Statutes Amendment Bill

Hon NATHAN GUY (Associate Minister of Justice) Link to this

I seek leave for the debate on the 47 parts of the Statutes Amendment Bill to be taken as one debate, with the questions on each part to be put separately at the end of the debate.

GRANT ROBERTSON (Labour—Wellington Central) Link to this

It is great to have the opportunity to speak freely on the Statutes Amendment Bill, which was considered by the Government Administration Committee in a collegial manner some time ago now. [ Interruption] Well, we thought we should, just to see how it went. It was certainly an interesting exercise. We did not have a great number of submissions that came to the committee, although we did have one or two.

In this first contribution, I want to make a couple of general remarks about Statutes Amendment bills and how they come before the House. I did raise this in my second reading speech, but I think it is worth repeating now as we start to go through the bill part by part. Statutes Amendment bills have been around for many years, and Mr McGee’s fantastic book tells us that they were prevalent in the 1950s and 1960s, and again in the early 1990s. But they have been in abeyance for some years. Traditionally they have contained, and I am quoting here, “non-controversial amendments such as corrections of drafting errors,” and the practice has developed that if anyone objects to a clause in the Committee stage, then it will be thrown out.

There has been an assumption that the bills largely deal with corrections that need to be made to update laws where dates get out of synchronisation and omissions of a technical nature. Concerns were raised in the process of this bill that several parts were, in fact, somewhat more than that, and were pushing the boundaries beyond omissions or corrections and moving more into the nature of shifts in policy. They may not be major shifts in policy and they may not be earth-shattering changes that will cause New Zealanders, when they wake up and read the newspaper tomorrow morning, to wonder why on earth Parliament made them, but they are shifts in policy. They are not simply omissions or corrections. I think it is worth our dwelling on that for a time, just to make sure that we are clear and aware for future Statutes Amendment bills that, given the process for putting them through the House, we cannot afford for them to include policy changes at all, because they do not undergo the policy development process and the scrutiny that we would expect of policy changes.

I highlight two examples that the committee dealt with. The first was one that did attract a public submission. It is in Part 9, which is a change to the Conservation Act 1987. The particular change is to extend liability to people who are either the owners or in charge of dogs that attack, seriously injure, or kill protected wildlife in a controlled dog area or an open dog area. This bill extends liability so that it is an either/or situation—either the owner or the person in charge of the dog. The committee received a submission from a lawyer, Graeme Edgeler, who is known to many people in the House as somebody who looks closely at the legislation that goes through this Parliament.

JACQUI DEAN (National—Waitaki) Link to this

Thank you for the opportunity to speak on the Statutes Amendment Bill. As Grant Robertson, my fellow member on the Government Administration Committee, noted, this is an omnibus bill that is designed to deal with a number of non-controversial issues. I thought that the select committee process was good. We did call for submissions. There were not a lot of them. We noted a couple of things as the bill went through the select committee process. Probably the one that I want to highlight first of all amends the Statistics Act. A small issue came out of the amendment made by clause 156(2). We would have recommended an amendment, but we felt that reprinting the bill—and it is quite a substantial bill because it has a number of statutes in it—was not justified for a single minor amendment that should be addressed at the Committee of the whole House stage, and it will be. We consider that the words “in each place where it appears” should be added to the end of clause 156(2) with regard to the substitution of the term “enumerator” with the term “collector”, as that term appears more than once in section 26(3) of the Statistics Act 1975.

One can go through the Statutes Amendment Bill and find a number of interesting statutes to be amended. One is the Conservation Act, which will be amended by several amendments that the committee found quite interesting. Several things will change as a result of this Statutes Amendment Bill. First of all, section 26ZD(7), which deals with the meetings of fish and game councils, is amended by omitting “3 months” and substituting “4 months”. It is a pretty non-controversial and sensible change. Also, section 26ZR, relating to the use of hazardous substances to catch or destroy fish, is amended by substituting a new subsection (2), which states: “Subsection (1) does not apply to actions taken by—(a) a warranted officer or a fish and game ranger; or (b) any person authorised in writing for the purpose by the Director-General, the Director, or the appropriate Fish and Game Council.” There are a couple more amendments to the Conservation Act.

