Crimes Legislation (Stalking and Harassment) Amendment Bill

Members, the House is in committee on the Crimes Legislation (Stalking and Harassment) Amendment Bill. We start with Part 1. This is the debate on clauses 3 and 4, “Amendments to Crimes Act 1961”. The question is that Part 1 stand part.

Thank you very much, Madam Chair. Thank you for the opportunity. I’ll be upfront: there’s been a number of people waiting a long time for this legislation to pass, so we don’t intend to hold this up. We want it to proceed because it has been well overdue in being implemented. So I will briefly speak to the three amendments in my name that were tabled. All three amendments relate to clause 4, new section 2160(1)(b) and that’s in relation to the mental component for the offence of stalking.

One of the main issues that has been repeatedly raised by advocates within the sector is that quite often the accused stalker—in situations where there is an ongoing, repeated pattern of stalking—that person who is doing that behaviour is often deluded or unaware of the impact on the victim. Sometimes they are, but sometimes they aren’t. So our concern—and it is not just on this side of the House; it is in with advocates in the sector, as well—is the mental element of “knowing” may not be able to capture a prosecution, because quite often someone thinks that their affection is wanted or even reciprocated when it is not.

This tabled amendment amends the Crimes Legislation (Stalking and Harassment) Amendment Bill—and I’ve provided three different options for the Minister to consider in the three separate amendments. That would be to replace “knowing” with—the first option is to “having reasonable grounds to believe”. The second one is “without believing on reasonable grounds”. The third one is when a person “knows or ought to know”, so a reasonable person test being introduced as the mens rea component to this offence.

The primary reason is that we believe that it will be difficult to prove that the person was “knowing” that they were likely to cause fear or distress. To prove that a defendant did know their behaviour was causing fear of distress would potentially require proof beyond reasonable doubt that the defendant knew that they engaged in a pattern of behaviour that caused that fear and distress to another person. For example, if they were intoxicated, if they were cognitively impaired at the time, the defendants could argue that they did not knowingly engage in that behaviour that causes fear or distress to that other person.

While we are strongly supportive of this legislation proceeding, we do believe that the mental component of this offence could be strengthened by replacing “knowing” by a reasonable person test, to make sure that—in a situation where the accused is saying they didn’t know or they weren’t aware of the impact of their actions—that would not result in there not being a prosecution when there should be one. This is specific to this offence, for the fact that potential offenders to be captured under this legislation are, more often than not, not in a rational state about the reciprocation of their feelings to another person.

We believe that it’s quite a specific ground and we’ve had direct feedback from previous victims and from advocates within the sector that this change would strengthen the legislation and make it stronger for victims to be able to have their safety protected and to prevent situations where stalking is ongoing.

Thank you, Mr Chair. We echo the same sentiments as my colleague Ginny Andersen, in terms of advocates who have pushed so hard for this bill have been waiting for decades for this, so we don’t want to prolong that any further. My questions are around a similar aspect to Ginny Andersen’s, around the mental component of knowing that your actions might cause harm to somebody. I wanted to ask whether the Minister would consider inserting provisions around “ought to know” or, potentially, “knowing that an act might cause harm to person B or any reasonable person.”

The reason that we’re interested in these kinds of amendments is because stalkers can be delusional, and they can be completely unaware, whether deliberately or not, of the psychological impacts of their actions, and so we want to capture that so that if a perpetrator tries to deny, that they didn’t realise it would cause harm or distress, that isn’t a defence in that case.

The other tabled amendment that I want to speak to in relation to clause 4—it’s under my name—is around police notification. I’m really hoping that the Minister might be open to collaborating on this aspect. Obviously, this bill introduces police notification upon the first reporting of any of the specified acts under this bill. We are asking that the constable that is involved in any investigation informs the victim before they provide the notice under that police notification. The reason that we want the police to give this information to person B is because this will give them a heads-up that their perpetrator will be informed. This means that they can make preparations themselves to ensure that they are safe, to ensure that they know what is coming, to insulate themselves against any retaliation that person A might undertake in order to intimidate person B.

Those are really the only questions we have on Part 1, but we really would like the Minister to consider our amendment around the constable having to inform person B before serving the notice to person A.

Thank you, Mr Chair. Yeah, so just looking at this bill and there are only two points that I have got, two Amendment Papers that I would like to speak to. Potentially, we’re happy for the Minister to ignore these Amendment Papers if the ministerial intent is already such that these are being considered.

