House in Committee — Part 2 Amendments to Criminal Procedure Act 2011

Members, we now come to Part 2, which is the debate on clauses 6 to 8, “Amendments to Criminal Procedure Act 2011”. The question is that Part 2 stand part.

Thank you. As you can see from the report that was done by the Justice Committee, the Labour Party held a different view on this part of the legislation. While the Labour Party brought in the original bill, it was revised by the Minister of Justice, and he added a part to that bill which the Labour Party is not happy with. So we’ll have more to say on this part as a consequence, and, consequently, it’s important that we explain our position.

I also put an amendment on the Table. That amendment goes to the issue of the veto that is given, or the automatic veto—basically, the judge has no discretion if the victim in a case involving a sexual offence says that they don’t want the name of the perpetrator suppressed. There are some very compelling reasons why, given by the New Zealand Law Society when it was consulted when there was a sort of limited submission when this was reopened by the Minister, because there was going to be a substantial amendment. While the Law Society talked about how it was good that the Minister had at least reached out for feedback on it, they were concerned that that feedback was coming from a very narrow group of people that wasn’t as broad as it needed to be. But they also set out a number of things that they were concerned about.

Now, the Law Society’s concerns are quite broad. The amendment that the Labour Party’s put on the Table is not as broad as that. It looks at what the New Zealand Law Society has said and then says, “Well, what are the things, in the list of reasons that they’ve given, that are most attached to the need for victims to be protected?” And you can see that amendment on the Table, Minister. So I would very much like your agreement to it today. That agreement, basically, would need a look at the New Zealand Law Society paper as well—you would get a rich context from that. That would be at page 4 of the New Zealand Law Society’s submission, where it lists it in context of wider submissions.

The two suggestions that the Labour Party selected to put on the Table in an amendment today are that if the victim of the perpetrator says that they would like the name of the perpetrator to be released, but that identification could result in a hardship or danger to the family of the victim, including where the sexual offending has occurred within a family, or—the second suggestion is—the identification could result in hardship or danger to the family of the offender, then, in those two circumstances, the judge would retain an ability to look at those as exceptional circumstances and override the initial indication of the views of one of the complainants.

Now, let’s talk about the reality of this for a minute. The reality is that sexual offenders often have more than one victim, and they are often intergenerational victims in a family, they are often sisters, for example. And it may be that one of those victims has come forward and has prosecuted a claim, but there’s another victim in the wings of this. So what we really pay judges the big bucks for is that kind of discretion so that they can make a humane and safe decision, not just about the person who has come in front of them but the web of people beyond that, in a society.

I’d like to talk for a minute about the wider submission that’s made by the Law Society, because this is an airing that really needs to be had in the committee stage. But I’d like to take another call on that, Madam Chair—Madam Chair?

CHAIRPERSON (Maureen Pugh): Helen White.

HELEN WHITE: Thank you. That wider context is not—we have not prioritised those things in our own submission. But what the Law Society talks about is that there are issues where “An individual is convicted of a relevant offence and is identified, but charges are pending and under way. Identification may prejudice their fair trial rights, risk the progress of the trial or the security of subsequent convictions, to the detriment of all parties, including victims.”—so it’s not excluding victims. Those also are amendments that the Law Society thought needed to be within that scope of exceptional circumstances, because victims actually fit into that too, but we prioritise the most blatant of those connectors. Then it goes through the other two that I’ve just mentioned: “Identification could result in the hardship or danger to the family of the victim, including where the sexual offending has occurred within a family.”, and the “Identification could result in hardship or danger to the family of the offender.” The last one that they raise is that “There would be a serious risk of physical harm to the offender, due to the circumstances of offending … for example, the nature of the relevant community in which it has occurred.”

Now, I fully take on board—and, obviously, this was a law that was started by a Labour Government—that we absolutely need to prioritise victims in this situation, and that there have been people who have pushed for their suppression and that has been its own trauma to the victims, when they have had their own name suppressed simply because the other person has got the resourcing to continue through our legal process, and others who do not have that kind of resource have not been able to do that, so I’m far from suggesting that law is fair in all cases. But the two exceptional circumstances that I’ve focused on today, and the ones that the Law Society have put as a broader group, are all exceptional circumstances where it may be that they actually tip the scales the other way, if we’re going to have justice in this country, particularly if we are going to be victim-centric. So I would like the Minister’s views and support, actually, for an amendment that is drafted with regard to that matter and has been put on the Table, and I look forward to his answer. I do have other issues, but I’d love an answer to those questions.

