This bill seeks to amend various aspects of the Crimes Act 1961. It is intended to protect children and vulnerable adults from assault, neglect, and ill-treatment by creating liability for people who are not actively involved in the mistreatment, but have frequent contact with the child or vulnerable adult and fail to try to protect them from mistreatment by others, of which they are aware. It would also extend the duties of parents and those with actual care or charge of vulnerable adults and children, and broaden the offence of ill-treatment or neglect of a child or vulnerable adult.

We note that the bill would alter the “claim of right” defence, which is available for some offences relating to property when the accused believed they were legally entitled to deal with the property in the way they did. The bill would make it clear that the defence cannot be used in a situation where there is no belief in a proprietary or possessory claim in the affected property. We are aware that in New Zealand there has been an instance of substantial damage where accused persons have successfully argued a claim of right defence, although the claim was not based on a belief in any such ownership right in the affected property. The bill would remove the ability for an accused to successfully rely on a defence based on a belief unrelated to a proprietary or possessory right.

We also note that the bill would increase the penalty for carrying an offensive weapon in circumstances that prima facie show an intention to use it without reasonable excuse. This reflects increasing concern by the public and judiciary that the current penalties for these offences are not sufficient, in the light of the increasing number of stabbings and a growing incidence of carrying weapons, particularly knives.

Further, the bill would broaden the offence of meeting a young person under 16 years of age following sexual grooming for the purposes of committing an unlawful sexual act with him or her, to include situations where the offender believes that he or she has been sexually grooming a young person, but has in fact been in communication with a constable acting covertly.

Protection of a child or vulnerable adult

The bill seeks to create a new enforceable legal responsibility making a person criminally liable for the failure to protect a child or vulnerable person where another person omitted to perform a legal duty, and the accused was aware of the duty and the harm the omission would inflict on the child or vulnerable person.

We were concerned that, as introduced, the bill would create an offence even if an omission by the person legally required to perform it did not create a clear legal liability. We therefore recommend amending new section 195A(1)(a) in clause 7 so that a person would be liable for failure to protect a child or vulnerable person in a situation where there was an omission to perform a legal duty only if the omission was a major departure from the standard of care expected.

We recommend amending new section 195A(3) in clause 7 to state that an offender must be older than 18 years at the time of the act or omission in question to be prosecuted for failure to protect a child or vulnerable adult under this section. Under the provision as introduced, a person under 18 years of age could only be prosecuted if they were a parent of the victim. We note that new section 152 in clause 6 would impose a duty on a parent or guardian to provide their child with necessaries and takes reasonable steps to protect the child from injury. We consider that this provides adequately for the liability of a younger parent who fails to protect their child, and see no reason to duplicate these liabilities.

We recommend amendments to new section 150A(2) in clause 6, and new section 195(1) in clause 7. These provisions would make a person criminally responsible for omitting to perform a legal duty in certain circumstances. However, we are aware that the current legislation establishing some of these legal duties explicitly requires duties to be discharged, in addition to requiring that they be performed. We therefore believe these provisions, and similarly new section 195A(1)(a) in clause 7, should refer to a person omitting to “discharge or perform” a legal duty, for consistency with existing legislation.

We considered whether or not these provisions should amount to an offence subject to the three-stage regime under sections 86A to 86I of the Sentencing Act 2002. All such offences require a positive violent or sexual act by the perpetrator, which is fundamentally inconsistent with the offence provisions in this bill.

Other issues

We recommend minor amendments to clause 4 to clarify the “claim of right” defence.

We recommend inserting new clause 10A. This would effect a consequential amendment to the Summary Proceedings Act 1957, and would ensure that the Schedule 1 list of indictable offences that may be tried summarily by District Court Judges was consistent with the amendments effected by this bill.

Appendix

Committee process

The Crimes Amendment Bill (No 2) was referred to the committee on 10 May 2011. The closing date for submissions was 3 June 2011. We received and considered 39 submissions from interested groups and individuals. We heard 10 submissions.

We received advice from the Ministry of Justice.

Committee membership

Katrina Shanks (Chairperson)

Jacinda Ardern

Chester Borrows

Tim Macindoe

Todd McClay

Dr Rajen Prasad

Jami-Lee Ross

Su’a William Sio

Metiria Turei

Key to symbols used

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Hon Simon Power

Crimes Amendment Bill (No 2)

Government Bill

284—2

1 Title

2 Commencement

3 Principal Act amended

Part 1
Amendments to principal Act

4 Interpretation

5 Meeting young person under 16 following sexual grooming, etc

6 New sections 150A to 152 substituted

150A Standard of care applicable to persons under legal duties or performing unlawful acts

151 Duty to provide necessaries and protect from injury

152 Duty of parent or guardian to provide necessaries and protect from injury

7 New sections 195 and 195A substituted

195 Ill-treatment or neglect of child or vulnerable adult

195A Failure to protect child or vulnerable adult

8 Possession of offensive weapons or disabling substances

Part 2
Amendments to other enactments and transitional provision

9 Amendment to Bail Act 2000

10 Amendment to Summary Offences Act 1981

10A Amendment to Summary Proceedings Act 1957

11 Transitional provision

The Parliament of New Zealand enacts as follows: