Crimes Amendment Bill

Thank you for the opportunity to continue speaking on the Crimes Amendment Bill. Obviously, there are a number of different aspects to Part 1, and I understand other colleagues will focus on some in which they have particular knowledge and expertise. And in my case, now I’d like to focus on the repeal of section 123 of the Crimes Act 1961—that’s clause 5 within the amendment bill, the repeal of blasphemous libel. So to understand, of course, what we’re doing with this piece of legislation, we need to understand what it is that is being repealed. So it is then that we look at section 123 of the Crimes Act and the terms of that provision.

The first thing to note—[Baby crying]—as I note with some dismay that my speech has not been well received in all parts of the Chamber, but I did not think it was that bad, Madam Chair, and I fear that the Government whip is about to undertake the same action—is that blasphemous libel has a particular meaning within the law. Of course it’s within the Crimes Act, which is a code, but it’s worth taking a moment to understand the component parts of that.

First, libel has an ordinary, natural meaning, something akin to defamation, which in our civil law is relatively well defined—as well defined as anything that is a tort can be—but in this context it is libel, meaning, essentially, something that is adverse that is said, and in this case in the context of blasphemy. The difficulty of the concept of blasphemy is, of course, that it defines an action that’s unacceptable in relation to how another might view words or actions as acceptable or unacceptable in accordance with their own beliefs, and in a pluralistic society where we don’t all share each other’s beliefs that is a problematic concept in itself.

I won’t take the committee’s time—because I know it won’t be allowed by you, if for no other reason—to draw links between other problematic concepts such as hate speech, so allow me to move on, please, and consider further what exactly it is within the Crimes Act that we will be repealing by way of blasphemous libel.

So we see in the Crimes Act that blasphemous libel is a question of fact, and a question of fact means that it’s something that’s not a question of law. So there again there’s a particular meaning, but, again, the problem is in the case of blasphemy that it’s really a question of taste, and the taste of one person in these matters is very different from the taste of another. And so it is in section 123(2), again, of course, within the provision that we will be repealing in this amendment bill before us now that we see that a question of fact would be determined by a court, and that would have reference to a number of sort of nebulous concepts to do with the approval or non-approval of what has been said or done by one person.

Looking a bit further at that detail, at subsection (3), we see the expression “good faith”, and it’s slightly ironic that the phrase “good faith” is used because it might almost have a sort of religious overtone to it. But within the law it has a particular meaning, of course: I would say something like bona fides, but I think that is nothing more or less than a translation back to the Latin. So moving on from the circularity of my own argument, I would just note that it’s a difficult matter to decide what is acceptable or not, and so it is that we regard, I think unanimously in this House, that it will be worthwhile to repeal this aspect of the law, and hence that is one of the things that this amendment bill is seeking to do.

One of the other elements in defining an offence—or actually, particularly, to say what is not an offence of blasphemous libel—is the concept of decent language. And the quaintness of that expression might perhaps mask the fact that it is again a difficult concept to grasp, and certainly to enforce in a legal sense, because the concept of decency, again, will be very much a subjective one, and yet with such consequences as up to one year imprisonment, these are not matters that we should take lightly at all.

So too it’s difficult to define what is a religious subject. In many cases, it will actually be quite clear, and so the concept of blasphemous libel will be straightforward enough, at least in terms of whether it might apply in the first place, in some situations, but in others what some might regard as an article of religious faith and others might regard differently, a moral or ethical proposition or a philosophical one, again, is difficult to determine. So, for these reasons, we join with all sides of the House—as I say, I think we expect that there will be no objection to the repeal of blasphemous libel.