I highlight these particular amendments to that Act as an example of one of the amendments to 47 statutes administered by 15 different Government agencies. There are 196 clauses in total in this bill, and it was the select committee’s job to go through each and every one of the amendments to those 47 statutes. We had to examine them to determine whether they would be controversial and whether the amendment made sense, which in most places it did. The select committee had a pretty robust process in place to do that, and I thought at the time that the committee had come to a pretty good agreement on how we would return this bill to the House for the Committee stage.

With those few words, my contribution is almost at an end.

BRENDON BURNS (Labour—Christchurch Central) Link to this

I am pleased to take a call in the Committee stage of the Statutes Amendment Bill. It is not a bill that I can pretend I have taken an intense interest in as it has proceeded through the House. However, I am very pleased to take a call on it, particularly in respect of the changes to the Wills Act 2007, which I will speak on in a moment. In summary, Labour supports this bill. Obviously, a Statutes Amendment Bill is a wash-up bill for a whole variety of necessary changes, and we support the thrust of it. Most of the amendments are indeed minor and technical in their thrust and approach, but there are one or two areas where Labour has indicated its concerns.

I particularly want to comment on the change to the Wills Act. I can speak about it from the heart, as in the last couple of years I have seen both my elderly parents die. My mother died 2 years ago this month, and a will was signed by her in the last couple of weeks of her life. No will was in place at the time, and that change caused some issues within our family as we considered the will was signed literally on her deathbed. The concept that this bill proposes whereby a will can be acknowledged by a person as having been signed by him or her but not having been witnessed raises a whole series of issues, because they are very delicate matters within families at someone’s late stage of life. I think those concerns have been articulated well, in an article from New ZealandLawyer, in which Margaret Nixon commented on the problems with the law change being of concern, given that we have a growing population of elderly people: “Many of them live in retirement homes or alone in their own homes, under the influence—perhaps at the mercy—of caregivers and relatives. If a caregiver says, ‘This is your signature, isn’t it, dear?’, some elderly people will automatically say ‘Yes’.”

Then there may be the situation, as this bill envisages, where a couple of caregivers standing nearby could sign as witnesses and the will would be validly executed. It raises a whole range of questions as to who actually put the signature on the will and in what circumstances that took place. We obviously have not only a growing elderly population but also a growing elderly population of people with dementia. I mentioned both my parents passing away. My father passed away in February at 91 years of age, which is a good innings. He had not signed a valid will, although one had been drafted, because his moments of lucidity were decreasing as he approached his demise. I suppose I could see a situation where at some point there was a lucid moment and he might have been able to sign a will or indicate to somebody else that he wanted him or her to sign the will, but the circumstances of that happening have to be explicit and clear. That is why Labour says that this is the sort of issue where very careful consideration needs to be given, and it needs to have gone through a separate select committee process for people to be assured that we are framing the law correctly.

As Margaret Nixon went on to comment in that same article: “… it is a bad idea to make incorrect judicial statutory interpretation into statute law. Legislation should restore Parliament’s original intention if the common law has not corrected the misinterpretation in later cases.” She again commented: “The way chosen to resolve the ambiguity makes life even easier for the caregivers and relatives of elderly people. They can simply say, ‘You got me to sign this for you this morning, didn’t you, dear?’, and, with the addition of a couple of signatures from bystanders who see the elderly person blink in reply, the person’s will is validly executed.” This legislation gets us into a very, very grey area. I think it is very controversial legislation, and that goes against the whole premise of a Statutes Amendment Bill. Such legislation is designed to be a non-controversial mop-up bill, not one where we get into areas where there are highly contentious matters that deserve to be traversed fully by a select committee and not subject to dozens and dozens of other mop-up clauses. That is why Labour very clearly thinks this is a bill that should be considered by a select committee. Those are points we have raised throughout this process.

STUART NASH (Labour) Link to this

I think Mr Burns has hit the nail on the head. This Statutes Amendment Bill is contrary to the general purpose of what we do in this House, which is to work together on these sorts of bills. I think it is an abomination. I congratulate Mr Burns on hitting the nail on the head.

