KATE WILKINSON (National) Link to this
Thank you, Mr Chairperson, for allowing me to take a call on Part 1. The Succession (Homicide) Bill itself is reasonably straightforward. It is, as the commentary on the bill states, a bill to codify the law that precludes a person who unlawfully kills another person from benefiting from the death of that person, which does seem to make some sense.
However, the law must strike a balance between flexibility and certainty, and I have to say that in this case I have a question for the Minister, which I would like him to take a call on. My question is whether this bill is a wee bit inflexible. In this regard I refer to the interpretation clause, which, of course, has the definitions of “assisted suicide”, “homicide”, “killer”, etc. My concern is probably in response to reading the submission of the New Zealand Law Society, which was concerned that this proposed codification of the law did not take sufficient account of the differing degrees of moral culpability. I would have thought that that issue would be easy enough to resolve by merely providing that the judge had a discretion in exceptional circumstances, when the interests of justice and fairness so required.
In that regard I draw the Committee’s attention to some of the examples given by the New Zealand Law Society and other submitters in relation to areas where this bill might actually have some harsh and perhaps unintended consequences. There may be, for example, a number of domestic killings that have a varying degree of culpability, and where the moral abhorrence, if you like, felt towards the perpetrators of those crimes may be somewhat less than that which is felt towards a cold-blooded murderer. Those domestic killings are still subject to this inflexible code, and that may lead to harsh results. For example, a battered woman or a child who has been abused over a prolonged time might suddenly snap and kill the abuser. Those people would or could, upon conviction, come within the scope of the bill and lose any entitlement to any inheritance—say, half the house that they had lived in with their abuser. That may be a situation whereby it is fair and equitable, and not unreasonable, that a judge has the discretion to say: “These people have been abused. Although we don’t condone their actions, we can understand whey they snapped and finally put their abusers to rest, but should they also be deprived of their assets and their home?”.
Another example is that of a mercy killer. Not all mercy killers may come within the assisted suicide exception. An example is a person convicted of failing to provide the necessities of life. In those cases it could be argued that the degree of moral culpability is at the lower end of the scale. We can indeed say that that can be reflected in the sentencing for that crime, but in addition to the sentencing this bill automatically deprives the killer of any succession entitlements as well as the ownership of some assets.
I have mentioned in previous speeches, during the second reading debate on this bill, the reckless driver. A reckless driver might have a car accident and kill his wife in that accident. He might not necessarily be a negligent killer; he might just be a reckless driver. Perhaps he still loved his wife, and his wife would have wanted him to inherit. But under the provisions of this bill, the reckless driver—the poor husband who already has to confront his own guilt over having killed his wife through his own recklessness—has to face the fact that he is then deprived of any of their joint assets. That may not necessarily have been what the wife would have wanted or intended, and in such a case the bill could lead to some unintended and perhaps harsh consequences.
Those consequences could easily be remedied by a simple proviso for the judge to have discretion in very exceptional circumstances. That is not to say that such a situation is to be regarded as the norm, because no killing is to be condoned. But such a proviso would mean that in exceptional circumstances where the judge has had due regard to all the evidence surrounding the accident and the reckless driver—or the abused wife—he or she may decide, on balance, that that person should inherit.
I would like the Minister to take a call on that question. I do not think it is a partisan suggestion, and I do think it would put some common sense into the bill.
CHARLES CHAUVEL (Labour) Link to this
I want to address three clauses where the committee has recommended some material changes. I will deal firstly with clause 8 and the issue of joint tenancy. Obviously, for those not familiar with the concept—
Lindsay TischI raise a point of order, Mr Chairperson. We are debating Part 1, and the member is speaking on Part 2. He has referred to clause 8, which is in Part 2. We are debating Part 1, which is clauses 3 to 6.
The CHAIRPERSON (H V Ross Robertson) Link to this
Yes, I had just actually noticed that myself, so thank you for drawing it to the Committee’s attention. I urge the member to return to Part 1, which is clauses 3 to 6.
