Succession (Homicide) Bill

Hon RUTH DYSON (Minister of Labour) Link to this

I move, That the Succession (Homicide) Bill be now read a second time. The Succession (Homicide) Bill arose from a 1997 Law Commission report on the judge-made rule that a killer cannot inherit from his or her victim’s estate. That report was part of the commission’s wider review of succession law. The commission concluded that although the rule was well accepted it was unclear how it should be applied in some cases. The commission recommended enacting legislation to codify and clarify the general rule. This bill is based on the Law Commission’s report and is one of a suite of recent Government bills giving effect to Law Commission reports.

I would like to thank the Justice and Electoral Committee for its thorough and efficient consideration of the bill. I endorse its amendments. The committee made a number of sensible changes to the bill and I would like to comment on some of the key changes. The committee made an important change to the treatment of cases whereby a killer and his or her victim own property as joint tenants. Joint tenancy is a form of co-ownership of property. When a joint tenant dies, his or her share in the property automatically passes to the surviving joint tenant or tenants. It would be repugnant to allow a person who killed a fellow joint tenant to automatically receive the victim’s share of the jointly owned property in the normal way. The bill therefore treated a person who killed a fellow joint tenant as having died before the victim. That would have resulted in the killer losing his or her entire interest in the joint tenancy. However, if the joint tenants were in a relationship, then the killer could have reclaimed an interest in the property under the Property (Relationships) Act. The same would not have applied to other joint tenants—for example, if the killer and victim were siblings. That could have produced inconsistent results.

I therefore endorse the amendment to clause 8 that now provides that the killing of one joint tenant by another joint tenant will instead be treated as converting the joint tenancy into a tenancy in common. The killer, victim, and any other joint tenants will each retain a share in the property. That amendment is also consistent with the policy that although killers should not be able to benefit from their crime, neither should they be deprived of prior interests.

Clause 12, which allows a caveat to be lodged to prevent registration of a transmission by survivorship of property held in a joint tenancy when one joint tenant is alleged to have killed another joint tenant, has also been amended to reflect the amendments to clause 8 and to improve its operation. The bill seeks to prevent killers from benefiting from their wrongdoing without depriving them of pre-existing entitlements. That means that the killer can still claim against a victim’s estate under the Law Reform (Testamentary Promises) Act. That Act applies when a person is providing work or services to the deceased in return for the deceased’s promise to reward him or her in the deceased’s will. If the deceased failed to reward that person as promised, then he or she can claim against the estate.

However, as introduced, the bill could have produced inconsistent results in relation to those promises. Clause 7 prevents a killer from receiving anything under the victim’s will. If the victim kept his or her promise and provided for the killer in the victim’s will, then that disposition would be revoked by clause 7, but the killer could not claim under the testamentary promises legislation. Claims can be made only if the deceased actually failed to make provision in his or her will.

In this case, the victim did make provision, but it was revoked by clause 7. That meant that the killer would have been better off if the victim failed to keep a promise, in his or her will, to reward the killer—an odd result. The bill has been amended to provide that a killer can claim under the testamentary promises legislation, regardless of whether the victim actually provided for the killer in the victim’s will. I agree with that amendment, which is consistent with the policy that killers should not be deprived of pre-existing rights. In this case, the killer is being compensated for services already provided and in respect of which the killer has a prior expectation of reward.

As introduced, the bill set out the procedure for establishing whether a person had committed homicide, for the purposes of the bill, in three scenarios: firstly, where the alleged killer has been prosecuted and convicted in New Zealand; secondly, where the alleged killer has been prosecuted in New Zealand but acquitted on the grounds of insanity; and, thirdly, where the alleged killer has not been prosecuted in New Zealand at all, whether or not they were prosecuted elsewhere. The bill did not specify the procedure whereby an alleged killer has faced criminal proceedings in New Zealand but been acquitted other than on the grounds of insanity. In such cases, someone could still assert in civil proceedings that, for the purposes of the bill, the alleged killer committed homicide. The bill has been amended to clarify that the same procedure applies in this case as when the person has not been prosecuted at all in New Zealand. A court can decide on the balance of probabilities whether the alleged killer is guilty of homicide for the purposes of the bill or whether he or she is not guilty by reason of insanity. This makes the application of the bill clearer and avoids any confusion as to procedure.

