Crimes Amendment Bill

I move, That the Crimes Amendment Bill be now read a second time.

Before I come to the substantive measures of the bill, I want to place on record my out-of-scope Supplementary Order Paper (SOP) 185, which was introduced earlier today, which addresses the scourge of livestock rustling, which is hurting our rural communities. Subject to the deliberations of the committee of the whole House, that SOP contains two new offences to be added to the Crimes Act. Those offences are theft of livestock or other animal, carrying a maximum penalty of seven years’ imprisonment, and, secondly, unlawful entry to land used for agricultural purposes where the offender intends to steal livestock or act unlawfully against unspecified things such as buildings, machinery, and the like that are on that land. That offence carries a maximum penalty of 10 years’ imprisonment.

I want to particularly acknowledge the work of the Primary Production Committee and, especially, the National Party’s Ian McKelvie and Labour’s Kieran McAnulty for their work in putting this together and their bipartisan assistance so that that now may be considered as part of the Crimes Act. I know that will go a long way to meeting a lot of the concerns from the rural community. As the whips will be aware, there’ll be a procedural vote to bring that SOP into scope during the committee stage of the bill. I want to thank all parties represented in the House for their very positive indications about that so that we get to debate that as part of this bill.

But now, turning to the bill as reported back from the Justice Committee, this bill reflects the Government’s ongoing commitments to keep the New Zealand statute book up to date and current. The Crimes Act 1961, which is our principal criminal law legislation in this country, should not contain archaic laws that do not reflect contemporary societal needs and our values as a modern, forward-looking nation.

I’d like to take this opportunity to thank the Justice Committee for their work on the bill. Forty-two submissions were received on the bill, mostly commenting on the repeal of blasphemous libel. Those submissions, including those who presented in person both for and against the repeal of that provision, were given very careful consideration by the committee.

However, the issue that came under the most intense scrutiny by the committee was the repeal of the year and a day rule. I want to return to this issue shortly. The committee has recommended one small technical change to the transitional provision in the bill, which is for clarification only. It ensures that Acts and omissions currently referred to in section 162 of the Crimes Act are those to which the transitional provision applies. Turning to that year and a day rule, section 162 of the Crimes Act provides that no one is criminally responsible for the killing of another person unless the death takes place within a year and a day of the cause of death—that is to say that the action by the person charged that leads to the death all happens within a year and a day.

The Justice Committee was particularly interested in this aspect of the bill. There were some robust discussions about the nature of the transitional provision in the bill as it applies to the repeal. As I noted in the first reading, the rule has its origins in medieval times, when there was a distrust of science. There have been calls for its repeal in this country for decades.

The rule simply has no place in New Zealand’s statute book today. There was no disagreement from any member of the Justice Committee that the rule should be repealed. However, there was some concern about the effect of the transitional provision in the bill, which preserves the rule for any actual remission which occurs before the repeal date. I understand the unease shared by some that for a historical case where the cause of death occurred, say, 30 years ago and the death occurs after the repeal date, the person responsible will still be able to rely on the rule. However, as I publicly stated earlier this year, the repeal will not be made retrospective. It would be unjust to deprive people of the law as it applies to them before the repeal date. That is a basic constitutional convention that Westminster democracies apply around the world. Under the existing law, the clock starts ticking from the time of the cause of death. In my view, it would violate a fundamental principle of criminal law to backdate laws to remove a bar on prosecution.

The repeal of such a provision should not remove the right of a person to claim the benefit of the law as it exists before the legislature removes it from the statute book. Where a person is liable to the ultimate criminal sanction, which in our country is life imprisonment, it is very important to respect a law, whether we like the law or not, that can be relied on by a defendant. Let me be very clear. For those responsible for death whose acts occur before the repeal date, if death occurs at any time within a year and a day, prosecution will of course be possible, whether or not the death occurs before or after the repeal date. That is the case for historical cases as well. For example, if the cause of death occurred in 1980 and the victim or victims died in 1981 but within a year and a day, the rule does not currently and will not under the bill preclude prosecution. It’s important to note that for those whose conduct is responsible for deaths after the repeal date, they will never be able to claim the year and a day rule to prevent prosecution.

I’m pleased that there was unanimous support for repeal of the year and a day rule from the Justice Committee, and I’m satisfied that the transitional provision in the bill is appropriate. The legislature in this country should be extremely reluctant to retrospectively change the substantive criminal law by removing statutory bars to prosecution that have already accrued.

Turning to other parts of the bill, I just want to make it clear that following the deliberations of the committee, section 71(2) of the Crimes Act 1961 provides that no person whose spouse or civil union partner has been a party to an offence can become an accessory after the fact to that offence, even where they assist the other to evade justice. There were a couple of submissions to the Justice Committee on this issue. Concerns were raised about repeal undermining the sanctity of marriage and the potential impact on children of the relationship. I’m not satisfied that those reasons justify retention of a law which is discriminatory in that it does not apply to others in a close personal relationship with the offender, including those in long-term de facto relationships. Children of the relationship are not only an issue where the parents are married or in a civil union. Further, the law is anomalous in that the protection afforded by this outdated law is not reflected in other criminal laws. For example, a husband or wife may be charged as a co-conspirator or a party to an offence.

The law reflects an outdated notion that husbands and wives are, in essence, one and the same, and neither has individual autonomy to make their own decisions, good or bad. That is not the world we live in today, thank goodness. The repeal of section 71(2) of the Crimes Act will ensure that all people who help someone, including those with whom they’re in a close relationship, to break the law can be prosecuted as an accessory after the fact.

In relation to blasphemous libel, as I thought would be the case when I introduced this bill, there were some strongly and genuinely held views expressed both for and against repeal by submitters on this provision. Submitters were pretty much split down the middle with 22 submitters opposing repeal and 20 submitters supporting repeal. Themes that emerged from those opposed to repeal included that it would encourage hate speech, that it would incite violence, and that it would remove a protection for religious freedom. While I have no doubt that those views are sincerely held, I do not share them. The retention of a provision which has not been prosecuted for nearly a century and which criminalises certain conduct against only one religion has, in my view, no place in the criminal law of New Zealand. To presume that the repeal of a hitherto little-known law will suddenly result in a wave of anti-Christian sentiment in this country seems completely untenable to me. I agree with the submission of the Human Rights Commission that section 123 of the Crimes Act is out of date, is based on English law that has been abolished, and is inconsistent with New Zealand’s human rights obligations.