I thank the member for the guidance offered. Perhaps I might then just deal very briefly with the question that was raised by the previous speaker: the suggestion that the legislation is somewhat inflexible, particularly as to degrees of culpability and homicide. I suppose the primary point to make on that is that the legislation is codifying the law—the Law Commission report is clear about that—and the discretion that has been contended for does not exist in the common law. Clearly, there would be issues with bringing it forward into a codification of the law. I understand that in jurisdictions overseas where a discretion has been introduced, an undesirable element of uncertainty has been introduced into the law. But it would also be useful to point out that given the wide-ranging definition of homicide in the legislation, there is probably sufficient flexibility for a judge to do justice in individual cases with the flexibility afforded.
I appreciate the opportunity to take a short call on Part 1, and I will leave my comments at that.
CHRISTOPHER FINLAYSON (National) Link to this
The purpose of the legislation is clearly set out in clause 3, and its effect at application in clause 5. I would be grateful for some guidance from the Hon Clayton Cosgrove, the Minister in the chair, however, on an issue that I have been thinking about for a couple of days in relation to clause 4. As I said, clause 3, “Purpose”, is pretty clear: “The purpose of this Act is to codify the law that prevents a person (the killer) who kills another person (the victim) by committing homicide from benefiting as a result of the victim’s death …”.
One then turns to clause 4, which includes the definition of homicide, and it is all reasonably clear. But there are a number of exclusions in that definition. The first, under clause 4(1) is “(a) a killing caused by negligent act or omission;”. The second is “(b) infanticide …”, which is covered in section 178 of the Crimes Act. The third is “(c) a killing of a person by another in pursuance of a suicide pact;”. The fourth, importantly, is “(d) an assisted suicide”.
The term “assisted suicide” is also defined in this clause, and I would welcome some guidance from the Minister on subclause (1)(a), because an assisted suicide under this subclause “means the killing of a person by another person directly or indirectly if”—and this is the important word—“immediately before death the deceased asked the other person to help them to commit suicide;”.
What I would really like to know is how immediate is immediately. I think, for example, of “Dr Death” from Michigan—Dr Kevorkian—who was just released from prison in Oregon in the last few days. Dr Kevorkian would assist people with suicide, but the intentions, I think, were pretty well known, in many of the cases at least, well before the actual act. Under this legislation, would that assistance be considered to be immediate? I doubt it. So I would like to know how immediate must immediate be, in order for it to be an assisted suicide.
If, hypothetically, I had spoken to a doctor and I knew I was going to die—I was miserable, I did not want to live, I had been in Opposition for too long—so I decided I would contact Dr Kevorkian, and he and I chatted it through 3 to 4 weeks before the actual act, would that come within the term of assisted suicide, or would that be a disqualifying act of homicide? I would be most grateful if the Minister could assist.
CHRIS AUCHINVOLE (National) Link to this
I rise to speak to Part 1 of the Succession (Homicide) Bill. It is a bill that could be described—and was described in the select committee—as a repugnant bill. It is repugnant to a sense of decency and it is repugnant to a sense of normality to discuss and debate the reality of someone killing another person in the hope of benefiting from the death of that person. The preliminary provisions in Part 1 reflect exactly the circumstances that have to be dealt with, and the Justice and Electoral Committee was very conscious that they do have to be dealt with at a parliamentary level. It falls to us to provide a blanket of protection through law for those who would otherwise be vulnerable.
Part 1 gives the interpretation of some of the terms. For assisted suicide, which my friend and colleague has just been speaking about, the definition reads: “… if, immediately before death the deceased asked the other person to help them commit suicide;”. The definition for homicide states that it “means the killing of a person or a child who has not become a person, by another person, intentionally or recklessly by any means that would be an offence under New Zealand law, whether done in New Zealand or elsewhere,”. It goes on to describe other terms and references, all of which, frankly, reflect badly on a society where it seems life has become so cheap and inconsequential that we have a spiralling rate of violent crime that leads to death.
From memory, I think it is the people of Tibet who have no word in their language for murder. What a wonderful situation, what a wonderful place, and what a wonderful attitude! But here we do, and we need to have laws to cope with the situation—laws like this one, which prevents any possibility of killers receiving, or becoming entitled to, or claiming interest in, property as the result of the death of the killer’s victim.
