Sexual Violence Legislation Bill

I seek leave for all parts to be taken as one debate.

Leave is sought for that purpose. Is there any objection? There is objection. The question is that Part 1 stand part.

Madam Chair, thank you for the chance to speak to the Sexual Violence Legislation Bill. Can I acknowledge all parties in the House who have contributed to second reading speeches which, I think, on the whole, were very supportive of the thrust of this piece of legislation—to make the experience of those who have experienced sexual violence, or allegedly experienced, to have a much better experience of the court process in order to ensure that we don’t retraumatise victims as part of that court process.

This piece of legislation has come about by two reviews by the Law Commission in 2015, and one undertaken and delivered back under my predecessor, the Hon Andrew Little in 2019. My recollection of the second reading debate, again, was relatively overwhelming support for most of the components of this piece of legislation. But some debate and concern around fair trial rights around two clauses within the piece of legislation—around clause 8 and clause 14, I believe. Clause 8 is around the admissibility of evidence about a complainant’s sex life, and a higher threshold in which evidence can be brought into the court process—about the particulars of a complainant’s sexual experience with someone who is a defendant, or parties who might be a defendant, other than to state or claim of fact that there has been sexual experience between the complainant and defendant or defendants. There has been some concern around that from the legal fraternity and from Opposition parties around the obligations under the New Zealand Bill of Rights Act around fair trial rights. I would point out—because they obviously made, at the second reading stage, a plea for a change of policy within this piece of legislation—we do believe that the bill as it stands does protect the rights of defendants, and gives judges the discretion in cases where further information or further evidence may need to be gleaned about particular instances between the complainant and a defendant. That can be done to ensure that a fair trial is heard.

The other clause in Part 1 that was cause for debate was around clause 14 and the ability for claimants or propensity witnesses to be able to give evidence by means other than appearing in the court physically itself. This isn’t necessarily something new, but under this piece of legislation, again, based on work undertaken by the Law Commission, it would be a right for complainants and propensity witnesses to give evidence by way of video or other technology prior to the trial occurring. Again, some concern around that, around fair trial rights. I would also point out, again, that we believe that the legislation as it stands, and aspects of the current regime, enable the judiciary to have discretion about, for example, the ability to call a witness again for cross-examination if the judge deems that fit. So that is why, and that’s a rationale for not making any changes that are sought through the Opposition Supplementary Order Papers, or the requests in the second reading speeches, or the extensive lobbying and public campaigning by some in the legal fraternity.

The heart of this legislation is to ensure that we have safe environments in which people can feel they can come forward to make complaints, in order for complainants to feel that they are not retraumatised, and, in essence, to get to the point before they get to a court case to feel comfortable to come forward. Certainly, the feedback from both of those Law Commission reports is that there is an issue with the ability of people being confident to come forward to make complaints about sexual violence—because of concern around what would happen in terms of retraumatisation in a court trial, because of concerns around what might happen in terms of questioning, for example.

On that, that’s just an opening statement to kind of lay the foundation for what I’m sure will be a number of questions around Part 1, around those contentious clauses. But, again, I would reiterate: I think, on the whole, most of the House agreed with the thrust of the components of this piece of legislation.

Thank you, Madam Chair for the opportunity to say a few words and ask some questions of the Minister in the chair, Kris Faafoi. Obviously, I’m very new to this portfolio following the arrival of a new leadership team here in the National Party, one that will, effectively, hold this Government to account and reflect the widespread frustration there is across the country over the general conduct of this Government in a whole host of areas. So we’re very much looking forward to that discussion, and I’m very much looking forward to our role in Opposition of opposing and proposing better justice policies for this country—a country where, after a couple of decades of making great progress on reducing crime statistics and the victims of crime in this country, in the past few years most statistics have turned around in the wrong direction and are getting worse.

