Statutes Repeal Bill

If you look at the name of the bill and the size of it, you might think “Not much to see here, not much of any consequence.”, but, actually, this Statutes Repeal Bill, which is quite an unusual provision for our Parliament to make, takes, I think, about 132 Acts off the statute book, so it repeals about 132 pieces of legislation.

💬 Paul Foster-Bell: 137.

There are 137. I stand corrected by the deputy chair of our Government Administration Committee. I am relying on his memory, which may be a little better than mine. So somewhere between 132 and 137 Acts are repealed by this legislation. All but two were agreed to unanimously by the select committee, but two of these provisions were quite contentious—caused us some difficulty.

But before I move on to discussing the specifics of those and the concerns that Labour and Greens members had about those two provisions—there may be others that Barry Coates may want to mention, but I know those two we were certainly concerned about—I want to just take a step back and ask what the point is of this legislation, because, actually, there was some debate about that as well. There does not seem to be a difficulty if Ministers want to say these Acts are clogging up the statute book—you know, “They’re causing us a lot of difficulty when we try to find something. Let’s have a bit of a spring-clean and a tidy up, and let’s repeal a whole lot of bills.” That is entirely within the mandate of a Minister to do, and might be seen as quite a good thing to do by other parties in the Committee. But, actually, what the bill reports as doing—I think it is in the name of the Hon Steven Joyce, so you would never quite know where that might be heading. What the bill says its point is in response to a recommendation by the Productivity Commission to reduce unnecessary legislation. I think that the driver behind this Statutes Repeal Bill and the recommendation of the Productivity Commission are entirely different.

I am strongly of the view that if the Productivity Commission was presented with the Statutes Repeal Bill and was asked “Is this what you had in mind when you said that Governments should reduce unnecessary legislation as a key priority?”, the Productivity Commission would laugh. I think it would say: “This is not what we had in mind at all. This does not reduce unnecessary legislation. All it does is take off the statute book legislation that is no longer being used.” How on earth could this bill increase productivity? What was the driver of the recommendations of the Productivity Commission?

I think that Minister Steven Joyce has, yet again, got it wrong. He has not paid enough attention to the detail of the Productivity Commission’s recommendation, let alone transferred that into a legislative or policy framework, at all. Once again Steven Joyce has missed the mark. He is not attentive to detail; he is attentive only to slogans—he has been getting those right for quite a while, until the last few months. But, certainly, in terms of a grip on legislation, he is way off the mark.

Can I move now to the two Acts that are repealed by this Statutes Repeal Bill that caused us concern at the select committee and created a lot of debate? One of them is the Medicines Act and the other is the Sentencing Council Act. We got only a few submissions on this bill—not many people considered it of interest—but one of our submissions was of extraordinarily high quality and raised significant constitutional concerns with the Sentencing Council Act repeal. That submission was from Sir Kenneth Keith ONZ, KBE, QC. I am sure that every member in the House will be familiar with the very fine legal record of Sir Kenneth Keith as a New Zealand judge. He was New Zealand’s first appointment to the International Court of Justice in 2005, he served as a judge on both the High Court and Court of Appeal, he was a member of the judicial committee of the Privy Council, and he was one of the inaugural appointments to the Supreme Court of New Zealand. So he has a very fine legal track record and is very well regarded.

Sir Kenneth made his submission—not by any means the first that he has made to a select committee—and he agreed with the point that I have just made about this legislation not being consistent with what the Productivity Commission said, and raised that more as a matter of interest than a matter of substance. When it got to the matter of substance, in relation to the Sentencing Council Act, may I just quote from his submission, he said: “the Sentencing Council Act 2007 came into force”—and that is a critical word for people with good legal minds, such as the presiding officer—“on 1 November 2007 but was not implemented. Repealing that Act will clarify that the Government will not set up the sentencing council in the future and will allow the courts to retain their ability to develop their own sentencing guideline judgments.” That is what the purpose of the bill is. It is quite different from removing from the statute book legislation that no longer has any use and is no longer being implemented.