This part of the bill, yes, is something that the current Government has brought an amendment to to deal with the question of permanent name suppression for sexual offending. There are two elements to this, and sometimes people are a bit confused. We’re not changing the law around automatic suppression of identity where the offence is incest or sexual conduct with a dependant, so that remains the case. What we’re talking about is all other cases—not incest or with the dependent—where somebody has been convicted of a sexual offence. Currently, quite a substantial series of people—in 2023, for example, 76 individuals were convicted and achieved permanent name suppression. Year in, year out, we’re having New Zealanders convicted of sexual offences going off and nobody being able to know who they were. We’ve heard a previous speaker saying, “Well, quite often offenders create more than one victim.” A big part of the problem is that those victims aren’t able to warn other people, because they have permanent name suppression.

The concern that’s been raised by many victims is that this permanent name suppression stops them being able to talk about their experience, what happened to them, and who did it. They can’t talk to people for fear of breaching the name suppression. So their ability to heal and to talk about what happened to them and express what happened to them is curtailed, and so their story is suppressed and limited, but then, most fundamentally, also they can’t warn others about what happened to them and about this person, because of the name suppression. And I accept, across the Chamber, that this is a reasonably radical change. It is a significant change to the way that we approach things. We’re reversing the impetus, putting the opportunity in the hands of the victim that permanent name suppression is only granted if they choose to agree, rather than leaving it at the discretion of the judge.

Now, two things are often raised in concern about this: “Well, doesn’t that put enormous pressure on the victim to decide, particularly young victims?” There’s a very simple—and, I think, adequate—answer to that, which is to say, “Nobody’s forced to do anything.” If a victim does not want to make that decision and doesn’t want to engage in the process, then it reverts to the judge making the decision, and we think that’s appropriate. Nobody’s being forced to make any decisions; if they don’t want to, then they don’t have to. So that pressure does not carry on.

Ultimately, we can talk about being victim focused and victim-centric, and we can talk about these things, and it’s an easy thing to say, but this is an instance where we’ve decided, actually, to walk the talk and make it clear that when you’re convicted of a sexual offence, part of your punishment is that society, in a basic principle of open justice, knows about it. We’re not going to have the situation where nobody’s able to warn others about a particular individual going on and creating more victims. That’s what we want to avoid because, ultimately, the primary focus of all our justice approach is to reduce the number of victims of crime, and that’s what we’re going to do here.

Thank you, Madam Chair, and thank you for that explanation from the Minister of Justice. I think there’s a general agreement that we want to support the rights of victims within our judicial system; however, during not only the select committee process but also in documents released under the Official Information Act on the advice that the Minister received in making this decision, there were a number of questions raised as to the unintended consequences that may impact victims. So I just want to outline some of those risks that have been highlighted in the advice and I’m interested to know if the Minister is satisfied with whether the current version of the bill makes sure that those unintended consequences aren’t still going to occur if this bill proceeds as it is now.

One of those is that victims could be put under more stress and pressure because of the gravity of the decision. It may carry the burden if extreme harm befalls to a third party because of their decision—so if that’s been weighed up. Also that victims could be exposed to influence and negative repercussions from family members. That’s particularly if they are under 18 in those instances. The proposal requires agreement from a layperson who does not necessarily have access to all of the relevant information, including the submissions from counsel and also psychological reports—whether he’s turned his mind to that. This change potentially risks undermining the integrity of the justice system, which is based on having impartial parties making decisions. So that removes that if it’s completely on the shoulders of the victim to make this decision.

The right to appeal name suppression decisions would, effectively, be removed, if I understand it—and please correct me if I’m wrong—as the victim’s power is tied to whether the defendant is convicted or not. There may be more defendants maintaining a not guilty plea or potentially seeking discharges without conviction—whether he’s looked at those consequences with this change going through. Also discharge without conviction applications could potentially be more likely to succeed if the court finds the risk of extreme harm to a defendant or someone connected to them is out of proportion to the offending.