We heard today in select committee that family violence has increased around 60 percent in the past five years, which is having a huge impact on people’s lives. Sexual violence is obviously a component of that and something that we’re focusing on in this legislation here today introduced into this Parliament. I don’t think anybody, reasonably, looking from the outside would dispute the basic proposition that, overall, victims of sexual crimes have a hard row to hoe in terms of getting justice, because of, fundamentally, the difficulties of proving what went on in situations where it’s not easy to prove. So there are many, many instances where justice is denied, and so I think there is a widespread desire to do what we can to reduce the retraumatisation of complainants, including victims of crime, and to make the process as effective as possible in attaining justice.

As we always do in every element of the law, we recognise that there are two sides to this equation and being able to defend oneself against accusations is equally important, and the rule of law needs to be observed in all those ways. So it is, I think, disappointing to hear from the Minister that notwithstanding all the very many submissions and very serious issues raised by the New Zealand Law Society and the Auckland district council and many legal elements of the fraternity around elements of this bill, very little changes have ultimately been made.

We’ll be laying out a couple of Supplementary Order Papers in the name of my colleague Chris Penk on a couple of issues that have been raised, and I thought I’d start with the one around clause 8, which is in relation to the sexual experience or connection between the complainant and the defendant being relevant or discussed in the course of the hearing. I think, again, widespread concern about practices in the past, dredging up all manner of stories and accusations or implications against the complainant or even, potentially, the victim of the crime and getting into territory that is not relevant, and so the rules have been tightened over the years. This tightens it even more in relation to really reflecting at all on a prior relationship between the complainant and the defendant. So I’d like the Minister to explain exactly how he is confident that what is being proposed here and not being changed at all will still ensure defendants have the ability to raise important and relevant issues in the case. I’d like him to justify that a bit more.

Can I begin by congratulating the member on his new role as justice spokesperson for the Opposition. I would point the member to page 10 of the bill under clause 8: new section 44A outlines a number of processes that a party who does wish to ask any further questions or ask for admissibility of any further evidence over and above the fact that there is a relationship or there has been a sexual relationship in the past which is black and white, a fact, can propose to do that via application to the judge, or the judge can direct for that if the judge believes that that’s in the best interests of fair trial. I believe that does strike the right balance in order to get to the desired outcome of this piece of legislation to keep the victims safe from further retraumatisation of going through particular instances and in great detail, or a line or manner of questioning which may again retraumatise or revictimise the complainant, but also give the defendant’s counsel the ability to further question if they believe it is in the interests of a fair trial.

Thank you, Minister, for those comments, recognising, of course, that the stakes are very high for both the complainants and the defendants. Of course, being convicted of such a crime and sent to prison is a very serious matter for the person involved as well. So ensuring that everybody has their chance to raise issues is important. So the threshold now is much higher.

Similarly, the next question relates to new section 44 in relation to the—sorry, I’m just trying to find the jolly part—

💬 Hon Kris Faafoi: Page 8?

Yes. No—no, I’ve moved on from page 8 in terms of the pre-trial reporting. The issue raised, again, by a number of parties, is that under the current arrangements under the Evidence Act, the judge may direct evidence to be gathered in an alternative way, including cross-examination taking place prior to trial. A number of submitters highlighted a Court of Appeal judgment of 2011 detailing that rare and exceptional circumstances would make such a course of action appropriate. So this is allowing for rather than the complainant being in the full court on the stand during the trial, instead to do a pre-recorded interview, maybe even a year before it goes to trial. So that has been allowed under the current arrangements in very rare and exceptional circumstances. This bill would make that process an entitlement, effectively, rather than at the discretion of the judge. So it would make it much more common.

That has real implications for the defendant’s right to a fair trial, as protected by the New Zealand Bill of Rights Act, particularly because the pre-trial recording offers no opportunity for the defendant to question a witness based on what happens during the trial, and what may happen subsequent to the recording. So a number of submitters—serious submitters—raised serious questions about that and the impact that it has on the fair trial process.

So I suppose, again, I’d like to hear from the Minister. The Minister rather glibly said at the beginning that “You know, well, we just introduced this bill. We heard all the submissions are deeply concerned about it, but fundamentally we’re not changing anything and we think everything’s fine.” I’d like a bit more meat on the sandwich from the Minister to explain exactly how he is so confident that defendants will have the ability to have their basic, basic opportunity to effectively cross-examine the complainant and have the ability to defend themselves.

