe and well cared for, as I am sure all members in this House do. As Minister of Justice, I want to be sure that people who place that safety in jeopardy are held accountable. As a Government, we want to ensure that families are stable, functional units contributing positively to society, and, as parliamentarians, we all have the opportunity to denounce the mistreatment and abuse of children by supporting this bill. I commend this bill to the House.

Although I would reiterate the comments that have been made by members on this side of the House that we will work constructively and positively with the Government where viable, workable, and achievable solutions are put forward, I just have to come back to some of the comments that were made by members opposite.

It seems to me that in the last 5 days the National Government has put forward a number of bills that are all about, to quote its members, “sending a message”. National members have done a lot of message-sending in the last 5 days. Going by the Minister of Justice’s own words they are now sending another message, but we ask what has actually been achieved. If we look at the analysis that David Parker, who is a lawyer, took us through, line by line and clause by clause—and he compared the new proposal with the existing legislation—we see that he came to the same conclusion that Professor Geoff Hall came to. Professor Hall’s conclusion was that there is nothing new at all in this bill and that, sadly, it is window dressing.

At this point I address a comment to Mr Borrows, who said in response to our side quoting Professor Hall that he regarded the professor as having some credibility because he had said it was Parliament’s job to use legislation to communicate with judges. Well, of course it is. That is what Parliament is for: to write legislation and to place it before the judiciary. It is therefore the job of the judiciary to interpret that legislation. But I gently say to Mr Borrows that he cannot have it both ways. He cannot regard Professor Hall as having a high degree of credibility and then rubbish his comment—and I think it was also rubbished by Dr Worth.

I will quote Professor Hall again. He said, with regard to the provisions that are already there, “It sounds to me like it’s window dressing, what is being proposed,”. Mr Borrows cannot say on the one hand that Professor Hall makes good points and that legislation is about communicating with judges—well, of course it is; judges rely on legislation and they are charged with interpreting it—and then say on the other hand, effectively, that Professor Hall does not know what he is talking about. Professor Hall agrees with David Parker, me, and all members on this side of the House when we note that these provisions do nothing new, even though we are supporting them.

If we come to the same conclusion as Professor Hall, then I reiterate Mrs King’s point when she said that this legislation is, sadly, all about presenting an agenda to create a perception that there is a big, gritty, and weighty workload—a plan of action—during the great 100-day plan that will have a positive impact on the lives of New Zealanders. Well, we have seen that the Bail Amendment Bill mirrors this Sentencing (Offences Against Children) Amendment Bill in terms of new words, but there is a duplication of effort because the provisions of the legislation are already there. Judges, of course, are relatively unfettered by the factors that they can take into account. As I say, one would have to conclude that for the National Government this is more about politics than it is about substance. However, the people will judge that.

Ms Collins made a point that I think needs to be addressed. She said there was no need for the bill to be referred to a select committee. Over the last 5 days—without getting into other areas—that has been a clarion call from the National Government. The Government seems to say that because it won an election, which it did, and it is charged with putting legislation forward, which it is, the public should not get a proper say and, effectively, we should not have select committees.

💬 Hon David Parker: They’ll want to do away with Parliament next.

I do not know; the member would have to ask National members. If National’s thesis is that an election victory means no public input thereafter—the public has a vote and that is it—then I suppose the public could put forward a proposition questioning why we have select committees. Why have them at all? Why allow members of the public and experts like Barnardos, the Salvation Army, the Children’s Commissioner, and others to have a say? National won an election, so according to National the people have had their say and it is all over. Maybe we should simply adjourn the House, and National could put legislation through by edict. National would love that, I am sure; Cabinet could just sit there and sign off on the legislation. Why do we need 100-plus members of Parliament to debate, have input, and engage in those sorts of things? I think Ms Collins’ point misses the mark, sadly. I think it would have been instructive to have received input from experts other than the departments.

It is interesting that Mrs King talked about the tongue-lashing that bureaucrats have received over the last month or so. Ironically, they are now being exclusively relied upon for consultation in respect of all these bills. The folks who are not being relied upon are the agencies that the police work with—non-governmental organisations, for instance. I am sure Mr Borrows has worked with them and knows them well. I am sure that he found, in his career as a policeman and a lawyer, that those organisations provided added value to his work and the work of his staff. They are not getting a look in on this legislation because, so goes National’s line, “We signalled this; it’s happening. We won an election. The people had their say through a vote. We’re just doing it.” If that is a precedent that will go forward, then I think it is a very dangerous one.

