Private International Law (Choice of Law in Tort) Bill

I move, That the Private International Law (Choice of Law in Tort) Bill be now read a third time.

It is an honour to rise on this bill, which is in my name—the Private International Law (Choice of Law in Tort) Bill. This bill may appear somewhat complex, but the truth is it simplifies matters regarding tort law. This bill adds significant improvements to the New Zealand legal system. The law of tort covers civil wrongs, whether intentional or otherwise, and it is a very important part of our legal system. As in all fields of law, issues arise, however, and solutions are required to improve the systems. One of those issues is that of jurisdiction. It applies when certain torts occur over multiple jurisdictions. For example, there is a case where multiple jurisdictions are involved: the question arises of which laws apply in the first instance. These matters are technical but are nevertheless fundamental to ensuring an effective judicial system. This bill seeks to clarify these elements of confusion in tort law.

There are four fundamental changes to tort law presented by this bill. The first is to abolish a rule referred to as double actionability. This is a somewhat archaic rule, passed down from our common law heritage with England. When a tort claim is brought in New Zealand for an action committed in another jurisdiction, the New Zealand court can hear the claim only if the tort is actionable in both jurisdictions. It then must apply New Zealand law unless the other country has the more significant relationship with both the occurrence and the parties. This private international law bill abolishes this double actionability rule under clause 6. Legal professionals have long called for reform, as the law is widely known as being difficult to apply and to understand.

The bill takes away, but it also creates. With the double actionability rule abolished, clause 7 of the bill creates the general rule that will be used in situations where the intent of the double actionability rule would have previously been applied. In essence, clause 7(1) establishes the place of wrongdoing rule in which “the applicable law is the law of the jurisdiction in which the events constituting the tort in question occur.” Put simply, if the event happened in the UK, the UK’s law applies. This is the second change brought about in this bill, and it is a sensible and logical rule. It is what you would expect of our judicial system.

Clause 7(2) goes into more detail saying, “Where elements for those events occur in different jurisdictions, the applicable law under the general rule is taken as being—(a) for a cause of action in respect of damage to property, the law of the jurisdiction where the property was when it was damaged;”. This bill abolishes the complex double actionability rule that has no place in the modern legal system. Subsequently, it creates a new multipurpose regime that addresses two central elements encompassed within tort law: damages to property, and general cases.

This bill doesn’t stop with simply establishing this regime. It adds a dynamic mechanism to ensure flexibility in the systems approach. As the fourth and final element of this bill, this mechanism provides an exemption to the place of wrongdoing rule, allowing a court to apply the law of another jurisdiction where it is substantially more appropriate to do so.

In essence, the bill gives the court the ability to look at complex circumstances, and judge whether the regime this bill creates determines the proper jurisdiction, and whether a different course of action may be more appropriate. This is clarified in clause 8(2), which has two main elements. The first is “(a) the significance of the factors that connect a tort with the jurisdiction whose law would be the applicable law under the general rule;” and the second part is “(b) the significance of any factors connecting the tort with another jurisdiction”. Once both are satisfied, if it is substantially more appropriate for the applicable law for determining the issues arising in the case or any of those issues to be the law of another jurisdiction, the general rule is displaced.

I have personal connection and appreciation of the domain of tort law from my previous experiences studying it and practising it, and I am conscious of the complexity and nuances of tort law. I am consequently aware of the impact of this small, yet significant, bill among legal circles, especially those who specialise in tort law.

I would like to thank those involved in working on this bill—firstly, the wonderful clerks of the previous Justice and Electoral Committee of the 51st Parliament: Shennia, Tamara, and Jess. I would also like to thank the Ministry of Justice officials for their assistance on this bill, especially throughout the committee stage. Thank you to the then members of the Justice and Electoral Committee; we’ve heard much praise of them in the last reading of the last bill heard. It was a fantastic and collegial select committee in the 51st Parliament.

Jono Naylor, who has since retired, was my deputy—and an excellent deputy at that. I’d also like to pay tribute to the previous members, some of whom have retired or are in absentia from this Parliament: Paul Foster-Bell, Chris Bishop, Maureen Pugh, Marama Fox, Jacinda Ardern, Louisa Wall, Metiria Turei, and Denis O’Rourke, who have all provided valuable contributions on this bill.

Finally, I’d like to thank two submitters to this bill: firstly, the New Zealand Law Society, and, secondly, Professor Campbell McLachlan QC, Jack Wass, and Dr Maria Hook. I’d also like to personally thank Maria Hook for her dedication to the bill, especially with regards to its interaction with the Accident Compensation Act.

So, to conclude, I think that this is an excellent piece of legislation. It has been well thought through, and confidently developed through select committee, and debated in this House. The four elements of this bill simplify the complex aspects of tort law when international jurisdictions apply. With that, I commend this bill to the House.

Thank you, Madam Deputy Speaker. In my first proper speech, it’s a real pleasure to speak on something so close to my heart. Unlike Ms Dowie, I have an emotional attachment to this law.

💬 Hon Amy Adams: You need to get out more, then.

Well, you know, as a former professor of law, I’m not sure I’ve had the pleasure of having such fine minds already so well developed to hold.

You know, as a professor of law, here we are talking about conflicts in law—I never thought it would actually happen. So look, this is a real problem, and I do hope that this bill effectively solves it. That’s not to say there’s not going to be some challenges—I mean, the law of tort sounds all very nice when we think about the torts we’re usually involved in. Mine is usually a car collision or something like that. But if we think about defamation in the modern world, we have some real problems.

So, you know, we’ve got the tort of defamation committed across electronic medium—perhaps on Facebook and perhaps written in New Zealand, read in the United States, and with a company based in Ireland. Well, I’m not sure that this will easily solve that problem, but certainly it gets us around the double actionability rule, and it’s probably worth just pausing for a moment to understand why we even have that rule. It may seem arcane, but there is something important behind it, and that is the idea that nations will respect each other’s legal systems, so that we won’t allow litigation in one jurisdiction that undermines the sovereignty of another nation in respect of a tort that happened elsewhere. So that’s a really important point. It is something we’ve got to remember that is being put to one side—and that’s something I will return to, because there are real public policy questions around the issue of what kinds of torts we should allow to be litigated in New Zealand.

Importantly, of course, this bill does not affect procedure, so whilst we may be able to litigate foreign torts in New Zealand courts, we will not be doing so under foreign procedural rules. I want to just point out how important that is, because the rules of procedure are really quite dear to our legal system with regard to the rules of evidence, and to make sure that natural justice is adhered to.

So we are substituting this double actionability rule—the idea that we won’t be litigating anything unless it’s a wrong in both nations—with this place of wrong rule, and that does make some sense. There is a lot of difficulty sometimes, I think, in determining exactly where that place of wrong is, and although the prior rule was perhaps complex and difficult to apply, I’m pretty sure that this one will give lawyers plenty of work, as well—and I see Chapman Tripp, actually, on its website applauded this law change, and that does give me some cause for concern.

It is just worth thinking about exactly what kind of things we could find ourselves litigating in New Zealand, and it’s worth just looking at the boundaries of tort, because there are many torts out there, some of which we are at forefront of, and some of which we’re clearly not quite ready for. Certainly, New Zealand is at the forefront of torts in respect of privacy and breach of seclusion. So a breach of seclusion—which is well recognised in New Zealand, America, and Canada—could, under this kind of rule, be litigated here quite easily.