If we think of the motivation for the piece of this legislation to try and assist victims of sexual violence, to not retraumatise them in the trial period, the ability for complainants or propensity witnesses to give evidence—let’s use the example that the member gave—via video. It may be some time before the trial actually takes place. I guess the motivation for that is to ensure that the complainant or anyone else who is going to give evidence can do that at a period that is suitable to them and not something that would prolong the pain or the suffering of a defendant, because they may have to wait a year, as the member mentioned, between either giving that evidence and the trial actually occurring. So I guess the proposition within the piece of legislation meets that test.

There were, obviously, concerns about any lag between the video evidence being gathered and the trial actually happening. I would note to the member that the defendant’s counsel also get access to that evidence at the time that it is gathered. I note there is a Government Supplementary Order Paper on the table which gives the ability for the judge in a trial or overlooking the issue to put conditions on the access to that video evidence.

But I would also remind the member of the point that I made in my opening remarks, in terms of striking that balance between protecting victims within this legislation and the right to a fair trial. If the judge believes that the giving of evidence via video, whatever the circumstances may be, and the way that it is presented is not providing fair trial rights to the defendant, they can and they do have the discretion to have the ability to recall a defendant in order for cross-examination to happen.

Now, obviously, I think if you’re taking a victim-centric approach or view here, we would hope that that would be rare and reasonable, because of what we are hoping to achieve with this legislation. But in the interest of fair trial rights, there is the ability for the judge to do that. So that’s why we believe the valve that’s available to the judge in that case of that ilk will allow evidence to be garnered again from the defendant in order for the defendant to express his or her rights to a fair trial.

Thank you, Madam Chair. It’s a real pleasure to take a call in the committee stage of the Sexual Violence Legislation Bill. I want to acknowledge the Minister Hon Kris Faafoi in bringing this back into the House on the day that the Government launched Te Aorerekura: the national strategy for ending family violence and sexual violence within 25 years. I think that is a really significant piece of work. We know from survivors of sexual violence as well as their advocates that the right to an appropriate justice system is of real concern. This has been on the agenda for a very long time. Some of the provisions in this go back specifically to the taskforce for action, I think, from 2009 and what Simon Power, the then Minister of Justice, described as the best road map the country had had for ending sexual violence. This work is really long overdue and is not actually putting us in the advanced path of any country in the world. This is just catching us up with some other jurisdictions that we like to compare ourselves to, and just ensuring basic dignity in our court system.

There are a lot of provisions in this piece of legislation that are really important. The extending around communications assistance to those who may have trouble following the court processes. As a non-legal person myself, I have a lot of sympathy for that, let alone for people with learning disabilities for particular impairments that may make it that much harder. That is of benefit to every single person in our court process—the defendant as well as the complainant. That is provided for in this legislation.

Providing instances where the judge must intervene if they believe the questioning is inappropriate, misleading, or needlessly repetitive, because we’ve got recent evidence of those behaviours happening unchecked in our courts and judges telling us that they’re not intervening because they fear there being an appeal process based on their intervention. So we need to give judges that legal certainty to be able to stop those behaviours.

Also, around judicial direction to address rape myths if they haven’t been addressed through the process in the trial. That was a non-exhaustive list but I commend the select committee for their work on adding to some of the rape myths that were identified: looking at the things around where the suggestions that the way somebody dressed meant they wanted to be raped; that they abdicated their right to consent by the way they dressed or the fact that they’ve been flirting with somebody. We have recent analysis of a court case—truly shocking—where somebody had flirted with the defendant earlier in the evening and that was absolutely used to suggest that that person had consented to the rape, because they’d flirted and sat on their knees—clearly consent to having sex several hours later! In my world, those things don’t flow on from each other. There’s quite a few steps where you need to say yes or no along the way before you get to sex. And other examples around drinking and alcohol or drugs, and how that affects decision making. And it’s really important that juries get that information about what is rape, because we know that there are a lot of myths in our society and that there’s a lot of victim blaming, and that can lead to what I characterise and use inappropriately as miscarriages of justice, when juries make decisions based on myths, rather than an accurate understanding of the law and an understanding of what is rape.

