Crimes Amendment Bill

We now come to the debate on Part 2, clauses 7 to 9, and Schedules 1 and 2.

Thank you, Mr Chairman. I think the relevant or most important part of Part 2 is what appears in the Schedule to the bill, and that is a clarification that the select committee, after its deliberations, had sought to insert into the bill. In addition to that, there is Supplementary Order Paper (SOP) 192 in the name of the Hon Dr Nick Smith that I want to speak to as well.

Just on that, I know that at the select committee it was a subject of vigorous debate about the application of—or the repeal of—the year and a day rule, and specifically about whether repealing that law but allowing, for example, structures that are in place today and that might, as a result of negligent design or construction, at some point in the future cause death would not be covered, in a sense, by the repeal. That is to say, the defence of the year and the day would still apply. And there was considerable discussion and debate. There was advice obtained about that. And the bill as reported back to the House from the Justice Committee was that even if all members of the committee were somewhat grudging in accepting that, nevertheless the committee did. There is no minority report in the report that came back to the House from the select committee deliberations. And so that is an important point.

But the real point is this—and I come back to Dr Smith’s SOP, because I said in my introductory remarks that I was, and I remain, frankly horrified that the SOP would be put up. I remain even more horrified when I’ve learnt what has happened in just the last few hours. And I’m going to come to that.

There is a very important principle about criminal law and making criminal law and that is the retrospectivity principle—that something that was not criminal today, but about which a law is made next week and is made criminal, does not mean that the action today that was innocent suddenly becomes criminal and therefore the subject of a prosecution. That is a basic principle that this House, this Parliament, every Parliament and liberal democracies and Western democracies around the world have subscribed to since time immemorial, because it is about protection of the citizen from the abuse of power in this House and by those who wield power. And that was considered and debated at the select committee.

The select committee had pointed out to them two very important provisions on our statute book that reaffirm that principle: section 10A of the Crimes Act and section 26 of the New Zealand Bill of Rights Act. Section 10A of the Crimes Act says, “Notwithstanding any other enactment or rule of law to the contrary, no person shall be liable in any criminal proceedings in respect of any act or omission by him or her if, at the time of the act or omission, the act or omission by him or her did not constitute an offence.” That’s in the Crimes Act right now. Section 26 of the New Zealand Bill of Rights Act uses slightly more modernised language—not the language of section 10A—and it says in subsection (1), “No one shall be liable to conviction of any offence on account of any act or omission which did not constitute an offence by such person under the law of New Zealand at the time it occurred.”

But even though those provisions are on our statute book right now, Dr Smith has done an SOP that makes no reference to those provisions, so even if this committee was minded to support Dr Smith’s SOP, and if that SOP appeared on our statute book, it would not be enforceable. The courts would ignore it. The judges would just toss it aside because it is in breach of and in defiance of section 10A of the Crimes Act and section 26 of the New Zealand Bill of Rights Act. Dr Smith has been here for 27-plus years. He knows about lawmaking. He knows that if you want to overturn longstanding provisions on our statute book through an amendment like that, you actually have to overturn those provisions. He knows that. But he hasn’t done it. And that’s why I get to this point: Dr Smith’s SOP is not just cynical, it is contemptuous, and it’s not just contemptuous of our Crimes Act and our New Zealand Bill of Rights Act, I have to say, sadly, it is contemptuous of the emotions and the feelings of the families who lost loved ones in the CTV Building.

💬 Hon Dr Nick Smith: You lied to them.

CHAIRPERSON (Adrian Rurawhe): The Hon Nick Smith will withdraw and apologise.

💬 Hon Dr Nick Smith: I withdraw and apologise. Point of order, Mr Chairman.

CHAIRPERSON (Adrian Rurawhe): Point of order, the Hon Dr Nick Smith.

💬 Hon Dr Nick Smith: I raise a point of order, Mr Chairperson. I’d ask you to reflect on the comments by the Minister—and I accept this is an emotional and important issue; we’re talking about the large loss of life that occurred eight years ago—to reflect on the comments he’s just made in questioning my integrity in moving amendments on this part of the bill.

💬 Greg O’Connor: Point of order, Mr Chair.

CHAIRPERSON (Adrian Rurawhe): No, I’m going to deal with this point of order, thank you. I will take some advice on that, Dr Smith. In my opinion, the Minister hasn’t stepped over any line yet but it’s very—as both learned gentlemen know where that line is, I think we’ll carry on with the debate.

Thank you, Mr Chairman.

💬 Greg O’Connor: I raise a point of order, Mr Chairperson. I note that Mr Smith has already been removed from the House for a very similar offence.

CHAIRPERSON (Adrian Rurawhe): Order! Order! That is not a point of order. That issue has been dealt with by the Speaker and it is not to be re-addressed again.

In his earlier contribution, Dr Smith described the bill as it is and my actions as spitting in the face of the CTV families. That’s what Dr Smith said. He said that it adds insult to injury. What he’s done is he’s quoted from a media release in the name of the families—and the families I’ve spoken to have not so far endorsed this—that has this quote in it. It says, “We have been badly let down by Justice Minister Andrew Little who committed to repealing this law,”—that’s what we’re doing—“which acts as a potential barrier to prosecution in a situation like the CTV building collapse.” It goes on to say that the House should not pass it in its current form and should adopt Dr Smith’s SOP.

I met with the families on two occasions and they did—they said, “We want to find a way to make a prosecution.” In spite of the advice of the Crown Law Office and the Crown prosecutor in Christchurch and indeed the police, that is their prosecutorial discretion and neither the Attorney-General nor myself as Minister have any power to do anything about that. I explained of course we wanted to repeal the year and a day rule, but there is this retrospectivity principle that is longstanding and it’s enshrined in our law. I had a conversation with the Hon Gerry Brownlee about that, because he had had conversations with a family. And he and I were in agreement that we could repeal the year and a day rule but it would not assist those families in gaining a prosecution.

