Rurawhe Adrian; Little AndrewPart 2 Other amendments to principal ActCHAIRPERSON (Adrian Rurawhe): We now come to the debate on Part 2 clauses 7 to 9 and Schedules 1 and 2.Hon ANDREW LITTLE (Minister of Justice): 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.Hon ANDREW LITTLE: 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. Hon ANDREW LITTLE: 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."