The controversial parts of this bill—and I do want to follow up from the Hon Paul Goldsmith’s questioning around prerecords and the fact that the Court of Appeal had said that it should only be rare or exceptional circumstances. I noticed the member Emily Henderson just coming into the House tonight and noticing that her academic work critiqued that ruling, when she was a research fellow at Auckland University, and noting that the Court of Appeal did not draw on the evidence of 20 years of prerecording for child witnesses in sexual violence cases in Western Australia that found that there was not an undermining of the right to a fair trial. In fact, it had strengthened the fair trial and good interrogation of evidence through that process, rather than undermining it. I would also point the member to the fact that the legislation around this point also—[Time expired]

Just a quick contribution. First of all, can I acknowledge my two Green colleagues in the House tonight, the Hon Marama Davidson and Jan Logie—obviously, on the day that we’ve launched our national action plan on sexual violence and family violence. I want to acknowledge the work that both of those members have undertaken to get us to that point and congratulate them.

One point that I wanted to raise, upon my re-reading of the Hansard from the second reading debate, was an assertion from Opposition members about who was either supportive or not supportive of this piece of legislation. I know the judiciary don’t like to be dragged into debates in this House or into politics, but they were, in the second reading debate, from members to my left about whether or not they were supportive of this legislation. Now, I don’t think they’ve made a declaration about whether they’re supportive of this legislation, but there was a Court of Appeal ruling in 2020 which made it very clear that the judiciary is more supportive of the use of the types of video evidence that we are looking at in this piece of legislation. In that ruling, the Court of Appeal judges said, “We see considerable merit in pre-recording the evidence of a vulnerable witness before trial. Not only does this provide a vulnerable witness with a more accommodating environment in which to give their evidence; it also provides counsel and the trial judge with an opportunity to take any remedial steps that may be required after the vulnerable witness gives his or her evidence.”

I do want to acknowledge the argument that the Opposition is making, because I do think we need to make sure that we are addressing questions around fair trial rights, but I do believe the safeguards within this legislation actually offer that well and truly. There have been concerns in other jurisdictions across the Tasman, where similar concerns were raised ahead of regimes such as this being introduced, but time and evidence have suggested that the concerns that were raised pre these kinds of regimes being introduced haven’t been borne out, because of safeguards like that which are a part of this legislation being there. So, again, respectful of the concern—I think it’s a valid one to have.

The other thing I do want to note was part of the contribution of Jan Logie, about some of the types of questioning. I’ve had meetings with both sides of the ledger here, in terms of what does and what doesn’t happen in some of these trials, and the types or manner in which questions are being asked. I think the reality is, and I’m convinced, that they still do, and whether it is motivated to be intimidatory, it is for those who are answering the questions. So I think one of the components of this piece of legislation is that a judge has discretion not only to make judgments around the question but also the manner in which the questions are being asked. And I think, again, that is another component of this piece of legislation which has been well looked into by the Law Commission twice and which I think will, effectively, mean better justice is served. And I mean that by allowing a safe environment for victims or alleged victims of sexual violence to be able to have their day and their say in court against a defendant but also to ensure that those fair trial rights are protected as well.

Tēnā koe e te Māngai o te Whare, tēnā tātou katoa. I want to firstly congratulate Minister Faafoi for progressing this legislation through the House. I do actually acknowledge, genuinely, across the House that I believe we all want to see safer responses for victims and survivors of family violence and sexual violence, and I want to hold to that. I want to genuinely uphold that I truly believe that that is what representatives in this House want to see. I want to take us back, and the Minister, Hon Kris Faafoi, himself mentioned in the opening statements tonight that we go back to the purpose of what this legislation is trying to do: to make sure that we are addressing primary concerns here.