As introduced, clauses 10 and 11 of the bill preserved certain of the killer’s pre-existing entitlements and interests, provided they were not rendered more certain, more immediate, or more valuable by the victim’s death. The words “more immediate” have been deleted from clauses 10 and 11, and I agree with that change. The words could have been misunderstood as meaning that the interest had to be withheld from the killer until the time of the victim’s likely natural death. That would be impractical and was not intended. The real concern is that a killer’s interest should not be improved or made more valuable as a result of the killing.

In conclusion, I would like to again thank the Justice and Electoral Committee for its careful and detailed consideration of this bill. The committee’s amendments promote certainty and clarity and are entirely consistent with the overall policy of the bill. I commend this bill to the House.

CHRISTOPHER FINLAYSON (National) Link to this

The Succession (Homicide) Bill is the second of the trilogy of bills that we are dealing with this afternoon that arises out of a Law Commission report—in this case, the report Succession Law: Homicidal Heirs, dated 15 July 1997. If one reads the introduction to that report, one sees that this issue has had a very long history. In this case it goes back almost 30 years. The then Property Law and Equity Reform Committee wrote a report in 1976 called . Then, as a result of a case in the High Court in 1996, the then Minister of Justice, Sir Douglas Graham, asked the Law Commission to look at this issue. It reported back on 15 July 1997, and 10 years later we have this technical legislation.

I will reserve most of my comments on the detail of the bill to the Committee stage. As the Minister Ruth Dyson said, the bill codifies the law that precludes a person who unlawfully kills another person from benefiting from the death of that person. Of course, that includes benefit from the proceeds of the victim’s estate or from any non-probate assets.

The Justice and Electoral Committee worked very methodically through the legislation. Surprisingly, a few issues were raised relating to joint tenancies and restrictions on claims that could be made. An important issue that I will deal with in the Committee stage is about the application by the victim’s estate under the Property (Relationships) Act 1976. Another important issue arises under clause 15, and that is on what is to happen in terms of evidence if there is no criminal prosecution in New Zealand. Members will see a minor change has been made to subclause (1) in relation to a person who has been prosecuted in respect of a homicide but who has been acquitted other than on grounds of insanity or, for example, if the prosecution has been stayed or withdrawn. I will address those issues in the Committee stage.

There are only brief points that I want to address now, to illustrate the careful nature of the select committee’s work. We looked at the possible impact of the Simultaneous Deaths Act 1958 and are satisfied that if a killer and a victim died simultaneously, then the killer would be treated as predeceasing the victim. The only other point I want to raise at the second reading stage concerns the Te Ture Whenua Maori Act 1993. I do not know whether the commentary on this bill is exactly accurate, because it states that the select committee was satisfied that Māori land succession under that Act would not be “unduly affected” by this bill. That is a classic case of why one should be very careful about using adverbs, because the adverb “unduly” renders the commentary a little misleading. I thought the select committee was satisfied that the 1993 Act would not be affected at all by this bill, but maybe Mr Chauvel or my friend Ms Pillay may care to deal with that matter in their speeches.

That is all I have to say on the second reading of this bill. National supports this legislation. It is overdue by about 30 years.

LYNNE PILLAY (Labour—Waitakere) Link to this

It is a pleasure to stand and speak in support of, as the previous speaker said, the second of three bills to come before this House today from the hard-working Justice and Electoral Committee. I will start off again by thanking all the members of the select committee—it was yet another unanimous report—and also those who helped us, both officials and the hard-working select committee staff. Their assistance is very much appreciated.