One of the most compelling submissions received on the bill came from a minister of religion who was in favour of repeal of blasphemous libel. The good reverend noted that laws protecting free speech are an important part of the common good and they must not be weakened by antiquated blasphemy laws, which are actually so unnecessary that there has not been a prosecution under them for a hundred years. So that provision, as reported back by the select committee, remains unchanged.

I want to thank all those who submitted on any aspect of the bill. While all will not agree with the repeals, you’ve all played an important part in the democratic process. Your views have been heard, but it is ultimately the role of Government to determine those laws that are most appropriate and relevant in contemporary New Zealand, and ultimately the role of Parliament to decide on what stays and what goes.

I commend this bill to the House. It will modernise and improve the criminal law in New Zealand and bring New Zealand into line with like-minded countries that have abolished, or are in the process of abolishing, their laws on blasphemy and the year and a day rule. I commend the bill to the House.

Large parts of this bill are agreed with by the National Opposition. I wish to speak briefly on each of those three provisions and then to focus on an issue where there is a difference of view. Firstly, this bill provides for extending the protections that are provided in the Crimes Act to those persons or spouses that are in a civil union as though someone was married. That it is a common-sense tidy-up of the law that Parliament has been systematically working through over the last couple of decades of establishing an equality of relationships, whether people are married, whether they are civil unions, and that makes good sense.

The second provision in the bill deals with the issue of blasphemous libel. And as a political party that believes in freedom, that believes in the importance of people being able to express themselves without constraint, it is an anomaly in the law that it is a criminal offence to make a blasphemous comment. Now, some might argue that it’s been a very long time—I think it is nearly 90 years—since someone was prosecuted, and I suspect it is not 90 years since someone somewhere, perhaps even in this Parliament, has made a blasphemous comment. However, it’s my view that the law should reflect what we intend, and whether the police and Crown Law have not determined to prosecute such cases is no reason for Parliament not to bring the statute into line with practice. I’ve actually got a constituent right now that is in another jurisdiction in another country being prosecuted for blasphemous comments facing a serious prison sentence, and it is difficult for New Zealand in the international arena to be able to promote the free expression of religious views abroad if at home we still have this law on our books.

I do want to make the point that if we are going to support freedom of speech, we do need to be consistent, and I do note there are some other proposals where the Government is looking to constrain freedom of expression, including those people that have strong Christian beliefs. I would urge that Parliament, in repealing this blasphemy law, equally applies and respects the right of people that have deep religious views to be able to continue to express those.

The most significant of the provisions of this bill I feel very strongly about and commend the Minister for bringing to the House, because I have been at the front line of dealing with some of the angst and frustration of people who had not been served well by our justice system in respect of the one year and one day rule. My first ministerial appointment was as Minister of Conservation following the tragedy that occurred at Cave Creek. There was a deep sense of both frustration and injustice that no person was ever prosecuted for constructing that death trap, and one of the reasons that the authorities gave for no prosecution being issued was the existence of this “one year, one day” rule. It actually was not that much longer than one year from the time when the Cave Creek platform was constructed. It was one year and six months to that tragic day when those young people lost their lives, and I don’t think there would be a person in this House that really believes that the passage of that time should exempt people from being responsible.

Equally so if we reflect on the two great tragedies that afflicted our nation in a very short period, both at the Pike River mine and the collapse of the CTV Building in the Christchurch earthquake—again, this one year and one day rule, effectively, meant that because the act of neglect that may have occurred in Pike, where there was a reckless regard for health and safety that led to the tragedy of the death of 29 men, or the 113 people that were killed in the CTV Building—because the negligent design occurred back in 1987 but the building did not collapse until the date of that earthquake in February of 2011, it restricted the capacity to prosecute. That is why, quite rightly, this Parliament is universally of a view that section 162 should be repealed.

But here’s the interesting question: if Parliament accepts that the “one year, one day” rule is an anomaly, the very real question for this Parliament is when should that anomaly be removed? This issue is particularly pertinent to my own profession as a civil engineer and the thousands of buildings that are constructed in the country each year. The Government’s view that they’ve taken on the transitional provisions means that any building that has been built prior to 2018 will still enjoy the protection of the exemption of the “one day, one year” law. Can I give a practical example: we have a major building—hundreds of them that have been built in Christchurch. If any of the engineering of those buildings that have been constructed is deficient, and let’s say there is a further earthquake in this country in 2050, 2060, maybe even 2100, the designers of those buildings, under the Government’s approach, would not be able to be prosecuted. They would still enjoy the benefit of the “one year, one day” provision that is proposed here. I think that is wrong. I think that is taking the purity of retrospectivity too far.

Here’s the madness: if, just by chance, you’re an engineer and within 10 months of you building the building, you are fully—and we all know that earthquakes are random events; we have no control over them. The engineer that is responsible for the design of that building will be fully legally accountable, but just by accident of the timing of when the building is constructed, that person will be able to walk free. Now, in my view, the argument that the Government has taken on this transitional provision is one that is very legalistic and pure, and it says that for Parliament to pass a law today that says that buildings that have been built in the past continue to enjoy the “one year, one day” law, in my view, will be an insult to many of the families aggrieved such as those from the CTV Building. I know it is their strong view that this bill should not carry through that exemption into the future.

National’s position is not that the law should be applied retrospectively. It is our view that from the date that this bill is passed, if there is anybody killed in a building collapse, then the designers of that building should not be able to enjoy the “one year, one day” rule, and that is where this Parliament needs to actually take a practical view of justice and not a theoretical view. Here is the essence of the question for Parliament: if a building collapses and kills 50 people in the year 2030, is it a greater injustice that the victims of that building have no accountability, or is the greater injustice that the designer of that building is not able to enjoy the “one year, one day” rule exemption? It would be my common-sense view to this Parliament that the far greater injustice is for those families that are not able to enjoy it. This is the nature of engineering, where there is the widest application of this particular issue, and I would urge members opposite to reflect on the common-sense dimension and ensure that if there is a future tragedy, whether it be a Cave Creek, whether it be a Pike, or whether it be a CTV Building, that from the day this law is passed, people are not able to escape accountability by the continued application of this “one year, one day” rule.

