Evidence (Giving Family Violence Evidence in Family Court Proceedings) Amendment Bill

We come first to the Evidence (Giving Family Violence Evidence in Family Court Proceedings) Amendment Bill. Members, we come to Part 1, and this is the debate on clauses 3 to 7, “Amendments to Evidence Act 2006”, and Schedule 1. The question is that Part 1 stand part.

Thank you very much, Madam Chair for giving us the opportunity to speak in this committee of the whole House on the—currently, the Evidence (Giving Family Violence Evidence in Family Court Proceedings) Amendment Bill, but the name may well change as the progression of the legislation continues through the House. It’s been a privilege, as the National Party, to support the member in charge of the bill, Tracey McLellan, in the proceeding of this legislation, both at first reading, through the select committee stage, the second reading stage, and now here at the committee of the whole House.

There are a couple of questions I am keen to clarify with the member, though. Firstly, in Part 1, it talks about the Family Court proceeding in new sections 106BA to 106BC, inserted by clause 6, and it includes proceeding in the District Court. I am just keen to understand from the member, initially, around the replication of the legislation about copying what happens in the District Court within the Family Court, and if the member could clarify for us what we’re looking to replicate there through this piece of legislation.

It’s a real pleasure to stand up and take a call in this committee stage of the member Tracy McLellan’s member’s bill. I had the privilege of chairing some of the deliberations, as the former chair of the Justice Committee throughout this bill, and I recall the passion with which the member brings to this particular topic, given her background in and around the justice sector. But I also recall some of the concerns that were raised throughout that process, and some of the issues that the committee had to grapple with. You’ve seen those through the second reading, when the House discussed some of the changes that the select committee recommended through the second reading. Those are reflected, now, today, and so today is now the opportunity to dive a bit more into those changes and to dive back into my increasingly fading memory of what we actually discussed during that point.

But I do recall that one of the issues raised around that time was the question of whether or not this bill actually just enforced some of the existing practices of the justice system; whether or not we actually needed legislation to require what is a commendable, I think, outcome that the member was seeking. But throughout the process, we did receive various bits of advice as to whether or not we would need legislative change or whether or not we could just implement this under the status quo. So the first point, I think, to make would just be to touch on those deliberations, just to confirm to the committee that this is required and that we aren’t legislating for the sake of legislating.

The second point that I recall being quite vigorously discussed—and I’d like to acknowledge Carl Bates, who was a member on the committee at that stage, and who raised a few questions in and around the cost of implementing this and rolling this out throughout the court system. Of course, some of the timing of that roll-out would be interesting too, because you may expect and anticipate some courts and some systems around the country wanting to use this facility straight away and not having the ability to do so just because it takes time to roll these kinds of resources out.

If the member can provide some assurances and some insights to some of the costs that were involved in this, that certainly, I think, would put the minds on this side of the House at ease in terms of the investment that we need to make into this. Of course we are committed to making significant investments in the law and order space, and you’ve seen by the amount of work that the Justice Committee has undertaken, not only in the past 18 months, but, I think, is anticipated to undertake in the next 18 months, which it shows how focused not just the Government but, actually, the entire Parliament is on the issue of law and order in the country. I mean, you see a number of members’ bills that come through which amend pieces of legislation that head off to the Justice Committee, and some of which shouldn’t even make it to the Justice Committee.

So I just wanted to touch on those two points, initially, just to see if the member can provide us some insight as to whether we are still proceeding with the change that needs to happen, and, if we are, what are the cost implications of those changes.

Thank you, Madam Chair, and thank you for those questions. I first want to acknowledge the collegiality of the members of the Justice Committee—a very hard-working committee—who worked through this bill and took on board some of the concerns and some of the issues that have been raised, in the first two questions, and worked hard to find some solutions.

As the first contributor said, the purpose of this bill is to protect people in Family Court environments, which is really important. Often people in Family Court don’t find themselves there just by virtue of being embroiled in an ordinary dispute. These days when people enter the Family Court system, it is more often than not because of a really intransient, interpersonal issue that often involves violence. So it is important that we look at practical ways, as has been suggested through this bill, that we can protect people in that environment. At its core, that’s what this bill is about. It’s about saying that people in the Family Court shouldn’t be retraumatised by the very system that is supposed to be there to deliver them justice. We know that if we can do one simple thing, which is often the nature of a member’s bill, that creating a presumption toward giving evidence in alternative ways could be a step towards doing that.