The Succession (Homicide) Bill is based on the principle that nobody should profit from his or her wrongdoing. That is a settled principle in New Zealand’s law. However, despite that, there can be uncertainties as to how this principle should be applied in certain cases. These uncertainties have resulted in costly and time-consuming litigation. About half of all homicides are domestic, thus the issue of profiting from murder, for example, through inheritance is very pertinent. The Succession (Homicide) Bill seeks to codify the law that prevents a killer from inheriting his or her victim’s estate. This will reduce the number and scope of disputes over the victim’s estate.

The background comes, again, from a Law Commission report, which was carried out in 1997. Again I thank the Law Commission for ploughing through case law and coming out with a very good recommendation on which the bill was able to be based. The commission recommended clarifying and codifying the law in regard to homicide, and the bill follows that recommendation. The Law Commission was consulted during the drafting of the bill. In essence, a perpetrator who intentionally or recklessly kills another person or an unborn child will now be excluded from any profit from that act. Thus the property of the deceased will be distributed as if the killer had died before the victim, and the killer will be ruled out of any profit. Those who kill by negligence, infanticide, suicide pacts, and assisted suicide will not be excluded from profiting. This is because they are not so morally repugnant. Those who kill their abuser—for example, battered partners, who are predominantly women, and children—will also be able to profit if they are found not guilty of murder on the basis that the killing was self-defence. These exemptions reflect the definition of homicide in the Crimes Act.

If someone is convicted of homicide, the bill uses that conviction as conclusive evidence that the killer was criminally responsible for the victim’s death. Currently, a criminal conviction is not conclusive evidence in civil proceedings of criminal responsibility for the victim’s death. Under existing case law it is well established that killers cannot inherit from their victims, but how it should apply can be uncertain in individual cases. The new law will clarify the issues and reduce the scope for any disputes that may arise. In the decade before the report’s release, about 50 estates were disputed in court, and the Law Commission recommended that a new law would make trustees’ jobs much easier and avoid disputes at difficult times.

As I said before, two tricky areas addressed by the bill were mercy killings and whether battered spouses who killed their abusers could be disinherited. I believe that those matters have been canvassed and addressed through the bill.

The select committee made some recommendations, as has been acknowledged by the acting Minister, Ruth Dyson, to amend clause 8, which ensures that killers do not gain under the Property (Relationships) Act from a victim’s death, and also to clause 10, which allows killers to receive benefits promised to them by the victim, to ensure that the bill only stops killers from inheriting from the act of killing, and does not rule out any pre-existing rights that are not related to the act of killing. A new clause 11A ensures that the victim’s estate is not prevented from bringing proceedings against the killer under the Property (Relationships) Act. Clause 15 is extended to include those acquitted other than on the grounds of insanity, or where the prosecution has been stayed or withdrawn.

In summary, the Succession (Homicide) Bill will achieve many things. It set outs very clearly in legislation, and clarifies with absolute certainty, the general rule that a killer cannot inherit from his or her victim in any way. The bill also defines in a clear way when a killer is prevented from inheriting from his or victim. It ensures that a killer is not generally deprived of pre-existing property rights, and, in doing so—and I think this is important—it will reduce the number of disputes that need to be referred to the courts, and it will reduce the scope of any disputes that do arise. That is a very important point, not only, as I said earlier, because a number of cases have been before the court—up to 50—but also because bringing these cases before the courts, having them heard, and having them defended takes quite some time, and, frankly, the courts’ time can be used much more constructively.

It is worth acknowledging that these cases are extraordinarily tragic and generally involve families in terrible, terrible circumstances. Those families have lost a loved one in dreadful circumstances. To then have the indignity, the stress, and the anxiety of going to court to assert what should not happen in relation to the property of their loved one who has been murdered by— to use the term in the legislation—a killer adds insult to injury in a very real way.

I think the bill is very constructive. Certainly, there is the logistics of the courts’ time not being wasted, but also the bill is constructive in a very much empathetic way, in that families do not have to go through the duress of a gruelling court case after their loved one has been murdered. To then have to face litigation and dispute because the killer believes that he or she has a case to inherit really does, as I said before, add insult to injury. This bill is very constructive.