I think it’s worth noting in that connection, in my remaining time, that the select committee reported that they received a number of submissions on this point. Ultimately, they didn’t recommend any changes to the bill that had proposed the repeal—in other words, the select committee did support the repeal of section 123, and they did so noting diligently that submissions had been made about the possible encouragement of hate speech. As someone who believes in free speech—not as an absolute matter, I suppose, because there are always obvious exceptions to that, but certainly erring on the side of believing that people should have the right to freedom of expression—it seems, again, an undesirable thing for the State or the instruments of the State, through the judicial system, to be deciding that which is hateful and that which is not.

Anti-religious conduct was something that some submitters felt might be implicitly encouraged. I suppose, in the way that all legislation might be said to encourage a person to do a thing, in that it sends a message, in this case I think it’s worth weighing that up against the practical costs of having such a law on our statute book, and, in particular, those chilling effects that I mentioned earlier.

In my remaining time, I’d just like to state for the record that while most members of this House—perhaps all members—might regard it as undesirable to allow things that foster resentment and division and so forth, and certainly we don’t say that this is a good thing, by removing the law of blasphemous libel, the limitation of Government is such that we can’t and shouldn’t expect that everything that is undesirable be banned by way of the criminal law by this House. And so it is that I will conclude by saying that section 123 on blasphemous libel within the Crimes Act will be a relatively easy matter, I think, for most in this House to support in repeal by way of this amendment Act, and I look forward, hopefully, to hearing any comments that the other side of the House, or indeed my own, might have on that, or the Minister; not that I have any questions in that. I think that at least is a straightforward matter. I thank you for the chance to speak.

Thank you, Madam Chair, and I thank the member Chris Penk, who has just resumed his seat, for his contribution to this part of the debate on the Crimes Amendment Bill. Can I turn to the points that he made at the beginning of his contribution yesterday, which related to Supplementary Order Paper (SOP) 185, which is the provision relating to livestock rustling and the penalties that are now introduced explicitly for that. I thank him for his support for that, but I note the question that he posed about the phraseology in it and, specifically, the reference to “livestock or any other animal”. I understand that on its face there may be some confusion. Why talk about livestock? Why also talk about an animal when, of course, we know that livestock typically relates to animals?

The term “livestock” typically relates to animals of a particular type or category—namely, those from which the owner derives a commercial interest. And one can contrast, for example, the flock of sheep with the sheep dog. The flock of sheep, clearly, carries value, and it is often sheep that are the subject of livestock rustling. But it would be wrong if the sheep were to be, frankly, nicked and taken off the property along with the sheep dog, and this charge could apply to the sheep but not to the sheep dog. Or I might refer the member to the very tragic and brutal case of Spark—not the telecoms company but, actually, the miniature horse brutally stabbed 41 times earlier this week. It would be wrong if Spark, rather than having been stabbed was stolen and taken off the property, could not be the subject of a livestock rustling charge because it was an animal other than one from which commercial interest is derived. So I think there is a very good reason why the wording is as it is.

I just want to acknowledge, in relation to that SOP, the origins of that, because I know members will be concerned that it comes here as an SOP. It wasn’t considered by the Justice Committee along with the rest of the bill, but it was considered by the Primary Production Committee in an earlier guise, under a member’s bill advanced by Ian McKelvie when he sought to bring that along. As a result of collaboration between Mr McKelvie and Kieran McNulty and, indeed, in conjunction with myself in backroom discussions, we were able to reach an agreement that we could bring it in, with the concurrence of members opposite, to this bill and make it part of, I think, a long overdue part of our criminal code.

Frankly, it beggars belief to me that in a country that, pretty much since the inception of its European history, has been dependent on its agrarian economy to sustain and survive, we have not had an explicit charge of livestock rustling on our statute book. When you go to the Mackenzie Country—and you know the historical origins of the term the Mackenzie Country: it was an area of New Zealand built on sheep rustling, and we have not had on our statute book a crime of livestock rustling. Well, a historical step is about to be taken by this House, and we will place the crime of livestock rustling where it ought properly to be, which is in our criminal code. So that is very good.