I note with interest that, actually, the Institution of Professional Engineers New Zealand and many others take the view that the sooner that provision is removed, the better, and we should note that there will be tens of thousands of buildings in the next century that enjoy this anomaly and this protection inappropriately if we do not change the transitional provisions in the committee stage, which National will be attempting to do. We do commend the bill, but we would like to see that anomaly resolved so that this law can be right and correct these historic injustices.

Thank you, Madam Deputy Speaker. This must be the thirteenth bill that the Justice Committee has sent back to the House for the second reading, and the extraordinarily busy Justice Committee has considered 20 bills this year, as well as Estimates, annual reviews, inquiries, and petitions. So, on that note, and in my capacity as the chair of the Justice Committee, I’d like to thank all the members of the Justice Committee. I thank the clerk and his team, and I thank officials and advisers and especially the submitters, who have taken the time to get involved and played a very important part of this legislative process.

As well as the Supplementary Order Paper 185 that Minister Little has just introduced, this Crimes Amendment Bill seeks to repeal three sections in the Crimes Act 1961, relating to immunity for spouses as an accessory after the fact, the offence of blasphemous libel, and the year and a day rule. This is a relatively small, straightforward, but very important bill. We have received 42 submissions from interested groups and individuals. Most submitters commented only on the repeal of the blasphemous libel offence. A small number of submitters also raised issues about the repeal of the year and a day rule, as well as issues concerning the basic principles of retrospectivity.

Immunity for spouses as an accessory to a crime after the fact is out of step with modern society. There is no justification for such a protection. Being married or in a de facto relationship or civil union relationship provides no reason to protect those who intentionally obstruct justice. What is worth noting is that this kind of immunity does not apply in New Zealand anyway. For example, under the Evidence Act 2006, all eligible witnesses are compellable to give evidence no matter their marital status.

The blasphemous libel provision—namely, section 123 in the Crimes Act—is little known. No prosecutions for blasphemy have occurred since 1922. We have heard submitters who expressed a view that we may need to protect protection against anti-religious conduct. But the majority of submitters believe that the current provision is an unwarranted restriction on the right to freedom of expression and that it does not align with the values of modern New Zealand.

The year and a day rule has attracted much attention. The rule in section 162 of the Crimes Act 1961 is that death must be within a year and a day. The repeal of this section would allow the prosecution of an alleged offender for his or her act or omission that resulted in death more than a year after that cause of death. The repeal could mean, in future cases similar to the CTV Building collapse, that there would be no bar to prosecution after a period of, say, 25 years. The Government announced in March that we would remove the year and a day rule from the Crimes Act. The Prime Minister, the Rt Hon Jacinda Ardern, was quoted as saying in the staff reports that she had made an undertaking to the families of the 115 people who died in the CTV Building collapse, in that 2011 quake, that changes need to be made. And we have honoured our promise.

There are other cases that illustrated the problems with the rule. The issue came to light in New Zealand following the 2017 death of a victim 15 months after he was assaulted. In the United States, during the attempted assassination of President Reagan in 1981, the White House press secretary James Brady became permanently disabled from a gunshot wound. He died some 33 years later, and his death was ruled a homicide caused by the gunshot wound. However, the attempted assassin could not be prosecuted and the year and a day rule was cited as one of the reasons.

Other comparable jurisdictions, notably the United Kingdom, the United States, Ireland, and Hong Kong have respectively abolished the rule, and in other countries such as Germany, Scotland, and France the rule has never applied. One thing that we would need to be mindful of is that in the United Kingdom there was no statutory basis for such a kind of a rule as it is purely judge-made common law. But in New Zealand we have codified the rule, so there are strong cases that we must make such a change through the legislative process.

There are some issues regarding the timing of the year, as Dr Smith’s just outlined, more specifically around issues concerning the basic principles of retrospectivity. The short answer is no. Minister Andrew Little outlined his reasoning behind the conclusion. It is fundamentally a principle that is widely accepted. It is also in breach of the New Zealand Bill of Rights Act 1990, because section 26(1) of the New Zealand Bill of Rights Act spells out very clearly as to the reason why retrospectivity shall not apply.

We have heard from some of the National members, and Dr Smith in particular, who have said that they would view that sort of a year and day rule and the repeal of which as a kind of a loophole. With due respect, they were in Government and there were plenty of different ways of closing such a kind of loophole—if they genuinely believe it’s such a case. They were in Government for nine years and they didn’t do it. We have been in Government for just more than 12 months and we have done that. Thank you, Madam Chair.

Thank you, Madam Deputy Speaker. I rise to speak at the second reading of the Crimes Amendment Bill. I think the issues that have been discussed around the means of this bill achieving modernisation, achieving some streamlined improvements, really, to the way justice is delivered in New Zealand have been well made.

I would make the point, though, to the speaker who’s just resumed his seat, Raymond Huo, that the reason we didn’t complete this in nine years was not through want of trying. The Hon Amy Adams and her predecessors have spent a great deal of time, effort, and energy combing through irrelevant, outdated, anachronistic legislation, much of which is now coming through the House. So to say that we didn’t do it in our time is factually incorrect, and the fact that it is happening now within one year is due to the good work that we have done in combing through it. I think, in the spirit of cooperation, I won’t dwell so much now on the things that we disagreed upon—except the one year and one day rule I will come back to.

I would like to talk about some of the submitters that came before the Justice Committee and the points that they made, because when we reflected on the 42 people who made submissions, everybody who came before the committee to orally submit was exercised by the blasphemous libel—either in favour of it or not in favour of it being repealed. So when I looked at the 22 people who came in and who spoke about that particular clause in some detail, there were six main themes, and I think it is worthwhile to take the time of the House for a moment just to recap on those, because there are some very deep, fundamentally held beliefs that would indicate that this is an important safeguard of the standards of language and the way we conduct ourselves not only through the law but in society as a whole.

There are of course a lot of people who point out that in 122 years, there has not been a single conviction under it, and therefore what has it achieved. But the main and overriding theme of the six that came up—of the 22 who protested about the blasphemous libel being repealed—was that it would encourage hate speech around and against God. That feeling was deeply held and explained in some detail, because, again, it led to the second theme, which is that it would remove a safeguard for religious freedom. So even if it didn’t encourage hate speech, it might be seen as an effort to liberalise the way in which people would speak of God, and in a way that many would consider disrespectful.