However, if we look at some other tort such as, for example, the duty of care that a mother owes to an unborn child, which is not well recognised in New Zealand—not recognised at all, in fact—and is looked at with suspicion in Canada, but is certainly an emerging tort in the United Kingdom, a really difficult question arises. It is entirely conceivable that there is a motor accident in the United Kingdom where an unborn child of a New Zealand mother is injured, they return to New Zealand, and—obviously, through a guardian—the child sues that mother for the injury caused. We need to pause very carefully and ask ourselves the question of whether this place of wrong rule is the prevailing value, or whether, in fact, we need to say that that’s not a tort that we want to recognise under any circumstances.

That is a very important question. Obviously, there are rights around autonomy—control over a woman’s own body—to be counterbalanced against really important questions about care for a foetus. Now, the New Zealand courts and the Canadian courts have not contemplated that. In fact, on public policy ground, certainly the weight of argument is heavily against it in those jurisdictions. That’s not to say that elsewhere a different public policy is not accepted.

Or we could find ourselves—even worse—contemplating truly arcane torts. I did spend a little time doing some research and found probably, and interestingly, another one that touches on the rights of women: the tort—

💬 Chris Bishop: What’s that one?

—come over here and I’ll show you—of enticement.

💬 Chris Bishop: Enticement? Goodness me!

Enticement, yes. It’s a fascinating tort and, as the fine minds of the Opposition would know, a tort that we abolished in 1975.

💬 Chris Bishop: What were you researching?

I knew you were going to come straight back at me with that—

💬 Chris Bishop: Why were you researching enticement?

Especially for you, my friend.

💬 Madam DEPUTY SPEAKER: Yes, but not for me.

Oh, I apologise. I wouldn’t want to prefer anyone, although—I’ll stop there. So that tort is the old tort of luring a spouse, and of course it used to be an actionable tort by a husband against the enticer. That clearly is a tort that in the modern world is entirely repugnant, and a tort that we would have no time for in New Zealand, whatsoever.

Now, fortunately, I am pretty confident that that’s effectively dealt with by Ms Dowie’s bill, because clause 11, in fact, provides that New Zealand will not—this does not authorise the actioning of a tort that is contrary to the principles of public policy. Having said that, I think some New Zealand judges are going to have an exciting time thinking about what torts are not recognised in New Zealand but that are, nevertheless, consistent with public policy. An underlying thread in the whole of the law of tort is public policy—that we recognise torts that are consistent with public policy, and we don’t recognise torts inconsistent with public policy. So were I in court, I would be arguing that any tort we don’t recognise in New Zealand, by definition, conflicts with principles of public policy, and, therefore, it’s a hard row to hoe to bring any tort in New Zealand to that effect.

The other thing that Chapman Tripp will be excited about—and they’re probably very happy to be getting such a mention in the House tonight—is the fact that clause 8 deals with “substantially more appropriate” jurisdiction. Now, in fact, that is just a hole so wide you could drive a truck through it. Having said that, I’m not sure that anyone has come up with any better words yet, but that kind of vagueness will create considerable uncertainty. That is uncertainty for the courts to deal with, and so we’re going to have to leave it to them. Certainly, that’s another one that lawyers will have a field day on. But I suppose, as a lawyer, I’m excited by this because all of a sudden we’re going to be able argue about all kinds of foreign torts, constitutional torts, torts of enticement, and torts of all kinds, and we’ll be able to do that in New Zealand and the judges will be able to develop foreign jurisprudence for others.

Having said that, it’s certainly a step forward from the double actionability rule. It is a piece of legislation that was needed. I’m heartened that the Law Society supported it, and certainly the bill as reported back is a vast improvement on the first draft, dealing, as it does, with personal injury and with things that are repugnant to public policy—two things that certainly would have concerned me greatly. So, having said that, and having given a great entrée to the legal profession for the great work they’re going to get out of these conflict of laws problems, I commend this bill to the House. Thank you, Madam Deputy Speaker.

Madam Deputy Speaker, thank you. Look, I am going to take what I hope is a shorter call on the Private International Law (Choice of Law in Tort) Bill. To begin with, can I just acknowledge the member—

💬 Hon Christopher Finlayson: A worthy successor to Sir Geoffrey.

—that’s right—Sarah Dowie who has brought the bill, as, I think, has been acknowledged by the speaker who has just resumed his seat, the member for Christchurch Central. It is a very good bill, a very worthy bill, although I have to reflect on the fact that anything that’s got the word “tort” in the name is sure to sort of set a wave of panic and fear through anyone who’s been a law student, and anyone who’s a current law student, and anyone thinking about being a law student—in fact, anyone who’s ever talked to a lawyer. As soon as you start talking about torts, I think anyone who hasn’t been legally trained immediately goes, “Oh God, blimmin’ lawyers. Here we go again.”

💬 Chris Bishop: Or they think you’re talking about cake.

That’s right—not, unfortunately, torte with an “e”. We’ve just had a very interesting, although somewhat hard to follow, treatise from the member who’s just sat down on the interesting and archaic tort of enticement. I think we may have discovered the only member in this House who can really go toe to toe in a debate with Christopher Finlayson on arcane points of law, and no doubt this House will be privileged to listen to some of those debates over the course of this term.

💬 Hon Christopher Finlayson: I thought he was talking about the coalition negotiations.

Ha, ha! Well, as Christopher Finlayson has just pointed out, he may well have been referring to the coalition talks when he was talking about the tort of enticement. But I’m one step further down the path of recovery from legal practice than both the member who brought the bill and the last speaker. I’m now nine years into my deprogramming and return to the non-legal world, and so I’ll try and, I guess, put more of what might be a layperson’s spin on this bill.

Actually, very simply, what torts are all about is just a wrong done between two people and how you go to court to get a remedy for that. And that’s—well, actually, it’s not simple, even when both parties are in New Zealand and the event occurred in New Zealand. It still becomes incredibly complex and difficult and the sort of thing that lawyers enjoy immensely. But where you have two parties, or more than two parties, and the relationship and the events have spanned a number of countries, there does become an incredible difficulty of deciding exactly which legal system applies. The law should turn its mind to how we can make that far simpler so that not only can disputes be dealt with more simply but people can figure out in advance what the rules are that are likely to apply to them.

We used to have this slightly strange position where the test was: the country of most relevance to the dispute or the facts in dispute. Relevance is one of those things, a bit like reasonableness, that can be a little bit in the eye of the beholder, and it is very difficult to pick up any sort of instruction manual and work out what that means. It wasn’t even a simple “Where were you when the wrong occurred?” This bill removes that doubt and makes it very clear that the country’s laws that apply are those of the country where the wrong—the bad thing—was done.

Now, even that sometimes isn’t simple enough, and the bill therefore goes in to set out a range of rules for how you can determine where a wrong was done. It used to be, in the good old days, that you knew exactly where the negligence occurred and where the water tank broke and spilt the water over your paddocks, or whatever the event was—and the lawyers in the room will know what I’m talking about. But, actually, in an increasingly digital world and in an increasingly borderless world, our events and our businesses and our interactions are not that simple, and it is incumbent on us and the law and, therefore, this Parliament to try and remove that uncertainty wherever we can.

So, look, this does make sense, and for all of those millions of New Zealanders crowded round their radios and internet livestreaming to watch this debate in joyous anticipation of the Private International Law (Choice of Law in Tort) Bill passing, the simple thing to understand is that it simply makes it much clearer to understand which set of rules apply in some of these very difficult legal disputes. The thing to take away is that it will make it simpler, it will make it cheaper, it will make it cleaner, and, importantly, it will bring us into line with the countries that we tend to look to: Australia, Canada, England, and the like. So, Madam Deputy Speaker, I don’t need to take up any more of the House’s time. I don’t have a particular legal treatise to set out on one of the other arcane torts. I will leave that to my more recently active colleagues from the legal profession and commend the bill to the House.