I thank the Law Commission and the members of the select committee. We heard a number of submissions. The issues surrounding this bill meant that it was quite an emotional experience, and I thank the committee for its constructive approach. I believe that the good work carried out by the Law Commission, the drafting of the bill, and the work of the select committee have resulted in an excellent bill. As the chair of the select committee I am proud to stand in this House and commend the bill.

KATE WILKINSON (National) Link to this

I take a brief call in support of the Succession (Homicide) Bill. I would, however, like to raise a couple of issues that I think perhaps need some clarification. I can certainly go into further detail on them in the Committee stage—assuming, of course, I am permitted to take a call in that stage.

Mention has been made a couple of times, in relation to clause 10, of attempts to provide that killers should not be deprived of pre-existing rights. That has been expanded to include claims under the Law Reform (Testamentary Promises) Act. I would like to run a scenario past the House, because if the intention of the House here is indeed uncertain—as I believe it perhaps is—then an amendment may be necessary.

Let us imagine a case where a housekeeper has killed a flatmate. The flatmate has provided in a will—obviously, before being killed—that in recognition of such a great job in housekeeping and looking after the flatmate, he or she bequeaths the housekeeper $1,000. Under this legislation, the killer would not be allowed to receive the $1,000. But if, for example, the flatmate had forgotten to put the bequest in the will but had promised that in recognition of such a great job of housekeeping, he or she would leave the housekeeper $1,000, then under this legislation and under the Law Reform (Testamentary Promises) Act, the killer would be allowed to keep the $1,000. We have to question how it can be lawful to get to keep $1,000 for housekeeping only if it is not provided for in the will, and to lose it if it is provided for in the will. The amount of the promise is still the same. The service rendered is still the same. The only difference is whether the promise is included in the will. Unlikely though that scenario may be, I wonder whether that provision may lead to some uncertainty.

One of the other issues that I raise in relation to the bill—and it was actually raised by the New Zealand Law Society in one of its submissions—is in relation to flexibility and, in particular, flexibility in relation to culpability. If a battered wife, for example, finally snaps and kills her abuser, should there be under this legislation an exception whereby she can in fact inherit her share of the estate? Or in the case of a mercy killing that does not amount to assisted suicide, which is provided for in the bill, should the killer be treated in the same way as he or she would be in the case of a cold-hearted, premeditated killing? In another scenario, if someone is a killer by virtue of failing to provide the necessities of life, should he or she be treated in the same way as a cold-hearted, premeditating killer? The scenario I raised at the first reading was that of someone who was a killer by virtue of the fact that he or she was a reckless driver who had killed his or her spouse in a car accident. Should such a driver be treated in the same way as a cold-hearted murderer?

I do note that other jurisdictions have given the courts some discretion to modify the rules in exceptional circumstances. Those jurisdictions provide that forfeiture of an inheritance applies unless there are special circumstances—for example, if the moral culpability of the killer at the time supports such an exception. I certainly would like that point to be debated a little more in the Committee stage. If it is the intention of the House to treat all killers, whatever their circumstances, as being the same and therefore to deprive them of any benefit under a will, then so be it, but I do think that issue can be raised.

The third and final point that I raise is in relation to timing. I have mentioned the issue, in other speeches, of the delays in our courts. We could have a scenario whereby a killer inherits from his or her victim’s estate and it is not until some years later that the death is attributed to the killer. In other words, perhaps at the time it was regarded as an accidental death, and subsequently it was in fact found to be a murder, but, because of the time lapse between the act of killing and the charging of the killer, the estate may have already been distributed. If it has been distributed, so be it, but is this legislation intended to apply retrospectively? Will the estate that has already been inherited then be forfeited years later and, if there is anything left of it, be redistributed?

In speaking to the first reading, I also drew the attention of the House to two instances referred to in the Law Commission report where there was a delay of some 4 years between a killing and the court actually giving a judgment. During those 4 years the estate, of course, remains dormant. The executors have a duty to properly and expeditiously administer the estate, but under this proposed legislation they cannot. The estate, in effect, is in limbo.