And I want to speak directly to the families of the CTV victims, because there are media releases, including another media release in the name of Dr Smith, that have gone out tonight that give the impression that if Dr Smith’s SOP was passed, somehow there would be a way to prosecute those who, arguably, caused the deaths of their loved ones in the CTV Building. And I say to the CTV families, you have been very, very badly let down by the engineering profession, by the construction industry, and indeed by the law—not of anybody in this House’s making; it was a law that was on our statute book, it is well out of date and had not been repealed.

But the reality is, in light of the constitutional and criminal law principles that we are bound by, even Dr Smith’s SOP, because it fails to overturn those other provisions, will not make a difference. And that is very difficult to stomach. And I want to say to the CTV families, I’m sorry if others have given you the impression that we can turn the clock back and we can allow a prosecution to proceed. But we cannot.

But we honour you and your loved ones by repealing this law, and those who might otherwise have been the victim of it well into the future will not be in the way that you have been. I hope that you can find peace, and I do say that it is not the job of any member of this House to raise an expectation that this House cannot deliver on. I say to the CTV families who have lost loved ones: this is not a political issue, and there would not be another member of the National Party in this House who would conduct themselves in that way, who would play with your emotions at this very sensitive and difficult time. And to the members of the House I say: there will be grandstanding now by Dr Smith, but that SOP will not achieve what he appears to have tried to lead the families and others to believe it will do, because our law was so very clear. I hope that other members of Dr Smith’s caucus will remind him that this is a House of principle, we apply the rule of law properly, and we make law properly.

What the Minister is failing to do is to focus on the issues of justice, to focus on the issues of the commitments that he made to the families, to focus on making the law so that we have the safest buildings possible in our country, and equally to ensure that the commitments made to the families are honoured. What I heard from the Minister right now was a speech of legal academic and not practice, because here’s the question: if one of the rebuild buildings, of which there are thousands—any one of those buildings, Mr Little, that have been built in Christchurch—in a major earthquake in 30 years’ time pancakes and kills a hundred people, and the engineer, in 30 years’ time, is asked whether he can be prosecuted, what the Minister’s bill says is that that engineer will be able to walk off scot free. Do members of the House really believe that’s just? Do we really want to pass a law that says that, in 30 years’ time, when there’s an earthquake and exactly the same events that occurred over the CTV Building occur, the engineer is going to walk free? And when the officials advised the select committee of that point, I said, “That’s wrong.” I said, “That breaches common sense and it is not right and needs fixing.”

Now, the Minister in the chair pretends that the officials at the committee were opposed to the provision; they actually said the points that I made were very fair—that they were actually morally challenged by the fact that in the future we could have an exact repeat of what occurred with the CTV Building. And here’s what the nub of the issue really comes down to: in 30 years’ time, a major earthquake occurs, and one of the buildings that was designed today collapses and causes the death of a hundred people. The question for Parliament is this: which is the greater injustice? Is the greater injustice that the engineer says, “Oh, but when I designed that building in February of 2019, I thought I could take advantage of the loophole of the one year, one day rule.”? Is that a really awful injustice or is the injustice for the hundred victims who have lost their lives as a consequence of neglectful engineering? That is the question.

The families have been very direct on this, and the Minister in the chair is being disingenuous. He gave an absolute commitment to the families that he would repeal the provision, and he went further—in fact, he’s quoted in the media as saying, “What occurred with the CTV Building will never occur again.” So I’ve got a simple question for the Minister: under the scenario that I paint, where a building designed today collapses in 30 years’ time because of negligent seismic engineering and kills a hundred people, will they get off scot free? Will the Minister answer that question? The Minister is silently looking at his papers because he knows that I’m correct. He knows the advice of his officials, and he knows that, in that circumstance, those families would get off.

Here’s the other point that I’d want to make to the House: surely our focus is to ensure that buildings are safer. No member of this House wants to see a repeat of that tragedy that occurred with the CTV Building in 2011, nearly eight years ago exactly. But here’s the history: five years after that building was built, engineers, including the design engineers, found out that it was deficient but didn’t do anything. So if we can pass and adopt the amendment that I have put forward, ensuring that this one year, one day law does not apply for those buildings that have been designed, it will provide a very strong incentive for any engineer who has been involved in designing a building to ensure that it is fixed.

Well, I’ll say to the Minister—and I am a Fellow of the Institution of Professional Engineers—I’ve probably designed more structures than any other member in this House. I’ll tell you what occurred in both the Kaikōura and the Christchurch earthquakes. Do you know what a technical person like myself does? You spend a month designing a building; you have a major earthquake; you actually want to go and see how it performed. How did it go? And what we will do by ensuring this provision—this loophole—does not operate into the future is provide an incentive for any engineer who’s involved in designing a building who subsequently realises that it has got deficiencies. They will have a duty of care under this Supplementary Order Paper (SOP) to ensure that that building is fixed.

I want to correct an absolutely false statement that was made by the Minister. He has claimed that my SOP, my press release, and my discussions with families have pretended that it would enable prosecution of the engineers who were involved in the CTV Building. Minister, that’s wrong, that’s disingenuous, that’s not in the families’ press release, it’s not in my press release, and it’s not in the SOP that I’ve tabled.

