Crimes Amendment Bill (No 2)

I move, That the Crimes Amendment Bill (No 2) be now read a first time.

💬 Hon Clayton Cosgrove: Where is he?

He is in Australia. At the appropriate time, I intend to move that the Crimes Amendment Bill (No 2) be referred to the Social Services Committee for consideration, that the committee report finally to the House on or before 18 August 2011, and that the committee have authority to meet at any time while the House is sitting except during oral questions, and during any evening on a day on which there has been a sitting of the House, and on a Friday in a week in which there has been a sitting of the House, despite Standing Orders 187 and 190(1)(b) and (c).

The bill is primarily designed to enhance the ability of the criminal justice system to respond appropriately to the perpetrators of violence against, and of the ill treatment and abuse of, children. One of the goals of this Government, when it came into office, was to develop an appropriate response to violence against children. Consequently, in 2008 the Minister invited the Law Commission, in the course of carrying out a review of Part 8 of the Crimes Act, to have specific regard to how the provisions of Part 8 could better protect children. In response the Law Commission recommended that the scope of the offences and duties relating to the care of children be broadened, an objective standard of care be imposed, and penalty levels be adjusted to better reflect the gravity of the offending. As it eventuated, the Government has decided to give priority to these specific measures, over and above the wider reforms that are sought to tidy up Part 8.

This bill does a number of things. First, it proposes to amend the current duties of the parents and guardians of children, to require the parent or guardian to take reasonable steps to protect the child from injury. This additional requirement builds on, and extends, the existing common law duty to protect the child from illegal violence that is foreseen or reasonably foreseeable. Secondly, the bill requires parents and guardians to protect children up until they reach 18 years of age, the same measure that is employed by the United Nations Convention on the Rights of the Child. Thirdly, the bill makes parents and others more accountable where their actions harm children. It will no longer be possible for a person to avoid liability by claiming that he or she was unaware that their conduct or failure to act would have adverse consequences for the child or vulnerable adult. Fourthly, it is proposed to increase the maximum penalty, in these cases, from 5 years’ imprisonment to 10 years’ imprisonment. This reflects the fact that the ill treatment and neglect of children, and the consequences of it, are felt for a very long time. Fifthly, the bill recognises that others in the community are also vulnerable to abuse and deserving of protection. It is proposed to extend similar duties on those who have responsibility for the care of vulnerable adults.

Finally, I would like to draw attention to a new offence, which is a significant new development in our criminal law and is based on overseas developments. Those members of the household who witness or observe abuse, or who become aware that a child or vulnerable adult is likely to suffer serious injury, have an obligation to take reasonable steps to prevent the abuse from happening, or they will face the consequences. Failure to carry out this responsibility will result in the person being criminally liable for the omission. The proposed new offence departs from the recommendation of the Law Commission in one key respect. The Law Commission had recommended that a person who was under the age of 18 years at the time of the act or omission would not be charged with the offence. The Government has decided that the offence should extend to all parents regardless of their age, to reflect the responsibilities that come with parenthood. It is not the intention of the Government further to victimise young parents who may be the subject of ongoing abuse themselves. In the case of parents under 18 years, in most cases the matter would be referred to the Youth Court for consideration, as that court has considerable flexibility in the way that it deals with such matters.

This new offence has been crafted to draw an appropriate line between personal responsibility and criminal liability. The offence does not apply to all those who come into contact with the child or vulnerable adult. It does not mean that those other persons have no responsibility for the welfare or outlook of the child, but that is not the function of the criminal law. I hope that the biggest impact of this provision will be to encourage those who are in day-to-day contact with endangered children to act proactively to protect children or, if that is not possible, to come forward if they know that abuse or neglect is taking place. We all know that the price of silence in such cases may be the continuance of abuse and neglect over someone’s entire childhood or, in some cases, the savage snuffing out of a young and blameless life.