Can I comment briefly on some of the other aspects of Part 1? The repeal of section 71(2) of the Crimes Act provides a protection for spouses of somebody who has committed a crime and they have been protected or harboured by their spouse. That immunity from prosecution no longer exists. It comes from an old historical view about one’s spouse—that two spouses were kind of one and the same thing and they were inseparable. That is not the reality of human life today, and so it is right that if one’s spouse commits a crime, there is no immunity from prosecution for obstructing the course of justice from bringing the offending spouse to justice.

In relation to blasphemous libel, I think it has been said for some time—indeed the previous Government, or a former Prime Minister, the now Sir John Key, said that this was a crime that ought to be deleted from our Crimes Act. It’s taken a while to get there, but that is now being done.

Can I just take a moment to speak on the repeal of what is known as the year and the day rule? This has been a law that has been applied controversially in a couple of cases recently, not the least of which was the fallout from the collapse of the CTV Building in the earthquakes in Canterbury. After considerable investigation and exploration of the legal niceties of it, the police and the Crown Law Office got to the point where they considered that they could not mount a prosecution on the grounds, at least in part, of the application of the year and a day rule—that is to say, section 162 of the Crimes Act.

That law was put in place at a time when science did not allow for the continuation of life when somebody had been seriously injured or injured in a way that was expected to be fatal. Of course, that is not the case any more, and people can continue to thrive and to survive for some considerable time because of the intervention of medical science. So that provision has no real application today. I know it will be a matter for Part 2, but I do acknowledge that the Hon Dr Nick Smith has lodged an SOP that provides an amendment in relation to it. We will come to that debate, except to say that I am totally and utterly horrified by that proposed amendment. We’ll come to that debate in Part 2.

I just want to say that, that issue apart, all of this should be uncontroversial. These are tidy-ups to the Crimes Act. I can tell the House that there is other work going on—a more extensive review of the Crimes Act. We need our Act both in language and in practice and in spirit to be reflective of the way life is led today and the way people conduct themselves, and to have a criminal code that has the confidence of the people and that can be practically applied by our police force and any other enforcement agencies so that people do know that when they are offended against or when they are harmed, whether it’s physically or in other ways, we have the means to bring justice for them and to bring those who have offended against them to account.

So I look forward to the remaining debate, but I think there will be a very important issue in relation to repealing section 162. It was debated thoroughly at the select committee, but there is now an SOP that does require this House to get to grips with very serious constitutional issues and issues that have been canvassed in other legislation. But we will get to that in Part 2. Thank you, Madam Chair.

It’s eight years this week since, I think, every New Zealander was shaken by the tragedy of the Christchurch earthquake in which 115 people died in the CTV Building. The royal commission that the previous Government established rightly concluded that the engineers who were responsible for designing that building in 1986 breached the most basic standards of engineering with that building. I think every member of this House would feel the injustice of the families—that because of the one year, one day rule no prosecution could be taken for that negligence. So, on that basis, I am pleased that we have a bill that is to repeal that provision.

I was surprised to read the history that the one year, one day rule dates back to 1276. I’m not sure that in 1276 the judges of the time applied their minds to the challenge of a modern earthquake engineer and his responsibilities to design a building so that it would be resistant to an earthquake. In fact, for all practical purposes, the one year, one day rule exempts engineers completely from the liability, because it would be very unusual for a building to be designed and constructed before one year and one day was up. So its repeal is very important.

But here’s the bit that really upsets me, and I want to appeal to every member of this House to reflect on what we are doing here. If, in 30 years’ time, one of the 3,000 new buildings in Christchurch pancakes and kills a hundred people, the Government is saying that that engineer will be able to use the one year and one day law and, again, an injustice will be committed. I would appeal to this House and ask them to read the very strong statement from those CTV families that that would be unjust.