The third theme was that it would disrupt the maintenance of the wholesome boundaries of the media. There aren’t too many present for this morning’s descriptions; I think “wholesome boundaries” and “the media” are not often found in the same sentence. I do feel that when we examine the sincerity of the people who made that point, there was no questioning their sincerity but, with respect to them, I don’t think it’s made a very big difference to the way that the media have conducted themselves—the presence of this blasphemous libel—and I don’t think it would make a huge amount of difference if it were repealed, either.

Insulting the Christian founding of New Zealand was another very deeply held conviction, along with inciting violence in the American model. It was brought to the committee’s attention that this is the kind of thing that happens in the United States and that by keeping the blasphemous libel in, it would stop that violence occurring. The insulting and dishonouring of God or God’s believers was also something that came before the committee. So while I feel that both Labour and National considered these things carefully and respectfully within the submissions hearing process, it was generally agreed that, with respect, we didn’t feel that the repealing of this would actually lead to the things that those 22 submitters were fearful of. But I would say that it is useful to have a conversation around that, because what it has done is sparked a great deal of better-informed debate about what hate speech really is and whether we need to be fearful of it or protective of it in New Zealand, and where that respect should best be really addressed.

So, ultimately, the committee decided that the repeal of blasphemous libel would not change the way that we do things, but there was dissent around this idea of one year and one day. I think that my colleague the Hon Dr Nick Smith, who is of course an engineer by profession and who understands the structure and the design of buildings—he is somebody who believes very strongly, having been the Minister of Conservation immediately after the Cave Creek disaster, and having taken over that responsibility with Pike River as well. We see two outstanding examples, as well as the CTV Building, where the one year and one day rule enabled people to evade and sidestep any kind of conviction or scrutiny of the law.

We are deeply uneasy about the timing of the implementation of this, and we will, at the committee of the whole House, certainly present a number of Supplementary Order Papers, where we hope that the committee of the whole House will understand that this is a risk. Buildings last for a very long time, and one year and one day is not very much time in the lifetime of a building. Why should people not face scrutiny and prosecution if the building, ultimately, at a random and uncalled for event like an earthquake—why should they not be held accountable in years to come? I think that for those of us who have been involved in the submissions around the CTV Building, and ways to improve the way that we as a nation, actually, conduct ourselves in earthquake recovery, and how we make things come right—we have an obligation, I think, to look very closely at that side of things. So we will be, certainly, pushing back pretty hard on that, the section 162: “Death must be within a year and a day”. Perhaps after this legislation is passed—and we do support it, of course—then that could be the moment at which it is triggered. So there will be more discussion to come on that.

We were all agreed, as well, that we need to make some changes to the protection of spouses and civil union partners, and this is a little bit like the blasphemous libel. This is something where, really, the law hasn’t kept pace with the times and the social and modern family dimensions that occur. So, essentially, section 71(2) needs to be repealed because it is offering protection to spouses and to civil union partners in cases where they would otherwise be an accessory after the fact to an offence. By giving immunity to a person who assists their spouse or civil union partner, we feel that that is outside the spirit and intention of what the law ought to do, which is provide justice. This protection really does—we all felt as a committee, all eight of us—create an anomaly in the law, because it doesn’t apply to other classes of people who are protecting someone in a close personal relationship, like a brother or sister or cousin or family member.

So there are a number of things that we agreed on and some that we did not. But I come back to where I started, which is that this bill is a broad-ranging examination of a series of elements within the Crimes Act, and we needed to put through an amendment of this sort to tidy it up and make justice better served. I think that it is really important, as well, for the people of New Zealand that they understand that they are able to see justice done if there are wrongs that have been done, particularly in a construction sense, by engineers.

I would have to say that in the number of omnibus bills that we have done to try and tidy up anachronisms in legislation, this one has been the most straightforward. I think that by repealing these three provisions in the Crimes Act, we will make the law more fit for modern purpose. We will, I think, encourage more confidence in the minds and hearts of the public to know that they will get satisfaction from the law if there are issues such as earthquakes and deaths that arise from those.

So I won’t take up the time of the House any longer on this, but I would say very firmly that, come the third reading and the committee of the whole House, there will be some very robust discussions about a year and a day. But in a broad sense, the Justice Committee—which is not always, let it be said, in absolute agreement over every issue that has come before us. The chairman, Raymond Huo, has pointed out that we have done 20 bills this year. There has been no shortage of annual reviews, petitions, and so forth—all of which have been fairly hotly contested. So I think that when we do see a bill of this kind which, in the engine room of the select committee, has really gone through the detail of the bill, made it a better bill, and made it, I think, really fit for modern purpose, that’s the Justice Committee doing good work. So I commend this bill to the House.

Thank you, Mr Speaker. It’s a pleasure to rise on behalf of New Zealand First in support of the Crimes Amendment Bill. I just intend to take a short call, because it’s quite a simple bill, but it is none the less important. Those main provisions in the bill have been canvassed quite a lot from both sides of the House. The bill repeals three main provisions in the Crimes Act, which cover three things: spouse or civil union immunity from prosecution for accessory after the fact, blasphemous libel, and the year and a day rule. So the main intent of this bill is to ensure that the confidence of the public in the justice system is maintained, and one of the ways that we do that through legislation is ensuring that this legislation is applicable to modern day technology and relevant to modern day society and values. So that’s the main intent of this bill and the changes and repeals in the bill.

I just wanted to mention a couple of main points in support of this bill, and on two of the sections. First of all, the year and a day rule and the injustice that, in today’s society, it does reflect when someone cannot be prosecuted for someone’s death just because a year and a day has passed. We’ve heard a couple of examples: the CTV Building collapse—

💬 Hon Mark Mitchell: Cave Creek.

—the Cave Creek disaster. Just because a year and a day has passed, the person or people that were responsible for the structure and the issues that created it and caused multiple deaths were not able to be prosecuted for those deaths, and that’s obviously an injustice, and that’s one of the reasons why this is being repealed.