Being part of the select committee discussing this bill was an interesting exercise. We were certainly engaged in a lot of thought, and it left me wondering whether, in fact, there should not be much wider application of law preventing criminals from benefiting from crime. This is a well-established principle, but in the case of succession, courts have been required to resolve any uncertainties on a case by case basis, which causes delays in, and costs to, the administration of estates, which are often modest in their value. This bill will simplify that.
Something that is of concern, though—and the Minister may choose to address this—is the fact that the Law Commission reported in 1997 on the law of succession, and recommended then that there should be statutory rules clarifying a killer’s rights and disentitlements. Why has this taken quite so long since the Law Commission’s report in 1997 to surface as legislation? I think that is a question that needs to be answered in conjunction with other questions about this Government’s neglect in response to Law Commission reports.
Hon CLAYTON COSGROVE (Associate Minister of Justice) Link to this
I am more than happy to take a short call, and I start by addressing the question posed by Mr Auchinvole. The simple answer is this. The member is right that the Law Commission reported in 1997. The Government of the day, I recall, was a National Government, and I would simply answer that question by asking Mr Auchinvole why his Government did not move on it when it was in office.
In addressing more notable points, I would say simply that Ms Wilkinson raised some interesting points, which are worth touching on. In essence, I believe, they were in relation to whether the bill accounts adequately for different levels of moral culpability in respect of killings. She also posed the proposition that the court should have the discretion to modify the effect of the disinheritance provisions.
I would comment that the bill does indeed take account of different levels of moral culpability in different types of killing. For instance, it does that through the definition of “homicide”. For example, a killing must be reckless or intentional; a negligent killing is not enough. Recklessness is included because it involves an element of intention. It involves being aware of the risk of harm and then acting anyway.
Also, the bill specifically excludes certain types of killing that might be thought to amount to mercy killings. Assisted suicides have been mentioned. The bill also excludes killings pursuant to suicide pacts. These aspects of the definition of “homicide” acknowledge that some killings are more culpable than others.
In respect of a discretion, it would have to be said that a discretion is a difficult drafting proposition to action effectively. The Law Commission considered that point when it prepared its report. But the commission decided against that aspect of discretion because, as I have said, it is difficult to enact effectively. It is also fair to say that other foreign jurisdictions have struggled with the concept. In their view, the question of whether a killing was sufficiently abhorrent to trigger the bar of profiting was better decided by Parliament.
A key concern of the bill is to create greater certainty, and it could be argued that having a discretion would actually reduce certainty and that more cases would end up before the courts. The other point that should be made is that currently there is no discretion, of course, in common law, so this could increase uncertainty in itself.
The CHAIRPERSON (H V Ross Robertson) Link to this
This includes clauses 7 through to 16, and also, I tell members, includes debate on the schedule. I call the honourable member, Charles Chauvel.
CHARLES CHAUVEL (Labour) Link to this
I thank Mr Finlayson; I will try to address the correct part this time.
Hon Rick BarkerThat is right—that is right. The Justice and Electoral Committee recommended changes to a number of clauses in the Succession (Homicide) Bill, and just looking at the report of the committee and the bill as reported back, I can tell members that they were clauses 7, 8, 10, 11—we recommended the insertion of a new clause 11A—12, and 15.
I want to speak to just three of those amendments substantively, starting first with the proposed changes to clause 8, which deals with joint tenancies. Obviously, there are a number of ways in which property can be owned legally and joint tenancy is one of those ways. Clause 8 as originally drafted would have disentitled a killer from having any interest in a property that he or she co-owned as a joint tenant with his or her victim. But a killer who was married to, in a de facto relationship with, or in a civil union with the victim might still have been able to recover his or her interest under the Property (Relationships) Act.
The select committee has recommended, and I would commend to the Committee, the adoption of a new subclause 8(3), which provides that the killing by one joint tenant of another joint tenant has the effect of converting the joint tenancy to a tenancy in common. By the operation of law, each co-owner, or the estate in the case of a victim, takes a share.