I think this bill is certainly well intentioned. It is timely; it has taken some 10 years since the Law Commission report. Like many laws, though, I do not believe it is perfect, and I would like some of those imperfections to perhaps be addressed in the Committee stage. Having said that, we do support this reading of the bill.

HONE HARAWIRA (Māori Party—Te Tai Tokerau) Link to this

Tēnā koe, Mr Deputy Speaker. Tēnātātou te Whare. Some 30 years ago Bob Geldof and the Boomtown Rats took their song “I Don’t Like Mondays” all the way to number one in the UK. It was a story of a horrific shooting spree of 16-year-old Brenda Ann Spencer, who killed two adults and injured eight kids and a police officer. Her only explanation was: “I don’t like Mondays.” Yesterday was just such a Monday here in Aotearoa, as the nation reeled from the tragic effects of the deaths over the weekend of three innocent kids in Christchurch and Wanganui.

While the country woke up to those horrifying stories, other reports of homicide were coming in from other parts of the nation, as well. In Rotorua the jury heard the case of a Waikato man on trial for a domestic double murder, in Napier a depositions hearing began for the man accused of murdering Hawke’s Bay farmer Jack Nicholas, and in Auckland the defence opened its case in the trial of a 32-year-old woman and her 27-year-old partner for murdering the woman’s 3-year-old son.

The tragedy about these cases is that this was just another Monday in Godzone. Since 1990 we have had nearly 120 homicides each and every year, a tragic figure that is but a glimpse into the wide-scale trauma that rocks our world. It is with that background in mind that we come to the House today to debate the Succession (Homicide) Bill, a bill that is a sad but logical consequence of living in a nation with such a high homicide rate, and a bill born of the crime of murder enacted far too often in this country.

The purpose of the bill is to clarify the law so that killers cannot benefit from the estate of those they have killed—a clarification the Māori Party supports, although noting some issues raised at the Justice and Electoral Committee that still need closer attention. Negligence is one of those issues. I note the submission from the National Council of Women recommending that causing death by negligence, such as when someone driving negligently causes the death of a passenger in a car, should also be included under the terms of this Act. The New Zealand Police Association also wanted negligence included within the terms of the Act. It was concerned that in cases where somebody had killed his or her spouse, the killer might still profit from the victim’s estate through a claim that the murder was an act of recklessness, and nothing more than a negligent act.

A finer point of the bill, though, is to ensure that although people should not profit from murder, neither should they be deprived of rights not related to the murder. It took a while to get my head around, but in the end I accept that being wrong for one thing should not mean having to suffer for everything.

An issue I raised during the first reading of this bill was the impact the bill might have on the succession to Māori land under Te Ture Whenua Maori Act of 1993, which states that owners of Māori land can will their land to only whānau, and that where somebody dies without leaving a will the Act will ensure that the property stays within the whānau. This is a laudable concept. During the select committee debate we were told that if a killer loses his or her property interests under the bill, Te Ture Whenua Maori Act will ensure the land remains in the family. That principle comes from traditional practice first introduced into law through the New Zealand Māori Council in 1983 when it called for Māori land to be kept in the hands of its owners and for law and policy to reflect Māori land ownership and use by the whānau and hapū.

Māori communal ownership and strong links to the whenua became the overriding priority rather than the rights of the individual. We were keen to ensure that the bill did not cut children out from succession to land because of the sins of the parents. We were also told that the Succession (Homicide) Bill would not stop whānau from giving a person back his or her land interest if the whānau so wished, even if that person had been responsible for the death of another whānau member.

Given the significance of Māori connection to the whenua we are keen to hear the Minister’s call during the Committee stage to see how much consultation there was with tangata whenua over this bill. I know that the Law Commission was consulted, and in preparing the original report in draft legislation it consulted with the Public Trust, academics, and a former law commissioner. We know, too, that specific consultation with Māori was a key suggestion in the 1996 working paper of Drs Pat Hōhepa and David Williams, and we hope the Government sees the value of that to this piece of legislation as well.