The first one is around the new section 216P(1)(a)(v) inserted by clause 4, which is “damaging or undermining person B’s reputation, opportunities, or relationships:”. I’m just seeking the Minister’s advice, I guess, because my Amendment Paper says afterwards “including through sharing information person B does not want to share with others”. The intention of that is to ensure that the recording or tracking of person B will adequately address the kind of information—sorry, I just realised that that was looked at in a different section. But the idea is that when you are looking at something like this, the amendment is hoping to address the behaviours are adequately covered. So the idea is that when we’re looking at opportunities or relationships that are damaging for person B that it also includes through sharing of information that potentially might be publicly available, such as social media.

For the other Amendment Paper, we are looking at section 216P(1)(a)(vi), which is after “to a reasonable person”, insert “in these particular circumstances”. Again, this comes from submitters and organisations who have had a lot of experience dealing with cases like this—just to say that, for example, for women with additional vulnerabilities, the threshold for person A to cause fear or distress may be lower than a reasonable person, and the defence is turning on whether what a reasonable person should be expected to tolerate may also be unfairly prejudicial to minority groups.

Again, for both of these two amendments, if they are things the Minister thinks are already covered under the existing definition, that’s all good; we’re happy to leave the amendments. But we just want to get a steer from the Minister.

I think, lastly, just to my colleague Tamatha Paul’s point in terms of her amendment. This is something that we’re hoping that we have adjusted this particular amendment from “constable must consult” to “inform” but considering this is something that we’ve seen in overseas jurisdictions and it’s hugely beneficial, we do seek the Minister’s support on this particular amendment.

Thank you, Mr Chair. I’m very pleased that we’ve got to this point of the committee of the whole House stage. As members have already noted, this is something that petitioners, and particularly women’s groups, have been asking for, for many years. The good news is that we as a Government said we would aim to have this legislated before the end of the year, and I’m very delighted that, with the support, I think, of all sides of the House, we’re managing to achieve that. I want to thank all members in Parliament for that support.

The issue that has been raised a couple of times already is around the question of mens rea. People tuning in might be wondering what that is. There has been great debate about the test, because what this legislation does is criminalise stalking and harassment. It includes a very wide range of behaviours: watching, following, loitering near, or obstructing a person, recording or tracking a person, contacting or communicating with a person, damaging or devaluing or moving or entering or interfering with property—a long list of things. Of course, a lot of those things people do on a regular basis in many ways, and so we held it was important to include a standard that “[knowing] that pattern of behaviour … is likely to cause fear or distress”—knowing that the pattern of behaviour is likely to cause fear or distress—and doing two of such things within a two-year period.

We think that’s important. If you took that away and just said “ought to know”, or lowered that threshold, there is a real risk—you know, there is potential maximum five-year prison sentence. If there was a lower standard, there is a risk, given the wide net of specified acts, that we would subject people who are annoying but innocuous to being liable to a lengthy prison sentence. That’s why we do think that the clear hurdle of knowing that the pattern of behaviour is likely to cause fear or distress is important. Of course, I mean, a lot of behaviours where it’s a threat of harm made to a victim would obviously be that, but in other situations, a prosecutor would only need to show that a victim or a friend or a family member told the stalker that they were scaring the victim and that would deliver that. And, of course, we’ve also developed a Police notice system to take that even further.

I just want to mention briefly that the National Party has decided to agree to Tamatha Paul’s Amendment Paper 439, that a constable must inform person B before providing a notice under the subsection of the Act, so that police can inform victims. Now, that was something that was raised by committee members and submitters. The advice I’ve had is that Police operational guidelines already require staff to consult with victims when decisions are made to issue warnings or other notices. We don’t think it’s strictly necessary, but we’re prepared to accept that one. Otherwise, we’re keen to get this legislation through. I’m happy to answer any more questions.

Thank you, Mr Chair. Just a question for the Minister of Justice, just in relation to the Amendment Paper by Tamatha Paul, it does seem sensible, but I do want to just understand in more detail what the actual term “consult” does mean. You referred to police operations already consulting, but what does actually consulting mean in this case with “person B”, and would that actually—yeah, I mean, we just want to understand a bit more about what that means, just to make sure that this isn’t going to inhibit people actually being charged under this regime.

Well, my reading of Amendment Paper 439 is that the constable must inform—the word “consult” is not used; it’s “inform”, 439. Have I got that?

No, and that’s why I’m asking for—it actually does use the word “consult”.

Hon Paul Goldsmith: Oh, we might be able to explain.

CHAIRPERSON (Greg O’Connor): Minister, feel free to take time to consult, if you’d like.

Thank you. Mr Chair. Just to clarify for the Minister of Justice and also for the member Todd Stephenson, Amendment Paper 439 does in fact say “consult”, but that’s not the paper that we’re going to be looking at. It is a new tabled amendment that we just put forward. It should be available on there, and it’s also under the name of Tamatha. We’re no longer looking for support for Amendment Paper 439; it’s the new one.

