Statutes Amendment Bill

Members, we come now to Part 11. Part 11 is the debate on clauses 45 and 46, “Amendment to Criminal Investigations (Bodily Samples) Act 1995”. The question is that Part 11 stand part.

Thank you, Madam Chair. This is a question that relates to this Part 11—and apologies, I’m going to slightly jump the gun and also say the same question applies to Part 12, so if the Minister answers this question, it covers both of these parts for me.

In both this particular legislation and the next one, I can’t find a definition—nor in sort of any legislation—on what “certain persons” is defined as. Just want to check the Minister’s clarification on how to define that?

Thank you, Madam Chair. I will presume that there is such a definition, because in law, we need to look for consistency—so I’m going to suggest that there will be one in there, and it will be one that will be more recent. If you have a look at some of these horrid words that were being used—so we’re always looking for consistency in the statutes amendment bills: how do we fix up these small errors? And so that phrase of wording will have been captured from somewhere, in order to create that consistency.

I call on Dr Lawrence Xu-Nan, just to finish off his questions.

Just one little thing, thank you. I wholeheartedly agree with the Minister, but if the Minister, maybe, or the official through the Minister, wouldn’t mind, just to satisfy my curiosity—which legislation will be able to find the definition in? That’d be fantastic.

That was going to be my question, too. But I did just want to add to the Minister—I think she maybe is turning around to ask her officials, but I did look in the Criminal Investigations (Bodily Samples) Act for the definition. I did look in the Criminal Records (Clean Slate) Act, which I know is the next part. And I did also look in the Crimes Act, and I know the Crimes Act is a very long Act so it may be that I’ve missed it in there, but it would be, I think, very helpful if the Minister could come back with where that definition of “certain persons” is. I just want to add my voice to the Minister’s concern that she raised around these words and isn’t it regretful that this House put those words into legislation. If the officials who are assisting her tonight—I think a good focus of this House would be to make sure that no words like this continue to exist in New Zealand’s legislation because they certainly are very offensive and regretful to be included in our statute book.

Thank you, Madam Chair. This is actually quite an important point because the list in Schedule 1 to the Criminal Investigations (Bodily Samples) Act is the trigger for when the police can get a DNA swab. It lists the offences which if you commit, you’re obliged to give—and it can be forcibly taken—a bodily sample to go on the DNA register. Everything that’s been said about the outdated titles is true, but if you go to the schedule that’s being amended, it gives you the name of the offence and then the corresponding section in the Crimes Act, and it’s section 138. In fact, the correct section—there is no such crime as “sexual intercourse with certain persons”. It’s just not a crime. So to say, “If you are convicted of the crime of sexual intercourse with certain persons, then you must give a bodily sample,”—there is no such crime. You will not have to give a sample.

Section 138 is in fact the offence of sexual exploitation of persons with a significant impairment, and you can see how that corresponds with the outdated language in the earlier section. It is of a concern to me that, whilst there would be a stretch, it is conceivable that a court could say, well, that old section has been replaced by the new section—the old section 138 has been replaced by the new section 138, and so it actually means sexual exploitation of persons with a significant impairment. But if we have an imaginary offence of sexual intercourse with certain persons, no court, no judge, is going to give an invasion of the person, taking a bodily sample, on the basis of the commission of a crime which simply doesn’t exist.

I would suggest that the Associate Minister of Justice might want to get her officials to actually clarify what they mean by “sexual intercourse with certain persons”, because there’s no such offence and I’m concerned about that.

Thank you, Madam Chair. This amendment is to take out really foul language and replace it—I mean, it’s as simple as that. I’m not going to get into detail about what it actually means, because I think it’s quite disgusting. But I think, also, when the member speaks to whether or not we should just have “impairment”, not everybody who goes through this is impaired, as such. So I suspect that’s why “certain persons” rather than “impairment” has been used. Officials are on notice to have a look at “certain persons”, and if we move on past this section and I get that answer, I will address it when I’ve got that answer.

Part 11 agreed to.

Part 12 Amendments to Criminal Records (Clean Slate) Act 2004