The other one I’d like to highlight is that the defendant’s or the other party’s right could be impacted if the publication would likely have a high risk of suicide—if that’s a case he’s weighed up—or other risk to their physical safety. Again, depending on the age, that would be something that needed to be weighed up as well. The other area is that defendants may start indicating guilty pleas only if victims supported name suppression, which could be kind of, I guess, a tempting option to prevent victims having to give evidence at trial.

Finally, it’s important to point out that there’s no bottom age limit on when victims would be consulted. So this, potentially, would mean that children could be given the decision power, despite not potentially fully understanding the consequences of what they were needing to do to lift name suppression or not, and whether that is fair on those younger victims of crime.

There are a number of concerns that have been outlined by victim advocates throughout the select committee process and also in advice provided to the Minister. I think it’s only right that we can be reassured that he has turned his mind to all of those potential consequential risks that could actually make life more difficult for victims of crime. It will be good to understand from the Minister whether he has considered all of those specific risks that have been outlined throughout the select committee process.

Yes, I can assure the committee and the member that I have considered those risks, and I acknowledge that they are risks and no system can be designed that is perfect, and the current arrangements, of course, bring an enormous number of risks as well that people who have been convicted of a sexual offence and can’t be named—that of course brings enormous emotional consequence and pressure on the victim, who can’t tell their story and can’t warn others and has their story supressed by the courts. That has to be balanced.

In terms of the pressure on young people, as I said, nobody has to make a decision in this space. They can, if they don’t want to engage—and many younger people might not want to engage—in which case the court process follows as it is. So, yes, I am aware that there are risks in making this change. The only point that I’d make is that there are many risks under the current system and, on balance, we think that this is the best way forward, and it provides the best way for the greater number of victims of sexual offending be able to tell their story and to warn others.

Thank you, Madam Chair. I’m just looking here at new section 200(8)(b), inserted by clause 6A. I think it’s a great day when we can come together and really look at how we protect children, how we protect victims of sexual violence. I’m just really interested to know if the Minister of Justice could talk us through the process of when the court is satisfied that a complainant has been contacted to find out whether they actually want this name suppression lifted or not.

Obviously, any kind of trial of this nature can be very taxing on a person and they may just want to have a bit of a break and to switch off from this or go and do whatever they want to do to help heal. We’re just wanting to really make sure that—it says here “all reasonable efforts, cannot be contacted.” I guess that implies a level of communication—in section 200(8)(a) there “is unable or unwilling” to be contacted.

It would be great if the Minister could just talk us through the process, for example, how much time is considered reasonable? Is it three months? Six months? A year? Three years? What is considered reasonable effort? We know that phone numbers change regularly, particularly mobile phone numbers, email addresses, forgetting passwords, and also the transient nature of renters. Just wondering if the Minister could just elaborate a little bit more on the process around the reasonable efforts to contact the complainant—survivor, victim—about whether they are wanting that name suppression lifted. Yeah, that would be great. Thank you.

Just in answer to that, my advice is that “reasonable efforts” is established in case law. There is not a precise date—you know, you’ve got 15 days or 20 days. Each case can be dealt with on a case by case basis by the courts, but there is sort of a broad precedent around what that refers to.

Thank you, Madam Chair. I do want to talk, also, about this name suppression issue. It is a difficult issue and I do want to recognise the intent of empowering victims and giving them agency over this question. I’m interested in what New Zealand Bill of Rights Act analysis was done around this amendment, because it was a late amendment. Naming an offender publicly is part of the sentencing process, and denunciation is one of the objectives of sentencing, and rightly so. What the courts have said about suppression is—and I’m not saying the suppression law as it currently stands is perfect; it’s far from it—where to name someone would be a disproportionate punishment, that suppression is properly considered. I guess this amendment gives decision-making power over an offender to a victim. One of the real centrepieces of our criminal justice system is that the Crown, or the Government, metes out punishment. It stands between victim and offender so that we don’t have personal vengeance. What we have here is, perhaps, a small but critical erosion of that where a victim becomes a judge in this regard.