OK, thank you, well, that’s helpful clarification, but maybe if the Minister of Justice can just make sure he has the right amendment and we are clear about what we’re agreeing to.

Hon Paul Goldsmith: Yes—yes.

CHAIRPERSON (Greg O’Connor): Feel free to take time to sort out—you’re right?

Hon Paul Goldsmith: Yes, I’d just like to know the number of the—

TODD STEPHENSON: Well, they’re both called 439; that’s the issue.

CHAIRPERSON (Greg O’Connor): All right, well, Todd Stephenson, you’ve still got the call; I think I’ll go back to that.

TODD STEPHENSON: Oh, well, thank you. I mean, yeah, Minister, once you’ve got the right amendment, and if it is “inform”—is that now the term, rather than “consult”?—maybe the Minister just wants to comment on the term “inform”, but it does sound then that it’s like a very straightforward amendment.

Hon Paul Goldsmith: Yes.

TODD STEPHENSON: But it’s probably good that we have that clarity at this stage.

CHAIRPERSON (Greg O’Connor): This is the interaction we really want in a committee of the whole House.

Thank you, Mr Chair. Again, just to reiterate, the Amendment Paper—that is, 439—is not the version that we’re hoping to seek the support of the Minister of Justice for; it is the new tabled amendment that has just been put on the Table that we’re seeking the Minister’s support for. Thank you.

Hon Paul Goldsmith: With the same number?

Dr LAWRENCE XU-NAN: There is no number because it’s a tabled amendment, so I guess the tabled amendment that is 9.15.04 on 19 November 2025 is the most accurate code I can provide.

Thank you, Mr Chair, tēnā tātou e te Whare. To the Minister of Justice: I want to get, if I could, some sense of your confidence in the application of when—like, in this instance, if we’re talking about “inform” or “consult” or whatever it is, probably the key word is “before”—that sentiment or that expectation is. When patterns are as they are in stalking, or patterns in family harm, or patterns in domestic violence—patterns when they’re set are hard to break. I did want to check if the Minister could just elaborate on that a bit.

My own experience in this field tells me that it takes a lot of practice, and shift of attitude and mind in this space, whether it’s about stalking or family harm, but in this instance it is about stalking and patterns. Simply making a change—some good changes, by the way; I support it. But it’s always in how these things end up being applied on the ground and what confidence you have, and I’m sure you do—that then when we’re talking to advocates that are continuing to contact and go, “Minimal—is this far enough? How secure can we actually feel when these things kick in? How safe can I really feel?” So I’m keen to get some confidence, if you’ve got some confidence, that when it’s applied, it’s true, it’s safe, it’s genuine, and women—mainly women—that are survivors, or not survivors, of this terrible situation can feel safe or better off because of it. Thank you, Minister.

The question is that the Hon Ginny Andersen’s amendment to clause 4, new section 216O(1)(b), to replace “knowing” with “having reasonable grounds to believe”, be agreed to.

The question is that the Hon Ginny Andersen’s amendments to clause 4, new section 216O(1)(b), to replace “knowing” with “without believing on reasonable grounds” and replace “likely” with “unlikely” be agreed to.

The question is that the Hon Ginny Andersen’s amendment to clause 4, new section 216O(1)(b), to replace “knowing” with “when Person A knows or ought to know” be agreed to.

The Hon Dr Duncan Webb’s amendment to clause 4, new section 216O(1)(b), to replace “knowing” with “in circumstances when they know or ought to know”, is out of order as being the same in substance as a previous amendment.

Dr Lawrence Xu-Nan’s amendment to clause 4, new section 216O(1)(b), to replace “knowing” with “that person A knows or ought to know”, is out of order as being the same in substance as a previous amendment.

The question is that Tamatha Paul’s amendment to clause 4, new section 216O, set out on Amendment Paper 439 be agreed to.

The question is that Tamatha Paul’s tabled amendment to clause 4, new section 216O, inserting subsection (3A), be agreed to.

Amendment agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 4, new section 216P(1)(a)(v), be agreed to.

Amendment not agreed to.

The question is that Kahurangi Carter’s amendments to clause 4, new sections 216P and 216Q, set out on Amendment Paper 351 be agreed to.

Amendments not agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 4, new section 216P(1)(a)(vi), be agreed to.

Amendment not agreed to.

Tamatha Paul’s amendment to clause 4 inserting new section 216QA, set out on Amendment Paper 438, is out of order as being outside the scope of the bill.

The question is that Kahurangi Carter’s amendment to clause 4 inserting new section 216T, set out on Amendment Paper 352, be agreed to.

Amendment not agreed to.

Part 1 as amended agreed to.

Part 2 Amendments to other Acts