Let me read exactly what the SOP says, Minister: “To avoid doubt, the repeal of section 162 applies to any death that occurs after the Crimes Amendment Act 2019 comes into force.” So what does that say? That says any death that occurs from here. That’s in “after this law is passed”. Well, what the Minister is saying is this—and let’s be quite clear about it—let’s say in August this year there is a major earthquake and a building collapses and people die, the engineers responsible for that death should still be able to get off on the basis of the anachronistic one year, one day law. He shakes his head. So, under his provision, does he dispute the advice of officials that, for all those buildings—on my count, Minister, 4,300 buildings have been built in Christchurch during the rebuild. Should the engineers for those 4,300 buildings enjoy the loophole of the one year, one day law?

The Minister’s provision says, “Yes.” He says that all those engineers should be able to get off. Does the Minister not accept the advice of his officials? For those 4,300 buildings that have been built in Christchurch since 22 February in the rebuild, will the one year, one day rule apply, Minister? Yes or no. The silence is deafening. Doesn’t the Parliament deserve an answer? Wouldn’t you, if you were a person in Christchurch, want to know whether the one year, one day law applied to the 4,300 buildings that have been built in Christchurch to replace those that were damaged or demolished in the Christchurch earthquake? And the Minister won’t give the people of Christchurch a straight answer, because do you know what the straight answer is? He’s leaving the loophole open, and leaving that loophole open is wrong, Minister. It’s unjust. You have become a slave to the law and have forgotten about justice. That’s what the families are saying. That’s what I’m saying to you.

Now, in respect of the issue of retrospectivity, I have heard, Minister, a hundred arguments in this Parliament around where provisions are retrospective and not. It would be retrospective if this Parliament was proposing to pass a law to backtrack and to prosecute the likes of Mr Harding and Mr Reay, who built the CTV Building. That would be retrospective. This SOP does not do that. This bill, under my SOP, will apply only to deaths that occur after the Parliament has passed this law. And I say again to the Minister that he needs to weigh up, in a sensible sense of justice, what is the greater issue. My argument is that there is no engineer in New Zealand who expects the ongoing protection of this archaic loophole. There isn’t an engineer you’ll find who’s relying on that protection. And what the Minister is doing is allowing his commitment to families to be broken—even worse, he is breaking that commitment in the very week that they are going through the grief of the eighth anniversary—and at the same time he is compromising the safety of the seismic standards by not providing for the obligation on engineers to ensure that buildings are safe. So I again say to the Minister: try justice not—[Time expired]

I take the opportunity to respond to the honourable member’s questions such as they were posed in his speech. It was not appropriate, when he posed a question, for me to be shouting over the top of him, as he seemed to be expecting. I go back to the point I made earlier: if that member was serious about overturning the longstanding principle we have about retrospectivity, enshrined in section 10A of the Crimes Act and enshrined in section 26 of the New Zealand Bill of Rights Act, his Supplementary Order Paper (SOP) would have been drafted to do that—to exclude those enshrined provisions—but he didn’t. He didn’t because he has said to the families, “I am going to use you for my political fodder. I am going to play with your emotions—

💬 Hon Dr Nick Smith: I raise a point of order, Madam Chairperson. I take grievous offence at the assertion by the Minister that my motivation on this issue, as both a Fellow of the Institution of Professional Engineers, is anything other than ensuring that we have the most just law and that we have the most safe law on the serious issue of seismic safety.

CHAIRPERSON (Poto Williams): Dr Smith, I understand that there’s been a lot of heightened emotion during the course of this debate, and I can understand on both sides that we probably have toned it up a little too high. This is a very serious matter. It has the potential to be a very emotional matter. So I would suggest to both parties in this discussion that we actually take a much more professional approach. I believe that the families at the heart of this particular discussion deserve no less.

💬 Hon Dr Nick Smith: I raise a point of order, Madam Chairperson. The Standing Orders are very clear that if a member takes offence—and I take absolute offence at the Minister’s assertion that I have moved this Supplementary Order Paper on the basis of exploiting victims of the CTV disaster. I take offence at that, and the Standing Orders are very clear that if a member takes offence, the member who has made those offensive remarks needs to withdraw them. The Standing Orders are very clear.

CHAIRPERSON (Poto Williams): Indeed they are—indeed they are. There is also the provision for the House to take offence, and what I’m saying to you, Dr Smith, is that this is a very emotive discussion at the moment. What I’m suggesting is that perhaps we all just take a deep breath and come back to the matter at hand rather than heighten further the emotions in this particular debate. There is a provision within the Standing Orders for the House to take offence. I’m suggesting we’re getting close to that, but in this case I have not taken offence at that. I would encourage the Minister to be a little more respectful of the discussion.

I’m obliged, Madam Chair. I do point out that I have been accused of making a promise to the families that I have not kept, which is equally outrageous too. This is a sensitive matter and, as I said before, those families and others—you think of Cave Creek as well—who have been victims, who have lost loved ones as a result of other people’s failures, about which nothing was done subsequently, this law hasn’t helped.

My promise to the families and to their legal counsel was: we will repeal the law. But tragically, regrettably, and unfortunately, we cannot do anything to wind the clock back to give us grounds to prosecute. They are entitled to feel totally let down by the system, totally let down by the engineering profession and those who were responsible for that tragic, tragic event. I remember it well, because I was on Cashel Street on 22 February 2011, hundreds of metres up the road from the CTV Building. I remember that day well. And I remember the horror that I and my colleagues I was with at the time saw when we saw a building that was standing only minutes before was pretty much gone—was gone. I’ve met the families and we’ve had that discussion, and it hasn’t been an easy discussion for them, but as representatives, as lawmakers, we can only do what we can do within our legal conventions and with the requirements upon us.