This provision is consistent with the overarching policy of the bill we have tried to remain true to, which is that a killer should not benefit from any wrongdoing. This illustrates, I think, the repugnancy question that Mr Auchinvole referred to earlier. We did feel that we were dealing with rather unpalatable alternatives, but nonetheless we had to try to weigh them up fairly. Although somebody should not be able to benefit from wrongdoing, neither should they be deprived of pre-existing rights, in any sort of penal fashion. That is the balance we have tried to achieve by the insertion of new subclause 8(3).
In dealing with testamentary promises we have provided for some changes to clause 10. To understand the way that this clause works, it is necessary also to consider clause 7. Basically, a testamentary promise is a promise, either expressed or necessarily implied, that a person will be rewarded for services performed, in one’s will. Rather than paying somebody for services during one’s lifetime, one would say: “Look, I’m going to look after you in the will; you’ll be right.” As originally drafted, clause 10 would have allowed a killer to make a claim under the testamentary promises legislation only where the victim failed to provide for the killer in his or her will. If the victim had fulfilled the promise in the will, the disposition would have actually been revoked by clause 7.
The select committee has recommended the insertion of a new subclause, clause 10(2A), ensuring that a killer can make a claim under the testamentary promises legislation, irrespective of whether the victim provided for the killer in the will. In this case, the claim for payment will be treated as a pre-existing interest, because it is effectively a reward for services already performed. Again, this is consistent with that odd sort of balancing act we have had to perform in the legislation, so that the killer does not benefit from wrongdoing but neither is he or she treated overly harshly or deprived of existing rights.
The last substantive changes I want to address are those to the provisions of clause 15. As originally drafted, the bill did not specify the procedure for an interested party to make a claim in civil proceedings that an alleged killer had committed homicide for the purposes of the bill, in cases where the alleged killer had been prosecuted but acquitted in respect of that homicide. The bill was amended to clarify that in such cases a court can decide, on the balance of probabilities, whether the alleged killer is nonetheless guilty of homicide for the purposes of the bill. I think it is fair to say that the amendment recommended by the committee will avoid any confusion over the appropriate procedure to be adopted in those cases. Those are the three amendments that I wanted to speak to, and to commend to the Committee.
KATE WILKINSON (National) Link to this
In speaking to Part 2, I would like to reiterate what Mr Chauvel has said in relation to joint tenants and tenants in common, and that amendment suggested by the Justice and Electoral Committee certainly makes sense. There are two forms of ownership of property, whether it is real estate or personal estate. One is joint tenancy, and one is tenancy in common. The difference, basically, is that joint tenants are covered by what is known as survivorship, so that if one of the joint tenants dies the other one automatically inherits. In other words, the inheritance does not become part of his or her estate. If it did not become part of his or her estate, it would not have been covered by this Succession (Homicide) Bill. So in that sense, I think that the committee has suggested a fairly common-sense amendment.
I would like at this stage to spend a little bit of time in relation to clause 15, which basically relates to the evidence where no criminal prosecution has been completed, or where there has been an unsuccessful prosecution. It states: “(1) This section applies if,—(a) in any proceedings … any party alleges that another person is guilty of the homicide of a person or a child that has not become a person; and (b) the person who is alleged to be guilty of the homicide … has—(i) not been prosecuted in New Zealand in respect of that homicide, …”.
I suppose, in this sense, my concern in a way relates to timing and practicalities. I go back to the poor, reckless husband who kills his second wife in a car accident. The child of the first marriage claims that he was reckless. To be prove recklessness in a criminal case, the prosecution has to do so “beyond reasonable doubt”. Yet the child in this case, who is the child of the first marriage—and there are always different dynamics between first and second marriages, of course—has only to prove that the husband was reckless on the balance of probabilities. If that child can prove that on the balance of probabilities, then the chances are that he or she can inherit under the estate. But I do have some concerns in relation to the differences in the burden of proof between proving on the balance of probabilities and proving beyond reasonable doubt.
Having said that, I am also concerned about the question of timing, and I am certainly pleased that the Minister for Courts, the Hon Rick Barker, is in the Chamber, because he might like to take some cognisance of this. We have a situation with our courts of waiting times and delays, where there can be median delays of 200 days or 300 days before a hearing even gets before a judge.