Another example—I’m not sure if it was mentioned in the House today, but definitely through the first reading it was—was the example of someone who died from a coward punch. I think that’s a direct example of how the law does not reflect modern-day society’s medical ability to be able to maintain someone’s life past a year and a day, and also the legislation and the developments in the sciences and forensic sciences as well, where an individual dies more than a year and a day later, and the individual who committed the crime could not be punished for their death, when rightly, and for justice reasons, they absolutely should have been. So New Zealand First supports that.

Additionally, actually, we’re not the first country that will be taking away those provisions. We’ve got like-minded countries that have already done so in the past, including England, Wales, Canada, Ireland, and, actually, most of the Australian states as well. It’s important, also, to note on that section that that law won’t be retrospective. I know that there’ve been a couple of opposing views from the National Party, but New Zealand First understands why the Minister has brought this forward in the way that he has, and we support him on that.

This bill also removes the blasphemous libel. I won’t labour the point on that—it’s quite a simple one. We’ve also heard that there have been no convictions since 1922 for this, so we support that removal—also, the concerns that it brings for the New Zealand Bill of Rights Act.

Lastly, there was only one technical amendment that went through the Justice Committee, and the committee recommended amending the proposed new schedule 1AA “to clarify [that] the nature of acts and omissions to which the transitional provision applies are the same as those currently specified in section 162”, and New Zealand First supports that amendment.

New Zealand First supports this bill and the changes that it brings to the Crimes Act. We’ll be looking forward to the progress of this bill through the House and the debate through the committee of the whole House stages on the Supplementary Order Papers (SOPs). Thank you, sir.

Thank you, Mr Speaker. It’s a pleasure to stand and take a call on this, the Crimes Amendment Bill. Could I acknowledge the Minister in the House who has brought the bill to this House and shepherded it through. We do support the bill. I think that previous speakers have already spoken about the fact that we’d like a more nuanced approach around the year and a day, but the committee of the whole House will have a chance to talk about that. Can I acknowledge the chairman of the Justice Committee, because he’s quite right: we’ve had a heavy workload this year—20 bills, and, of course, we’ve been listening to very important submissions around the Privacy Bill and the End of Life Choice Bill, as well, and getting around the country. So can I just acknowledge him and the other members of the Justice Committee. I’ve enjoyed working with you this year. I hope that you have a great Christmas break, and we’ll be back into it in the New Year, I’m sure.

Just very quickly, this bill covers off section 71(2), which protects spouses and civil union partners in cases where they would otherwise be an accessory after the fact. I think this is a really important part of the bill in terms of the repeal, because, although I recognise that wives and spouses in a relationship are always subject sometimes to coercion or force or threats that can affect their behaviour, I don’t actually think that we should, as a country, accept the fact that they are able to actually assist a spouse and they’re somehow immune from the justice system like everyone else is. So I think that this is a very, very good move. I think our agencies now are able to work out some of those complicated cases and deal with them appropriately, but we should not be using laws in New Zealand to say that we’re going to give you protection to help actually facilitate a crime and somehow give you protection from our justice system. So I think that that’s a very good move.

In fact, me personally, I would go further—and this is for another discussion, another bill—in terms of when we see young Kiwis killed, when we see children killed, and you see the family come around them and this cloak of invincibility and silence comes up. I actually think, as a Parliament and as a country, we should be doing something about that, and we shouldn’t be allowing people not to give information to the police, not to help with an inquiry, not to assist in finding out what happened to that young person or that child. The Minister Andrew Little is in the House, and maybe that’s a further discussion that we could have, because I think there could be some very good work done around that.

💬 Hon Maggie Barry: The Kāhui twins.

Well, the Kāhui twins are a great example—that’s absolutely right.

Blasphemous libel—this was fairly simple. We did hear quite a few submissions on this. We did listen very carefully to those submissions. We heard concerns that the repeal would encourage hate speech against God, incite violence, and remove a safeguard for religious freedom. It was suggested that the repeal would disrupt the maintenance of wholesale boundaries in the media and would insult God and the Christian foundations of New Zealand. We listened closely to that, but we actually just felt that this legislation is well and truly outdated. It didn’t reflect a secular society in terms of where we are as a country, whilst also remembering, actually, that Christianity and religion have been a big part of our country’s history as well and will continue to be.

Arguments in support of repeal included the idea that the current law is an unwarranted restriction on the right of freedom of expression.

💬 SPEAKER: Order! The member suffers from some disadvantage because I’ve got a copy of the speech that he’s reading. The member is not allowed to read speeches, and he’s especially not allowed to read the explanatory note. He’s read a whole paragraph out, and now he’s just started again.

Yeah. Mr Speaker, I’m trying to reflect on the submissions that were made to us, bearing in mind there were 24.

💬 SPEAKER: The member’s own words—the member’s own words.

I’m trying to sort of condense those for the House and reflect the submitters’ submissions to us, because I think that it is important, when we get up in the House and we speak to these bills, that we are able to do that. But I will condense it, and I will say that after hearing all the submissions around the blasphemous libel, fundamentally we did as a committee listen to that very carefully. We did have a debate in the committee about it, but we felt that it was not necessary to make any changes to the proposal in the bill and the shape in which the bill was being reported back to the House.

💬 Kieran McAnulty: There you go—that wasn’t that hard, was it?

Sorry, what was that? Sorry, what was the comment?

💬 Kieran McAnulty: Get on with it.

Get on with it?

💬 Hon Maggie Barry: Rude rabble-rousing.

Yeah, that’s right.

💬 SPEAKER: Can I just say that was not that helpful. Now that the member has been interrupted, I will tell him that he mustn’t reflect on my rulings after I’ve made them in the way that he did. He’s a highly competent debater, he can speak very well without notes, and he certainly doesn’t need to read out whole tracts of printed material that’s already on the Table of the House.

Thank you, Mr Speaker. So if I come to the final repeal, to section 162, in clause 6 “(Death must be within a year and a day)”, this has been well canvassed in the House. The previous speaker, Darroch Ball, addressed what we’ve been talking about in the House today as very good examples: the CTV tragedy and also the Cave Creek tragedy. I think that it’s a huge anomaly. I’ve never been able to understand the year and a day rule, especially when you reflect back on modern times now. We live in a golden age in terms of medical science, and we can probably all reflect back and think of a situation where someone may have been involved in a car accident that wasn’t their fault and they’re being kept alive and kept on life support for easily a year or over a year. Or let’s take the case, I think someone raised it, with a coward punch—I think it might have been Darroch Ball in his address to the House—where someone is punched, they fall, they hit their head on the kerb, and actually they’re kept alive for up to a year or over a year. Well, actually, the act of that coward punch is still just as relevant a year and a day later than it was at the time of the assault; so I actually think that this, too, is a very good repeal of this bill.