If I look at the questions, just going backwards in order, looking at the existing practices and why we might need this: it is fair to say that there already exists the potential to use those alternative ways in the Family Court system. But as the author of this bill, Dr Emily Henderson, who I inherited this bill from, said at the very beginning—in our very first conversation—“People don’t know what they don’t know.” Just because there’s a potential for something, doesn’t mean that people take up that opportunity. As we’ve discussed, the fact that Family Court environments are often very fraught, that the people involved are often representing themselves and not necessarily privy to that legal advice, they don’t necessarily take up that opportunity. So making a presumption in favour of doing that, I think, is the right thing to do.

With regard to the cost of the implementation, it is correct that the bill, as first prepared, first presented, had a provision to provide for video record. That would have meant that there would have been a significant investment required to make sure that that facility, that infrastructure, was available throughout the country. It would have raised issues of equity. It possibly would have taken quite some time to roll out that facility and we would have seen some people, perhaps in the bigger centres, being able to take advantage of that protection, whilst other people in other regions perhaps didn’t. So I do think that it’s a pragmatic step to be able to take a step back from one of those provisions and say, “What can we do that can be rolled out in an equitable way?” and at least take the first step.

One of the justifications, I think, also for potentially making that change is that evidence in chief is given by affidavit. So we are talking about a Family Court system where affidavit as evidence in chief somewhat protects victims of violence already. But, as you can imagine, there’s cross-examination and various other opportunities for them to be just a table width away from someone who potentially has been a real threat in their life.

The first question about the District Court replication, I think that tends to lead itself towards what’s the impetus of this bill: which is that often, in other criminal proceedings for instance, people are afforded the opportunities to provide the evidence in different ways—in alternative ways. So it’s not so much that it’s replication; it’s about making the Family Court more in line with provisions that are available in other courts and other jurisdictions.

Thank you very much, Madam Chair, and thank you to the member in charge, Dr Tracey McLellan, for providing that clarity to myself and my colleague James Meager. I appreciate the clarification.

I want to ask about, in Part 1, new section 106BB(1)(a)(i) and (ii) in clause 6, which talks about “the witness gives evidence in either or both of the following ways:”. It talks about “while in the courtroom but unable to see 1 or more other persons to whom the evidence relates (for example, another witness, a party or another party to the proceeding, or both):”, and subparagraph (ii) says, “from an appropriate place outside the courtroom, either in New Zealand or elsewhere:”. I’m keen to understand, firstly, what is the current capability of our Family Courts across New Zealand to have these people who are providing evidence in the Family Court proceedings to be able to provide that evidence from an additional room within the courtrooms across New Zealand where these proceedings may be taking place.

I recall a conversation that I had with my colleague Suze Redmayne around some of our more rural courts across the country, where they may be at capacity already, and, by providing this provision, may create some necessary challenges that they have to deal with. But I’m keen to understand, firstly, what availability there is across the country for those who are giving evidence, who may well have turned up to the court to watch the proceedings, say, from the back of the courtroom whilst it’s being undertaken but, whilst they want to give their evidence, don’t want to have the alleged perpetrator looking at or potentially even intimidating them whilst they’re giving that evidence to the court.

So I’m keen to understand the provisions that are available for other rooms in and around courtrooms across New Zealand and whether we have the space and capability for it.

💬 Suze Redmayne: Taihape.

Yeah, Taihape is a prime example that the MP for Rangitīkei, Suze Redmayne, says—I imagine there’s a limited capacity at the Taihape court that would be available for these to transpire. So what would be the reassurance for the people in the Taihape community and wider community to provide for this?

My second point is around “from an appropriate place outside the courtroom,”. Now, was there any consideration undertaken by the member to consider whether that needed to be slightly limited? An “appropriate place outside the courtroom,” is still a very broad-brush statement that says, effectively, it can literally be anywhere. Yes, we want to enable these people to provide their evidence to the Family Court in whatever way they feel most comfortable, but was there any thought given to putting in at least some provisions to ensure that it was appropriate for the court? For example, you wouldn’t want people giving evidence from places that would be completely inappropriate for them to do so whilst this matter is being taken before the courts. So I’m just keen to seek some clarity from the member in charge around whether she had considered about potentially changing the scope of that piece and the wording from “an appropriate place outside the courtroom”.

