Webb DuncanDr DUNCAN WEBB (Labour—Christchurch Central): Thank you Madam Deputy Speaker. In my first proper speech it's a real pleasure to speak on something so close to my heart. Unlike Ms Dowie I have an emotional attachment to this law. Hon Amy Adams: You need to get out more then. Dr DUNCAN WEBB: Well you know as a former professor of law I'm not sure I've had the pleasure of having such fine minds already so well developed to hold. You know as a professor of law here we are talking about conflicts in law—I never thought it would actually happen. So look this is a real problem and I do hope that this bill effectively solves it. That's not to say there's not going to be some challenges—I mean the law of tort sounds all very nice when we think about the torts we're usually involved in. Mine is usually a car collision or something like that. But if we think about defamation in the modern world we have some real problems. So you know we've got the tort of defamation committed across electronic medium—perhaps on Facebook and perhaps written in New Zealand read in the United States and with a company based in Ireland. Well I'm not sure that this will easily solve that problem but certainly it gets us around the double actionability rule and it's probably worth just pausing for a moment to understand why we even have that rule. It may seem arcane but there is something important behind it and that is the idea that nations will respect each other's legal systems so that we won't allow litigation in one jurisdiction that undermines the sovereignty of another nation in respect of a tort that happened elsewhere. So that's a really important point. It is something we've got to remember that is being put to one side—and that's something I will return to because there are real public policy questions around the issue of what kinds of torts we should allow to be litigated in New Zealand. Importantly of course this bill does not affect procedure so whilst we may be able to litigate foreign torts in New Zealand courts we will not be doing so under foreign procedural rules. I want to just point out how important that is because the rules of procedure are really quite dear to our legal system with regard to the rules of evidence and to make sure that natural justice is adhered to. So we are substituting this double actionability rule—the idea that we won't be litigating anything unless it's a wrong in both nations—with this place of wrong rule and that does make some sense. There is a lot of difficulty sometimes I think in determining exactly where that place of wrong is and although the prior rule was perhaps complex and difficult to apply I'm pretty sure that this one will give lawyers plenty of work as well—and I see Chapman Tripp actually on its website applauded this law change and that does give me some cause for concern. It is just worth thinking about exactly what kind of things we could find ourselves litigating in New Zealand and it's worth just looking at the boundaries of tort because there are many torts out there some of which we are at forefront of and some of which we're clearly not quite ready for. Certainly New Zealand is at the forefront of torts in respect of privacy and breach of seclusion. So a breach of seclusion—which is well recognised in New Zealand America and Canada—could under this kind of rule be litigated here quite easily. However if we look at some other tort such as for example the duty of care that a mother owes to an unborn child which is not well recognised in New Zealand—not recognised at all in fact—and is looked at with suspicion in Canada but is certainly an emerging tort in the United Kingdom a really difficult question arises. It is entirely conceivable that there is a motor accident in the United Kingdom where an unborn child of a New Zealand mother is injured they return to New Zealand and—obviously through a guardian—the child sues that mother for the injury caused. We need to pause very carefully and ask ourselves the question of whether this place of wrong rule is the prevailing value or whether in fact we need to say that that's not a tort that we want to recognise under any circumstances. That is a very important question. Obviously there are rights around autonomy—control over a woman's own body—to be counterbalanced against really important questions about care for a foetus. Now the New Zealand courts and the Canadian courts have not contemplated that. In fact on public policy ground certainly the weight of argument is heavily against it in those jurisdictions. That's not to say that elsewhere a different public policy is not accepted. Or we could find ourselves—even worse—contemplating truly arcane torts. I did spend a little time doing some research and found probably and interestingly another one that touches on the rights of women: the tort—Chris Bishop: What's that one? Dr DUNCAN WEBB: —come over here and I'll show you—of enticement. Chris Bishop: Enticement? Goodness me! Dr DUNCAN WEBB: Enticement yes. It's a fascinating tort and as the fine minds of the Opposition would know a tort that we abolished in 1975. Chris Bishop: What were you researching? Dr DUNCAN WEBB: I knew you were going to come straight back at me with that—Chris Bishop: Why were you researching enticement? Dr DUNCAN WEBB: Especially for you my friend. Madam DEPUTY SPEAKER: Yes but not for me. Dr DUNCAN WEBB: Oh I apologise. I wouldn't want to prefer anyone although—I'll stop there. So that tort is the old tort of luring a spouse and of course it used to be an actionable tort by a husband against the enticer. That clearly is a tort that in the modern world is entirely repugnant and a tort that we would have no time for in New Zealand whatsoever. Now fortunately I am pretty confident that that's effectively dealt with by Ms Dowie's bill because clause 11 in fact provides that New Zealand will not—this does not authorise the actioning of a tort that is contrary to the principles of public policy. Having said that I think some New Zealand judges are going to have an exciting time thinking about what torts are not recognised in New Zealand but that are nevertheless consistent with public policy. An underlying thread in the whole of the law of tort is public policy—that we recognise torts that are consistent with public policy and we don't recognise torts inconsistent with public policy. So were I in court I would be arguing that any tort we don't recognise in New Zealand by definition conflicts with principles of public policy and therefore it's a hard row to hoe to bring any tort in New Zealand to that effect. The other thing that Chapman Tripp will be excited about—and they're probably very happy to be getting such a mention in the House tonight—is the fact that clause 8 deals with substantially more appropriate" jurisdiction. Now in fact that is just a hole so wide you could drive a truck through it. Having said that I'm not sure that anyone has come up with any better words yet but that kind of vagueness will create considerable uncertainty. That is uncertainty for the courts to deal with and so we're going to have to leave it to them. Certainly that's another one that lawyers will have a field day on. But I suppose as a lawyer I'm excited by this because all of a sudden we're going to be able argue about all kinds of foreign torts constitutional torts torts of enticement and torts of all kinds and we'll be able to do that in New Zealand and the judges will be able to develop foreign jurisprudence for others. Having said that it's certainly a step forward from the double actionability rule. It is a piece of legislation that was needed. I'm heartened that the Law Society supported it and certainly the bill as reported back is a vast improvement on the first draft dealing as it does with personal injury and with things that are repugnant to public policy—two things that certainly would have concerned me greatly. So having said that and having given a great entrée to the legal profession for the great work they're going to get out of these conflict of laws problems I commend this bill to the House. Thank you Madam Deputy Speaker."