Sir Kenneth was quoting the point of the bill, and he said that was misleading. He said “The Sentencing Council Act presents a completely different case from that of the Acts not in force. That Act has been in force as part of the law of New Zealand since 2007. For the past eight years the Executive has suspended its operation,” which he described as “an apparent breach of s1 of the Bill of Rights [Act]”. He quoted Fitzgerald v Muldoon, another case that many members in this House will be familiar with. He said: “That refusal to give effect to a statute in force appears to me to be a serious constitutional matter.”

Having started with a bill of which all of us thought “Well, this has probably not got a lot of contention. These bills are not being used. They are surplus to the requirement of the New Zealand public and, certainly, the New Zealand Parliament. They could be repealed.”, we had a man—I would listen to the Hon Chris Finlayson’s opinion, of course—somebody, I would have thought, who is regarded as having one of the highest legal minds and the sharpest legal minds in the country, saying that this part of this bill was a serious constitutional matter and may be a breach of the Bill of Rights 1688.

He went on to say: “I do see the value of repealing those Acts which have not been brought into force. But, again to repeat, the Sentencing Council Act presents a sharply different case and not just for the constitutional issue I raised above. The Act is in force. Its proposed repeal presents the following question of policy: How is the balance to be struck between promoting greater consistency and predictability in the justice system … through the application of that legislation, on the one side, and, on the other, the decisions made by the judges within the sentencing powers conferred on them, sometimes helped by guideline judgments given by appeal courts?”.

So it was actually quite a frustrating situation for us. I think the Government members of the select committee were persuaded, actually, by Sir Kenneth Keith but, for whatever reason, they decided to just toe the party line. I think this is the sort of legislation where they could have actually stood up and said no. We—Labour—could have supported the entire remainder of this legislation, because although it did not actually achieve anything, it certainly did not do any harm. But the medicines legislation, with the Government’s change in policy with the therapeutic products regime, and the sentencing council, caused us a lot of concern. Those issues need to be addressed by the Minister. I know that the Minister in the chair, the Hon Paul Goldsmith, is not the Minister whose name is on the bill but he has got a good mind. Actually, I have noticed—and I do not want to do him any harm by praising him—that he takes serious issues seriously when they are raised in the Committee stage of the bill. So I would like him to consider the submission of Sir Kenneth Keith and, also, the inappropriateness of having the medicines legislation altered in such a way. This is not the appropriate vehicle to use for a deliberate change in Government policy or for the Government deciding not to implement a provision that is in the law and is in force.

I guess none of us thought when we started this process that it would be contentious, that it might be a matter of debate, let alone a matter of such grave concern raised by somebody like Sir Kenneth Keith. I hope the Minister has got the confidence to consider these issues and respond to them.

Can I thank my colleague Ruth Dyson for putting that issue so clearly. I was sitting on the Government Administration Committee when Sir Kenneth Keith came before it, and I think it is worthy to note that you would have few jurists more competent than Sir Kenneth Keith to tell a select committee what is wrong.

As Ruth Dyson has said, he is a former Court of Appeal judge, then a Supreme Court judge, and then was at the International Court of Justice. He is an esteemed legal academic in addition to all of those matters, and someone who now, as a retired jurist, felt that this was important enough that he would make his first submission to a select committee since his retirement as a judge. He now has the freedom to make submissions, in a private capacity, that he would not have been able to make particularly when he was on the bench of a New Zealand court, and probably even when he was at the International Court of Justice.

He came to the select committee and made this point of principle: that a statutes repeal bill—which is an omnibus bill, the purpose of which is to repeal redundant or superfluous Acts because they are spent, in that they are no longer relevant and no longer have any practical effect—is different from repealing an Act, which, whilst not being adhered to by the Government, remains in force.

At the select committee and in the report that came back from the select committee, the issue was not even addressed by the majority. Well, that is not quite fair—the New Zealand Labour Party and the Green Party are recorded in the commentary back from the select committee as questioning whether this was appropriate. But the rest of the select committee just noted that it had had a submission, and then did not express an opinion upon it. I am somewhat surprised that the committee did not say: “Oh no, we disagree with Sir Kenneth Keith. We don’t think it is a matter of different principle.” Rather, the only thing that we get from the select committee is: “We were told that repealing the Act is within the scope of the bill as introduced.”

