Sexual Violence Legislation Bill

Members, we come to the final debate: clauses 1 and 2, the debate on title and commencement. The question is that clauses 1 and 2 stand part.

The only question I’d put to the Minister is: will he consider including in this legislation a review after three years of this legislation as a matter of course? Because we have heard through this debate very confident assertions from the Minister that everything will be fine and that New Zealanders will continue to have access to a fair trial to defend themselves against serious charges. We’ve outlined serious concerns about two elements of this bill, with the first being that rather than having a complainant in the courtroom and cross-examined with all the facts of the court case before them—being the standard practice—with a pre-recording maybe a year before on video being rare and exceptional, this legislation changes that to potentially becoming a matter of course. Now, that has very real implications for the ability of a defendant to effectively cross-examine that complainant.

Now, we recognise the concerns raised by many people about re-traumatising victims of crime through the process, but we also have to recognise that the stakes are incredibly high for the defendant as well, and we also recognise that the whole point of the trial process is to determine whether a crime has been committed or not. We live in a world where not everybody tells the truth, and that is the purpose of our criminal justice system. We are very much concerned about the rights of, particularly, young men to defend themselves.

So we’ve heard from the Minister that there are safeguards in the system to ensure that a fair trial will continue, but the widespread advice from many lawyers involved—particularly on the defence side of these cases—is that that is not the case. So we want to be assured that this won’t just happen and be forgotten about but that Parliament will come back in three years’ time, take stock and see what the consequences have been, and make adjustments if necessary.

So I’d like to hear from the Minister, finally, on this very important topic. Will he ensure that that review happens, and, if not, why not?

Thank you very much, Mr Chair. In this, the title and commencement phase of debating this legislation, I’ve only really a couple of points to make, other than to add emphasis to those points made by the Hon Paul Goldsmith. Given the genuine concerns raised outside this Parliament but also within its walls, including by way of Supplementary Order Paper, I think that’s a very fair proposal. So I do hope that the Government will take that seriously, including in a legislative programme going forward.

A couple of different points that have a similar theme of timing: I note that the House as a whole is about to pass a piece of legislation that’s got consequential amendments in relation to the Rights for Victims of Insane Offenders Act. That, in fact, was passed at its third reading last night, but may or may not yet have received Royal assent some 13 or 14 hours on. That’s probably more a point of interest for the legal nerds—whether or not, in fact, that is, as we speak now, today, an Act or technically perhaps still a bill.

In any case, relating to the title and commencement of this bill, I would seek the Minister’s assurance on behalf of the Government that if it should be the case that a senior court determined that some of the provisions of this legislation are inconsistent with the New Zealand Bill of Rights Act, will the Government legislate to remove such anomalies or errors in the future? So that’s my final question to the Minister on that subject.

I’ll just take a very brief call on this, the final committee stage debate, actually to respond to some of the issues that were being raised by the Opposition members, and the point about questioning the Minister about whether there’ll be changes if it doesn’t meet a New Zealand Bill of Rights Act vet. This has had two Bill of Rights vets as it’s gone through the process. It’s quite extraordinary to me that somehow that can’t quite land with some members in the National Party.

Also, I do just want to restate for the record at this stage actually what’s in the legislation around the process of pre-record, because we’ve had the suggestion that it will just become the default. So what is in the legislation is that the prosecutor will be responsible for selecting the way that evidence would be given after consultation with the witness. That may be pre-record, that may be behind a screen, or that may be CCTV, depending on what the witness’s preference is and what they deem is most appropriate for the case. That decision will always take into account the benefits and the risks, and there is not an absolute entitlement at all in this legislation. The defence has the right to contest that application, and the judge will consider and can decline on their own motion. There are checks right through in terms of that process.

It has been well established by our Court of Appeal that pre-recorded cross-examination does not necessarily clash with the defendant’s right to a fair trial, and that’s been shown again and again in overseas jurisdictions where this is the norm. You know, this has been in place in Australia since 1992, and it has been well reviewed in those jurisdictions and found not to have any negative impact and, in fact, some positive impacts on the quality of trial evidence. Also, even when the method has been nominated, and if it’s going to be pre-record, there is the ability to reschedule if the defence or the prosecution does not have their evidence together for that time frame. Then, finally, there’s the ability to recall a witness, which we hope—and in overseas jurisdictions that has been very rare.

So I really just wanted to put that on record, because there’s been a lot of discussion as if this is just, you know, carte blanche, pre-record is always going to happen a year in advance. Also with this is that there is now a process of working out the guidance and, I think, from memory, regulations around the process of pre-record, and that will involve the defence lawyers in that process.

Everybody in every step of the way in this legislation has been incredibly conscious of the need to protect the right to fair trial. It is at the heart of our justice system. But the problem is at the moment, when we look at our prevalence data of sexual violence and our conviction rate, it shows we have a 1 percent conviction rate, and that is telling us clearly that a large number of victims are not getting a fair trial. Our duty as a country is to hold the integrity of the system for every party, and this legislation is a really important step towards achieving that.

Clause 1 agreed to.

The question is that the Minister’s amendments to clause 2 set out on Supplementary Order Paper 105 be agreed to.

Amendments agreed to.

Clause 2, as amended, agreed to.

Progress to be reported.

House resumed.