We could look at the scenario where a killer inherits from his victim’s estate, and it is only some years after the victim’s death that the death is able to be attributed to the killer’s actions. Perhaps the Minister might like to take a call on this matter. This issue is almost the opposite of what Mr Finlayson referred to when he talked about the definition of “immediate”. Again, the Minister may like to address what he believes the definition of “immediate” is, as well.
What if at first glance a death appeared to be accidental but it was subsequently found to be a murder, and because of the time lapse between the act of killing and the charging of the killer—or, indeed, the conviction of that killer—the estate had already been distributed to that killer? I do wonder whether this bill is intended to apply retrospectively. Will the estate inherited by the killer then be forfeited years later and redistributed, if there is anything left? Or how long do the trustees and executors have to wait before they can administer or execute the terms of the will?
I think that in speaking to the first reading of the bill I drew the attention of the House to a couple of instances referred to in the Law Commission report whereby there was a delay of some 4 years between a killing and the courts giving judgment. During those 4 years the estate must remain virtually dormant. The difficulty is that the executors have a duty to properly and expeditiously administer the estate, but they cannot do so because they are still waiting for a court hearing to decide who will inherit and whether, in fact, the Succession (Homicide) Bill will be applicable. So, in a sense, the estate is in limbo.
To take a more topical and recent occurrence, members should look at the situation of David Bain. His family was murdered 13 years ago. If he is not convicted of killing his family, then he should be entitled to inherit the family house—albeit that I understand the family house has burnt down. But having said that, there still may be some assets left in that estate.
I do think a practical difficulty could be encountered by the courts in deciding what is reasonable, and in deciding how on earth the executors can perform their duties to execute and administer an estate where there may be a delay between the time of a person’s death and the time when it is known whether the death was caused by murder or negligent killing. Therefore, there is also a practical difficulty for the court when it decides whether the situation comes within the ambit of this legislation.
With that, I would ask the Minister to take a call on this issue. It is in relation to Part 2—I think I have the part right—and certainly, from a practical point of view, I think this issue could very well be debated.
CHRISTOPHER FINLAYSON (National) Link to this
Part 2 of the Succession (Homicide) Bill deals with the effect of homicide on rights of succession. The rules that are set out in the following clauses are all reasonably straight forward and, when one analyses them, quite obvious. For example, clause 7 provides that a killer will be disentitled under a will, or will not be permitted or able to claim under an intestacy. Clause 8 disentitles the killer to the victim’s non-probate assets, and clause 9 disentitles the killer to apply under the Family Protection Act 1955. One could hardly have a situation where someone kills the testator and then alleges there was some kind of breach of the testator’s moral duty by the testator—it would be simply ridiculous.
I want to focus on clause 10 for a minute, because I still have some doubts as to whether we have this one entirely correct. Among other things, clause 10 deals with the Law Reform (Testamentary Promises) Act of 1949, and states that even if one is dealing with a situation of a killer, if the killer has a valid claim against the estate of a victim, then that person may be entitled to claim under that Act. But, importantly, it needs to be emphasised that the bill will not allow an application to be made where a testamentary promise is expressly provided for in a victim’s will, so we have tried to make that crystal clear in the clause. The effect of what we have been seeking to do is that the killer will not be deprived of the benefits of a prior testamentary promise made by the victim for services that may have been provided, regardless of the content of the will. I have been troubled about that clause, because there is a good case to be made that in such a situation it should be impermissible for the killer to make a claim under the Law Reform (Testamentary Promises) Act as a matter of policy. But we have at least opened the door to some claims under that Act in the circumstances I have outlined.
The only other thing I wish to say about Part 2 really focuses on the report of the Justice and Electoral Committee. I was not there when the bill was deliberated on, and had I been I would have been a little concerned about the commentary to do with Te Ture Whenua Maori Act of 1993. The commentary states that the committee was “satisfied that Maori land succession under that Act would not be unduly affected by this bill.” I am not sure that that is necessarily correct. I think that that could be the use of a lazy adverb, because I do not know that Māori land succession under that Act is affected, at all. Perhaps Minister Clayton Cosgrove could take a call and tell us about that—whether the commentary should state “unduly affected” or “affected”—because I think it is the latter.