Now, of course it would be nice for those who have been victims of great tragedies, tragedies that have actually been the responsibility of the failed actions of individuals—but we cannot provide recourse, historical recourse, in every case. I’ve had that discussion with members opposite, principally with the Hon Gerry Brownlee, and we agreed. If that member wanted to overturn the conventions that bind us and that bind judges when they interpret law, he would have put it in his Supplementary Order Paper (SOP) 192, but it has arrived late and that isn’t there.

It is a matter of great regret, but this House has to act in accordance with the rule of law itself. That’s what gives credibility to the laws that this House passes. And even if that law were passed, it would have no effect, and anybody who says otherwise would be misleading those who might hold out some hope. So I say that that SOP that that member has put up will make no difference. You would have to say that at a technical level there was no need for the clarifying point in the Schedule to the Act, which is part of Part 2, but it is there because members wanted it, and clearly it was the subject of great debate at the select committee. But it is there and it states what the law is. It states the principle of the rule of law and it echoes what those principles are that are enshrined in the Crimes Act and the New Zealand Bill of Rights Act, and the SOP does nothing to change them. The SOP would have no effect. So there is no basis on which this committee could conceivably and in good conscience and acting in good faith support that SOP.

Thank you very much, Madam Chair. Allow me to start by offering my condolences to all who had been involved in that tragedy and, no doubt, remain involved emotionally through the loss of loved ones. May I also say that I understand clearly the arguments on both sides in relation to the issues at stake regarding retrospectivity in the criminal law and also the requirements of justice more generally, as set out very passionately by the Hon Dr Nick Smith.

I want to make a contribution that is somewhat technical in nature, in good faith and sincerely, in the hope that we can understand more clearly together what is in fact being proposed. Particularly, Madam Chair, I ask the Minister, through you, to consider—and, obviously, consult with his officials if he sees fit—the nature of retrospectivity that he cited in the New Zealand Bill of Rights Act, that section 26. It precludes people from becoming liable for conviction of acts or omissions that were not offences at the time they were committed. What we’re actually talking about here is an act or omission in a faulty design of engineering, and we’re using the Christchurch CTV Building as an example. But that act or omission of designing the building in a faulty way such as to cause death is already now, and was back then and will remain, an act which is criminal in nature.

So what is being repealed here in the Crimes Amendment Bill, which is the year and a day rule, so-called, is effectively a defence against the consequences of having done that criminal act. We are not, in other words, saying that something that is not criminal today will be criminal the day after the legislation is enacted. We are merely saying, in effect, that a defence is being removed. So the retrospectivity both in section 26 of the New Zealand Bill of Rights Act and section 10A of the Crimes Act is actually such that the retrospectivity preclusion that the Minister has referred to would not in fact be engaged, in my view. So when the Minister says that the retrospectivity elements elsewhere in our law would need to be overturned, I don’t believe that is true because, as I say, the act or omission at stake here, that will continue to be at stake in other such situations, is already a criminal act, whether that be murder, manslaughter, or other

I don’t need to take up the full five minutes, but I did want to make that contribution because I believe in good faith that it will be helpful to us all to understand, and I would genuinely welcome a response from the Minister on that point. I will, just for the sake of completeness, say that of course if it were the case, even if I were wrong on that point—arguing in the alternative, essentially—the fact that New Zealand Bill of Rights Act precludes something does not in itself mean that the courts wouldn’t enforce the new section, as it would become if Dr Smith’s Supplementary Order Paper (SOP) 192 were successful, because, of course, the New Zealand Bill of Rights Act isn’t supreme in that way. At most they would issue a declaration of inconsistency if they saw fit.

The other provision in the Crimes Act would be more problematic, but for what it’s worth that would be relatively easily disposed of, and I appreciate that the words “despite section 10A” aren’t in the SOP, but for the sake of making as complete a technical contribution as I’m able, I do note for the committee that that would be an option open to it. So, on that note, I’ll finish there, but I would very much welcome a comment on the retrospectivity of acts and omissions versus criminality of acts under the criminal law as it currently stands.

It’s a pleasure to speak to this and I do so with reverence and sympathy to the situation we find ourselves in, in this committee. I want to acknowledge the contributions of the Hon Andrew Little and the contributions of the Hon Dr Nick Smith. As an engineer myself, as somebody who knew the engineer that designed the CTV Building, and as somebody that has watched with great interest, the challenge really for us in this Parliament is not the difference between what the Minister thinks and what Dr Smith thinks. The real challenge for this Parliament is: can we do something about it? In reality the one year and one day provision means that if negligence occurs within one year and one day, there are potentially criminal charges liable, but if negligence occurs at one year and two days, then under the previous provisions that would effectively mean you could get off those criminal charges.

Now, I’m not a lawyer like many in this House are, and the contribution of Chris Penk, I think, was very succinct on the issue we’re talking about. What we’re really dealing with is buildings that are designed right up until this bill gets Royal assent, and the fact that they will still be covered by the one year, one day provision. That’s my reading of what’s said. Those 4,000 buildings are still covered. As Dr Smith said—and I understand the significant emotion—in 30 years’ time, if the same incident occurred as happened in Christchurch, that same provision could be used to null and void the negligence and criminality that goes with that. With respect, Minister, what I’m seeking from this committee is: is there a way, considering the Bill of Rights Act, considering the significance you have, rightly, told the committee about of section 10A, that we can deal with that somehow? And if it can’t be dealt with here tonight, I think it is of such significance that this bill should be delayed until we can find a solution.

Now, Minister, you shake your head. I’m not a lawyer and I’m not the Attorney-General. I get that. But what I’m saying is that we have told the families we can’t fix what happened in terms of negligence and the law. We have told them that. Dr Smith is not trying to go back there. He is trying to talk about what happens in the future. And as a member of Parliament, as a member of Parliament sitting here tonight, I am trying to find a solution as to how we deal with the buildings that have been built from since the CTV collapse until the Royal assent is gained on this piece of legislation as it’s listed.