Finally, I just want to acknowledge the justice Minister again for making sure that this comes through the House. I want to acknowledge the comments that were made by the Hon Maggie Barry in recognising the Hon Amy Adams, because she’s the one that did a lot of work on this and the architect around the bill that we actually currently have in the House. So can I acknowledge her and the team that put that work and effort in. Finally, I’m very happy to take a call, very happy to recommend the bill to the House, and I’m looking forward to it coming back to the committee. Thank you.

Thank you, Mr Speaker. I rise in support of this bill and congratulate both the justice Minister and the Justice Committee for bringing this to the House but also for unanimously supporting all the much-needed updating of our criminal justice system and the Crimes Act that this bill represents.

I will begin with the first of the three key aspects of this bill, because I think it’s probably the most shocking to most laypersons and New Zealanders out there, which is the year and a day rule, which we are repealing through this bill. It is a rule that precludes prosecutions being brought for deaths if a prosecution is being brought after a year and a day of the act that caused that death. It does seem incredibly arbitrary, but more than that, it’s just so short.

Now, ordinarily, statutes of limitation for prosecution in the criminal justice system exist because we recognise that unfairness arises if too long has passed since the act alleging the cause of death has occurred—memories fade, witnesses pass away, and evidence is difficult to find in defence against charges. So that is something that our criminal justice system rightly recognises, and natural justice does require that prosecution is brought within a reasonable time for fairness to occur, but a year and a day in the age of DNA evidence—and, of course, as most who have risen in support of this bill thus far have pointed out, in terms of things like building code violations causing death, which may cause deaths years later and investigations may take a long time—doesn’t seem fair and doesn’t seem very practical.

I do want to mention the CTV case, because this is a case that’s fresh in most people’s memories. One hundred and fifteen people died, and I think most of us didn’t quite realise, when that great tragedy occurred—the Christchurch earthquake—that most of the victims who died in this one building had, in fact, died as a result of negligence by those who had built the building, who had chosen profit over safety. The police investigation, rightly, was done with great care. It took three years. There was a commission of inquiry, and in a very rare finding, the police said that negligence—criminal negligence—was very clearly made by their investigations, but that criminal charges were not brought because of legal advice based largely on this rule.

That was an opportunity lost. Justice was lost for those victims and the families of the victims, and something else was lost, which is that it could have been a very important precedent case for corporate liability in a real sense—not just fines, but the actual architects of this building, the corporation who decided to take those risks, could be individually held criminally liable. So the true ambit of their wrongdoing could be captured not just through a fine or a civil case that can be curtailed through bankruptcy—companies do declare bankruptcy when they’re being held liable for things like this, or even if they pay, it’s the company who pays. So it would have been an important moment where we say, “Actually, you can’t put profit before human lives.”, and that was stopped because of this rule—a very arbitrary limitation that we are getting rid of through this bill.

Next I will turn to another arbitrary rule that we are amending, or repealing, and moving forward from, which is the immunity of spouses, civil partners, or spouses through marriage from prosecution, which seems strange given that we have “accessory after the fact” rules and that perverting the course of justice is a crime. Those types of crimes are almost always committed by people in a very close relationship, familial or otherwise, with the principal party. So it seems a bit weird to say that the closest relationships are excluded from liability, and we’re getting rid of that because it is an arbitrary rule and it does curtail most of those accessory-type crimes where we are talking about perversion of the course of justice.

Thirdly, the final aspect that I’ll address is something that the Green Party very much welcomes, which is that we’re repealing the law against blasphemous libel. I do want to acknowledge my colleague and friend Angie Warren-Clark from the Labour Party, who brought a member’s bill to this effect that’s been carried over through this Government bill and looks set to pass unanimously in this House. This is a much-needed updating of our law, and it reflects New Zealand’s commitment to be a secular society committed to freedom of religion and freedom from religion, which, I was very happy to find, as the Minister has pointed out as well, was supported by submitters who included a minister of religion who, I think, called the law antiquated. That is something that should be reflected.

As others have pointed out, of course, freedom of speech wins through this particular repeal, but, of course, that always does have to be measured and balanced against the kinds of exercises of that right which actually, in fact, undermine and attack religious freedom too. So it’s always a balancing exercise, and we’re not saying that any right is absolute when it, in fact, undermines or threatens others’ rights, and we certainly would want to protect religious communities from that kind of attack guised as the exercise of free speech. But in this particular example, we are moving toward representation of our secularism and our commitment to human rights, which is also supported by the submission made by the Human Rights Commission, who called for this change to be made.

So I am very happy to have risen in support of this bill and the updating of our criminal justice system. I congratulate everyone on that committee and, of course, the Minister.

Thank you very much, Mr Speaker. Look, the House has canvassed this bill in quite some detail now. We canvassed the bill in quite a lot of detail at the Justice Committee. Members will be aware that it makes three reasonably small but significant changes to the Crimes Act, and it looks like it’s going to pass through the House unanimously, which is very good.

Other members have commented on the year and a day rule and the spousal immunity to a crime after the fact. I want to make a brief contribution about blasphemous libel and freedom of speech. It is interesting times for freedom of speech in New Zealand. I’m not sure if the House is going pass this bill before the rising this year. I suspect we won’t, given that we’re on the second reading, but at some point in the next few weeks and months the House will pass this bill, and I think it’s a good thing that we’re doing that this year, or at least close to this year, because it has been quite an odd year for freedom of speech, and in some small, symbolic way the House is sending a message about the importance of section 14 of the New Zealand Bill of Rights Act 1990, which, of course, codifies international human rights instruments and their commitment to freedom of speech.

This year we’ve had the debacle of Don Brash being banned from speaking at Massey University. We have had the imbroglio over Mr Molyneux and the woman whose name I forget trying to speak at a venue in Auckland, and I think it’s good that the Parliament will send a message that religion is not immune to criticism, basically. I note that the law hasn’t been enforced, or at least hasn’t been used, since 1922. You need the Attorney-General’s permission to use the law anyway. It hasn’t been used since 1922.

