Penk ChrisCHRIS PENK (National—Helensville): Thank you Madam Assistant Speaker for the opportunity to contribute to the Crimes Amendment Bill. I acknowledge but not by name the various who have been involved in its passage from start to finish. I'll highlight a couple of those individuals on the way through but to briefly wrap up from this side of the House in this the third and final reading please allow me to touch on each of the four significant points within the bill that is shortly to be passed.The first is blasphemous libel. On this side of the House we support its repeal. I would like to propose on my own account a short three-stage test of considering such matters. The first stage is that there should be a presumption in favour of free speech. I note merely as a footnote that in our society today we are becoming more precious in many regards regarding free speech but I think the appropriate starting point is that we should be free in our speech and that we must be able to offend and to risk causing offence as a starting point.The second stage of the test that I propose would be that there could be a rebuttal. There could be a reason to rebut that initial presumption in favour of free speech and so for example we have defamation to protect individual reputations we don't allow incitement to violence—the sticks and stones that may break bones according to the old proverb—and so forth. Then a third stage might be that if we decide that speech is able to be limited in that way then we would deal with that in some way that's appropriate. Civil versus criminal sanctions might be available. In this case we are saying collectively that it is not appropriate to have the crime of blasphemous libel on the book and therefore it will be removed from our criminal statutes.A brief note on retrospectivity because it's a theme to which I would like to return if time allows in another context: one of the problems with a crime such as blasphemous libel is that if you don't have an exhaustive list of all the things that might be deemed to be blasphemous then it's impossible to be certain at any point at which you utter such words that you are committing a crime. So to find out retrospectively that you've committed a crime is an offence against the rule of law in the way that Dr Duncan Webb and others have described in another context.The second of the four main points is in relation to spousal immunity. Of course this is to protect historically a person who's giving refuge essentially from prosecution or even to evade capture to a person who has assisted in the commission of crime or perhaps more likely committed the crime themselves. I would sound a note of caution however which is to say this is analogous to some other situations in which we do protect particular relationships where a person has committed what would be a crime if it were found to be such—for example confessionals maybe with a spiritual person or a guidance counsellor or even legal privilege. It's too easy simply to say that we don't allow people to be assisted after having committed a possible crime and to be advised because of course we do. And if we're going to make such blunt statements as we've heard on that subject across the House today then a principled approach on that in my view would compound the error but at least should be considered from a principled basis. Third: livestock rustling. As has been noted on both sides of the House—with a certain amount of graciousness for which I am grateful—this has arisen from a Supplementary Order Paper in the name of Lord Ian McKelvie" of Rangitīkei and I join with others in expressing somewhat disbelief that it's not already on the—Brett Hudson: Chief of Rangitīkei. CHRIS PENK: I've been having further possible suggestions for the elevation to the peerage and beyond of Ian McKelvie—Hon Jacqui Dean: Why not. CHRIS PENK: Why not indeed as Jacqui Dean says. It's an idea whose time has come. It's an idea whose time in fact had come many years ago. So it's righting a wrong I suppose in legal or legislative terms that we are catching up now and making that very clear indeed. Finally I wish to touch on the so-called year and a day rule. Much has been said about this in the context first of what is in the bill itself but also in relation to a Supplementary Order Paper proposed amendment by my colleague the Hon Dr Nick Smith. I'll just start off by noting that the nature of the rule so-called in the Crimes Act is actually in the nature of a limitation or might actually be viewed as a brightline test. In this House we've been talking earlier today about a brightline test in connection with tax so that we say—while it's difficult to gauge intention it might be that we can say within the period of two or five years as the case may be that we deem that someone has bought property with the intention of on-selling. Well there's a brightline that can be drawn at the hundred-year mark—traditionally a nice round century—that would say well if you've committed an act or perhaps an inaction such that a person loses their life for example outside that period of time we'll be drawing a bright line there and saying that you're outside that now. So because it's difficult to prove causation so long after the event we are saying that that person should be found not guilty of what would otherwise be the crime. So that's the intention. As for the question of retrospectivity I believe there's a bit of a misunderstanding or at least the opportunity for education—and I say that with some humility—but across the House a number of speakers have indicated that they have a particular view of retrospectivity in the criminal law that I believe deserves challenge. In the committee stage of the debate Minister Andrew Little made a statement not unlike that of Dr Duncan Webb's tonight which was along the lines that a person should not be found guilty of a crime let us say tomorrow in respect of an action that he or she committed today if it were not a crime at the time that it was committed. So far so good. I believe we can all agree on that. So much is well established in our rule of law and that's to protect the idea that a person shouldn't be found retrospectively guilty for the reason that they must be able to rely on the law as being certain at that time. The criminal law is a code and people should not be found guilty retrospectively. However what that ignores is the clear wording of the relevant sections within the Crimes Act and also within the New Zealand Bill of Rights Act that talk about a thing being done or not done the element of the crime as it would be being committed at a time that the act would not be regarded as a criminal action. So in other words the explicit words actually protect against the action and the actus reus as we would say within the criminal language as opposed to the availability of a defence. And if the defence is essentially a spurious one and I say "spurious" because it's been acknowledged across the House as being nothing more or less than that then it seems to me a nonsense that we should have such a narrow and dare I say it legalistic view of what retrospectivity actually means. So my challenge across the House before my time is up is that if that's the genuine belief of those who have offered that opinion tonight then I would encourage them to consider amending the words of the New Zealand Bill of Rights Act and indeed the relevant section of the Crimes Act to ensure that that actually says that every defence that is available including the so-called year and a day rule should be available and not merely the fact that something which is done which is already unlawful should not see a person being able to escape prosecution merely because they have the good fortune that someone dies a considerable period of time after. Put around another way it seems absurd to me that if you do a thing that is so negligent or so unlawful that it causes death that much more quickly effectively you should be rewarded. It seems to me illogical absurdity that the treatment of a person's actions rely on the luck or bad luck the misfortune or fortune of the victim and the particular circumstances of something so capricious as an earthquake. On that note perhaps unfortunately because overall our support for the Crimes Act amendment is complete—we support all those four different amendments so I close my contribution on this side of the House by saying that we support it and we congratulate those involved in its passage throughout."