Let me begin by congratulating you on your new role, Madam Deputy Speaker. I haven’t actually spoken in the House since my maiden speech—and what a topic to get first up. It is an absolute privilege to take my first call on the Private International Law (Choice of Law in Tort) Bill. Having spent 25 years in the health sector, getting a bill on international tort law first up has been a pretty steep learning curve—not like Duncan, who lectures in the subject. So forgive me if my approach is much more simplistic in thinking about it in lay terms.

Actually, it’s a really nice little bill, and I think what it’s going to do is significantly simplify the way that torts are resolved across jurisdictions—you know, so things like negligence, property damage, and defamation. And, I guess, thinking “What are those examples?”, and they’re a bit hard to find on the web, but for us—if a parliamentary delegation of some of us went overseas, hired a rental car involved in a car crash, or if we get involved in some complex defamation that then spans borders on cyberspace. I think, whatever the complexity, it’ll all distil down to some very key things for those involved: it’s incredibly expensive, it’s incredibly complex, and it’s incredibly stressful, and anything that makes it more complex is likely to lengthen the whole process. So this little bill aims to streamline some but not all of that.

In speaking to the bill, I’d like to acknowledge my Invercargill colleague Sarah Dowie, who shepherded the bill through, since she’s taken over from David Bennett. Coming back to trying to distil it down into its most simple—you know, for a layperson—it’s about replacing that double actionability rule with that new general rule about the place of wrong. As we have alluded to in the House, currently double actionability means that if something’s happened overseas and you want to take it through the New Zealand court system, you have to make sure that there’s the legislative machinery to do that both in New Zealand and also in that other jurisdiction where the tort occurred. You need to have that in both places, and that adds to that level of complexity, because you have to be working across two different legal systems and understanding the complexities of both. Also, there’s a problem: if something’s considered to be a tort or wrongful in one jurisdiction and it’s not in another, how do you weigh that up? I think the problem is having to weigh that all up where some people have already undergone significant harm, where it’s incredibly expensive, and where time is money for those involved. It’s really important to sort that out.

So what this bill is proposing is actually to streamline that, and, instead of the double actionability, have a new general rule that where the events happened, the law of that jurisdiction should generally apply. In general, it’s called the place of wrong rule. The bill, though, still preserves the ability of the affected parties—if they want to put the case about which country’s law applies, then it still allows the courts to make a determination as to if and when the parties can choose to make that request. It also talks about providing that ability to have guidance when we might have that place of wrong rule being displaced. For example, if it was more relevant to another country—for example, if we were a parliamentary delegation going somewhere else, would it be more relevant, if we got injured, to have that under New Zealand legislation versus the legislation of the country where we had our injury? So it allows that flexibility if there’s a closer connection to the circumstances of another country when you’re weighing up that. The other thing, though, is that this bill will bring us into line with many other countries—the UK, Australia, and Canada—because they’ve already abolished the double actionability rule, and they’ve put in place the place of wrong approach. So it just lines us up with those countries.

Just looking at where we’ve been on the bill since the first reading, there’s also been another few changes to the bill, not substantially but just specifying more detail and making it a bit clearer in terms of the relevance in the New Zealand context. The first thing is about being very specific about personal injuries and the fact that it’s the law of the country where that injury occurred that should take precedence, and putting extra definitions in around what a personal injury is, so it’s much more closely lined up to our own ACC legislation. What we need to make sure of in this country is that ACC and our ability to have no-fault compensation are absolutely preserved. It is essential. So it’s really reassuring to see that that work has been done just to tidy that up and make it clear that that’s covered.

There were also some additional clauses added to specify that the legislation applies not only in overseas countries but also in New Zealand. I mean, it may seem really obvious, but I guess that’s the other thing—for example, if the parliamentary delegation from Australia came over to New Zealand, and thinking it through in that context. So, you know, it’s really just tidying that up as we bring the bill forward.

The other thing, when reading it through, is, first, it’s also really encouraging to note that our own principles of public policy are preserved. There’s nothing in the bill that allows for the laws of other countries to override our own public policy, protecting the freedom of debate that we have in this House and making sure, in terms of things like defamation, etc., that that can’t be overridden by another jurisdiction. There is also the note that nothing gives effect to laws that would not otherwise be enforceable under New Zealand law. So we can’t come in and have other overseas countries overriding our own laws and creating new ones over the top. It is reassuring that our laws are protected, in the current context, if there is a conflict with other jurisdictions.

So, as I said, it’s a nice little bill, and for my first entrée into international tort law, it was a nice, short bill. It was really quite nicely laid out.

💬 Chris Bishop: Don’t go too far into that.

Well, I could understand it, anyway, so whether that’s a litmus test—but, anyway, in summary, it significantly simplifies the rules around how torts are resolved across jurisdictions by ensuring, in most cases, that the law of place of wrong applies. It also gives us sufficient flexibility that when there’s a case that’s much more closely tied to another country then we can use their legislation. I think what it does is it takes that level of complexity out of that process in which a lot of people have already suffered a harm. It’s very expensive and it’s time-consuming, and this just steps back a little bit in terms of making that bit more streamlined. Also, there’s protections there so that our own legislation, our own public policy, and our own ACC are protected, so that the principles of public policy prevail. So I therefore commend this bill to the House.

Thank you, Madam Deputy Speaker. This is my first speech of this Parliament and being part of this new Government, Madam Deputy Speaker, so congratulations on your appointment. I’ll be taking a relatively short call on this, because, for one, I’m not going to stand up and try and pretend that I’m a lawyer, whether it be current, recovering, or, indeed, a professor on the matter; nor am I going to pretend that I knew what “tort” actually meant before last week’s caucus, when I was handed this bill. This bill was spoken on on behalf of New Zealand First through the last Parliament by Denis O’Rourke, and I’ve taken over for the third reading of an Opposition member’s bill that looks like it’s going to be passed in this House. I didn’t see it through the Justice and Electoral Committee, and I would suggest that there are a number of people—if not everyone—in this House who know more about it than what I do.

Actually, when Clayton Mitchell, the whip of New Zealand First, gave me this bill to read, when he said the words “choice of law in tort”, I actually thought he was talking about a French pastry, or something to that effect. Actually, it was an interesting read to find out what “tort” meant.

💬 Hon Ruth Dyson: Someone get the smelling salts for the Hon Christopher Finlayson.

Yeah. I mentioned I went through the second readings and through the Hansard to see what it meant and what the different positions were of the different parties, and one of the things that the Hon David Parker said was that unless you were a lawyer, you’d be struggling to find any sort of relevance and, more importantly, any sort of enjoyment going through this bill. Actually, Todd Muller had a good quote, as well, in the second reading, and he said words to the effect that he had just endured two hours of pain on this utterly dry matter. I am struggling to actually be able to disagree with him on that point.

💬 Dr Duncan Webb: Oh, the horror!

I’m sorry. I know that the professor has some emotional attachment to this; however, I do not. But, like I said, one positive for me was that I found out what “tort” actually meant and what this bill was doing and the relevance of this bill. Actually, it’s been mentioned a couple of times that the bill is complex and that it changes the current legislation to ensure that it’s more simple to follow, and that’s always a good thing to support.

So the word “tort” actually, I found, was of French origin—that’s correct—and is actually derived from the meaning of “wrong”. “A tort is a wrongful act, other than a breach of contract,”—so we’re not talking about contract or criminal law—“that results in civil liability. Currently, where an action is brought in a New Zealand court for a tort committed outside [of] New Zealand, the common law rule of double actionability applies.” I know we’ve heard it, and I don’t really want to lecture on it too much, but what this changes is the fact that “The bill will abolish the rule of double actionability, and establish the general rule that the applicable law is the law of the country where the events constituting the tort occurred.” So I’ve learnt those two things, going through this entire process.