Well, that is obviously the view of the clerk of the committee—that repealing the Sentencing Council Act is within the scope of the bill—but that does not make it right. I think Sir Kenneth Keith is correct—that if the Government wants to repeal the Sentencing Council Act because it does not want to implement it, then it should repeal it through a piece of legislation to repeal the Sentencing Council Act, rather than tacking it on to the Statutes Repeal Bill.

If the logic of the Government is correct, that there is no difference between this and any other repeal, I do not see a difference in principle between repealing an Act that remains valid on its face but for reasons of administrative neglect is not being implemented—I do not see any difference in principle between repealing that through a bill like this Statues Repeal Bill and a bill that is currently being implemented, because whether an Act is or is not being complied with is not the point. Acts that exist on the statute book that should be complied with but are not—it should not be any easier to repeal them than an Act that is being complied with. They are both laws of this Parliament. The Sentencing Council Act is not redundant just because the Government is refusing to implement it.

The Government, back in 2008, campaigned on the basis that it was not going to proceed with the Sentencing Council Act, and since then the Government would have been quite entitled to come to this House with legislation to seek to repeal the Sentencing Council Act. But it has not done that. Rather, it ignored the provisions of the Sentencing Council Act and did not apply them in the way that Parliament said should happen. For it to, through this instrument—the Statutes Repeal Bill—remedy its problem by adding it to a long list of these Acts that truly are redundant seems, in the opinion of Opposition members, to be wrong.

For that reason, there is an amendment in my name that excises from the list of those statutes that are being repealed, found in schedule 1—from page 7, just after line 10—the words “Sentencing Council Act 2007 (2007 No 25)”. I will hope that National Party members will join with members of the Labour Party and, I hope, other Opposition parties in backing an amendment to the Statutes Repeal Bill, as reported back by the Government Administration Committee, that is excising from the list of statutes to be repealed the Sentencing Council Act 2007.

I do not think I can put it more clearly than that. There is no point me repeating that again. I think the logic of Sir Kenneth Keith—unsurprisingly, given his stature and the fact that he does not make these submissions lightly and had to go to the trouble of preparing a submission and presenting it at select committee, I do not think there is much doubt that he is right. I am convinced. I was convinced on the day. I think that that Act should be taken out of the Statutes Repeal Bill, and if the Government wants to repeal it some other way, well, it has got the ability to do so.

I do think it is quite a good idea to get rid of some of these old statutes off the book. I do not think it saves much in terms of compliance costs, because they are truly redundant. All you are doing is saving the cost of reprinting them in the future, next time you reprint the New Zealand Statutes. That is a very small amount of money, given that most of these things are published electronically anyway these days, but none the less it is not a silly thing to do to clean up those old finance Acts that are listed there over more than two pages—two and a half pages of amendments to the Finance Act through other finance Acts that have long since been overtaken by events.

So I am happy to support this bill. I do not think it has an effect on the compliance costs of businesses operating in New Zealand in any material way. It does slightly decrease the costs of people who buy statutes, I suppose. Indeed, people who try to find the current position at law might find that they do not have to check whether there are some unexpired provisions of these other Acts—not that I think they would check that in practice, because they know them to be so old as to be redundant. But the point in respect of the sentencing council is correct, and I would commend that amendment to the Committee.

Tēnā koe, Mr Chair. I rise to speak about the Statutes Repeal Bill, having been a member of the committee considering it, the Government Administration Committee. I would like to pay tribute to the chair of the committee for handling a difficult discussion very well. It was an issue that previous speakers have noted was a difficult discussion, particularly centred on the potential repeal of the Sentencing Council Act 2007.