Hon Kris Faafoi, for example, just talked about how we can make sure that we are preserving the principle of fair trial and that, in fact, there is international and other evidence to show that with the safeguards, the concerns of breaking the integrity of the principle of a fair trial have not been borne out. What I want to say and what we know is that the risks and the under-reporting of sexual violence and family violence has been borne out. That is very clear and has been in front of us for many, many decades. Right now we have, unfortunately, around 80 percent of violence and harm going unreported, but for sexual violence, it is in fact even higher, the vast majority—around 94 percent of sexual violence goes unreported. This legislation is part of the essential and long overdue necessary steps that we all need to take to ensure that when victims and survivors want to truly see justice and accountability, that we are at least making changes in our legislative and court processes to give people more faith and trust that that is indeed what will happen: that we will deliver justice and accountability.

My colleague Jan Logie—who for the Green Party has been our outstanding holder of this legislation, who has been our outstanding spokesperson—also referred to the ongoing evidence and the evidence of our colleague here in the House, Emily Henderson, which has shown what has been borne out. We can hold that to our own high standards in this House about what the cause, what the principle—what this legislation is trying to do; it is trying to improve and maintain the principle of a fair trial.

Oh my goodness, the time goes. I did want to draw on the voices of advocates, victim survivor advocates, and the sector. I particularly acknowledge Te Ohaakii a Hine—National Network Ending Sexual Violence Together—TOAH-NNEST—for their sharp and critical analysis on what we all know was also challenged and continues to be challenged here in the House. I acknowledge Hon Kris Faafoi’s approach in actually making sure that we do answer and debate those valid law and legal legislation challenges that are being raised. The very critical debate that I too want to uphold around the principles of a fair trial. The sector and victim survivor advocates have absolutely gone directly to those very debates as well and have asked, in fact, that where there are issues, where we do need to strengthen and make sure we are tightening up the principles of a fair trial, then we seek operational solutions to make sure, for example, in the—I believe it’s actually clauses 13 and 14, but also pages 13 and 14 in the Supplementary Order Paper that refer to the giving of evidence by family violence complainants and the giving of evidence by sexual case complainants or propensity witnesses, that the video evidence and alternative evidence options are a small but important part of how we want to improve safety for justice, including victims and survivors and complainants through our justice process, and that there are ways to seek solutions to uphold the important principle of a right to a fair trial. Thank you, Madam Chair.

Thank you, Madam Chair. Minister, I commend you for the work that has been done on this bill. One of the things that the ACT Party are really focused on is making sure that victims are at the centre of our justice system. We have supported this bill through this process, the first reading and the second reading, and I must admit, Minister, when we got through the select committee and the recommendations that came back, we were actually considering not supporting it because we had similar concerns to our colleagues in the National Party. We’re very pleased to see your Supplementary Order Paper 105, because it addresses those issues that we had. In saying that, I just want to let National know that their member’s bill—there’s one of them that we will not be supporting purely because we believe it’s already been addressed in the Government’s Supplementary Order Paper.

But, Minister, one of the concerns that we did have at the time—and you actually have addressed it already when you’ve stood and spoken—is that while we want to put our victims at the centre of the justice system, of course, there was that balance that you talked about earlier where we had defendants possibly being the subject of some vexatious complaints. I believe that you have balanced that out and we congratulate you for that. Where my question comes is if we have a victim who has given video evidence before the trial and there is a need for that victim to be cross-examined later on, is there any support that’s been put aside for those victims if they do have to come back within that system? Because while we’re saying we do need to protect them, we also need to look after them to make sure that we don’t give them an opportunity and then ultimately revictimise them in a way that enables a defendant to have the ability to be able to defend themselves as well. So it’s about support for the victims if we’re going to change the way that they give evidence. And I just wonder if there is anything there for those victims.

Can I thank the member Nicole McKee on two fronts: obviously, for continuing support for the legislation; we do appreciate that. And also, I think it’s a fair question to ask if a complainant is going to go through the process twice. They will still have the flexibility of arrangements that are available to them, either existing or that come through this piece of legislation. They will have the option of either giving their evidence or responding to questions which have to be set out via video recording. I think there’s also the ability, if they are choosing to be physically in the courtroom at the time, to have a screen available as well so they don’t see the defendant. And also they will still continue to have a court victims adviser available to them to be able to walk them through what will no doubt be—unfortunately, they would have experienced some of it—a foreign experience to them.