💬 Hon Ruth Dyson: Can you just run over that again?

Yeah—ha, ha! So, in essence, it does two important things. It simplifies and clarifies the issues with the cross-border torts, and that has been needed for some time and is widely supported. It also brings us in line with jurisdictions similar to New Zealand.

I’d also like to just make a very quick and important note that when the committee heard submissions on it there were only two submissions. That was from the New Zealand Law Society and from a professor who was also a QC. Both submissions supported the bill and the intent of the bill, and, in fact, the recommendations that those submitters actually brought forward—most if not all of them were adapted and amended to the bill. Being that the changes are widely accepted and widely supported, New Zealand First will support this bill through the House. Thank you.

I’m really pleased that New Zealand First is supporting this bill, because at various stages New Zealand First has opposed it. I’m delighted that Darroch Ball has indicated their support.

Look, we were all sitting around one night wondering what bills could be the subject of members’ bills. People were wondering, and I came up with the brilliant idea: what about double actionability? That’s the genesis of the bill. It’s always been a subject that I’ve found most interesting—possibly a very sad reflection on me, but there you have it. So David Bennett looked after the bill in its initial stages, and Sarah Dowie has done a wonderful job steering the bill through to its third reading, and I’m so very pleased we’re here.

On one level, it could be said that private international law, or the conflict of laws, is geek’s law. It’s the sort of thing that pretty sad lawyers like when they’re not really interested in human rights and stuff like that. But the fact of the matter is the conflict of laws, or, as it’s called now, private international law, is a very important practical subject. In the course of my legal career I’ve had to deal with issues such as: can one enforce in New Zealand a judgment obtained in Virginia? In another case, can one enforce in New Zealand a judgment obtained in Hawaii, which was under appeal? Is such a judgment full and final for the purposes of enforcement in New Zealand?

💬 Chris Bishop: What’s the answer?

What happens—I won, as one would expect, so the answer was yes, it could be enforced in New Zealand even though it was under appeal. Then there are cases that come up all the time: what happens if a contract is entered into between a New Zealand company and a company in Texas, and the governing law of the contract is Texas law—can that be litigated on in New Zealand?

With increasing international involvement between individuals—and I stress individuals, because we’re talking about private international law—private international law is becoming, and will continue to become, an intensely practical subject. That’s why it’s very important that we have clear rules to deal with the kinds of topics that arise, be it divorce, be it domicile, be it reciprocal enforcement of judgments—all these kinds of issues come up from time to time.

I suppose it’s because of the intense pressures on this place and on the Ministry of Justice that sometimes we don’t have the attention brought to some of these black-letter law issues that we should, because it’s considered that it’s in the realm of “only the lawyers are interested in it”. But unless the rules are clear, one runs the risk of what’s called satellite litigation, where enormous cost can be incurred and delays incurred while lawyers argue over things like the double actionability rule.

I want to congratulate the various speakers who have talked about this rule and how it applies to torts like defamation or negligence. I don’t think I need restate the rule or where it came from—some of the old English cases—but it certainly at the moment applies in New Zealand, which is why it needs to be considered. It has, over the years, produced unfair and peculiar results. An example would be where a defendant can invoke a defence available under one system of law but not the other, in circumstances where the connection between the claim and the former system is tenuous.

So it is overdue for reform in this country. It lacks certainty, which is its primary problem. The court, when dealing with the rule, has to consider two sets of laws. I think, on balance, it could be said it’s too favourable to defendants and, importantly, as referred to by Ms Craig, the rule has now been abolished in most other jurisdictions. It was the subject of legislative reform in England and Wales in 1995. It’s been the subject of reform in Canada. In Australia, I think it was the High Court of Australia that decided that the double actionability rule should be abandoned. So that’s why, in a state of great excitement one night, I suggested: let’s move on the double actionability rule, and my caucus colleagues accepted the challenge with acclaim.

💬 Hon Michael Woodhouse: And acclamation.

Mr Woodhouse was particularly enthusiastic.

The heart of the bill is clause 7, so the double actionability rule goes west, as it were, and it’s replaced with the general rule that the applicable law is the law of the country in which the events that constitute the tort in question occur. Some members have already referred to clause 7(2)(b), that basically it will be the country where the most significant element or elements of those events occurred. The second key point, which I won’t go into in any detail, sets out when the general rule is displaced, and that’s clause 8. Finally, clause 10 abolishes the rule of double actionability and related common law rules.

So by the passage of the bill we will fall into line with other countries, and I’m very pleased that that is the case. Previous speakers have referred to submissions that have been given by various submitters. I think the person that was referred to a few minutes ago was Professor Campbell McLachlan of Victoria University, who is an academic and a Queen’s Counsel. He is one of the world authorities on this subject. He’s the editor of a book called Dicey, Morris & Collins on the Conflict of Laws, which is one of the great textbooks of the legal library, and I’m very grateful to him for his interest and support in this matter.

Another person who’s been very helpful is another Wellington Queen’s Counsel, one of—I would say probably our top lawyer at the present time, David Goddard, who I spoke to about the bill, and various lawyers in Chapman Tripp. The New Zealand Law Society always does a very good job when it comes to legal submissions. They are the ones who, year in and year out, come down to select committees—as Dr Webb’s going to find out—and invariably contribute to the improvement of statutes. I think it was an American academic who said it’s the bar who makes the statutes, and I think that’s probably absolutely right, because the New Zealand Law Society on this sort of thing does a very good job.

So that’s at the heart of why we’re discussing this legislation. I congratulate Sarah Dowie for—she may say accepting a hospital pass, but for taking this bill and steering it through the House. It is a complex piece of legislation, but, as I say, it is a practical piece of legislation and this Parliament ignores black-letter law at its peril. I always recall with limitation law, which had reached a shocking state, that a judge of the Court of Appeal said, when dealing with a case on the law of limitation: “This law is so out of date there is nothing we can do with it. It cries out for a legislative solution.”

So it’s very important that with this sort of stuff—it’s hardly going to be party political, but it behoves both administrations, be it a National one or a Labour one, whoever’s in power, to try and keep this kind of law up to date, because it’s important to do so, obviously, and also because it avoids that spectre of satellite litigation where delays and costs are incurred because rules that really should be quite straightforward are unnecessarily opaque. So I really think this is a very good development, a very good piece of legislative reform. I’m very grateful for the comments that Chapman Tripp made about it, because they said—[Madam Deputy Speaker stands up]—how wonderful it was, and I commend the bill to the House. I’d been looking at that clock, not you.

I’m sorry. Thank you. It’s time for me to leave the Chair for the dinner break.

Sitting suspended from 6 p.m. to 7.30 p.m.

Thank you, Mr Assistant Speaker. It is indeed a pleasure to take a call to speak on the Private International Law (Choice of Law in Tort) Bill, even though I’m not a lover of torts myself, unless they’re of the chocolate variety, unlike my colleague, the member Dr Duncan Webb. It is, however, a bill of conflict and international intrigue, and, in fact, as my colleague Dr Webb mentioned, even enticement.

The Private International Law (Choice of Law in Tort) Bill introduces a valuable reform and will bring an important part of New Zealand’s private international law into the 21st century. The bill is concerned with the rules for choice of law in tort. I understand “choice of law” refers to a stage of litigation involving conflicting laws, when differences between laws of different jurisdictions need to be resolved. Where a New Zealand court is faced with a tort claim that contains an international or a cross-border element—so, basically, where the tort happens in two jurisdictions—choice of law rules tell the judge how to identify the system of law or the set of rules that will apply to assess this claim.