I do not think anybody in this House has a monopoly on all knowledge or expertise in every area, and certainly I do not. I rely on external non-governmental organisations, and people like Professor Hall and others, to provide information so that we can stand up and make a reasonably decent contribution in the House. But that also means engaging with those communities, and in this case it means engaging on the issue of child safety. However, we are not talking about the prevention of death in respect of this legislation. Sadly, we are talking about a measure that does not deal in a proactive way with the causes of what is happening, and that does not identify the causes of abuse, neglect, and violence towards children within the home. We are not saying we ought to bolster those measures and put resources behind them. We are dealing with an ambulance at the bottom of the cliff, which is reactive.

I say again to the Minister for Social Development and Employment that we are concerned about the 500 staff to whom the axe will be taken over the next year or so. We have not had any commitment from any member of the Government thus far to assure us that those people will not be the front-line staff who deal with the protection of children and the identification of violence, neglect, and abuse against children. We have not had any assurance that those positions will be preserved and, hopefully, enhanced, which is of concern to folks on this side of the Chamber.

The other point I make is that the bill does not do anything to address the 16,000-plus cases per year of substantiated child abuse and neglect. I think a silly comment may have been made at the end of Mr Parker’s speech about Professor Hall’s status; I hope that was not the case and that I misheard. Professor Hall has stated that there is nothing new in this legislation, that it will have no effect, and that it will not alter the status quo. We have already been told that the Minister of Justice, in some months’ time next year, will bring to the House what he terms a “robust bill” that will, hopefully, do something positive. The question then is what is the motivation and what are we really doing here in these last few sitting hours passing a bill whose provisions have already existed for some time?

We all agree about the state of affairs around these sorts of awful cases. I note Mrs Katene’s point about the repetition that goes on in respect of those cases. I have some mixed feelings about that, because I do share, to some extent, Mr Garrett’s view that we should remind ourselves of those cases, that we should never forget the tragedies that have occurred, and that we should learn from them. Although I respect the views of those opposite, we have to ask what we are doing here if we are simply replicating what already exists. Sadly, there can be only one answer: there are some politics in this measure, and like the Bail Amendment Bill and the Education (National Standards) Amendment Bill—the provisions of which already exist—this is about the National Government saying to the public that it has ticked all the boxes in the last 5 days.

Sadly, I do not think the public will get the opportunity to scrutinise this legislation, unless the learned media go through it line by line with them and note that there is no new policy, no new action, and no new effect that will make people safer in respect of the bail legislation, that will add to our education system in respect of the Education (National Standards) Amendment Bill, or that will save one child’s life in respect of the legislation that will be passed today. I hope the public do get the opportunity to scrutinise this legislation, because that will assist in their assessment of the performance of National’s great 100-day plan.

I rise to take a short call in respect of the Sentencing (Offences Against Children) Amendment Bill, just to restate a couple of points. As has been conceded, the way in which Parliament speaks to judges and the courts, and indicates to them that it wants a certain line to be taken on sentencing, is to do that through legislation—we all know that. The fact is that this bill underlines society’s abhorrence at the state of affairs in our country that sees us offend horribly against young children, and at the way that that offending is exploited, maybe through the media and also by those who want to gain points. So although there has been a lot of talk about this sort of offending over the campaign period, it is important, when the campaign finishes and we come before the House, to restate quite clinically and quite unemotionally that we want something to be done about this matter.

The fact is that in this country we have a terrible tragedy whereby a significant number of our young people—not necessarily a lot of them, comparatively—are set up to fail. We know they are set up to fail, and there are a number of strategies we can take to be able to address that. This measure is but one of them. When people offend against children, we not only have the abhorrence of child abuse and the victimisation of those children but we also have the creation of offenders further down the track. It is estimated that about 70 percent of the people who sexually abuse children were sexually abused themselves as children, and those of us who have worked in the field would estimate that the percentages are much higher than that. The same thing, of course, relates to child physical abuse.

Although we mourn the names that have been used in the House this morning, where on the continuum of child abuse do we stop calling young people victims and start calling them offenders? When young offenders start to offend in this way—and we have seen this in respect of the Nia Glassie case—we have to accept and understand that they too were offended against. I believe that it is incumbent on every member of this House to take whatever step he or she can to rail against that, bit by bit, through small and large pieces of legislation.