I also note that it says “either in New Zealand or elsewhere:”, and I assume the “elsewhere” means overseas. If you’re not either in New Zealand, you would then, therefore, be overseas. But I would just like some clarity to be given by the member in charge as to whether that is exactly what she’s referring to in that part.

Then, I move to the other parts. If you go to new subsection (1)(c), it says “the parties can see and hear the witness, unless the Judge directs otherwise.” I’m just keen to actually understand, generally, what that statement actually means, from the member, if she can provide that clarity for us.

If we then move to new section 106BB(2), it says, “A witness who gives evidence of any kind in one way is entitled to give the other parts of their evidence in 1 or more other ways.” I’m keen to understand what wider ramifications that would also have for the Family Court. If their witness was to provide their evidence in one particular way, but then decided halfway through that they wanted to provide their evidence in the other way, what would be appropriate for the Family Court to undertake to enable that to happen? Would that have challenges on the Family Court and their availability to do that? Would that potentially have the opportunity of extending the length of the trials that were before the Family Court, if we were suddenly halfway through a witness’ evidence, changing how we enabled them to provide the evidence to the court?

Thank you, Madam Chair. There’s quite a bit to unpack there, and I will make a start. Let me take this in a slightly different order. In relation to the question you asked about “so that they can be seen, unless the judge directs otherwise”, I think we have to remind ourselves that judicial discretion is kind of baked into this bill as well, and I think that that’s important. That was something that advisers came back to us with during the select committee process. It was one of the recommendations in terms of just making that really clear, and I think that that’s something that we all agreed on. The bill creates, as I said, a strong presumption, but judicial discretion, I think, is a key safeguard, and I think it is important that we are able to have that. It’s not just flexibility, because, as you can imagine, a lot of these situations are quite dynamic and quite emotive. I think judges are in a really good position to be able to add to that.

With regard to the question about giving evidence one way and then another, I think there are some protections in so far as remembering that whilst there’s a presumption, there also has to be notice given. I don’t necessarily think it’s about just simply changing your mind—

💬 Tom Rutherford: How long is the notice?

Well, giving notice—just taking questions from the floor now. There is expected to be a 28-day-period notice, although some things will be urgent and there will be judicial discretion there as well. But I think that that provision is more, sometimes, that as we’ve said, evidence in chief is often from affidavit, but cross-examination and various types of witnesses—it just might lend itself to different methodologies. So I think that’s just making that available, rather than it being a potential sort of barrier to timeliness.

With regard to inside and outside: inside the courtroom, again, I think we should—the member Tom Rutherford made reference in his questions to being at the back of a courtroom. I think we do have to be mindful that Family Courts are often incredibly informal. It really is a chair—there’s not often anywhere to hide—so it’s unlikely that the situation is someone’s in the back of the room per se. But that’s where screens and things like other alternative methods could be employed.

With regard to some of the more rural places with very small facilities and a lack of facilities, I think we also have to be mindful of the fact that the level of service and the level of justice that’s applicable here shouldn’t just be determined by the level of facility. There will be some requirement to invest in some infrastructure and there will be some requirement to update skills, and that’s why there’s a six-month period post the Royal assent to allow for that. Originally, it was 12 months, but with the removal of the video record, six months is, I think, quite pragmatic and should suffice.

The time has come for me to leave the Chair for the dinner break. We will resume in committee at 7.30 p.m.

Sitting suspended from 6.01 p.m. to 7.30 p.m.

Members, before the dinner break, the committee was debating Part 1 of the Evidence (Giving Family Violence Evidence in Family Court Proceedings) Amendment Bill. The question is, again, that Part 1 stand part.

💬 Rima Nakhle: Madam Chair?

CHAIRPERSON (Barbara Kuriger): The question is—oh, there is a call?

💬 Hon Dr Duncan Webb: Point of order. You started the vote, Madam Chair, and I have been on the receiving of that before—

CHAIRPERSON (Barbara Kuriger): I did start the vote, Dr Duncan Webb, and I am going to continue the vote. People need to get up quickly if they’re going to speak. The question is that Part 1 stand part.

Motion agreed to.

Part 1 agreed to.

Part 2 Amendments to Family Court Rules 2002