Currently, New Zealand law applies the double actionability rule, which was developed by English cases back in the 19th century. Where the court is faced with a tort that was committed overseas but is brought to action in New Zealand, it has to be actionable in both countries—so, basically, in the country or in the jurisdiction where it happened and also in New Zealand. The New Zealand court, or domestic courts, can hear the claim only if the tort is actionable in both jurisdictions. This doesn’t seem to be very logical to me, and neither did it to the two people and organisations that submitted on this bill. To my mind, and to them, it would be much more logical to apply the law of the jurisdiction where the tort actually happened.

This is exactly what the Private International Law (Choice of Law in Tort) Bill will achieve. This bill will get rid of the double actionability rule. If you look at clause 6, that’s exactly what that particular clause is about. The next clause, clause 7, creates a general rule, which is called the place of wrong rule—basically, referring to the jurisdiction where the tort occurred. Clause 7(1) establishes the place of wrong rule, in which “the applicable law is the law of the jurisdiction in which the events constituting the tort in question occur.” Under this clause, the general rule is that, basically, it’s the law of that jurisdiction, the place where it happened, that will apply. That seems sensible to me.

Basically, in summary, these are the aspects of the parts of this legislation that the bill we’re debating will change. It will abolish the double actionability rule. It will establish a place of wrong—so it not only abolishes one part of the legislation that doesn’t make a lot of sense and, actually, is quite an archaic piece of legislation, but it also moves it into a different space. It establishes which law will apply in that particular instance. It provides rules, also—and this is the third part of the bill—to determine where a tort can be said to have occurred, where the events occur in more than one jurisdiction. So, in the first case, we’re talking about what we do in a domestic court of law when the tort has taken place overseas. There are also rules in this legislation if it happens over two jurisdictions, over more than one jurisdiction. There are quite a few instances of that, and I’ll go into something that’s called the passing off tort in due course, which is quite interesting.

It also provides for an exception to the place of wrong rule, allowing a court to apply the law of another jurisdiction where substantially more appropriate to do so. I will get back to this point in a minute, but just to take a step back, because, like many in this House, I’m not exactly a lawyer myself, and those who are watching, as well, may not understand what exactly tort law is. So I’ve just got a definition that I will read, to shed some light on what exactly we’re debating here. Now, tort law is defined as a body of rights, obligations, and remedies applied by courts in civil proceedings to provide relief for persons who have suffered harm from the wrongful acts of others. The person who sustains injury or suffers pecuniary damage as a result of “tor-chiss”—“tor-teeus”—conduct is known as the plaintiff—

💬 Hon Judith Collins: Tortious.

—tortious; thank you, I was quite sure it wasn’t torturous, but I wasn’t quite sure what it was—and the person who is responsible for inflicting the injury and incurs liability for that damage is known—and I like this particularly—is known as the defendant or the “tort-feesa”, is it? The tort-fees—

💬 Hon Members: Tortfeasor.

Tortfeasor, yes. I thought that was particularly fascinating when I read this. Examples of tort include car accidents, false imprisonment, defamation, and copyright infringement, as well. So imagine this: a car accident happens overseas, say in a country like Malta—and this is actually a case that was one of the more famous cases when it comes tort law and, actually, to this particular double actionability rule—and it’s brought to the New Zealand courts for action. I’m not too sure why that would be, but, anyway, in that famous case, Boys v Chaplin, that’s kind of what happened. The accident itself happened in Malta, the action was brought to a different court—it was the UK, I think, in that particular case, but say it’s to New Zealand. Currently, it would have to be actionable in both Malta and in New Zealand for it to be actioned here or for the action to be brought here. This bill will change that.

However, clause 8, which talks about—I have it right here, clause 8 of the bill, which allows the general rule to be displaced where it is substantially more appropriate for the law of another country to apply, taking into account the significance that factors connecting the tort with each jurisdiction would actually allow, as in this case—in Boys v Chaplin, it actually allowed for the case to be brought to action in the UK and for UK law to apply. Now, this is actually a slightly vague clause, a slightly vague part of this bill. So, while we support this bill—I support this bill and the Labour Party supports this bill—it’s not perfect, as bills often aren’t. This part, particularly, is little bit vague and a little bit confusing.

So there’s this tort, apparently, that’s called passing off, and it’s an economic tort. What it does is, for example, if I were to steal a brand like McDonald’s, perhaps, and start my own chain of burger places here—

💬 Michael Wood: Or even that Eminem song.

—yes, or an Eminem song, yes; if I were to steal that, rip it off, and just use it without any permission—that, apparently, would be liable for passing off. Now, this could happen on the internet. The digital age that we live in, when it intersects with real life, could have real problems. This particular clause, clause 8, opens us up to some vagueness when it comes to those sorts of areas, because that doesn’t actually happen in a specific jurisdiction, does it? It happens, potentially, across multiple jurisdictions, potentially in cyberspace, which I’m not sure is actually a jurisdiction under law. Basically, what I’m trying to say is that it’s a good bill and we support it for a number of reasons, but it’s not perfect, and perhaps there are specific aspects of this bill that could be further clarified or further defined.

The reason we support this bill, however, is that there is actually strong international judicial and academic consensus that the double actionability rule is not fit for purpose, that it is unwieldy, that it doesn’t make a lot of sense, really, and that it sets us apart, or it keeps us—it doesn’t move us into a space where we are comparable or we move into a space alongside comparable jurisdictions.

So, basically, it’s not fit for purpose. It’s been abolished by a number of other countries, other jurisdictions that we like to compare ourselves with—for example, the United Kingdom, Australia, Canada, and I understand that there’s been proposals for change in Singapore as well. It’s been debated quite a bit there. The rule also confuses the question of jurisdiction—so, which court should hear the claim—with the choice of law, which set of rules or which law should the court apply. So that’s a little bit problematic as well.

The other part that I found quite interesting was when I was reading some of the submissions—well, one of two submissions—to this bill. One of the submitters pointed out in their submission that this is quite an archaic piece of law—

I apologise to the member. I forgot to ring the bell. The member’s time is up.

Kia ora, Mr Assistant Speaker. Ngā mihi nui ki a koutou. Kia ora. I should have yielded to the member. It was a very good contribution and a valuable one to the House.

I will admit to the House that I am a little bit daunted speaking about torts in Parliament. I worked for Greenpeace for 10 years before entering Parliament, and I spent more time in front of a judge than making tort- or constitutional-based arguments in front of a judge. But look, it’s been a fascinating debate. I’d like to single out the member for Christchurch Central, Duncan Webb. He made an incredible contribution, explaining the history.

Not being familiar with tort law, I would point out that this is actually one of the most substantive debates we’ve had in Parliament for a while, and anyone watching I think maybe learnt a thing or two about the international legal norms.

I would like to congratulate the member Sarah Dowie for navigating this legislation through the House. If you listen to Chris Finlayson, it was all his work, of course, but I acknowledge the work of the member sponsoring the bill.

The Greens have supported this legislation all the way through. We want to see our legal system, which can be, for many people, a daunting process as well—it can be overly complex. We want to clarify and simplify law, and here’s a pretty common-sense area where we could improve it. We know other jurisdictions around the world, such as the UK, are going down this path to abolish—I guess you could make the argument—the archaic double actionability rule.

What I learnt from the member Duncan Webb’s contribution was the broad range of tort law—everything from motor accidents to defamation law, and even to constitutional issues. Now, there’s going to be some implementation issues, as we saw, with some pretty archaic laws—tort laws that we got rid of decades and ages ago that are still on the statute book in other countries—and how we navigate this area. But, in a nutshell, this common-sense law change to simplify and make our legal system easier to access, more able to be understood, and, hopefully, delivering better outcomes for Kiwis is a good thing, and that’s why we’ve supported it all the way through.