Just to remind the Committee, this Sentencing Council Act 2007 actually came into force on 1 November 2007. It was not an Act that was never brought into force. It actually was brought into force, and then, as previous speakers have said, the Government decided that it did not want to act on an Act that was in force. Like other speakers, I was pretty much persuaded by strong evidence from Sir Kenneth Keith to say that not only is this Statutes Repeal Bill the wrong place to repeal this Act but, actually, the Government was wrong in not taking action earlier to do something about an Act that it just chose not to act on when the legislation was already in force. So we are very concerned about that Act.

With regard to the rest of the Statutes Repeal Bill, we think probably—marginally—getting rid of old statutes is not a bad thing to do, although we would pass a comment to say that the Government obviously has too much time on its hands and not enough important things to do, to be spending important legislative time on a job that has very dubious benefits. As a committee, we are struggling to actually understand the justification for the time and effort that has gone into this bill, including a significant amount of the time of officials.

But we would like to register our concern over that particular item of the Sentencing Council Act. We would say that we would like to ensure that this statutes repeal process is not used in future in order to conveniently get rid of legislation that the Government does not really want to take action on. This is not the right process, and the Sentencing Council Act should not have been dealt with in this way, and we certainly would appreciate a response from the Minister in the chair to these concerns.

We raised these concerns repeatedly in the committee. As a new member on that committee, I must say I found it rather strange that the committee members did not offer an adequate explanation from the Government side as to why the Sentencing Council Act was included in this statutes repeal bill process rather than being the subject of a stand-alone and separate process, if it was legislation that it did not intend to implement. Therefore, it would be good to hear a response to that issue from the Minister, because, frankly, it left members of the committee from the Green Party’s side—and, I suspect, others—a little bit confused as to why this route was chosen for the Sentencing Council Act.

Further, I would note that there is Supplementary Order Paper 319, which is included here on behalf of my colleague David Clendon. It deals very much with the issues that have previously been raised in this debate and those specifically raised by David Parker, the last speaker. Thank you.

I am very happy to take a call on the Statutes Repeal Bill, as, I think, one of the few members of the Committee who actually finds this stuff interesting. I think that there are only a few of us who really do find this interesting.

I was fascinated by the submission by Sir Kenneth Keith. Up until just recently I had not had the chance to have a look at it, but there are a few points that he raises that I think are definitely worth us considering. One is at what point a law becomes worthy of repeal. In paragraph 5 of his submission, he points out that there are still 200-plus private Acts, many of which had an immediate effect—for example, in providing for an acquittal, completing an adoption, removing barriers to marriage, and validating appointments—and then he also points out that there are many other dissolution Acts, repeal statutes, abolition Acts, and many 19th century special powers and contracts Acts. The question that he is raising is what is the mischief—what is the necessity in repealing all of this legislation when, effectively, it no longer has any effect anyway?

He also raises a further, interesting question, I think, which is: what of the repeal provisions of more substantive Acts? When, for example, a new education Act is passed and it includes provisions that repeal a whole lot of the existing legislation, should those repeal provisions then subsequently be repealed as well? It is an interesting point. At what point do we determine that a law is sufficiently repealed that we no longer need to worry about it?

I note that in this bill we are repealing a previous statutes repeal bill. At what point do we simply say: “OK, we’ve repealed that. Now we can forget about it.”? Or are we going to be coming back in another hundred years? One of the statutes repeal bills that we are repealing today is over a hundred years old. In a hundred years’ time will members be back in the House repealing the repeal bill that we are now passing today, or will they simply say: “Actually, that’s been adequately dealt with now and discharged.”?

I was also interested in some other issues. I was involved, as my colleague David Parker was, in the Government Administration Committee back in 2009 and 2010, when the Rugby World Cup 2011 (Empowering) Act was passed. In that Act, rather unusually, it provided the Government of the day with the ability, by Order in Council, to repeal the Act, because it was only ever intended to be a temporary Act for the purposes of the Rugby World Cup, and that has now happened. The Government issued that Order in Council in 2014, so the Act was expired. So why are we needing to repeal it when the Act, when it was passed, had a repeal provision in it that allowed the Government to repeal it by an Order in Council? It has been repealed through an Order in Council, so why are we even needing to do this? At what point does a repeal actually become final? Otherwise, the statute book will continue to grow with more and more repeal Acts.