So again, I think the components of this legislation, the flexibility in this legislation, but also the safeguards will have a flow-on effect if someone were to have to experience the questioning twice.

Just want to reassure Marama Davidson, my colleague, that yes, indeed, we do all share a desire to ensure that justice is attained by victims of crime and particularly in this area of sexual violence. I don’t think you’ll find anybody in this Parliament or anybody in this country who doesn’t agree with that broad proposition. What we also recognise is that we live in an imperfect world and that the stakes are high in this area for, obviously, victims of crime but also for defendants where things have been alleged that didn’t happen, and that is the purpose of the trial. We wouldn’t be having trials if there weren’t those circumstances. So it’s important that everybody has access to a fair trial and the right to defend themselves. That’s what we are trying to tease out through this process.

The other question, because, indeed, the stakes are very, very high in these cases. People’s lives, of course, are affected colossally by the outcomes. So it’s quite natural that there will be a fair amount of tension over the process. There’s no way to avoid that given the stakes. So managing that process in a way that is civil and appropriate is, of course, something that we all turn our minds to, and views on that change over the decades, and have changed colossally.

The question that I have, though, of course, one of my observations, having been in Parliament now for 10 years, is that I don’t know what the exact ratio is, but quite often legislation passed by this House actually has the opposite effect of what was intended. Life is complex and, particularly in regulations, we set out to do one thing, we pass a law, and actually, it turns out that the consequence was completely unintended, and it’s something quite different. That has been raised by a number of submitters in regard to this one, which is to say, in relation to turning a pre-trial recording of a cross examination maybe a year or maybe two years before it actually goes to trial from something that is rare and exceptional into potentially standard practice could have the unintended consequence of, well, first, turning that situation into an area of great legal confrontation and debate and a fair amount of legal drama around that. But then given the fact that it may well be that quite often it is judged as necessary, on basic rights to justice, to recall that complainant back for the actual trial, you might end up having made the attempt to reduce re-traumatisation of complainants, actually getting to a situation where more often they’re doubly retraumatised as a matter of course.

So, I’m sure that’s not the Minister’s intention. I’m sure that’s not the drafters of this legislation’s intention. But many people who work in the sector, and know it inside out, and know how it operates, and know how lawyers operate, and how the world really works, are deeply concerned that this could, well indeed, be the outcome. So the Minister, sort of, batted it off. Everything will be fine, don’t worry, and it won’t happen. I’m struggling a little bit with the tightrope, which is to say there’s a very high threshold before the judge would order a recall. But, we’re also concerned about the rights of defendants to a fair trial. So if that is a major concern, well, then the recalls will happen reasonably frequently, in which case you’ve got the re-traumatisation happening more often, or if it doesn’t happen hardly ever at all, then we do have a real issue around the rights of the defendants to, under the New Zealand Bill of Rights Act, be able to defend themselves effectively. So I want to hear more from the Minister on that.

I guess, given the situation, I do think that’s a fair question to ask. What I would remind the member is that this is not a piece of legislation—to pick up a theme that has been used to my left—that has been rushed through any policy process. It’s the product of two Law Commission reports and quite a lot of work from the Ministry of Justice, in consultation with many stakeholders, in order for us to find the right balance in terms of fair trial rights and also the protection of victims in a process which, again, is foreign to probably 99 percent of New Zealanders and that no one wants to find themselves party to in the first place.

I again—and it may not be to the pleasure of the member—reiterate the safeguards are a discretion and the ability for a judge, if they see fit, to seek the ability to garner more information. We do have options to do that.

