The justice and electoral select committee has recommended that the partial defence of provocation should be repealed – a sentiment echoed by the vast majority of submitters on the bill – and one for which I have campaigned since long before I was elected to this Parliament. 

There was a handful of submitters who raised concerns over repeal or supported the retention of the defence.  I would like to use my call in this Second Reading debate as an opportunity to respond to their concerns.
 
Some submitters were concerned that certain marginalised groups of people would be unfairly disadvantaged by a repeal of the defence.  Attention was specifically drawn to battered defendants – victims of family violence who kill their partners because they perceive that if they do not, they or their children will be seriously harmed –, and mentally ill or impaired defendants.
 
In the case of battered defendants, it was said that there needs to be some acknowledgement of lesser culpability for what would otherwise be labelled as murder.  Some submitters felt that the defence of provocation was the best way to do this.  I agree that it is inappropriate to label victims of family violence who are truly left with no alternative but killing as murderers, and that law reform is needed in this area.  But retaining provocation is not the appropriate way to deal with this issue, because the evidence is that, in many cases, it works against battered victims. 
 
Similarly, concerns were raised that defendants who are mentally ill or impaired would be unfairly disadvantaged by a repeal of the defence.  However, as the Law Commission's report demonstrates, the use of the defence relies on the defendant's ability to display the self-control of an ordinary person before they are able to show that they lost that control.  This means that defendants of reduced capacity simply do not fall within the criteria of those who are able to use the defence.  If a group of people cannot use a defence, it can be assured than that its repeal will not cause them undue harm or disadvantage.
 
Another submitter – the New Zealand Law Society – opposed the repeal until such time as it is accompanied by the introduction of degrees of murder for diminished responsibility.  I understand that this is the position that is also to be taken by the ACT Party today. 

Before I address their arguments I would like to thank Simon Power for sticking with the form of the bill which Lianne Dalziel and I originally proposed, which repeals the defence without such a modification.  Diminished responsibility, in a decent society, is not justifiable. Murder by lashing out is just as abhorrent as murder in cold blood.  Murder out conducted in self defence or excused due to mental incapacity, automatism or insanity is covered already as legimitate defences recognise the differing levels of culpability evident in those particular situations.  Futhermore, even if we were to replace provocation with diminished responsibility, we would still face the current problems of confusing jury direction and confusion legal tests which plague the defence currently that are inherent to the provocation defence.  To do so is to argue for the replacement of one confusing area of law with an even more confusing one.  This would be pointless.

I hope that for all the reasons outlined by all those who will speak in support of this bill today, it will continue on its speedy passage through this House.  I believe that this bill is an important step towards a society where violence is condemned, where unremorseful killers are not given the opportunity to publically impugn their victims, and where the victims of crime can feel a little safer.  I want to thank all those who have worked to make this Bill a reality.  I include in this acknowledgement the Honourable Margaret Wilson, under whom I understand the orginal work of the Law Commission on this topic began, Law Commissioner DrWarren Young, Elisabeth MacDonald, Claire Browning, Peter Williams and David Walsh, who were the personnel at the Commission responsible for the excellent report from that body dated September 2007.

Lastly, I want to remember those for whom this repeal comes too late.  May they be the last to have their ordeals impugned in a court of law.  Not one of their deaths is tolerable, and each of the victims whose killer has used the partial defence of provocation – successfully or not - stands as a silent witness to this reform.  In closing, I want to pay tribute to their families and loved ones, who know that their lives were not lost in vain.