As a consequence of other Government proposals to amend the Crimes Act, this bill also amends the offence of sexual grooming, to enhance enforcement efforts; increases the maximum penalty for the possession of an offensive weapon, as part of a response to concerns about knife crime; and amends the definition of “claim of right”, so that the defence is available only in limited circumstances.

This bill is another significant step towards making New Zealand a safer place for our children and for vulnerable adults. I commend the bill to the House.

The justice sector, under this Government, is in a serious state of disarray, and one of the reasons for that state of disarray is the piecemeal approach to reform adopted by this Government in this sector. By my count there are eight ongoing reviews at a high level in this sector, ranging from issues concerning the way in which children should be able to give evidence in court through to the way in which the prosecution service should conduct itself, and including a review of the bail system, legal aid changes, and reviews of the Family Court, of regulatory gaps around new media, and of public feedback on legal aid lawyers. Many of these reviews will not come to fruition under the term of this Government and during this Parliament, yet they are absorbing enormous amounts of time and energy in the sector and distracting people within it from getting on with their jobs. In the case of the subject matter of the Crimes Amendment Bill (No 2), caring for our most vulnerable children, that should be a real concern to all of us.

By my count, as far as the legislation affecting the sector is concerned, there are 11 bills—counting this bill, 12 bills—before the House at the moment, with far-reaching significance as far as the reforms that they would enact are concerned. I am very concerned about this piecemeal approach. As I say, it is distracting to those who work in the sector. It is difficult to know with any certainty which reforms, legislative or otherwise, will be brought to a conclusion. It is difficult to keep up with the changes that are being made at any particular time, and certainly legal practitioners, counsellors in the court, and those responsible for enforcing the law are all feeling a significant level of disquiet as a result of all the upheaval. It would be much better, I think, if we could see a coherent approach to reform, one that is principles based and comprehensive, rather than this Government seizing on issues, which is what we are seeing in the sector, and the progression of piecemeal reform. Unfortunately, that is what we are also faced with in this Crimes Amendment Bill (No 2).

Apart from the concern about the Government’s piecemeal approach to reform, there is also the fact that all these reforms are being referred to different select committees. The Minister, in his speech, foreshadowed that he will be asking the House to send this bill to the Social Services Committee. Much of the other legislation relating to justice matters is before either the Justice and Electoral Committee or the Law and Order Committee. I take this opportunity to ask the Minister to consider carefully whether the Social Services Committee is the appropriate committee or destination for the consideration of this legislation. I ask Mr Finlayson to reflect, in particular, on whether the alteration to the claim of right defence should go to a committee such as the Social Services Committee. That committee, surely, is not the correct one to consider that question. It is a matter that ought to go, I would have thought, most obviously to the Justice and Electoral Committee. If the Minister would like to think about that question, it would be helpful. It cannot be a good thing for these reforms to go off to different committees with varying levels of expertise in terms of their ability to do Parliament’s job of scrutinising them appropriately.

As far as the major subject matter of the bill is concerned, it is undoubtedly the case that we have a problem with regard to child abuse in this country. We ought to address it. We ought to do everything we can to ensure that we take it seriously, deal with it, and reduce it wherever we can. But one of the things that the Minister did not deal with when he spoke to clauses 6 and 7 of the bill was the concern that has been expressed by a number of experts in the area that extended obligations around reporting and around liability for harmed children inevitably lead, as far as overseas experience shows, to the covering up of such harm. Rather than leading to greater safety for children, the danger is that by further criminalising or further penalising people for failing to report concerns about the safety of children, we risk driving the problem underground, rather than bringing it to the surface and ensuring that those in the system who need help receive it.

I think it is important to register that concern at the outset. It always gives parliamentarians a nice feeling to think they are doing something about a problem, but often the evidence indicates that the application of a purported solution may well make the situation worse. This House will have to think about that very seriously as far as the provisions of clauses 6 and 7 are concerned, in terms of whether the safety of children will truly be enhanced by the provisions of this legislation.