There are two strands to that that I would like the Minister of Justice to address. Can he just simply respond to that? Does he think it’s appropriate that a victim becomes a judge? And given that it’s an absolute right of veto of name suppression, regardless of the impact, the gravity of the offending, the nature of the perpetrator, and all of those other things that are relevant in sentencing, did he turn his mind or was he provided advice in respect of compliance with the New Zealand Bill of Rights Act and the prohibition on disproportionate punishment?

Thank you, Madam Chair. I have two questions for the Minister of Justice, on clause 6A, new section 200(9)(b)(ii). I think a lot of that does touch on it, and I want to, first, acknowledge Labour’s concern, particularly around the fact that there is no lower or bottom age limit on the victim being consulted and, potentially, we’re placed in a position where children are able to make these sorts of decisions.

I have two scenarios where I want to get clarification from the Minister. The first one is, when it comes to subsection (9)(b)(ii), am I understanding the legislation correctly that the only way, in that case, for a victim or for a complainant to be able to have that decision-making power is if they themselves also waive their name suppression? I see that it only stands if both parties do not have name suppression; so you can’t have a situation where the complainant has said, “I would like name suppression, but I don’t want the offender or the person convicted to have name suppression.” Is that the case, where both have to be on an equal footing? That’s my first question.

The second question is: noting that we have the new subsection (9)(a), which involves more than one complainant—but it’s not stated or explicitly clear, from subsection (9)(b)(ii), in the situation where there is more than one complainant, who then determines, or how do we ensure, that all of the complainants’ suggestions around the convicted person’s name suppression are taken into consideration? Do they have to have consensus, then, if there is more than one complainant, for them to agree that name suppression is lifted, or is it just one of them, or the key person? I think the multiple complainant part is a really important question to answer.

Those are my two questions. The first one is whether they’re on an equal footing—either both sides need to have name suppression or none of them has name suppression. And, second, in the event of multiple complainants, do they have to have consensus when deciding the convicted person’s name suppression?

This is a really good point, because I just want to extrapolate into another area. I think there’s a difference between complainants and other victims. There are often situations where you will have more than one at the same time, but you will also have other victims of the person. I talked about a situation where you’ve got a family and you might have two sisters. There may be other victims, and that’s not picked up in the language. What the amendment does is talk about those situations which were a bit difficult, and so I’d love to have an answer with regard to those really practical situations, where we’re going to see harm to victims if we don’t have enough wiggle room and enough discretion with the judge.

I’d also like to know about situations where youth is a factor. We’ve talked about it in terms of there’s no age on this and there’s weight. But let’s be specific: we often have, in family law cases, children who are very young or are under extreme pressure being asked for their views, and so, in some situations, you have to really be careful about how those children are approached, or if they’re approached. While there’s a rule about looking at the views of children—and then there are issues over the best interests of children. The best interests of children are always paramount, and that’s a really important piece here that just seems to be missing. What happens if there is a concern that there will be pressure on a child over their view? Isn’t that something where we want, sometimes, to take that away and let a judge make that call? That’s why I proposed an amendment, really, entirely focused on those victims in that situation.

There’s also just the broader issue, beyond the amendments, of what the answer to that is from the Minister of Justice. What happens when you’ve got two people in a family—or, actually, multiple victims, historic victims, etc.—and actually, there’s only one complainant, in that sense of people taking the case at the same time? They’re the only people being asked. They’ve got a decision which others are not being involved in. It’s a very practical question that I’d love an answer from the Minister on.

Finally, it occurred to me that what the Minister is saying is consistent with us throwing the doors open. He says it’s an issue about open justice. I take the point. I have things where I’d like to see things a lot more open in terms of justice—one is non-disclosure agreements. I’d like to see us not do that in situations where there were sexual harassment cases; so people could tell their story, etc. But I think I’ve heard the Minister take a very different point of view on such things, where there is a contractual clause that means you can’t disclose those things, and say, “That’s a contract you’ve entered into.” Surely, the principle has to be extrapolated out here, and we need to look at all situations in the same light. Is he prepared to give me his assurance that he would do that: look at open justice in situations where people are contractually bound not to talk about assaults to victims?