Because what, as I read it, this legislation says is that that provision which gives an opt-out for negligence after one year and one day will apply to all the buildings that have been designed and built from the Christchurch earthquake until the passing of the Royal assent. Now, Minister, if you are going to stand up, and I invite you to—not in a challenge—and if you say to this House “We can’t do it and there is no legal provision.”—

💬 Kieran McAnulty: He’s said that.

—then, yes. But I’m not sure we’ve explored all options, because what I’ve heard from the Minister, Mr McNulty, is comments about what Dr Nick Smith is saying that are different from what he’s proposing. Nobody is trying to go back for retrospectivity for the people that, unfortunately, lost their lives. What this committee and I are particularly interested in is seeing if there is a solution, using the best legal minds we have in this Parliament and the advice we’ve got, to find a way. Because otherwise we are simply waiting and we have given all those engineers an opt-out provision from the time of the Christchurch earthquakes to the time of the Royal assent. My question to the Minister is: is there any way possible, considering the significant loss of life, considering all the investigations we’re doing at the likes of Pike River and things—is there any way possible we can solve this dilemma?

There’s a very important question that the Minister in the chair needs to answer for this Parliament, to answer for the people of New Zealand, and to answer for the CTV families. I’ve asked it twice, my colleague has just asked it, and it is critical and may well be the subject of a royal commission of inquiry and other discussions in the future: will the one year and one day exemption be available to an engineer who has badly designed any of the 4,200 buildings built in the Christchurch rebuild?

The officials told the select committee they would be exempted and that they would be able to use that loophole. I ask again—for the Minister; he’s been nodding his head and giving all sorts of answers—why can he not answer that critical question for the people of Canterbury? Isn’t the silence deafening? Isn’t that a question that my colleagues would like the answer to? Wouldn’t the half a million people who live in Canterbury and went through the Canterbury earthquakes and have seen their city demolished and rebuilt—haven’t they seen all the tears and emotion that the CTV families—don’t they deserve an answer, Minister? Why can you not simply answer the question: will your law allow the loophole that resulted in the injustice for the CTV families to be repeated in future with a similar scenario to the CTV families’? The answer is yes, the answer is that that is wrong, and that is why the law should be changed.

Let’s just go through the scenario of the buildings. We’ve got one group of the buildings, like CTV and the Pyne Gould Corporation buildings and the like, that were built and have failed. Nobody in this Parliament is arguing that you could rewrite those laws for where people have previously died. Nobody’s suggesting that. But you have this massive group of buildings that have been built since the earthquakes, before this law has passed, and the key question is: will this loophole be available for those buildings? Our view is no, they should not. Members opposite are saying that rule—the loophole—should continue for those buildings. If we take nationwide, Minister, we’re talking over 220,000 buildings.

Of course, I acknowledge there is no question that for buildings that are designed after the passage of this law—they’re buildings that will be starting to be constructed in 2020 and beyond—quite rightly, the loophole does not apply. But, actually, whether that loophole is available to those 220,000 buildings around New Zealand is absolutely a pertinent point on which this Minister has it wrong.

Now, the Minister has said, well, you can’t do what I propose in my Supplementary Order Paper because it might breach the New Zealand Bill of Rights Act. Well, actually, he’s been responsible in passing in a waka-hopping law that breached the New Zealand Bill of Rights Act. We have a bill before the House right now on euthanasia that members will be debating which, we’re advised, breaches the New Zealand Bill of Rights Act because it discriminates against 16- and 17-year-olds when the age should be 18. That is not a legal impediment. Parliament is sovereign; Parliament is able to deal with that.

Let’s further deal with the issue of section 10 of the Crimes Act. At the very core of the Minister’s claim is that it is not an unlawful act to build a building that is seismically flawed, resulting in death. Actually, it is. Absolutely, it is. Here’s the silliness: the silliness is that if I as an engineer design a building today and it fails on the 364th day and kills a hundred people, I’m in the gun. But just by the anomaly of this archaic law, if it happens to be 367 days, I’m free. So it is a crime right now—criminally negligent for an engineer to build a building. So the argument he poses in respect of both section 10 and the New Zealand Bill of Rights Act is incorrect.

Let us be in absolutely no doubt: the Minister gave a commitment to the CTV families that said the CTV injustice would never occur again, and what we know with this Government’s policy is that for 220,000 buildings, if any of them are badly designed, they can still use this loophole and that injustice is repeated.

Thank you, Madam Chair. The couple of questions arising out of those last two contributions—Mr Penk raises, with his highly analytical view about section 10, whether or not it is about an act or omission. What it is about, and what section 10A of the Crimes Act and section 26 of the New Zealand Bill of Rights Act are getting at, is that someone who is not criminally liable today for something—for a failure on their part, an act of negligence—which later causes a death, cannot be or should not be, through dint of passing a law, made criminally liable later. That’s the retrospectivity principle. So that is what is being applied here. In relation to Dr Smith, who—

💬 Hon Dr Nick Smith: Can you answer the fundamental question?

CHAIRPERSON (Poto Williams): Order! Dr Smith, you’ve had sufficient time—order!

💬 Hon Dr Nick Smith: Point of order.

CHAIRPERSON (Poto Williams): Dr Smith, no. Resume your seat, Dr Smith. You’ve had sufficient time.

💬 Hon Dr Nick Smith: I raise a point of order, Madam Chair. One of the most important functions of the committee stages is for members to be able to ask questions of the Minister.