In terms of the other operative provisions of the bill, it would appear that clause 5, which deals with the grooming offence, and clause 8, which deals with the concealed weapons issue, seem to be sensible reforms, although it is odd that they appear at this time and in this piecemeal bill.

I do want to spend some time on the claim of right issue, which is dealt with in clause 4. The matter was not given great attention in the Minister’s speech, but, of course, we all know the origin of the attempt to confine the definition of the claim of right. This is done by clause 4(2) of the bill, which reads: “The definition of claim of right in section 2(1) is amended by omitting ‘that the act is lawful’ and substituting ‘at the time of the act of a proprietary or possessory right in property, being property in relation to which the offence is alleged to have been committed’. ” In other words, a person asserting the claim of right defence has to have an interest in the property that is damaged in order to successfully assert the claim itself.

This is clearly the Government’s reaction to the outcome of the Waihopai spy base attack, in which the persons who were charged in connection with that attack were acquitted by a District Court on the basis of the assertion of the claim of right defence. Lawyers in the House will know that the claim of right defence is an ill-defined one. It may well be that there is some benefit in looking carefully at its ambit, but to do so in the current circumstances is wrong. Clearly, legislating to change the law because the Government has lost a court case, rather than having pursued the other avenues open to it as a result of having lost that case, not only seems like poor sport but is not good constitutional practice.

So there are some real concerns about this bill, and about the referral of it to the Social Services Committee, given some of the technical and legal aspects that will have to be dealt with as this House looks more carefully at the questions that the bill throws up. The Labour Opposition will support the first reading of the bill, but we have real reservations about it, as I have set out in my speech.

I will never forget the story that came over the Christmas break of the 9-year-old girl found hiding in a cupboard, starving, dehydrated, and anaemic from internal bleeding. Hers was just one of more than 125,000 reports made to authorities from people concerned about the safety or well-being of a child last year. The United Nations is concerned about children’s rights in New Zealand, and about our staggering child and infant mortality rate. It is about time something was done. The National-led Government is fast tracking proposals to further protect children from assault, neglect, and ill-treatment. We are committed to closing the worrying gaps in the law around the protection of children.

The Crimes Amendment Bill (No 2) is not only tackling violent crime and making communities safer, it is saving lives—children’s lives. Last year the Minister for Social Development and Employment, Paula Bennett, described a neglected child as a silent time bomb, left alone, unwashed, and unloved. These children may not be physically bruised or injured, but they will be deeply affected. Doctors see this every day. Parents bring in their severely malnourished children. They are listless and glassy-eyed. Their brains have not developed properly, because they have not been fed. They have not been nurtured and they have not been loved. These children fall behind at school. They find it difficult to get a job or to fit into society. This is their lives. To me, it is inexcusable. We live in New Zealand. We have an extensive social welfare system, benefits, accommodation supplements, food grants, temporary additional support, and the list goes on. We have fantastic non-governmental organisations like the Salvation Army and the Red Cross, which are always willing to help out. We have food banks. We have communities. We have neighbours.

The neglect of a child is identified in legislation as serious, but it is not actually defined by New Zealand law. The Law Commission’s 2009 review of the Crimes Act proposes that the term “neglect” is replaced by a gross negligence test. In effect, this will provide a definition of neglect. This bill creates a new offence of the failure to protect a child or vulnerable adult from the risk of death, grievous bodily harm, or sexual assault as a consequence of an unlawful act by a third party or failure of a third party to perform a legal duty. Failure to take reasonable steps to protect a child or vulnerable adult while knowing they were at risk will also be a crime. It will no longer be an excuse for people to say they were not involved in the abuse. People who stand by and do nothing about abuse will be held accountable for their lack of action where our most vulnerable are involved.

Our Government has been working on solutions such as the Never, Ever Shake a Baby campaign and the First Response pilot. We have been introducing social workers into hospitals to help identify children at risk of abuse. We are improving monitoring systems, Home for Life, supported housing, and help for teenage mums and dads. This bill is about ensuring that people are held accountable for their actions or lack thereof.