The Hon Clayton Cosgrove made a significant point, and that is that we had consulted with the police and a number of other organisations in respect of this issue in preparing this bill. The fact is that when we are dealing with all those agencies through a day-to-day and day-by-day process, those agencies expect us to do some stuff when we come to this House. They expect us to know and to take on board the information that we have been discussing over the months and years—and, in some cases, over the decades—so that when we finally get into a position where we can have some influence on legislation that is intended to make things better, we do it. We should not muck around and come back with some fairly small and narrow pieces of legislation; we should just use the initiative and expertise we have, and the confidence that is placed in us, to just do it.

As a member of this House I also want to record a number of points in the second reading of the Sentencing (Offences Against Children) Amendment Bill. One is our abhorrence of violence of any kind, and certainly our abhorrence of family violence. As the Chief Commissioner of the Families Commission for the past 4 years, I can say that a huge amount of time has been spent on examining violence generally, and family violence in particular, from a number of quarters. So after that one cannot come to the House and do anything other than join with everyone in this House—not just as members but also as fathers, husbands, and family members—in abhorring that violence. We are all committed to doing something significant about this problem and to working with the Government to improve whatever proposals are put before us. We come to the House after a political campaign where this particular issue was an important one. But before I reflect on that, I want to say that I accept what the Hon Phil Goff said about the sincerity of the Minister of Justice, the Hon Simon Power, on this issue, and the importance of it. Indeed, if we could work collaboratively on this matter over the next period, then perhaps our collective experiences—not just from our present roles but from our communities and from the areas in which we have worked—might be useful.

The point I want to make is that we should be looking forward to where the whole notion of doing something about family violence in this country might go. In the campaign we have just completed, law and order was a major issue. Certainly, Government members campaigned hard on it and—one should be generous—won on it. They promised, however, that in quick time the problem would be fixed and said that they had great ideas and would guarantee the outcome of family violence being eliminated. On our side, we campaigned on our message that a great deal of what was expected, of what was required, for doing something about family violence had indeed been done, and that many, many measures and a lot of resources had been put into this area. However, the perception endures in the community, and every now and again those cases that churn our insides, that get us to a stage where we do not want to look at television programmes about particular cases any more, bother us. So Opposition members are committed to working with the Government to eliminate this particular area of concern.

How we proceed to the next stage is really important. There is a huge number of people in New Zealand society—and, indeed, of those with experience around the world—who can guide us on this. I do not think we have in this House all of the expertise that is needed. What made our 4 years working in the Taskforce for Action on Violence within Families successful was that we committed ourselves to bringing together all of the intelligence from across Government departments, non-governmental groups, Māori, and Pacific people in order to focus on the problem. The success in terms of the campaign and the work we started was that we thought about it on the basis of bringing all the knowledge and best ideas together, finding the resources, then starting a long campaign to change New Zealand’s performance, both in respect of family violence and of child abuse. I think that is the kind of approach that is required here, as well.

Consequently, I am concerned, like other members on this side of the House, that we are bringing one matter to Parliament to address when there are so many other pieces to address. Would it not be something to behold if a collective process could be identified so as to add to each other’s thinking, develop a programme that needs to be put together, bring that to the House, and then take it further? But I also remind the Government now of the views it took when it was in Opposition. Indeed, it was very hard for the Opposition, because its spokesperson on social development was not able to participate in the multi-party family violence group. That was a shame, because several years of good experience is now lost, and needs to be put back in. So I hope that in the next period there will be a different approach, where members on this side of the House will be provided with opportunities to bring their experience to the table and where their input can help to address the problems we face.

I want to address a couple of matters that have been raised since I spoke in the first reading debate. I am very pleased to hear that the Minister of Justice is taking seriously my concerns about section 9A(2)(a), inserted by clause 4, and is looking at the application of that provision in practice. If I am right—and the Minister might want to correct me—when he spoke in the second reading he said that the provision was not designed or expected to include looking at fault of the child or blaming the child but, rather, at whether the child could find protection. I ask the Minister whether that is right.

💬 Hon Simon Power: What was that?

That the issue is the extent to which the child could find protection. If that is the wording I heard from the Minister in his second reading speech, it concerns me somewhat, because I am not sure how one would factor into the sentencing of the offender the availability of protection for the child. The protection presumably would refer to factors external to the child, and external to the offender, actually—other opportunities that might be available to that child, or alternatives to the situation that was going on. But in the court process there are only two parties: the offender and the victim. Any factor has to be related directly to either the offender or the victim.