Part 2, as I say, sets out the various key rules relating to the effect of homicide on succession, and also deals with some changes in a schedule to enactments that are amended as a result of the passage of the legislation: a change to the Administration Act 1969, to state that the killer is not competent to be granted administration—another obvious point—and a couple of other consequential amendments to the Proceeds of Crime Act and the Sentencing Act. Perhaps were the Minister to take a call, he could also try to deal with my question of what “immediately” means in the definition of assisted suicide.
CHARLES CHAUVEL (Labour) Link to this
I take a brief call to address one or two of the points made by the previous speaker, Chris Finlayson. As he says, he was not present at the meeting of the Justice and Electoral Committee where we deliberated this matter, and I think he is quite right on the point about the reference to Te Ture Whenua Maori Act in the commentary. That word “unduly” is clumsy, and we ought to make it clear in the record of Parliament that as far as the select committee was concerned—and I think I can speak for the entire committee on this—we were assured of and accepted the advice that Te Ture Whenua Maori Act was absolutely unaffected by this legislation. We ought not to have used a loose adverb such as “unduly” in the commentary; that is quite right.
Yes, a lazy adverb—certainly not the mot juste. I would also like to deal with the discussion of clause 10. I agree that these questions are not easy ones. It will be remembered by the Committee of the whole House that clause 10 essentially preserves a killer’s pre-existing claim against the victim’s estate, in restitution or under the Matrimonial Property Act, the Property (Relationships) Act, or the Law Reform (Testamentary Promises) Act, provided it is not made more certain or more valuable. The New Zealand Law Society pointed out in its submissions that as originally drafted the bill could lead to inconsistencies regarding testamentary promises. A testamentary promise is, as I said earlier, an implied or expressed promise to reward a person for work or service in one’s will—a fairly broad concept, obviously. If the deceased fails to keep that promise, the promisee can gain reward by a claim in respect of the deceased’s estate under the Law Reform (Testamentary Promises) Act.
Under clause 7 of the bill, any disposition in satisfaction of a testamentary promise to the killer under the victim’s will would have been automatically revoked. The killer could not then have made a testamentary promises claim; the killer could have done that only if the victim had failed to provide for him or her in the will. So there was an ironical drafting issue with the legislation. It would be inconsistent, in my view, that a killer could recover payment for services if the victim failed to keep that promise, but not if the victim did keep it.
So that is why we have addressed the inconsistency with new subclause (2A) of clause 10, to ensure that a killer can claim payment in respect of a victim’s testamentary promise to reward the killer for services or work provided, irrespective of whether the victim provided for the killer in the will. That again has been an unpalatable balancing exercise but, none the less, one that we felt we had to perform consistently with the objectives of the legislation. I think it is one we have performed satisfactorily.
Well, let us hope that it is shared. As I said earlier, there is a certain repugnance in even discussing this sort of business, so there is not a great deal of pleasure from that point of view.
Part 2 details the effect of homicide on the rights of succession. I find that it is straightforward legislation; it is precise. I am speaking, of course, without the benefit of having been a practising legal person, whereas I think all other speakers on both sides of the Chamber have been. I believe it is significant that a layperson is able to understand the legislation, because this law applies to ordinary people. Clause 7 states that a killer is not entitled to any interest in property arising under a will of the killer’s victim, and the killer is not entitled to any interest in property arising on the intestacy, or partial intestacy, of the killer’s victim. It makes the situation very clear: there stands to be no benefit to any person who thought that he or she could bump someone off to get hold of the property in the will, or try to gain possessions after having bumped someone off. Wills are very important instruments, and I understand we will be discussing them later this evening.
There are lighter aspects of succeeding to property, and they have been the subject of drama, novels, and all sorts of artistic works that would have been pleasant to dwell on tonight, without the severity of this bill. I remember the film Kind Hearts and Coronets starring Sir Alec Guinness, whose character eagerly sought to inherit a title by dispensing with the present titleholders and their heirs until he became the sole beneficiary. Well, he would not have had any luck under this bill.