Now, just so you don’t think I’m making it up, the officials at the select committee said that that scenario was absolutely true. In 30 years’ time, if a new building that’s been constructed post the Christchurch earthquakes pancakes and kills a hundred people, Parliament is being asked to say that’s OK and those engineers won’t be accountable. That is not OK, and this Government is seriously letting down the families and the memory of those 115 people who were lost in those earthquakes.

Well, the Minister is nodding his head. Can I ask the Minister this question? If his bill is passed and a building that was designed today collapses in a major earthquake in 30 years’ time and kills a hundred people, will the engineers be able to get off on the one year, one day rule? The officials advised the committee they would. Does the Minister confirm that that scenario is correct? The Minister is silent. It’s all very well nodding his head, but I think a Parliament, on such a serious life and death issue, deserves an answer. If a build designed today fails in an earthquake in 30 years’ time and kills 100 people, will this bill let those people—those engineers that made the error—get off the hook? The answer is yes. Members on this side of the Chamber say that’s not good enough, but the Government is wanting to spit in the face of the CTV families and allow that anomaly and that injustice to continue, and that is wrong.

But, Madam Chairperson, it’s more important than that, and it’s this. What is clear in the royal commission’s report on the CTV Building is that the design flaws—[Bell rung]

CHAIRPERSON (Poto Williams): Just a second, before I call the Hon Dr Nick Smith to continue with this debate—I’ve waited until you’ve finished that part of the call—just to remind the member that actually the substantive part of this particular argument is best placed in Part 2. So if you could come back to Part 1, I’d be greatly appreciative.

I’m talking to clause 6, which is about the repeal of the one year and one day rule, and the implications that it has—

CHAIRPERSON (Poto Williams): I understand that. However, the substantive part of your Supplementary Order Paper (SOP)—

This is a very important issue. We’re talking about the biggest engineering failure in New Zealand history—

CHAIRPERSON (Poto Williams): Indeed. However—

💬 Kieran McAnulty: Listen to the Chair.

CHAIRPERSON (Poto Williams): I can handle this, Mr McAnulty. I do not need your interaction. The substantive part of this debate with regard to your SOP should occur in Part 2. I have allowed you to traverse this by way of introduction, but, please, if we could come back to the other matters in Part 1 and then, in Part 2, I fully expect that you will traverse these arguments more fully.

I want to further pursue clause 6 and the implications and the incentives that it has for engineers. I think every member of this House will want engineering practice to be as safe as possible and for the incentives for people, when they know that something is wrong, to fix it. I am going to canvass the issue that occurred with the CTV Building, because it is so much behind. The Minister himself has said that this clause 6 has come about as a consequence of the lack of prosecution over the collapse of the CTV Building. And what occurred in the case of the CTV Building is that in the early 1990s, a number of engineers identified that that CTV Building was poorly designed and had flaws. And we in this Parliament should be focused on ensuring that there are the incentives for people where there are faults, particularly faults that could put at risk over 100 lives, that there are the incentives for those people to fix or at least notify the authorities of the faults that are in that building. The great difficulty I have with the bill and with the Government’s approach and the debate that we had on clause 6 in the select committee was that the Government’s policy is that there will be no incentive, because, effectively, the one year and one day rule is going to continue to apply for those buildings.

I would like to draw attention to the CTV families’ statement on this issue today. They have said, and I’ll quote it: “This bill and this clause add insult to injury for the CTV families.” And I do say to the Minister how insulting it is, when he knows the CTV families are so concerned about this bill and this part: why would the Minister add insult to injury and progress this bill in the very week in which those families, including many from Japan, are in New Zealand. When I saw this on the Order Paper today, I just said to myself, “What an insensitive Government—that they would want to progress a bill against the will of the CTV families.” [Interruption] Well, the members opposite think it’s funny. I don’t think I’ve seen a day in which New Zealanders were more grieving, were more shocked, than when the CTV Building collapsed, and I say again that it is insulting for members opposite to progress this legislation against the will of the CTV families in the very week in which we have the eighth anniversary.

💬 Darroch Ball: Oh, come on.