The alternative way of looking at the issue of whether there was the possibility of protection for the victim would be to suggest that protection was available but the child did not avail himself or herself of it. Again, it comes back to the need to have a factor that is relevant to either the victim or the offender. Any factor that somehow, in any way, imports any kind of responsibility on to the victim in the circumstances of this legislation simply is not acceptable.

We will continue to have this discussion, no doubt, in the Committee stage. We might even hear more from Mr Garrett about why he considers that my amendment is not necessary, because it is about aggravating factors in sentencing. I am not quite sure of his reasoning, but I would be very willing to hear his argument.

I have two responses to Mr Borrows’ contributions. One is to afford him significant respect for his comment this afternoon that very many offenders are themselves victims, and there is a very line at which point one becomes one or the other—that those two states, if you like, are not mutually exclusive. This is one of the reasons why the Green Party has campaigned very strongly against a legal system that is focused on punishment and retribution as opposed to rehabilitation, reintegration, and the elimination of reoffending. There is a very fine line between being an offender and being a victim in many of the cases we see go to the courts. If retribution is the No. 1 priority of the legal system, then we simply will not stop the reoffending that goes on. I have talked about that in discussions on other legislation, particularly the Bail Amendment Bill, which was recently before the House.

There was another comment that Mr Borrows made that I do not agree with at all and would like to refer to. Part of it is the discussion on the merit of including the provision about the defencelessness of a child. If the bill had gone to a select committee, the consideration that both the Minister and I are giving to those words in the legislation would have happened in the select committee process. In the second reading debate, which we are having right now, we would have been talking about the discussions that had happened in the select committee, the officials’ report that dealt with the definition of those words, and the views of the submitters who had come to talk to us about the application of those words in practice in the courts. We are unable to have that discussion or get that input, because there has not been a select committee process where we could have had exactly that discussion. That makes for very poor lawmaking. I do not agree with Mr Borrows. He might think he knows everything in the world; I do not assume that for myself. I certainly would not claim, as he did, to know what the answer would have been from every person who might have wanted to make a submission to the select committee. I am sure he really did not mean that. I hope he did not.

That is why the select committee process is so important, particularly when we are dealing with such significant legislation, and especially when we are dealing with legislation that is about criminal law, actually. The greatest power that the State has is the coercive power of the police, the armed forces, and the judicial system. It is the main area of the exercise of extreme State power in relation to our community as a whole, so it must be subject to the highest possible level of scrutiny by the members of the public themselves. They must know what the change in the relationship between them and the State will be. Also, we must make sure that the machinery of the State, in respect of criminal law, has the best and most correct mechanisms for dealing with the issue that needs to be dealt with. We must make sure that there are no erroneous powers given to the State, there are no holes in the powers that are given to the State, and the balance between the rights of the community and the State is properly met. That is why the select committee process, which includes public discussion, is very important when it comes to criminal law. We are missing out on that process on very important, critical legislation that deals with one of the most important issues that this country ever deals with, which is violence against, and neglect of, our most vulnerable citizens.

I will take a very short call just to address that one point, which seems to be the only one that is still causing any debate at all, and that is the role of select committees. I am not experienced, of course, with the mechanics of select committees, and I find that the select committee process is extremely important. But I think members have lost sight of the fact that this is a sentencing bill. It is, to use the left’s terminology, a bottom of the cliff measure. Members from all sides of the House have agreed that it is not going to prevent these things happening, sadly, and that it is a reactive not a proactive measure—that is all correct. Although the select committee process is an extremely positive thing where there is any kind of debate about causes, all that could have been achieved by sending this bill to a select committee, in my view, was delay. All that could possibly have come out of it were five factors for judges to take into account, none of them silly or unreasonable. So all that could possibly have come out of a select committee, after potentially a great deal of time, were another five or 10 factors. What would that have added to the legislation? In my view, it would have added nothing, aside from delay.

The Government says that it has introduced the legislation at this time to get it in place prior to the holiday period, which, sadly for many people, is not just a time of rejoicing. We all know that the rate of family violence goes up during the supposed festive season, so this is a case where sending this bill to a select committee would have been a retrograde step and an occasion for more wastage of trees and wastage of time.

In my view, this is an example where not referring a bill to select committee is not in any way taking away from the democratic process; in fact, it is enhancing it, in that something is getting done that does not require public input. Factors for judges do not require public input, really, in this kind of situation, and select committee referral would have resulted in the bill perhaps not being reported back until the middle of next year. So in this case, and in this kind of situation, I think that the select committee process can be seen as non-enhancing.

Bill read a second time.

In Committee