I note in particular a very interesting comment, again, from Sir Kenneth, that the statutes amendment Acts of 1943 and 1944 all amended other statutes, some of which themselves had already been repealed. They have no separate existence in their own right, because they were statutes amendment Acts. They were not new Acts in their own right; they were only ever repealing other existing legislation. So why the need to even repeal them? I am not sure about that.

He makes a point about the Michael Connelly Appointment Validation Act of 1936. I am not entirely sure what the body was that Michael Connelly was being appointed to, but it was abolished 14 years later. So we have an appointment validation Act for a person who, presumably, no longer exists, and a body that, presumably, no longer exists. It seems to me that one of the fundamental issues that we should be grappling with is how to create a system where we do not have to have these repeal bills to repeal legislation that, effectively, no longer has any purpose and that in itself has, in effect, been repealed. Otherwise, we are going to keep going in a cycle where nothing will ever be finally repealed because each subsequent repeal will need another repeal. It seems to me that that is somewhat absurd.

It is quite an interesting exercise to read through the various explanatory notes of this legislation. It all does seem relatively sensible to repeal these pieces of legislation. But I cannot help but wonder whether the second point in Sir Kenneth’s submission is not the most pertinent one: is there a better way of doing this than through a statutes repeal bill?

The previous speaker, Chris Hipkins, makes an interesting point, because if Sir Kenneth Keith is right that these things are already dead anyway, you really can never get to deader than dead. The principle that is being embarked upon through this legislation—as a repeal bill that then needs to be repealed itself because it sits on the statute book, and then needs another repeal bill to repeal the repeal bill that repealed the already redundant legislation—is a bit of a nonsense at that level. Having said that, I do not mind cleaning up some of this old stuff and getting rid of it.

I do want to return to this point of the Sentencing Council Act, because we still have not had a response from the Minister in the chair, and I am hoping that we are going to get one. I want to explain why it is wrong that through this excising of redundant legislation we get rid of the Sentencing Council Act, and I want to explain the policy reasons that lie behind the Sentencing Council Act, which just should not be repealed through this statute repeal legislation. There is no analysis in the original bill’s explanatory note, there has been no evidence given by the ministries as to why the underlying purpose of the Sentencing Council Act is no longer relevant; they are just trying to get rid of it through this administratively convenient mechanism.

In New Zealand, we know that we have high rates of incarceration of Māori. It is a shame upon our country that more than 50 percent of all prison inmates are of Māori ethnicity. We also know that there are assertions, which many believe to be correct, that Māori offenders suffer higher sentences than non-Māori offenders for the same crimes. The sentencing council was meant to be preparing sentencing guidelines that, I think, would have made it more likely that sentences would be equivalent for equivalent crimes. There would have been more guidelines, because section 9 of that Act—not clause 9 of a bill that is in consideration, not some legislation that may or may not sometime come into effect, but section 9 of this legislation that is currently on our statute book—says that one of the functions of the council is: “(a) to produce guidelines that are consistent with the Sentencing Act 2002 relating to—(i) sentencing principles: (ii) sentencing levels: (iii) particular types of sentences: (iv) other matters relating to sentencing practice:”.

What might the sentencing council have done? It might have actually produced some guidelines that said that, because of this evidence that Māori are, overall, likely to receive longer sentences for the same crime compared with someone like me, judges in the future need to take particular care when sentencing Māori to make sure that they are not sentencing Māori offenders more harshly than other offenders.

That, I think, would have been a good thing to do, because I think it is accepted by most that people who are in a less powerful position in society—who are, in New Zealand, disproportionately Māori, because Māori are disproportionately represented in lower socio-economic groups—are less likely to have the quality of legal representation, particularly as legal aid is eroded, and also, just because of their financial situation and their lack of power in society, they are likely to be, on average, penalised more harshly.