CHAIRPERSON (Poto Williams): And you have done so, and the Minister is attempting to answer those questions. They may or may not be to your satisfaction; however, you must give the Minister an opportunity—

💬 Hon Dr Nick Smith: No. I and, actually, four of my colleagues have asked exactly the same question as to whether the loophole will apply—

CHAIRPERSON (Poto Williams): And as I say, Dr Smith—

💬 Hon Dr Nick Smith: —to the 4,200 buildings.

CHAIRPERSON (Poto Williams): Dr Smith, as I say, they may or may not be to your satisfaction; however, the Minister is attempting to answer those questions. Now, when we come back to giving the calls to the committee, I will expect for us to be traversing some other arguments. We’ve covered this sufficiently. The Minister is attempting to answer the questions you have put to him. I call the Hon Andrew Little.

Thank you, Madam Chair. The Hon Dr Smith raises the point—he’s posed the question, the question that was put at the select committee too, and he got the response. That is the tragedy about why leaving it until now to repeal this law when it could have been done earlier—good grief, that member, I think, was in Parliament at the time of Cave Creek. Why wasn’t it done then? Nobody on that side of the House took an ounce of effort to repeal this insidious law. We have done so. The great tragedy is that we cannot turn the clock back and we cannot make people who we would like to have thought were criminally liable yesterday criminally liable tomorrow. That is not the way we make criminal law in this country. We have never made it that way. The real question that Dr Smith is really trying to pose is: will his Supplementary Order Paper (SOP) enable the CTV families to get something they cannot get? And it won’t. That’s the tragedy of his SOP; it is about raising false hope. If that’s the impression that he is intending to give—that he appears to have given, if you look at the statements from the representatives of the family—that is just compounding tragedy upon tragedy and, I would say, is reckless for a member of Parliament.

💬 Hon Dr Nick Smith: I seek the leave of the committee, given that the Minister in the chair has made false statements about the CTV families group, to be able to table their statement that makes it absolutely plain that they have no expectation of my Supplementary Order Paper enabling the prosecution of the engineers responsible for the CTV building, but that it would make a reassurance that that would not occur. So I seek leave to table the statement that’s been made today by the CTV families group, dated 20 February 2019.

Leave is sought for that purpose. Is there any objection? There appears to be none. That can be so tabled.

Document, by leave, laid on the Table of the House.

💬 Hon ANDREW LITTLE: Thank you, Madam Chair. I refer, as I did in my earlier contribution, to the critical sentence in that statement, which is: “We have been badly let down by Justice Minister Andrew Little who committed to repealing this law, which acts as a potential barrier to prosecution in a situation like the CTV building collapse.” Yet in my conversations with them, I have been very clear, as indeed the Hon Gerry Brownlee has been, that we can repeal the law but it will not change the situation for the CTV families. I think members here and members of the public are entitled to therefore ask why, at this late stage, Dr Smith has tabled his Supplementary Order Paper—what would he be trying to achieve? Why did he go to the media before I had even taken a call in this debate earlier this afternoon and tell journalists what I had apparently said? And I hadn’t said anything. I think members who know the full facts of what has happened in the last few hours are entitled to smell a rat—entitled to smell a rat.

I think that however difficult it is to deal, when we are repealing this part of the law, with the tragedy of what we cannot achieve with it, we should do it in honour of those. Those members know—that member yelling out to me from his leather-clad benches knows. For someone who for years has lectured this House on constitutional principle—I spent 20 hours being lectured by him on the Electoral (Integrity) Amendment Bill when that was going through—

CHAIRPERSON (Poto Williams): Order!

💬 Hon ANDREW LITTLE: The bluff and bluster and carry on—but those principles are important. When it comes to criminal law, we do not make somebody a criminal tomorrow who was not a criminal yesterday. That is the principle. Tragic as it is, there are people who may have done negligent things in the past which we won’t know about till the future, and we may not be able to get recourse, at least if there is a death. We can still prosecute them for criminal negligence. We can still prosecute them for other things, but not if they fall within this in relation to a death. That is what being a responsible MP in this House means.

I move, That the question be now put.

I raise a point of order, Madam Chairperson. I would like to invite you to reflect on and possibly provide the committee with a ruling with regard to the way in which the Hon Dr Nick Smith made his last point of order. I raise two issues with it: first, the fact that he interrupted the Minister to seek leave to table a document. I believe that is disorderly. It is normal practice of the House to wait until a member has completed their call to seek leave to table a document. But second, and what concerned me more, was the fact that he used a point of order to make an assertion against the Minister. I don’t expect an immediate ruling or opinion, but I invite you to consider and potentially make a ruling to the committee.

Thank you. I thank the member for that. I just want to caution all of the members—you can resume your seat, Mr Stuart Smith. I’ve said this before: this is a very sensitive matter. We don’t need to have interjections or points of order taken that potentially score points. This is a very sensitive matter, and I ask everyone to take the matter a little more professionally. Thank you, Hon Iain Lees-Galloway. I will take that on advisement. I’m not going to make a ruling on that at this point. Before I call Stuart Smith, I am going to suggest we start traversing some other areas of Part 2, because we have well and truly completed, in my view, the discussion on the Supplementary Order Paper in the Hon Dr Nick Smith’s name.

Well, thank you, Madam Chair, but I want to just finish on this particular point, because I have a different angle on it. We are all very sorry for what happened in Christchurch with the CTV Building, but none of us here are attempting to go back and re-prosecute that particular issue. However, I think the point has been made about the buildings that have been built since and the buildings that were built before that in other parts of this country.