I know it’s a little off point, but it’s actually a logical connection here with the statement that he said—that it’s more important to talk about open justice. That’s more important than, perhaps, the victim who is wanting this to be suppressed or a situation where it is not known. So the person in the family, who is a victim even though they’re not the complainant—that seems to be where he’s tipping the balance. I hope he can take my point in good faith and answer that one as well. Thank you.

In terms of the New Zealand Bill of Rights Act vetting, the Crown Law Office obviously vets Ministry of Justice bills for the New Zealand Bill of Rights Act, and they do that at their discretion and give the advice to the Attorney-General.

In terms of what happens when there are multiple victims, the court will treat each victim individually. Each victim will be asked to provide their decision on name suppression. If the victims’ decisions are the same, then the decision applies; if the victims’ decisions are not the same, the court must consider the victims and the individual charges separately. The offender may be named in relation to some convictions, but not in relation to other convictions.

We’re obviously not talking about complainants; we’re only talking about when the process has been taken through. One member talked about turning the victims into the judges. Obviously, the question of whether somebody is convicted of the crime is not in the hands of the victim; that is very much in the hands of the court and the judiciary, and the jury, if that’s appropriate. We’re not proposing any changes to that. What we’re talking about here is in relation to decisions around name suppression, and many points have been raised. I’m not suggesting for a moment that there is a neat and tidy, perfect solution to this problem, and I think all members are acknowledging that point. Whichever way we arrange things, there are people who are going to suffer some measure of pain and lack of comfort, either because their offending is being exposed publicly—and the consequences that flow from that—or the victims who are not able to talk about their experiences and to warn others. The purpose of this legislation is to change that, and to stand firmly, squarely on the side of the victims, not to have to go through that painful experience, unless they choose to. So that is why we have preserved—absolutely—the ability of victims not to engage in this process if they don’t want to, and that is very important.

I move, That debate on this question now close.

I have to say we are very close to a closure motion, people.

Thank you, Madam Chair. I want to come back to the question of the New Zealand Bill of Rights Act vet because I do think that that is an important issue for us to discuss today. The Minister of Justice made the comment that it is at the discretion of the Attorney-General to conduct that vet. That was the case on the introduction of the bill. What is unique in this case is that we have an amendment to the initial bill which is quite significant. The original bill concerned Part 1, which we’ve discussed and was introduced in the 53rd Parliament. The first and second amendments were introduced in the 54th Parliament and concern the new issues of name suppression that we’re discussing now, which is a significant New Zealand Bill of Rights Act issue, but wouldn’t have been conducted in that first vet.

The Law Commission report notes that this is the second time that a significant amendment which, prima facie, touches the New Zealand Bill of Rights Act has been presented, and it raised some concerns about whether due process occurred in terms of a New Zealand Bill of Rights Act vet, and I believe that that vet should have been done. It is absolutely within the scope of the Minister’s powers to request advice on New Zealand Bill of Rights Act compliance, and I believe that there is an obligation to do that.

My first question would be in relation to whether the Minister did actively seek advice on consistency with the New Zealand Bill of Rights Act. My second question is whether the Minister actively turned his mind to a section 5 analysis, which is that if rights are being limited, how should they be limited in a way that minimises the impact on that right? That really does bring us back to the amendment that was proposed by my colleague Helen White, which looks at the proposal of a residual discretion. It’s a residual discretion that’s proposed not in the way that the Law Commission have proposed it. It, in my view, is proposed very much on the basis of the sentiment that sexual violence advocates put forward in their submissions to the Justice Committee. I look at the submission of the Auckland sexual abuse HELP foundation, for example, who raised, as colleagues have spoken about, the issue of victims who are children. Their proposal—one of their many proposals—was that automatic name suppression be given to those young people with potentially quite a unique proposal of final name suppression being determined at a later date once they were of age.

So what I would like to know is whether the Minister first requested the vet and whether, secondly, he turned his mind to a section 5 analysis, bearing in mind that the options were on the table in select committee submissions and certainly now on the table with my colleague’s proposed amendment. I’d like to hear his response to that. Thank you.

I move, That debate on this question now close.

The question is that the Minister’s amendments to Part 2 set out on Amendment Paper 289 be agreed to.

The question is that Helen White’s tabled amendment to clause 6A replacing new section 200(8) be agreed to.