For us, for this repeal legislation to repeal the Sentencing Council Act 2007 without having that discussion about whether this underlying problem that we have got with high rates of incarceration of offenders of Māori ethnicity—[Bell rung]

The CHAIRPERSON (Lindsay Tisch): Referring to the Clerk, this is actually clause 3, under Schedule 1. I have given you the latitude to talk about it, but it actually comes up later on, under clause 3. I am happy for you to continue, but when you come to clause 3, then we will be stopping it at that stage—so I call the Hon David Parker.

I thank you, Mr Chair. I will address it again under clause 3. Thank you for that.

I am pleased to take a call on clause 1 of the Statutes Repeal Bill, and can I commend the Government Administration Committee for its work in examining this bill. There are 132 to 137, give or take, pieces of legislation, or parts thereof, that are to be repealed. I know we are dealing with the title, but I will just canvass some general comments on the bill. Whilst I am not a member of this committee, I do support, in principle, the fact that we do have a lot of redundant pieces of legislation on our many voluminous copies of statute books that are on the bookshelves within Parliament. This bill goes a long way to, I guess, cleaning up a lot of those redundant pieces of legislation.

The subject matter of the legislation in this bill is quite broad. It deals with things like fishing vessels and loans, the Y2K computer bug, and various finance Acts, so it is quite ad hoc in terms of the Acts that have been identified for repeal under this bill. I would just like to know how comprehensive is the list of Acts contained within this bill, because there may be hundreds more that need to be repealed. I note that there is nothing in the bill that includes any Māori legislation, and I know that there has been quite a lot of Māori legislation over the past 175 years. Surely some of that archaic or redundant legislation could have been included within this bill.

I am just curious as to how comprehensive it is, or has it just been cherry-picked? I think it is quite lazy on the part of the Government, if it is going to be doing a statutes repeal bill, to not just take selected pieces of legislation. If it is going to do the job properly, it should do a complete sweep of all the legislation that is currently in force and really do a comprehensive vetting or culling of certain pieces of legislation. I am just not convinced that even though there are 130-odd pieces of legislation in this bill, that is comprehensive or that there is any clear policy around it. That has been touched on by my colleague Chris Hipkins, because I am sure that many legal academics will be studying Sir Kenneth Keith’s submission. We could get into a whole lot of mental gymnastics around when a bill is repealed and when the repealing of that repeal bill is repealed and when a bill is actually ultimately repealed.

As a case in point, I was just scanning my eyes through this bill, and if we look at the Fisheries Act, there is a repeal of—

The CHAIRPERSON (Lindsay Tisch): I just interrupt the member. I made a ruling earlier on, for the Hon David Parker, that those are things that come up later because they are in schedule 1—that is clause 3, schedule 1. We are actually only on the title. That is what we should be referring to.

Thank you. I will pick up on those points when we get to those clauses. Just concentrating on the title, this is about the repeal of statutes, and, as I mentioned earlier, the scope of the bill is bit unclear, because there are a whole lot of ad hoc pieces of legislation, but we do not know how comprehensive that is or how comprehensive the exercise has been. I do want to—and I am sure we will pick it up later—go into those finely tuned legal issues around when a bill is actually repealed, and also go into discussions later on around the sentencing council.

I just want to take a quick call on this, just to make the point that statutes repeal exercises have been very widely used in many countries overseas, although the practice has not been used frequently in New Zealand. The UK Parliament has passed 19 statutes repeal bills since 1965, and, in total, it has repealed more than 3,000 public Acts. And in Australia, the Federal Parliament of Australia has a regular repeal day that redundant legislation is caught through, and that practice has evolved, because there is good sense in keeping the statute book up to date and tidy and to declutter and to move things out of the way. There has not been one in New Zealand—we did one in 2012, but prior to that there has not been one since 1907, so this is very timely in the New Zealand context. The Regulatory Reform (Repeals) Act 2012 repealed 31 Acts, some going back to the 19th century, and this one will carry on that tradition. I might mention that a quite a lot of reference has been made to the Sentencing Council Act—or is that in the next part?

The CHAIRPERSON (Lindsay Tisch): That is in clause 3.

Yes. So that is all I needed to say. Thank you.

Clause 1 agreed to.

Clause 2 Commencement