Well, the member says “Come on.” Let me read what the families are saying: “it will add insult to injury.” [Interruption]

CHAIRPERSON (Poto Williams): Order! [Interruption] Order!

I say to the member from New Zealand First, and I’d ask him to reflect on what the Government is doing. I say it to him again. This bill will mean that in 30 years’ time, if we get another CTV Building, those responsible for its design—

CHAIRPERSON (Poto Williams): Order! Dr Smith, we’ve traversed this before. Thank you.

Let me come back to the exact quote from the CTV families group: this bill “will add insult to injury for the CTV families if the Government passes a bill that [will] allow [that] injustice [that they suffered to occur again].” I appeal to the conscience of the Green members, of the Labour members, and the New Zealand First members opposite, and say to them: how would any member in this House want any families to go through again what the CTV families did, the injustice that they suffered, and that is why we need to get the detail of Part 1 of this bill right—[Bell rung]

Thank you very much, Madam Chair. It is an absolute delight to stand in here and speak in favour of Supplementary Order Paper (SOP) 185 in Minister Andrew Little’s name, seeking to bring into the Crimes Act under this SOP, a crime of livestock rustling. Good on the Minister for taking this on. I want to acknowledge the member Ian McKelvie, one of the only gentlemen in this House, who tried to bring this forward—[Interruption] I’m just pleased that people are listening.

What this shows—[Interruption] Madam Chair, I’m very surprised to see the other side so animated about the issue of livestock rustling when the previous Government had nine years to do it and they did nothing—absolutely nothing. So what they relied on was Ian McKelvie to come in Opposition and put forward this member’s bill. And he did try. He tried his best and he got some advice to say that the attempt that he had was out of scope and he couldn’t progress it any further.

We were given some options during the select committee process. They said that he either had to withdraw and submit another bill or continue as it was. And both sides of the House indicated that because it was written the way it was written, through no fault of Ian McKelvie’s, I might add, it could not progress. But what this SOP shows is that collaboration can occur in this House, despite the efforts that some people have seen from the other side this week walking out of select committees and wasting half an hour’s time here in the previous thing.

What this SOP, that I hold in my hand, shows is that there is the opportunity here, when members were willing to do so, to collaborate. So Ian McKelvie and I got together and we went to the Minister and we said, “Would you be willing to sponsor an SOP to introduce the crime of livestock rustling into this bill? They said that they couldn’t do it, because the Crimes Amendment Bill is about repealing things, taking things out of the Act. So they said we couldn’t do it, and what we needed to do was to get leave from the House in order to be able to put this SOP forward.

I think it’s important to make this point for the rest of New Zealand so that they can see that the House can work together so that we can actually address what is an anomaly, like the Minister said earlier, that in a nation like ours that relies on agriculture, with many of the members in here living in regions that rely on agriculture—in fact, there’s some members in here that represent, despite not living there, areas that rely on agriculture—that up until now there has not been a law. It is entirely consistent with the wishes of this country. The numerous people that submitted to the select committee were in favour of this. In fact, as soon as the Minister submitted the SOP, Federated Farmers, that great union of landowners, came forward and said that they were in favour of the Minister’s attempts to try and address this anomaly. Making sure that this this is going to be a crime with an imprisonment term of up to seven years sends a very clear message to people that are thinking of taking away livestock from our farms. [Interruption] It is vitally important—and I’m not too sure why they’re heckling. Perhaps they realised the missed opportunity of their previous term in Government. Perhaps they realise—

I apologise to the member. In accordance with the decision of the Business Committee for Agnes Loheni to make her maiden statement, I will report the bill with progress and the committee will sit again presently.

House resumed.

The Chairperson reported progress on the Crimes Amendment Bill and no progress on the Taxation (Annual Rates for 2018-19, Modernising Tax Administration, and Remedial Matters) Bill and the Accident Compensation Amendment Bill.

Report adopted.