Dalziel Lianne: Criminal Procedure Legislation Bill — Second ReadingText is incorporated into the Bound VolumeDalziel Lianne: Criminal Procedure Legislation Bill — Second Reading[Sitting date: 08 May 2013. Volume:689;Page:9714. Text is incorporated into the Bound Volume.]Hon LIANNE DALZIEL (Labour—Christchurch East): When the Associate Minister of Justice commented on this piece of legislation the Criminal Procedure Legislation Bill he did not mention that clause 15 was a “Henry VIII” clause. I think it is important to put on the record of the House why there is an objection in principle to “Henry VIII” clauses being enacted. The reason is simply this: that when an enactment needs to be amended it should be done by Parliament—it should not be done by the executive. When one has a “Henry VIII” clause in play it actually enables the executive to make an amendment to the work of Parliament which in itself of course is something that should not be taken lightly.A number of people have mentioned the Law Society’s submission on this particular piece of legislation. The society commented on the use of the “Henry VIII” clause and said that in this particular instance it did not have an objection to it because it was the power to make technical amendments to the enactments that the legislation amends to ensure consistency across the statute book. Generally speaking that was acceptable to the Law Society and I think acceptable right across the House in terms of those minor amendments that would need to be made in order to ensure consistency. When one is talking about the extent of reform that the criminal procedure legislation was designed to address it was entirely appropriate that some mechanism for those tidy-ups outside the statutes amendment process could be allowed.So generally speaking the principle was accepted that as long as it was within that category there was not a problem but the Law Society pointed out that it could be problematic. I want to particularly congratulate Graeme Edgeler who appeared on behalf of the Law Society because obviously he personally had put a lot of effort into this particular submission and I believe that he represented the Law Society’s position exceptionally well. What he said when he appeared before the Justice and Electoral Committee—and I have the submission in front of me—was that he was concerned about the insertion of a paragraph that would allow references to the word “crime” in other enactments to be amended by the executive.Again where that was a technical issue he did not have a problem. But what the Law Society in fact identified was that what could happen was that there could be by regulation a vast expansion of the scope of certain offences in fact resulting in the criminalising of conduct that would have been entirely lawful but for that amendment. Of course he made the point—quite rightly so—that these sorts of policy decisions are questions that Parliament itself should consider. When select committee members heard the submission we did question him about this and I think what he really persuaded the select committee of was that we had to rethink what the essence of the amendment was all about. What he was concerned about and the Law Society was concerned about was that: “Under the law applying before the principal Act enters into force the concept of a ‘crime’ for the purposes of the criminal law is essentially a subset of imprisonable offences: it includes all offences where the prosecution has the option of laying a charge indictably. There are a substantial number of imprisonable offences that do not meet the definition of ‘crime’ as the prosecution is not permitted to lay them indictably.” So this is a natural consequence of the change to the legislation itself.Then he went on to say that “This Bill itself makes a number of amendments to the term ‘crime’ and provides good examples of the type of amendment that are technical compared with those that involve important policy questions.” Then he says: “Schedule 2 lists a number of amendments to uses of the word ‘crime’ in the Crimes Act 1961. The amendments … are simple amendments that enable the law to be intelligible now that the definition of ‘crime’ has been repealed and the distinction between summary and indictable matters removed. The amendments to the other sections are different: while they may be the right course they involve a policy choice that extends the scopeof criminal offences beyond that which applies today. The choice of what replaces ‘crime’ in these situations determines how much the reach of these offences is extended.”Then he goes on to talk about how for example “The offences in the sections listed above tend to criminalise innocuous or not-very-serious-behaviour when it is committed with intent to commit a crime. Section 251(2) of the Crimes Act for example criminalises possession of computer software that is capable of enabling unauthorised access to a computer … however this possession is only illegal if done with the intent to commit a crime.”So he was making the point that the situation of removing the reference to the word “crime” would in fact potentially create a criminal offence that was not the original intention because it was not done with the intent to commit a crime. Then he used a number of other examples but the best example he used was burglary: “Burglary involves an unauthorised entry to a building … with intent to commit a crime. Unauthorised entry by itself is illegal but is not considered to be particularly serious … However if the entry is done with the intention of committing a crime it becomes a burglary”.So even though he went through all of the technical details in the way that he did the point that he made was absolutely correct. What we were actually going to be doing was creating the potential for offences that would not of themselves be regarded as serious crimes to become serious crimes by the removal of the word “crime” in the legislation. We had a good robust conversation with officials about this and I have to say that the officials who were serving our select committee were very very helpful. They actually came back to us with a very simple solution to the problem and that was to remove the reference to clause 15(3)(h) altogether. That I think was incredibly helpful because what it enabled us to do was address a very serious issue that may never have become a problem. But given the fact that it could have and that our select committee had been given the benefit of that advice I think we actually did the right thing. So I do agree with the chair of the select committee that we were incredibly well served by our officials and we were able to make the change that we did.I just want to agree with what my colleague Andrew Little said before and that is that when you are faced with legislation at a select committee even if it looks pretty straightforward on the face of it sometimes it takes just one submission—there were only two submissions that we received on this entire bill—and somebody to come to the select committee and make the case and you can end up making quite a substantial change to the legislation which means that you do not get into problems down the track. I think what Andrew Little was saying was that actually we do have to allow time for bills to go to select committees so that those who are going to make submissions can take the time to consider all of the elements of the legislation and to enable them to make constructive comments as the Law Society did in this particular case and to enable that to be considered by officials and for a select committee to report back.Sometimes I think that we actually do a disservice to the very robust process that we have of referring out to the public for that wider reach and consideration on legislation. We do the people of New Zealand a great disservice if we do not allow sufficient time for that. I think that what we have seen here tonight in the House with other bills that are not being allowed sufficient time at a select committee is that we will pay a price for that in the long term. This is a very simple piece of legislation but it just shows what a difference one submission can make.The other example that my colleague Andrew Little used was the Family Court proceedings legislation where we have not had sufficient time and with the looming deadline of the legislation coming into force in part on 1 October this year I just despairof the reality of people who have to operate within a time frame that does not allow for sufficient time. So in this particular instance I would really like to place on record my sincere thanks to the New Zealand Law Society. It has done this House proud.