I will get a couple of definitions out there. People have asked me what an omnibus bill is. Is it a bus that carries one big person like Gerry? I do not know. “Omnibus” is defined as pertaining to, including, or dealing with numerous objects or items at once. Hence, we have one bill dealing with a whole lot of items. Taking that further, an omnibus bill is a single document that is accepted in a single vote by a legislator but contains amendments to a number of other laws. It may even sometimes create entirely new laws, but that does not happen in this country, and it should not. As Brendon Burns said, these sorts of bills are put together to make minor, non-controversial amendments.

Under Standing Order 259, “An omnibus bill to amend more than one Act may be introduced if—(a) the amendments deal with an interrelated topic that can be regarded as implementing a single broad policy, or (b) the amendments to be effected to each Act of a similar nature in each case, or (c) the Business Committee has agreed to the bill’s introduction as an omnibus bill.” I was not lucky enough to be on the Government Administration Committee when it debated this fine legislation. It amends in one hit—believe it or not—about 48 pieces of legislation.

RAYMOND HUO (Labour) Link to this

I will take a short call to support the Statutes Amendment Bill. This bill is a good vehicle to tie up a number of pieces of legislation in one hit and to correct anomalous errors within a sensible frame.

My colleague Charles Chauvel expressed some concerns during the first and second readings that a number of the provisions were straying close to the edge of what is acceptable in statutes amendment legislation. I am particularly interested in two issues. The first is that Labour has expressed its objection to Part 47 of the bill, which amends section 11 of the Wills Act 2007. The Wills Act came into force on 1 November 2007, and it was hailed as a timely reform of succession law. It replaced the old British Wills Act 1837, which governed a lot of the law in New Zealand for 180 years. It is only 41 sections long and it is easy to read. What is more fantastic is that the Act was drafted in plain English. It is easy to understand and, most of all, it is accessible to all people. The terms “testator” and “testatrix” have been replaced by “will-maker”, and a “testamentary document” is now simply a “will”. The Act was welcomed because it made it easier for a will to be drafted to reflect the will-maker’s intentions and wishes.

The current law says that the will-maker must, in the presence of two witnesses, sign the will either personally or by acknowledging another’s signing on the will-maker’s behalf. But the change proposed in this bill to section 11, substituting new section 11(4)(a)(ii)(A), will also allow will-makers to effectively sign a will not by signing it but by acknowledging a signature as his or hers. This is bad, according to Margaret Nixon of the Parliamentary Counsel Office, for two reasons: the will as executed could be challenged on the grounds that the will-maker, particularly the elderly, did not have will-making capacity, and the idea is just as bad for younger people; and it makes incorrect judicial statutory interpretations into statutory law. Legislation should restore Parliament’s original intention if the common law has not corrected the misinterpretation in later cases.

In a similar vein, new section 11(4)(a)(ii)(B) resolves ambiguity in section 11 of the Wills Act. The ambiguity is whether a person signing at the direction of the will-maker must do so in the presence of the witnesses, or may do so in the presence only of the will-maker. This is clearly a controversial issue, and we think it should be referred to the select committee.

The second issue relates to the amendments in clause 119 to section 94A of the Protection of Personal and Property Rights Act 1988. This amendment concerns the independence of witnesses to enduring powers of attorney, and seems to be policy-related. The Government Administration Committee report recommended that no change be made to clause 119 of the bill, as section 108AAB of the Protection of Personal and Property Rights Amendment Act 2007 provides for a review in 2013 of the effectiveness of the amendments and whether further amendments are desirable.

Unlike an ordinary power of attorney, an enduring power of attorney allows a person’s attorney to act for that person if that person becomes mentally incapable. The law in connection with enduring powers of attorney changed from 26 September 2008, including the process for completing an enduring power of attorney. Those changes also required the donor to receive an explanation of the effects and implications of it and of other matters from the person who witnesses the donor’s signature. That person must also give a certificate as to certain matters before signing the enduring power of attorney. Thank you.