Religion should not command respect because of the force of the law. Religion should command respect because of the precepts, because of the faith and the fellowship that it provides, because of the spiritual sustenance and nourishment it provides for those who have particular faiths. And, of course, blasphemous libel back in 1922, when the Parliament of New Zealand—or before then, when it was enacted on to the statute book. Back then, religion would have meant the Christian God, because the people who came to New Zealand first of all were predominantly of the Christian faith—the Church of England, I suspect; “C of E”, as they call it—and, of course, we live in a pluralistic, multicultural, multi-religious society these days, with people who worship all sorts of gods and all sort of deities and all sorts of faiths. I think this is the Parliament sending a small, subtle—

💬 Hon Andrew Little: Don’t forget Julius Vogel.

Don’t forget what?

💬 Hon Andrew Little: Julius Vogel.

Julius Vogel was correct—

💬 Hon Andrew Little: The Jewish Prime Minister.

Yep, the Jewish Prime Minister; very well said. We’re a country of many faiths and have been for quite a long time, as Andrew Little points out. Just as we head towards Christmas, which is a Christian holiday, it’s quite a nice, I think, subtle but important message for Parliament to send—that religion shouldn’t command legal protection to be immune from criticism. It should command respect on its own merits, and no one of the Christian faith or of any faith has anything to fear from removing this small section from our statute book. It’s a good thing to do. It looks like it’s going to pass the Parliament unanimously, and I welcome that. I look forward to its passage through the House.

I rise as a member of the Justice Committee. Many have spoken about how busy the committee is—the clerk told me that that committee met two-thirds of the time of all the other select committees put together; I’m just reinforcing the comments from both sides of the House on what a fine committee we have, and well chaired.

This bill, really, is a journey through history to how we arrive at this place. These three provisions, the main provisions, that we’re repealing here have great historical context. Blasphemy: one only has to visit the great democratic institutions, the art institutions, the music institutions of Europe just to understand the role that religion and the Church played in society leading up to, really, the time that many of our European ancestors came to this land. So as we are now regarded as one of the more secular countries in the world, we now are removing what is something that would have been highly relevant at the time it was introduced simply because of the hold that the Church and religion had on our society. And I can’t help but reflect that, as we mature as a society, those new New Zealanders who come fresh from their homelands, as all our ancestors did—whether it was Hawaiki, or Ireland, in my case—will bring their beliefs and their religions with them. And what a good example to show that in the new world perhaps the relevance of those old ways can be forgotten and that we embrace being part of the Pacific. We quite happily talk about someone from Argentina being a South American. Do we happily call a New Zealander a Pacific Islander? I certainly think that the day will come when we will.

Likewise I look at the year and a day provision. What that was historically was that if you were to receive a wound—in fact, the World War I centenary has just finished, and we can look at the number of people who died from very minor wounds because of infections and various other things. We’ve fixed that, and people who would’ve been expected to die of relatively minor wounds in the past now will survive major trauma and may actually go on for up to five years. As a good example of that, police have been revising the wall at the college for those who were slain on duty, killed by a criminal act. A new name will go on there because when they did it historically they found that people had died about five years later from wounds that they sustained on duty.

And, of course, the third part about it is the removal of accessory after the fact, where someone who did assist their spouse to escape a crime, as an accessory, could claim immunity. That is no longer the case, and, again, what better reflection of New Zealand society than the number of people who actually do not enjoy what we would consider marriage, or the sanctity of marriage, having relationships that last a lifetime without actually being formally part of marriage.

So it’s a great walk through history, looking at these provisions, and I’m very happy to recommend this bill to the House.

It is a pleasure to speak briefly, very briefly, on this Crimes Amendment Bill. I’d like to acknowledge Amy Adams, the previous Minister, for her body of work, and I can see that the Hon Andrew Little has taken on three aspects of it, so that’s great. These three are pretty minor but also very archaic pieces of legislation.

I’d like to acknowledge the Justice Committee, which I was formerly on for a brief period of time—a very hard-working select committee, and I think I dodged a bullet when I got shifted off that. They work so hard under Raymond Huo, so a credit to them.

Look, in terms of the blasphemous libel, I think any law that hasn’t had a conviction or prosecution for nearly a hundred years warrants a look at, and it also, obviously, conflicts with our New Zealand Bill of Rights Act, so it’s a no-brainer in terms of getting rid of that law.

The year and a day rule—I think back to my experience in the police where we had a case where a man was seriously assaulted—quite badly assaulted—but he survived. He received injuries that could have killed him, but he survived. Basically, the injuries he suffered were debilitating, and he never recovered. So he was hospital-bound, basically, until he died, and it took him a year and a bit to die. He was a healthy, fit man prior to that, and the injuries that he got led to his body breaking down, and he eventually died. The year and a day rule meant that he couldn’t be charged, and I just felt that it seemed unjust. So credit to Andrew Little and his team for pushing this through.

In terms of the CTV building and Pike River and Cave Creek, yes, those cases now, if this law gets passed—people will be held responsible in those situations, and I think everyone in New Zealand will agree with that.

Finally, the spousal immunity—I was a detective in a detective training school, and we covered this particular law, and it always struck me as odd that just because you were married to someone, you couldn’t be prosecuted for offences. It just didn’t seem right. You could be anything other than in a marriage and you could be prosecuted, but for some reason spouses got immunity, and it just seemed like an oddball law.

I see that during the select committee process, we disagreed slightly—National and Labour disagreed on—

💬 Ian McKelvie: Slightly!

—slightly, yes, I guess—the retrospectivity side of things and who gets to face the music, and I see that one of the main themes of the New Zealand Bill of Rights Act is that you can’t be charged with an offence that wasn’t an offence prior to—that’s a fundamental law, so I can see that we’re sticking to that.

Finally, section 10A of the Crimes Act explains that criminal enactments cannot have a retrospective effect, so if you take those criteria into account, there’s a good argument. I guess the other argument is that some people don’t end up facing justice. So it’s quite a dilemma to be facing and weighing it up. I’m sure the select committee and the House will come to a good decision at the end of the day. We’ll be fighting out of our corner, and they’ll be fighting out of theirs. In saying that, I commend this bill to the House.