We had an interesting level of debate in the Justice and Electoral Committee, particularly on Part 2. We had to look at the possibility of killers who do have a claim against the estate of the victim. That is covered under clause 10(2)(a), which previous speakers have discussed, and which ensures that killers are not deprived of the benefit to which they are entitled for the services or other economic benefits that they provided to the victim. To take it to its simplest form, as it was put to us in the select committee discussion, if the killer, prior to killing his or her victim, had spent time working on the victim’s property on some sort of contractual basis—mowing lawns, or whatever—as a pre-existing commitment to being paid, he or she would still be entitled to that money. I find it difficult as a tartan-blooded Scot—and I find it galling, and I am sure it is galling for the victim’s family—that such payment has to be made, but I can certainly understand the legal reasoning behind it and why it is appropriate to have such a provision in the Act. So one finds it interesting, in stepping back from one’s repugnance, that the killer should get anything, in order to make sure that the State, through the law, is not being malicious towards the perpetrator of a crime, beyond the relevance of that crime.
We also gave consideration to the interesting aspect of Te Ture Whenua Māori Act 1993. That discussion considered the effect of the bill on succession to Māori land under that Act. I well remember the representation discussion contributed by the member for the Māori Party Hone Harawira, who was there to discuss it. I thought he discussed it well. I share the view of Charles Chauvel that the select committee was satisfied at the time, and I would like to assure my colleague Chris Finlayson that Māori land succession under that Act would not be affected by this bill. I do not remember this issue being unduly discussed as a feature of the bill, so I was a bit surprised to see it in the commentary. However, it is an aspect of cultural significance to New Zealand, and this probably would not occur in other legislatures to the same extent. It had particular significance and interest from that point of view.
All in all, it would be preferable, as I said earlier, not to have need for this legislation, but we do have the need for it. This Parliament has faced it. In my view, it is sensible legislation, and I am happy to speak in support of it. Thank you, Mr Chairperson.
Hon CLAYTON COSGROVE (Associate Minister of Justice) Link to this
Mr Chairman, with your leave and the leave of Mr Finlayson, I will lapse momentarily to clause 4 in Part 1 to answer his question in respect of the term “immediately”. The first question, I am advised, is not whether a death is assisted suicide; the first question is actually whether it is homicide within the meaning of the bill—for example, whether it is an unlawful, a reckless, or an intentional killing. So we go first to the criminal law and decide whether it was an unlawful killing. Then, if it was homicide for the purposes of the bill, we consider whether it was assisted suicide. What constitutes “immediately” would ultimately be determined by the courts, but it does imply an element of proximity. So the term was not defined in this bill; it was a policy decision. It was not defined as such; that is an element to be left to the courts.
I will address one other point that an Opposition member raised in respect of whether it is fair that guilt could be proved in civil proceedings on the balance of probabilities, and therefore result in the loss of an inheritance. That is a civil proceeding, and therefore the normal civil standard would apply and no criminal consequences would come into play.
KATE WILKINSON (National) Link to this
In speaking further on the Committee stage, I repeat that we acknowledge there may be a need to regulate the common law principle that prevents a killer from benefiting financially from the death of his or her victim. In some respects, the existing common law has been regarded as uncertain in some of its scope and in some of its effects. Those uncertainties have, up to now, been resolved by the courts on a case by case basis, which, as we know and as we have heard, can be costly and slow. Having said that, I tell the Committee that this bill in itself creates some of its own uncertainties, and those uncertainties themselves will still have to be resolved by the courts on a case by case basis, and that can also be somewhat costly and slow.
I mentioned before that I was concerned that the bill was a wee bit too inflexible, and that because no consideration had been given to the degrees of moral culpability it may lead to some harsh results in certain circumstances. It is not unusual in other jurisdictions to have legislation that does provide for exceptions. In fact, legislation in the United Kingdom and some of the Australian states gives the courts a discretion to modify the rules, except in cases where the moral culpability of the killer does not warrant the application of those rules. Time will tell, I am sure, as to whether this bill will lead to some harsh results. When that happens, then forgive me if I say “I told you so.”—not you, Mr Chairman, but the Committee.