I acknowledge the submissions—the small number of them. It has the support of the New Zealand Law Society. We want to thank the House for progressing this very constructive, positive bill. Kia ora koutou.

Thank you, Mr Assistant Speaker. It is a pleasure to be speaking for the second time this evening, this time taking a split call on the third reading of the Private International Law (Choice of Law in Tort) Bill.

Can I start by acknowledging my hard-working colleague Sarah Dowie and, in particular, an achievement that she has achieved in the last couple of weeks: extending the number of keeping-in-touch days available to new mums who want to go back to work from time to time without losing the rest of their paid parental leave. It’s a positive change, and I also acknowledge Iain Lees-Galloway and the Government for supporting it.

I mentioned earlier in the House that, when I was at university, my intention was to graduate with a commerce degree, but what I omitted to add was that my original intention was actually to study law as well. I hate to say it, surrounded by such accomplished legal minds as Christopher Finlayson, Amy Adams, Sarah Dowie, and, of course, Judith Collins, just down in front of me, and our resident expert—

💬 Chris Bishop: That was a bit late.

Sorry, mate; I don’t think you ever practised, actually, so I’m not going to include you in that one—and, of course, our resident expert on enticement across the House. But I made it only as far as one paper, so I come to this Parliament very much a layperson in legal matters, my only recollection of studying tort being the infamous snail in the ginger beer.

I have to say, though, that it was a pleasure listening to New Zealand First MP Darroch Ball—first, because, like me, he’s not a lawyer, and, second, because of the strong disagreements he was having with Labour MP Duncan Webb over the significance of tort law. I thought, “Fantastic! Division within the Government ranks, and on such an important issue.” But my hopes were dashed when he confirmed New Zealand First was voting for the bill along with the rest of the Government. I am pleased, though, that the bill will pass unopposed, which, as my colleague Christopher Finlayson said, wasn’t the case at earlier readings, when New Zealand First voted against it. Evidently, Mr Ball is a cleverer man on legal matters than Mr Denis O’Rourke was.

Similar to the previous bill that we were debating, the Private International Law (Choice of Law in Tort) Bill is a relatively simple and non-controversial matter. At its most fundamental, a tort is a wrongful act or infringement of a right other than a breach of contract, leading to a legal liability. This bill provides the rules for determining which country’s law to apply for cross-border torts. The bill abolishes double actionability and establishes that the applicable law is the law of the country where the evidence constituting the tort occurred or where the most significant elements of the event occurred. The bill also clarifies and simplifies New Zealand law and brings us into line with international jurisdictions.

As a new member of the Justice Committee, it’s been a pleasure to read through the previous submissions on the bill: one from the New Zealand Law Society and the other from Professor Campbell McLachlan QC, Jack Wass, and Dr Maria Hook. The Law Society noted that the bill largely mirrors legislation in place in the UK. The second submission makes similar points in support and pushes back on suggestions by New Zealand First that the bill is not required, stating simply that “reform is necessary and the double actionability law should be abolished.” This is an eminently sensible bill, and I encourage all members to support it.

Thank you, Mr Assistant Speaker. I rise to speak on the Private International Law (Choice of Law in Tort) Bill. But before I do that, I may just have to correct a tort of my own. The last time I rose to speak was for my maiden speech, and I neglected to acknowledge the Chair, so I remedy that tort at this moment and acknowledge the Chair, acknowledge yourself, and congratulate you this evening on your rise to that exalted position. Having now been obsequious enough to, I hope, now remedy that tort, I will go on with the rest of my speech.

It is a difficult one, especially following those legal goliaths the Hon Chris Finlayson and Dr Duncan Webb. They leave one with very few places to go while they cerebrally dissect this bill. To assist, perhaps, the thousands, nay tens of thousands, at home who may be forsaking the soap operas, the game shows, and the dramas tonight to watch this, I will endeavour to put this in terms that perhaps I can understand as to what this is about. It is to enable civil wrongs committed against New Zealanders in other countries to be righted, here in New Zealand. Certainly that’s my simple understanding of it. It’s about jurisdictions.

I just wonder, Mr Assistant Speaker, if I can just take a moment. My journey to this House has been somewhat longer than others and it’s given me the opportunity to get some context to things that we’re speaking about. Certainly jurisdictionally I do remember getting a lesson in how different jurisdictions come to our advantage. As a much younger man backpacking through Africa I found myself—and I’m showing my age—in German South West Africa, shortly to become Namibia, speaking in a hotel with a rather large and opinionated South African man on the subject of apartheid, which was then, of course, the system of Government operating in South Africa.

We disagreed strongly, as you might imagine. I was somewhat critical of his Government. The next night we’d moved further south into South Africa and we found ourselves in a place called Springbok, which is what you’d imagine a town in the northern cape of South Africa to look like, not only one horse but unfortunately one hotel. I found myself again in the company of this same gentleman. We argued strongly about something that wasn’t to do with apartheid but again he took umbrage. This time, however, he decided that he would have the last say, and he went to the local police station to get the sergeant to come back and made a charge of sedition against me because, in fact, what I had been doing was criticising the South African Government for their apartheid system, and that was actually against the law of the land.

Fortunately, the big sergeant who came somewhat nervously, presumably to arrest me, suddenly had a bright light go on and he said, “Ah! That’s right; that happened in Namibia—the South West. You’re right; the jurisdiction has saved you. But I must warn you this time you cannot talk about and criticise the Government in this manner.” So that gave me an understanding that jurisdictionally there are opportunities for people to hide. In that case, I think it was a positive that I didn’t find myself in a South African jail. So when I read this bill that’s the thing that I really did see—that jurisdictions can be a friend and an enemy.

New Zealanders love to travel in order to work, to play, and, increasingly, to do business overseas, and they are likely to find themselves in situations like I did, whether intentionally or accidentally, where wrongs are done to them—civil wrongs. Of course, we’re not talking about criminal wrongs here. So one of the advantages, of course, in being a New Zealander, and something that I note that none of the previous speakers have brought up, is the fact that we are very much a corruption-free jurisdiction in which to take cases. I stand here as someone who has just spent 40 years in the New Zealand Police. I have never taken a bribe, but, I might say, I’ve never been offered a bribe either.

In those countries where police officers can’t say the same, the judiciary and other aspects—the police cannot be corrupt by themselves; they are corrupt regimes. So being able to take these remedies in a place like New Zealand now, presented by this bill, without having the double-accountability factor to prove, will be a massive advantage.

Just before I do commend this to the House, I just might just mention two terms: “lex loci delicti”, which, of course, is the law of the place of the wrong; and “redire”, which is “to return”—two beautiful terms. I don’t like to show myself as being too old-fashioned but I do remember the odd Latin mass as a lad. It’s good to see that Latin can be used, it’s still relevant, and even as I prepared tonight I felt a touch of nostalgia using those terms. So I commend this bill to the House.

Thank you, Mr Assistant Speaker. The member who’s just resumed his seat, Greg O’Connor, talked about nostalgia, and I’ve got to say, this bill brings back nostalgia for me—nostalgia for the last Parliament, because it was in the last Parliament that this very fine bill was introduced. We heard earlier in the debate tonight from Christopher Finlayson QC about his great idea, which I think he’s been pushing for a number of years, to do this bill, the Private International Law (Choice of Law in Tort) Bill. It was given off to that legal titan David Bennett. It’s fair to say that David Bennett was very enthused about it.