Thank you, Mr Speaker. I do want to really have a short call in respect of the matter just touched on by Mr King, which is the year and a day rule and the question of when it comes into force. I just note that, yes, there were some pretty vigorous exchanges, robust exchanges, at select committee on that point, and we pressed the advisers to provide us the best advice they could on that, and we got very, very good advice indeed, which informed the position that has been taken.

I can absolutely understand the sense that someone who committed a wrong in 1990 that causes a death in the future should be held to account for that. That’s a very real and appropriate sentiment, but the rule against retrospectivity runs very deep, and for good reasons. Dr Smith used the Cave Creek tragedy, a huge tragedy where 14 died due to defective buildings, and he also mentioned the CTV Building, an even greater tragedy, where 115 people died—both of which may be sheeted home to poor engineering, which may be laid at the door, possibly, of particular individuals. Now, because the wrongs themselves occurred more than a year before the tragedy itself occurred, the year and a day rule kicked in. The other situation where it’s come up in recent times was with George Siaosi, which was the coward punch—as it’s called—event where the young man was punched outside a Denny’s and he died 15 months later, meaning that the wrongdoer could only be charged with an offence which was less than the murder, which might otherwise have been the case.

Now, there are, essentially, three situations here. There’s no suggestion from any side of the House that we embark on some retrospectivity where both the wrong and the death occurred historically. And we all agree that looking forward, where the wrong and the death occur in the future, the law will now capture it because we’re doing away with the year and a day rule. Where we disagree is that narrow band of cases where the wrong occurred historically, but their death occurs after this comes into force. Now, that would be retrospective because when the wrong occurred, the law provided this defence.

Mr King referred to the New Zealand Bill of Rights Act. It is a fundamental precept; these are the words of the Act: “No one should be liable to conviction [on] any offence on account of any act or omission which did not constitute an offence by such [a] person under the law of New Zealand at the time it occurred.” That is absolutely fundamental—that people, when they’re engaging in conduct, do so under the law as it stands on that day. We don’t look backwards in time and think, “We should have captured that by the law; let’s change the criminal law retrospectively.” Indeed, the Crimes Act itself, section 10A, reiterates that by saying that there’ll be no criminal liability in respect of any offence which was not an offence at the time.

So the position in respect of retrospectivity is entirely appropriate. In fact, it’s more than that; it’s constitutionally required. So that’s really the only contribution I wanted to make on this bill: to make very clear the discussions that went on, the advice that was given, and the reasons for having a piece of legislation which is forward-looking only. I commend the bill to the House.

Just an opportunity to take a brief call on the Crimes Amendment Bill. One of the things that I kind of like in this place—I’m a bit unusual, because I’m not someone who loves to make more legislation, but I’m quite excited about getting rid of a bit that’s no use. And I think that’s the thing that appeals to me about this bill—well, there’s another thing that appeals to me about this bill, but that’s one of the things that really does appeal to me about this bill.

I listened to the debate led by Nick Smith, actually, earlier on, on the year and a day rule, and then the previous speaker, Dr Duncan Webb, just referred to the exact same point. It will be an interesting debate during the committee stage, to just see where that lands, or where some of the commentary on that lands, because I have a bit of difficulty myself with being found guilty of something that I wasn’t guilty of, at the time I wasn’t guilty of it, and I think that that’s going to be an interesting discussion as we go through it. But you can see that the law really is a bit of an ass, and particularly in the modern day and age, with medical science being where it is and the fact that we can, whether we like it or not, be kept alive, even against our will, for considerable periods of time.

And so, whilst there’s that aspect to it, there’s also the aspect to it of things that we built and did in a bygone time, really, and they then fall down as a result of a modern event. There’s a great argument as to whether that is a criminal offence or not, as to whether it should be included in this kind of bill. So I think that debate will be really interesting as we go along.

The other thing that kind of intrigues me is the blasphemous libel thing. There was a time, of course, when New Zealand was made up of a few Presbyterians, a few Catholics, a lot of Anglicans, and one or two atheists, and it was pretty simple in those days—the atheists weren’t allowed to be miserable about the rest of us, and that’s how it worked. But nowadays, of course, our society’s hugely diverse, and so what was thought of as blasphemous libel, I suppose, 150 years ago, really, anyone could take offence at that sort of thing nowadays, but we are such a diverse society and such a diverse community that the way we deal with those sorts of things—I think it comes down to a lot of things in life—really results in mutual respect, basically. So I don’t mind what anyone else wants to do, as long as they don’t want me to do it for them or with them, and I think that’s the kind of issue that we’re dealing with—that blasphemous libel thing. And I think to get rid of it is absolutely appropriate.

The other thing that I think is an ass—and we’ve seen a number of examples of this in recent times, too—is where people are protected against prosecution because of their association with the guilty party. There’s no question in my mind that that’s a law that no longer should exist. And, again, that’s because society has changed dramatically, even in our lifetime—it’s certainly changed dramatically in the last hundred-odd years. So getting rid of that, I think, is an appropriate use of this bill, as well.

I think those people who have done the work on this bill should be congratulated. It does tidy up a few things that are untidy, and two of them have, interestingly, been quite topical in the last few years in debates in this House; so to tidy that up, I think, is really good. I think it keeps the statute book up to date; it’s pretty positive.

The only other thing I just want to very briefly touch on with the Minister—I want to congratulate him on his great taste in bringing a very good Supplementary Order Paper to the House, which, no doubt, will be dealt with during the course of the committee stage, and I want to thank him for that. Thank you, Mr Speaker.

It is an absolute privilege to speak, for a very short time, in support of this bill. There’s a lot of work gone into this and, on the whole, I agree with pretty much everything that’s been said. I want to acknowledge the work of the Minister, Andrew Little, and his officials to get us to this point. I also want to acknowledge the previous speaker, Ian McKelvie from Rangitīkei. His member’s bill that has been absorbed into the Minister’s Supplementary Order Paper (SOP) that he mentioned in his speech is a good bill. It was unfortunate that it got stalled at the Justice Committee process but I acknowledge him for working alongside myself and the Minister, for using this opportunity through an SOP to address the issue and fix the problem that we faced at select committee. I very much look forward to discussing that SOP at the committee of the whole House. I see no point in holding up proceedings when we all agree. I’m looking forward to seeing this bill pass through to the next stage. Thank you.

Bill read a second time.