The legislation, obviously, isn’t passed, so we don’t have anything to fall back on in a New Zealand context. But I would point to a close jurisdiction which undertook an evaluation of a pilot and reported back in 2018, in New South Wales. My understanding of the report back from the evaluation of their pilot was just like we have in this situation here. There was concern around fair trial rights and what might happen as a result, in the order of what the Hon Mr Goldsmith mentioned. I think the scenario he was painting was that we try to help, but we end up making things worse, potentially by having a retrial, for example. The evaluation in New South Wales found that despite the concern around the process, there were no appeals in any of the cases where similar components of this legislation in the regime across the Tasman were used.

Again, I do think it’s fair to raise the concern and raise the question, because that is the right thing to do in order to strike with precision that balance between the defendants’ rights and also the complainants’ rights. But the evidence we have from jurisdictions that are similar to us is that that does not translate into concerns being borne out by appeals in those cases where these types of methods are used. Certainly, in New South Wales, which is a jurisdiction very similar to us, their evaluation of their pilot came back with no appeals of those sexual violence cases where these methods were used.

Thank you, Madam Chair. I actually am appreciating this debate in the Chamber tonight. I am going to acknowledge the Hon Paul Goldsmith in that the principle that the member is actually raising is that “Are we making sure?”—what I just heard in the most recent contribution from the Hon Paul Goldsmith is that “Are we making sure that we are guarding against the unintended consequences, that we are not, in fact, actually setting up victims and survivors for further traumatisation?” I want to acknowledge the principle of that debate.

We have heard some of the opposition—not necessarily in the parties tonight in this House, but from the community and from the sector—which does not even try to uphold the principle of making sure that we are not further re-traumatising victims and survivors through the justice processes. So this is a really good crux of this debate here in the Chamber, where we have representatives from all across the different sides of the room holding on to these important principles and debating the pathways to uphold them. I absolutely want to acknowledge authentic political debate that actually crosses party divides, something which we should be seeking to do as often as possible when it comes to such important issues that there are high stakes—I completely agree; I think all of us agree—for not upholding the right to fair trials.

There are high stakes for making sure that we are upholding actual justice processes. On that, I again would then fall back—I was supposed to make this a short contribution—to the crux of the sector and part of the drive behind this legislation, which goes back to the risks of videos and evidential video interviews being shared with the world, which are higher than ever, especially when a common reaction of those accused of adult sexual assault is to attack the character of the victim by ridiculing the accusations and—and this is the crux—by making that evidence public, and that we have had instances, and I know that’s what this legislation is wanting to address.

So if we take it back to that principle, if we take it back to what we are actually trying to do with this legislation, and taking on board what the Hon Kris Faafoi has just outlined in terms of, again, comparative examples for our Aotearoa New Zealand demographics and country demographics, and understanding where we can learn on how we can better protect everyone, and also the evidence in what we know around pre-recorded cross-examinations. When walking alongside victims, we know that the anticipation and subjection to cross-examination is, of course, a stressful experience—of course—and that this is almost always conducted during a hearing, even in cases with child victims.

But here’s the crux that I wanted to pick up on: allowing pre-recording of cross-examination improves accuracy of testimony and increases fairness of trial. So making sure that we can and must do that bit of work in the House, in legislation, and, again, my point—I do repeat it—of looking for operational changes of policy changes to any concerns that might restrict defendants’ access to a fair trial, to viewing the evidence, in that we can actually put this legislation in place and get regulations, per the consultation, working with victims’ advocates—and I think this is key—in those regulations, to making sure—making sure—that we have got a strong framework that both upholds the right to a fair trial and protects and does not retraumatise victims.

My last few seconds is, you know, this goes to broader work. And, yes, thank you, I received the acknowledgments of launching Te Aorerekura strategy to end family violence and sexual violence, along with many colleagues who have worked on that in that we are moving away from, also, such an adversarial approach to justice. I welcome this step. Thank you.

Thank you very much, Madam Chair. Can I start by acknowledging the point that has been made by a couple of members on both sides of the House, so to speak. Of course we all do want, ultimately, the same thing, I believe, which is, of course, that no victim of sexual violence is retraumatised, but, of course, at the same time, we want to have a process that establishes the truth of a matter in a fair trial so that any convictions are safe, so to speak. So I think it’s gracious of members who maybe have approached this from another perspective to others to acknowledge that the intentions each of the other are good in this space.