I met with the group who have written a report on the Hikurangi subduction zone. I’ve had quite a bit to do with the project Alpine Fault Magnitude 8 group. We have two very clear and present dangers in New Zealand: not climate change; it is the Hikurangi subduction zone and the Alpine Fault. Both of those will go, probably in the lifetime of everyone in this room, and the buildings across New Zealand that could have been built 100 years ago, could have been built 10 years ago, or could have been built two years ago will likely collapse—some of them, at least—in either or both of those events. When that happens, if the building has been built correctly, then it’s an act of God. If there has been negligence or omission in the construction of those buildings, then we will end up with people just like the CTV victims’ families, who will be sitting there saying, “Just because it occurred a year and one day after that building was constructed, then the negligent person gets away with it.”

The offence occurred the day the construction was completed, and that time limit of one year and one day is a nonsense. Now, I accept the Minister Andrew Little’s view, and I also accept my colleague Chris Penk’s view, who has a different view on the legal niceties of it, or intricacies of it. However, I will say this to the Minister: with the Canterbury Earthquakes Insurance Tribunal Bill, the officials, on the legal niceties and that, did a 180 on their legal view as the hearings progressed. Officials have their own Sir Humphrey moments and they do need to be challenged.

Now, I am not sure which way that would end, but if, let’s say for example, the Minister is correct and Supplementary Order Paper 192, in the way it is, won’t work—let’s make it right, now. We are going to end up at some point in the future where none of us will take any pleasure in saying we warned you. All of us are responsible in this committee, debating this piece of legislation which has a significant potential impact on everyone’s lives in New Zealand, and I urge you to rethink. That’s all I have to say on this matter.

I don’t want to take a very long call. I just want to make a call to remind people that we are coming up to the eighth anniversary of the first quakes in Christchurch. This is a particularly hard time for many of the families associated with the CTV. It is a hard time indeed for many of the people in Canterbury, where we reflect on events that took place where there was loss of life in Canterbury.

I’m disturbed by some of the comments that we’re hearing in this committee tonight. I can sometimes reflect on when this committee can rise above that and this committee can work in a way that is constructive. I reflect on the work that went through with the earthquake-prone buildings, where we could actually decide that there were some changes that needed to be made for the protection of all New Zealanders. This committee can rise above that. I remind members of the Opposition that that is the kind of thing that we should be doing here.

I’d like to congratulate the Minister of Justice. I have been at meetings with the CTV families with both the Minister of Justice and the Prime Minister, where they have fronted up to some incredibly upset family members who lost members in a tragedy, and had a very frank and raw discussion about what happened and what needed to be fixed. I congratulate the Minister of Justice. We have been in Government for 16 months. This has been an identified problem since the CTV Building, for eight or nine years now. The Minister of Justice has worked to fix this.

I’d remind members opposite that, actually, the date of the Royal assent would be a different matter if this law had been passed earlier. We wouldn’t be having this debate in this way. This is not new information; it is something that has been talked about for some time. The court case that came to a conclusion in late 2017 around the application of the year and a day rule was not a revelation; it was an issue that has been identified for a number of years in Canterbury. I just implore members of this committee, as we approach this special and hard day in Canterbury, not to politicise what is a tragedy and what many families suffered from. Thank you, Madam Chair.

Thank you, Madam Chair. I’d just like to follow from that speech and just echo those strong words that the Minister relayed to the committee, and also Stuart Smith’s intentions as well. Seeing the Minister in the chair, Andrew Little—he definitely is wanting to understand and work through those issues as well, so I don’t think there’s any problem in the committee with that. I think everyone’s got the right intentions around this room. The question then becomes: are we willing to do the next step of actually making it work? And the Hon Nick Smith has raised a particular solution that would enable that to happen.

I understand that the Minister in the chair is reverting back to the principle of retrospectivity in law and the difficulty of that. However, this is not a case where the offence is easily identifiable in that people would be caught, as typically would be the case in retrospectivity. This is a case where you’re futureproofing New Zealanders and the law for any situation that could arise in the future from activities that have been taken in the past. One of the key things that overrides retrospectivity in our law is intention, and that is a much more important part of our legal system—the intent of someone. This law does not actually enable the intent to be considered because of the strict time frame.

Nobody is intending to build a building that would create the dilemma we are talking about, but there are often cases of negligence in these situations. So I believe that the retrospectivity that we’re talking about in the committee is actually trumped in this case by looking at the intention, or the lack of intention, and the ability to do a negligence in the case of a building around that. So I just express to the Minister to think more broadly around broader legal concepts, rather than just the strict ones that I know he’s standing behind. I fully understand his argument in regard to it, and fully comprehend and welcome it, but I think that there is a broader concept in the law that actually would overtake it.

The other part of that is actually the actual pub test. You know, you could say—

💬 Kieran McAnulty: Pub test?

—for individuals out there, they would actually expect that whether it’s yesterday or today or whatever time, the law would apply. We have the ability in this House at this moment to actually do what the public would expect. They wouldn’t expect a rule like that to apply.

What I’m saying, Mr McAnulty, is that every genuine person out there would expect that there would not be a period of time where no offence had been identified, but that if an event that came in the future identified that there had been a problem, the law of this country would protect that person at that time. It’s not something that we’re passing, knowing that we’re going to capture anybody; it’s something we’re passing to protect people from situations that may arise that they would genuinely be expected to be protected from by this Parliament.

The opportunity is here. Regardless of who’s put it up, it’s come along. It’s here now, and we’ve got a crossroads whether we do the right thing for the New Zealand public, and what they would expect, or we hide behind—not meaning that the Minister is hiding behind it—or we use some legal concepts which are relevant and are practical but could be overturned by this House actually being more practical and reasonable for what people would expect and endeavour to see this Parliament do. Also, I think there are more general legal principles that do override the retrospectivity, and this is a unique case where you’re not looking at something you know has happened in the past; we are dealing with something that will happen in the future, and it’s a matter of whether we present the law enabling New Zealanders to be protected in that case.

I move, That the question be now put.

One more.