In fact, I remember when the bill was pulled from the ballot, because I went down to the biscuit tin ceremony down in the Table Office at 12 o’clock on a Thursday, very excited to have possibly another member’s bill pulled. Some members will know I’ve had the luck of the draw in the last Parliament. I hope that continues for the new Parliament. Number 38, or whatever it was, got pulled out, and everyone quickly went through this “What’s all that? Maybe it’s euthanasia, maybe it’s, you know, whatever.”, and it was the Private International Law (Choice of Law in Tort) Bill. I think it’s fair to say there wasn’t wild enthusiasm from the journalists and the assembled masses. There were quite a few people there that day. In fact, David Bennett was as surprised as anyone.

💬 Jami-Lee Ross: I texted him the result.

Jami-Lee Ross is telling me he texted him the result. He was pretty excited about it. Then, of course, it went to Sarah Dowie, and she was very excited to have passage of this bill. Unlike David Bennett—I shouldn’t be mean about him—Sarah Dowie does have a distinguished career in the law down south. Her and I sat on the Justice and Electoral Committee, as it was in the last Parliament, and we saw this bill through. All these people turned up to speak to us: Jack Wass, who I know, is a barrister in Wellington, a good friend of many friends of mine who are barristers at Stout Street Chambers; Campbell McLachlan QC, who taught me international law at Victoria University, made a submission.

💬 Kiritapu Allan: Good man.

I see my friend over the other side there, Kiri Allan. When Kiri came to this House—and I welcome you, Kiri, to Parliament; I’m sure you’ll make a great contribution—we ran into each other in the Beehive lifts and she said, “Oh, we’ve met before.” and I said, “Oh, yep, did we meet at law school?”, and she said, “Yes. You were the loud guy up the back.” And it’s not the first time I’ve heard that talked about my days at law school. But great to have you in the Chamber, Kiri.

So Campbell McLachlan QC turned up, we had Jack, and we had the Law Society, and Denis O’Rourke—just on the theme of nostalgia, we do miss Denis.

💬 Matt Doocey: Bring back Denis.

I’ve got to say, and my friend Matt Doocey from Canterbury, a fellow Cantabrian MP—we do miss Denis, because Denis, he had his quirks. It’d be fair to say he had his quirks, he had his foibles, but, actually, Denis O’Rourke had a legal background and he sat on the Justice and Electoral Committee with us. He would sit there, he would analyse the evidence, he would read the submissions—which is more than other members do, I have to say—then he would come to a view, he would take it to the New Zealand First caucus, and, generally, what he said New Zealand First would go with, and that was their position. He was a good and honourable member of that Justice and Electoral Committee. I think we’re going to miss him in the Parliament. I never thought I’d say that—I never thought I’d say that about Denis O’Rourke. I think we are going to miss him in the Parliament, but I’m sure that people like Mark Patterson and the newer members of New Zealand First will make a worthy contribution as well.

💬 Greg O’Connor: Will they ever say that about you, Chris?

I’m sure you’re going to make a worthy contribution too, Mr O’Connor.

Anyway, that’s just a reasonably long way of talking about what is a very decent and good-intentioned bill. People out there listening might think, “Well, what’s the Parliament doing three weeks or four weeks out from Christmas with a new Government talking about the choice of law in tort?” They might be OK in thinking that, because, usually, new Governments come to the Parliament with a massive rush of new legislation and they put the House into urgency. We’ve got the hundred-day action plan and things like that but no, no, here we are a few weeks out from Christmas, having a members’ day, churning through the worthy legislation of the last Parliament. I think that’s actually going to continue for the next few weeks, as it may be, because, actually, the Government doesn’t have many bills on the Order Paper. This great new Government, filled with good intentions, dripping with good intentions, does not have much legislation. But we will see that. But this is a—

💬 Dr Deborah Russell: It’s because we respect democracy.

“It’s democracy.”, she says. Well, we’re familiar with that concept. Thank you for that noted interjection. But this is a worthy bill, and I’m looking forward to seeing it pass into law. I commend it to the House.

Tēnā koe, Mr Assistant Speaker. Tēnā koe Te Kōata o Te Ārepa, ā, tēnā tātau Te Whare.

[Acknowledgments to you, the Prism of the Alpha, and salutations to us, the House.]

This is my first speech in the 52nd Parliament, sir, so I wanted to, as is customary, congratulate you on your appointment, and your fellow presiding officers for their appointments. I look forward to participating in the work of this 52nd Parliament. Can I also offer my congratulations to all returning members and new members. I think, from what I’ve observed, I’ve really enjoyed this debate thus far because we’ve heard some outstanding contributions from new members—on all sides, but in particular Dr Duncan Webb, Liz Craig, Priyanca. I’m very proud to be standing on this side of the House among such really capable colleagues.

I’ve got lots to say about this bill. In fact, I had the honour of giving a speech, at rather short notice, on the second reading of this bill. I had a quick glance over the Hansard—

💬 Chris Bishop: That’s never a good idea.

It’s never a good idea, yes. I thought, back in hindsight, “Hmm?” I was able to read contributions from Jono Naylor, who was a great member of the last Parliament, about his exploits with his reggae band, with a potential tort in Jamaica and the harm that may have been inflicted on Jamaicans by some cultural misappropriation from such a performance. So, yeah, I was stretching things. But I think that is exactly what tort is all about. It’s about judge-made law that has been created by the doctrines and the pronouncements that have come through the courts that we have also inherited here in Aotearoa. Inevitably, there are disputes that arise when actions are committed across jurisdictions. I guess, in its most simple form, that’s what this bill is seeking to simplify, by ensuring that some archaic rules, such as double actionability, have been abolished.

On that note, I do want to acknowledge the sponsors of this bill. I thought this bill was a bit of a step beyond David Bennett, when it was first introduced into the House, and now we know—I do acknowledge Sarah Dowie, the local member there in Invercargill, who has ably taken on this bill, right to its third reading, but it was revealed to us earlier in the debate that none other than the Hon Christopher Finlayson was, indeed, the true legal brains behind this bill. And here we are at its third reading.

I do acknowledge and respect the legal skills—I guess, the legal mind—of an eminent parliamentarian and jurist and practitioner such as Mr Finlayson, but I must say, we have Dr Duncan Webb. I must say that he can match Mr Finlayson toe to toe on any discussions or debate around legal matters. I really enjoyed the contributions from both because I could sense the legal whizzing, like two tops spinning, in terms of their contributions around knowledge of the law and the knowledge of torts like—what was it, entrapment? No, enticement—and other, ah—

💬 Hon Ruth Dyson: Interesting.

—interesting torts that had been established by the courts. So much so, I can just imagine the chargeable hours that would have been racked up by such legal minds whirring, as they were, in consideration and analysis of this bill. That is one aspect of this bill that I’m sure will be welcomed by the legal community: the fact that there’s always something to explain to clients and to add into any advice that they give.

One aspect, I think, that is contained in the bill that I guess overrides everything—and it is provided in the bill—is the fact that clients can put it in writing. Once it’s in writing, there’s a contract—it’s an agreement. So it is conceivable that two parties or more can, in fact, anticipate that there may be a tortious claim that one or other may have in the future, and they can actually stipulate within the contract itself how they will deal with that claim and what applicable law will apply. Any decent lawyer, I guess, would always instruct their clients to put it in writing, and I guess that’s the key aspect from this.

When tortious claims in actions are conducted, is where there is harm that’s been caused where there hasn’t been an agreement between parties. It’s civil wrongs that have been committed from one party to another. That’s why we are bringing clarity to the situation where a tortious act is committed in an overseas jurisdiction—between New Zealand’s jurisdiction and somewhere else, wherever that act has been committed.