In that spirit, I do want to state for the record that which has already been traversed at first reading and second reading, but not at length, Madam Chair, you’ll be pleased to know. But there are a number of really positive features in the bill in addition to the well-intentioned basis on which it has been brought forward. So we’ve talked before, for example, about the rights of victims in relation to victim impact statements and the way that those can be made.

In relation to the particular—really, down to, basically, a couple of points in this legislation that we’ve continued to discuss, because there’s been some nervousness, as you will have gathered, on this side of the House about the way they might play out, and my colleague the Hon Paul Goldsmith has voiced that, I think, really well in relation to the potential for unintended consequences, with the right of recall under section 99 of the Evidence Act potentially re-traumatising or having a second bite at the cherry being required in relation to evidence being given.

I would just make the point that is probably reasonably obvious: the length of time between an incident, or alleged incident, and the giving of evidence is really problematic, for all involved oftentimes. I think it does reflect a deep-seated difficulty and problem in our justice system, one that’s been quite longstanding and is getting worse—but is, to be fair, a longstanding one—which is the delay in trials taking place and the additional stress that that imposes upon all of those whose lives are upended and put on hold when the outcome of a day in court is delayed for such a significant period of time.

I think we’ve talked about previously—and certainly I’ve recorded in the Supplementary Order Paper regarding the pre-trial recording of cross-examination—the fact that, under section 103 of the Evidence Act already, evidence can be directed to be given in an alternative way, including, for example, pre-recorded by way of cross examination that is before the trial starts. That does lead to an interesting point around the New Zealand Bill of Rights Act, section 25(e), which I don’t believe was traversed particularly thoroughly, with all due respect, in the New Zealand Bill of Rights Act vet and advice in relation to the bill. So that’s the right of a person to be present at the trial and to present a defence, and if the discussion—that is to say the cross-examination—has taken place before the trial and cross-examination can’t take place on the basis of things that have emerged during a trial, that is potentially quite problematic in terms of that New Zealand Bill of Rights Act freedom or right that’s supposed to be protected in that instrument.

The other one that’s been discussed—again, by others, and I don’t intend to go into it more fully than needed—is in relation to a complainant’s previous sexual experience with the defendant. That seems instinctively to be a different category from saying that her or his sexual disposition is one thing—and, of course, we all would say, I believe, that we wouldn’t want someone to not receive a fair hearing if she or he were to say or for it to be said of them, “Oh, they always act in a certain way”; you know, that they were “asking for it”, or whatever. I think we can safely assume that no one here would think that that was a reasonable basis for dismissing a good-faith complaint, but, at the same time, it might be that if two people—or more, I suppose—have engaged in a certain activity in the past, that is at least potentially relevant and should not be something that is necessarily precluded or which is regarded as not likely to be relevant in a court.

So I would just urge the Minister to respond, if he’s able, for the sake of the record, or at least turn his mind to the fact that there are already Evidence Act requirements around relevance and whether evidence is unfairly prejudicial. So, having placed that on the record, I do reiterate our commitment to the broader mahi of sexual violence legislation—[Time expired]

Can I thank the member, Chris Penk, for the contribution. Just for the record—because the member did raise bill of rights issues and any New Zealand Bill of Rights Act (BORA) vet—both the bill and Supplementary Order Paper 105, which has been tabled, have been through the BORA process and received the Crown Law tick of approval in terms of that process. So it’s been through the ringer twice, including the changes that have been made via the Supplementary Order Paper.

I move, That the question be now put.

Motion agreed to.

The question is that the Minister’s amendments to Part 1 set out on Supplementary Order Paper 105 be agreed to.

Amendments agreed to.

Chris Penk’s amendments to clause 14, new section 106D(7) and 106G to 106J are out of order as inconsistent with a previous decision of the committee.

The question is that Chris Penk’s remaining amendments to Part 1 set out on Supplementary Order Paper 5 be agreed to.

The question is that Chris Penk’s amendment to Part 1 set out on Supplementary Order Paper 11 be agreed to.