Madam Chair, I wish to respond to three specific points that have been made by the Government. But, first, I want to reflect on the comment that was made that we should not be having this contentious debate in the week of the anniversary of the earthquakes, which is challenging. My view—to the member opposite, to Megan Woods—is this: the families have made plain their view that they do not support the Government on this. I was shocked, surprised, and disappointed that the Government chose to advance this legislation in this week. I would much prefer—I say to Minister Woods—that we were not debating the bill this week. That was entirely in the hands of the Government, and I assure Megan Woods the families are deeply disappointed that the Government would attempt to progress this bill in that very week.

The second point I wish to raise is that members opposite have asserted that I should have raised these issues in the select committee. The Minister went so far as to say that there was no minority report or report from National in the select committee report. So I’ll read it to him: “National members view the year and a day rule as a loophole. Having accepted this law as wrong in the past—for example, [in the case of] Cave Creek, … CTV [or] the Pike … mine for prosecution to be limited by this provision—they do not think it is acceptable to apply the provision for any act of negligence that has occurred in the past but may not come to be tested until … the bill is passed. They are concerned that [they] will be another tragedy in which people will be able to use this loophole to avoid accountability, and believe this is a stronger argument than the more pure legal argument about retrospectivity.”

How can it be more explicit? How can the Minister stand in this House and say members should have raised it in the select committee and that it was not covered in the report. Absolutely, it is. The Minister misled the House and was incorrect on that point.

CHAIRPERSON (Poto Williams): Order! Dr Smith.

Well, the Minister made the assertion that there was no minority report or comment from National. That was incorrect. He misled the House.

💬 Hon Andrew Little: I raise a point of order, Madam Chairperson. I said there is no minority report; there is no minority report. I was at pains to point out the issue had been debated and canvassed well in the select committee. I only said there was no minority report. Unfortunately, Dr Smith has once again embellished something to make an assertion, and he is simply not correct—and he himself is in breach of Standing Orders—when he says I have misled the House. I’ve done no such thing.

CHAIRPERSON (Poto Williams): Actually, that wasn’t technically a point of order. That was a debating point. Could we bring this matter to a conclusion.

No. We’re going to respond to the points that have been raised, quite properly, by Ministers. Again, the Minister is being cute. Let me tell you why: the Justice Committee is evenly divided. It has five National members; it has five Labour members. How can a committee that has five Labour and five National have a minority? So when the Minister in the chair says there is no minority report, of course there can’t be. There can only be a National members report and a Labour members report, and that just further shows how disingenuous the Minister is being in respect to—

CHAIRPERSON (Poto Williams): Let’s bring this matter to a close, Dr Smith. We have traversed these issues.

No. Actually, Madam Chair, I’m allowed to respond to the point the Minister has made, and I wish to make a third point, because he has—

CHAIRPERSON (Poto Williams): At my discretion, Dr Smith—at my discretion.

I will absolutely speak to the points the Minister has made, particularly when he misleads the position of the families. The Minister has claimed—

CHAIRPERSON (Poto Williams): I am saying this once more, Dr Smith. We have traversed this several times.

I raise a point of order, Madam Chairperson. I noticed that the clock is continuing to decline—

CHAIRPERSON (Poto Williams): Yes. That’s correct.

—and did during the point where Andrew Little made a non - point of order, and so I ask that the clock enable me to have my five-minute contribution.

CHAIRPERSON (Poto Williams): We are actually, Dr Smith, timing it. You have about another minute and 10 seconds—2 minutes 30, I apologise. We are counting up to 2 minutes 30. We have reset the clock.

Thank you, Madam Chair.

CHAIRPERSON (Poto Williams): Caution. Caution—listen to the words that I have expressed.

The Minister in the chair asserted that the statement from the families meant that they had been misled that my amendment and our criticism and concern of this bill would enable the prosecution of the engineers that were responsible for the CTV Building. So I can only read the full statement that was made by the families that the Minister in the chair has misrepresented. They said this: “We have been badly let down by Justice Minister Andrew Little, who committed to repealing this law, which acts as a potential barrier to prosecution in a situation like the CTV Building collapse.”—in a situation like the CTV Building collapse.

The Minister’s assertion that the families had been, in their statement, claiming that the changes around the specific provision would have enabled the CTV engineers to be prosecuted is just a false statement by the Minister.

CHAIRPERSON (Poto Williams): This is repetitious now, Dr Smith.

Sorry?

CHAIRPERSON (Poto Williams): It is repetitious now, Dr Smith. I’ve given you several—

Well, no, it is a—

CHAIRPERSON (Poto Williams): No. Excuse me. I’m the one that actually makes the determination whether this is repetitious or not.

Well I think it’s extremely serious when the Minister of Justice deliberately misrepresents what the CTV families—

CHAIRPERSON (Poto Williams): Regardless of that. You have got about 20 seconds left of this call to make some further arguments or else I’m going to finish the call.

I would seek the support of the committee because Supplementary Order Paper 192 in my name is about justice, not about academic legal provision. It’s about the Government honouring its commitments that it has made to the CTV families. It’s about, as David Bennett so accurately said, taking a common-sense view of the law and not a theoretical view of the law.

I move, That the question be now put.

The question is that Part 2, as amended, stand part.

💬 Hon Dr Nick Smith: I raise a point of order, Madam Assistant Chair. The amendments include the SOP in my name.

CHAIRPERSON (Poto Williams): That’s correct. If the member would resume his seat, we will get to those provisions. Thank you.

Part 2 as amended agreed to.

The question was put that the amendment set out on Supplementary Order Paper 192 in the name of the Hon Dr Nick Smith to Schedule 1 to replace clause 2 of new Schedule 1AA be agreed to.