I look forward to this bill being discussed in the Social Services Committee. I look forward to New Zealand having the debate. We know that children are some of the most vulnerable in our society, so tonight I appeal to all New Zealanders to look around. We must not turn a blind eye to child abuse. We must look out for neglect in our communities and in our schools. We must place protection and safety of the child first.

I have a vision of a New Zealand where all Kiwi kids have the best opportunities in life—education, food, the freedom to go to the beach or play backyard cricket, and love. I have a vision where Kiwi kids have a right to life, and they also have a right to live. Thank you.

Firstly, I would like to agree with a couple of issues that my friend and colleague Charles Chauvel raised around this bill, the Crimes Amendment Bill (No 2), and it relates to the piecemeal approach that the Government is taking to issues of addressing violence and the neglect of children. As I have said in many speeches in this House, we are still seeing piecemeal bills when we have the very comprehensive Domestic Violence Reform Bill still languishing on the Order Paper that would give much more enhanced protections to victims of domestic violence. As my colleague said, and I know the Minister is listening attentively, I hope that the Minister will consider sending this bill to the Justice and Electoral Committee. Regrettably I am not on that committee any more, but it is a good committee. This Government does not see the strength of continuity, but I think that continuity would be very much enhanced by sending this bill, because it is comprehensive legislation, to that committee.

The bill deals with several issues, but a particular focus is to ensure that children are adequately protected from assault, neglect, and ill treatment. It is on the Law Commission’s recommendation, in terms of mandatory reporting, that creating a new offence or a failure to protect a child or vulnerable adult from the risk of death, grievous bodily harm, or sexual assault as a consequence of the unlawful act by a third party, or the failure of a third party to perform a legal duty—failure to take reasonable steps to protect a child or vulnerable adult, knowing they were at risk—would result in charges with a maximum penalty of 10 years of imprisonment.

We certainly support any measure that would prevent and mitigate the harm or abuse of our children. I acknowledge that New Zealand has a shameful record in terms of some of the abuse cases that we have seen, and that we see in the media. We on this side of the House would support any legislation, or indeed any other means or policies, that would serve to give more protection to our children. Labour will support this bill going to select committee, but although we are doing that, we want to put on record that we are very keen to hear from submitters at the select committee on some of the concerns that have been raised.

One of the concerns was that some mischievous and false reporting had been made. I know it would not happen in many cases, but it may lead to an overloading in those circumstances of social service agencies, which we know are struggling to do a very good job, with considerable cuts to funding and resources under this Government. That could put considerable pressure on people at the front line who are addressing and investigating concerns about our children. In fact I draw the House’s attention to the comments of the Children’s Commissioner, John Angus, who has said that mandatory reporting of child abuse could swamp Child, Youth and Family. He said that New Zealand already has a high level of reporting on abuse incidents, and we need to respond better to those cases, rather than bringing in mandatory reporting. That was the view of the Children’s Commissioner.

Of course we in Labour will support this bill going to select committee, but we feel a concern that this bill, with the best of intentions, may not have the best results. I know that the members on the select committee, be it the Justice and Electoral Committee, or the Social Services Committee—wherever the bill ends up—especially the Labour members, will be listening very carefully to submissions that are made on this really important issue.

I turn to the other provisions of the bill on reducing knife crime. The Ministry of Justice conducted a review and it made several recommendations, including more education of young people, as they were identified as the group that engages in the possession of knives. We think this law will do very little to combat the problem of possession and use of knives in criminal activities, and, as in the Ministry of Justice’s recommendation, we believe that more education is needed. Work on putting more resources and education into the misuse of knives is needed more, arguably, than work on limiting their sale, as is done in other jurisdictions. As I said earlier, we in Labour certainly will not stand in the way of this bill going to select committee.

Debate interrupted.

The House adjourned at 10 p.m.