I did mention in my last contribution on this bill some examples of what might be included within its ambit. Now, sure, I think the Jamaican reggae example might have been a stretch too far, but I think we can just look around the House and look at recent legal actions that have taken place. In short, adjusting some of the facts, you might be able to create a tort, maybe, in some of them. Just by way of example, I think Mr Wood gave the example of Eminem. Maybe he could be claiming that there was a tortious wrong—that he feels aggrieved in such a way that there was a tort committed by stealing and using his intellectual property or his music to promote an election broadcast.

I think in my last speech I also used the example of the tort of invasion of privacy. We’ve heard about certain cases around surveillance or eavesdropping in on people—staff members—and I guess the aggrieved party may, if they have a good lawyer, think they might be able to extend the case to some sort of civil action as well, which might create a tortious action.

Likewise—oh, I guess case in point: we have the Rt Hon Winston Peters taking a privacy action against members opposite for—

The ASSISTANT SPEAKER (Adrian Rurawhe): Order! The member needs to come back to the bill.

Oh, sir, I am very much addressing the bill, because I’m talking about potential tortious actions. I’m just giving those as an example of if one party is in another jurisdiction, for instance, and it then comes to the point of which law applies. We are now enacting legislation that simplifies this area—simplifies what would be vexed legal issues by making it very clear that, in general, the place-of-wrongdoing rule will apply, through the abolishment of the double actionability rule.

I commend this bill to the House. I think there’s a lot that we can learn through it, and I’m sure that it will be of benefit to disputing parties in the future. Kia ora tātou.

Thank you, Mr Assistant Speaker. It’s a pleasure to rise and to take the final call in relation to the Private International Law (Choice of Law in Tort) Bill. I will not be making the error of referring to any litigation that’s currently before New Zealand courts in my contribution, and I must admit I was somewhat surprised that members opposite have thought it appropriate to do so.

It’s tempting to make a general comment about torts, referring to snails and ginger beer bottles, for those who are inclined to enjoy such a joke, but that might be opaque for many. But nevertheless I feel I would be negligent not to try.

Before I proceed any further, I’d like to acknowledge a few of the others who have spoken in relation to this bill so far. The honourable member Sarah Dowie, in whose name the bill is now proceeding—I thank and congratulate her for that. To the Hon Christopher Finlayson QC—his name is not above the title but his fingerprints are all over it, so I congratulate him on that as well.

Similarly, I enjoyed the contribution from Dr Webb, the member for Christchurch Central. He made some very interesting, and I think useful, points in relation to the extent to which we can legislate in these matters, particularly around some hard cases across international lines, and I would encourage him and say that I look forward to maybe a member’s bill in his own name to rectify any of those matters that he feels were deficient in this piece of legislation.

I also echo the thoughts of a couple of colleagues on both sides of the House in relation to the experience of studying law. The phrase “certainty in the law” obviously has a particular meaning in relation to this legislation, but my own lack of certainty in the law related not least of all to torts exams, and so I’ll have to proceed with that in the back of my mind and not allow it to distract me too far.

It seems to me that this piece of legislation is very worthwhile and, indeed, worthy for five main reasons, which I summarise as: certainty, sovereignty, flexibility, internationality, and priority. I’m not sure if “internationality” is actually a word, but it fits, at least phonetically, with my other points in making some sort of terrible Dr Seuss sequel.

So on the first, certainty, at clause 10—we’ve heard already from other members that the main import of the bill is to abolish various common law rules, and in particular, those around double actionability, which, of course, as has already been explained well by members on both sides of the House in support of the bill, simply means that if a tort or a potential tort is committed, then it need not be actionable in more than one potential jurisdiction to be valid as a claim. It seems to me this is a good thing. Certainty in the law is a high priority for lawmakers, I would suggest, and is almost as important as having law that is good in other ways, because at least the parties involved in a potential action know where they stand. That seems to me an empowering thing for citizens, as well as their respective legal representatives.

My second point is sovereignty. It seems to me that this law has a very beneficial aspect in that it promotes New Zealand sovereignty. It does so primarily through clause 5(1), which I’ll take the liberty of referring to in the bill itself: “The characterisation for the purposes of private international law of issues arising in a claim as issues relating to tort is a matter for the courts of New Zealand.” So that’s, obviously, under the heading of “General principles”, and it seems to me that it’s a guiding principle of the substantive clauses of the legislation. That is a very useful overall flavour, such that our courts can determine our matters to the extent that they are our matters. And, of course, if they are not, then the law does provide for other jurisdictions to handle those matters, and that’s something to which I will turn shortly.

Next, however, on the subject of flexibility, again this has been raised at least briefly by other speakers. At clause 8 I note that the general rule, which is being discussed in relation to the appropriate jurisdiction—or “country”, as is the term used in the law—being that in which the action or the wrong, or the potential wrong, takes place, is displaced if the court determines that in various circumstances it is “substantially more appropriate for the law of another country”, which it labels as country B, to determine the matter. So it seems to me that flexibility in having a rule but having that able to be overruled, so to speak—a presumption that’s able to be rebutted—is a valuable thing. At the same time as enjoying and promoting certainty in the law, we do also like flexibility in the law to the extent that it allows a matter to be determined on all the relevant factors. So, again, it seems to me a well-considered and thoughtful bill in that regard as well.

Next, internationality. It has been observed—if you will forgive the tautology—that we live in a global world, and so it’s appropriate in relation to this, and indeed all legislation, that we consider how this law of our land might interplay with the laws of other lands, as well. Of course, the whole flavour of the bill and its tenor is to contemplate that things happen in different countries—or, again, jurisdictions—and that we need a mechanism for determining where those should best be heard.

The law itself, however, in its drafting and passage so far, also reflects an international flavour in that it draws heavily upon a statute on the UK statute book that is broadly equivalent. That dates to 1995 in the UK, and that seems to me helpful for a couple of reasons. The first is that we can take advantage of the things that we, as a House, determine are valuable to carry over into our own law, firstly, and secondly, that we are able to ensure some degree of alignment between our law and that of the UK, in this case, and, thirdly, because in the case of legislation there that has been in effect for some 20 years, we have the benefit of some jurisprudence, I expect, that will have been built up in their courts, and so that may give our legal system some guidance about how we might best apply this law when it comes to be considered in our courtrooms as well.

My fifth and final point—as promised, Mr Assistant Speaker, which I know that you and every member of this House and the thousands watching at home have been eagerly awaiting—is priority. So at clause 11(4), we hear that—and I quote—“This Act has effect without prejudice to the operation of any New Zealand rule of law that”—among other things, leaping ahead—“(b) modifies the rules of private international law that would otherwise be applicable in the particular circumstances.” So, clearly—or perhaps not clearly—this legislation itself acknowledges itself to be subordinate to New Zealand laws that already trump private international laws. So there’s no confusion about whether this displaces in those circumstances. It sets out its own priority, albeit in a subordinate kind of a way, and it seems to me that that demonstrates some foresight on the part of the drafters, the promoters of the bill, no doubt the submitters, and those who contributed at the earlier stages of the passage of the legislation.

So it’s with some pleasure and relief that I wrap up my own comments. Noting that I’m the 12th of 12 speakers, we approach the end, and it seems to me, finally, that it might be worthwhile to make a comment on the way that the law has been drafted in very much a plain language fashion. I think that does credit to those involved, and I acknowledge the staff of this institution as well as the elected members and officials who have been involved in its passage. It seems to me it’s a helpful thing from the perspective of accessibility of law that laws can be readily read and understood, whether or not one has a considerable legal background. We’ve heard speakers in the House tonight with a range of different experiences grapple with it, come to terms with it, and, I think, understand it well enough to reach a sound conclusion in commending it to the House, and I do so as well.

Bill read a third time.