I would also like to reiterate the somewhat brief explanation of why the civil test on the balance of probabilities is OK when it comes to criminal law. We have to look at the results—the consequences—of that. Under our law at present, for a person to be convicted of murder, the prosecution is required to prove the case beyond reasonable doubt. But for the purposes of benefiting from the murderer’s estate, a family member has to prove it only on the balance of probabilities. That is a much lesser standard of proof.
If we go back to the David Bain situation, we can say that on the balance of probabilities he may or may not have killed his family. In that case, I think it did warrant some more comprehensive discussion and perhaps a reason why such a difference in the standard of proof should be admitted under this bill, when we are talking, in effect, of a criminal conviction or a criminal offence. So it is all very well to talk about the inheritance, the estate, the law of intestacy, the will, and all the rest of it as being civil, but this bill deals with homicide, and homicide is not civil. Homicide is criminal. In that regard, I believe that some further discussion in relation to that test—of whether it should be on the balance of probabilities or beyond reasonable doubt—should have been undertaken.
I go back to the scenario of the reckless driver. Maybe the driver was not convicted of being a reckless driver, or maybe he was, but when one has differences in that standard of proof, then that can lead to unintended consequences. It can lead to injustice, and that, as lawmakers, is what we really want to avoid.
CHRISTOPHER FINLAYSON (National) Link to this
I will be fairly brief, because in my analysis of Parts 1 and 2 I have dealt with the key points I wanted to make. In general, I think that this is not a bad piece of legislation. It codifies the law that, as I say, prevents people who kill people from benefiting as a result of their crime.
The only point I would make concerns clause 5—and perhaps, again, the Minister in the chair, the Hon Clayton Cosgrove, may like to take a call just to clarify one little matter for me—which deals with the effect and application of the legislation. Subclause (1) of clause 5 states that this legislation replaces the “rules of law, equity, and public policy” that prevent a killer from obtaining a benefit as a result of his or her nefarious act. When one looks at the schedule, one sees that a number of enactments have been amended but that nothing has been repealed. So, in a sense, this is the first endeavour by the New Zealand Parliament to deal with this issue. I am not sure, and never have been as we have dealt with it, what exactly the rules of common law, equity, or public policy are that actually govern this situation at the moment. It is an interesting historical question that is shortly to be only of academic moment because the Act, as I said, will codify the law according to the terms of the legislation. It is new legislation for the New Zealand Parliament. It does not seek to repeal or update the law, but I am not sure what the exact rules of common law are at the moment.
With that brief comment, I indicate that National will support the legislation. Notwithstanding that we are dealing with very unsavoury matters, they are matters that do have to be dealt with—for example, claims under the Law Reform (Testamentary Promises) Act, which I have dealt with, or claims under the Family Protection Act. In these kinds of circumstances clear rules are needed, and that is why the National Party will support this legislation.
CHRIS AUCHINVOLE (National) Link to this
I rise to speak on the title of the Succession (Homicide) Bill . This is a sad title, and it is a sad bill in many ways. Again, I say it is a repugnant term, and it is a repugnant situation that the bill has to deal with. It is based on the principle that no one should profit from committing a wrongful act. This is a significant principle in common law, and it is a matter that certainly does need the consideration of Parliament. Parliament produces laws, and laws, although they do not necessarily prevent anybody from taking particular actions, can in a civilised society attach consequences to those actions that break the law. The principle that no one should gain from an act of wrongdoing on his or her part, is one of the principles that lifts society into a civilised state.
This particular bill deals with the extreme end of wrongdoing. It seeks to codify the law that precludes a person who unlawfully kills another person from benefiting as a result of the victim’s death, whether the benefit is from the victim’s estate or from other property arrangements.
This bill follows the Law Commission’s report in 1997 on succession. Again, I call on the Minister in the chair, the Hon Clayton Cosgrove, to explain why this Government has not attended to this issue before now since it came to office. It seems a matter of course that there is little sense of urgency on the part of this Government to give effect to the recommendations and reports of the Law Commission. It would be nice to think that these sorts of things are taken as givens, but they appear not to be.
On a purely domestic front, we still have far too many people losing their lives at the hands of others. This bill is, in part, a recognition of that. Also, hopefully, it will play its part in dissuading schemers who should be so evil as to want to take someone’s life, to gain from that person’s death. It is an aptly entitled bill.