Finally, I wish to return to yesterday’s events. Alongside the reports of court hearings and tragic eyewitness accounts came new research from Victoria University’s Liz Moore about the homicide of some 70 kids murdered over the past 20 years, which showed that most of them lived in normal family situations with both parents, but because of poor record-keeping and classification of coronial records, data gaps were common, and proper research could not be completed. We need that research. We need answers and we need firm action to deal with questions, such as, “What value do we place on human life?”, “How do we protect our most vulnerable from attack?”, and “How do we ensure that kids are not denied their rights because of the actions of their parents?”. In questioning the futility of life, Bob Geldof says in his song:

CHARLES CHAUVEL (Labour) Link to this

This Succession (Homicide) Bill is another bill that had its genesis in a Law Commission report and is now being enacted into the laws of New Zealand. The report, Succession Law: Homicidal Heirs, was report No. 38 of the Law Commission, published in July 1997. The foreword to the report records that the Minister in charge of the Public Trust Office had asked the commission, as part of its project, to review the law of succession in order to expedite its work on the effect of homicide on rights of succession. The Minister’s interest in the subject was aroused in part by the problems demonstrated by the case of .

The commission in its foreword goes on to note that the need for homicidal heir legislation was, as a previous speaker indicated, identified more than 30 years ago by the former Property Law and Equity Reform Committee in its 1976 report The Effect of Culpable Homicide on Rights of Succession. It has been noted that this report is over 30 years old. I agree with the previous speaker that it is high time that legislation was brought down to codify the common law in this area, and I am proud it is a Labour-led Government that is finally doing that.

The commission sets out in its report the rules that should codify the common law relating to the succession of killers. It can be seen that the legislation before the House draws heavily on the draft bill set out in the Law Commission’s report. At the time the commission was working on a project concerning the statutes that govern succession generally. Embraced within the ambit of that project were the Wills Act 1837 of the Imperial Parliament, the Law Reform (Testamentary Promises) Act 1949, the Family Protection Act 1955, the Matrimonial Property Act 1963, and the Administration Act 1969. The commission aimed to have the new succession legislation drafted in plain language providing for the matters dealt with in all those statutes. It aimed to have it in fewer statutes, trying to simplify the law and to enable better effect to be given to the intentions of lawmakers and taking into account the diversity of New Zealand families.

Later today it is likely that we will consider a new Wills Bill, which had formed part of this commission project at the time. That bill will govern will-making for the first time in a statute of this Parliament. It is another fruit of the succession project that the commission was pursuing in the late 1990s.

Before proceeding to discuss the provisions of the Succession (Homicide) Bill it is appropriate, in my view, to pay tribute to the members of the Law Commission and others who were responsible for the work leading to the 1997 report. Former commissioner Professor Richard Sutton, Mr Brian Blacktop, who was Deputy Public Trustee at the time, and Nicola Peart, who was a senior law lecturer at the time were all acknowledged in the commission’s report, which was issued during the presidency of Justice Baragwanath. Nicola Peart’s involvement with the legislation has continued. She presented the submissions of the New Zealand Law Society to the Justice and Electoral Committee on this bill.

There are six provisions of note in the legislation as introduced. First is the definitions of “killer” and “victim” contained in clause 4 of Part 1. Having dealt with definitions, the bill goes on to provide that a killer as defined may take no interest in any property under the will or intestacy of the killer’s victim.

Clause 7 provides that the interest in the relevant property will be distributed as if the killer had predeceased the killer’s victim, unless there is an expressed testamentary provision to the contrary. Clause 8 goes on to prevent a killer from taking any interest in property transmitted outside the estate disposed of by the will of the victim. Non-probate assets in this category could include real property jointly owned by the killer and the victim. Again the principle followed by the legislation is that the killer is to be treated as if he or she predeceased the killer’s victim when considering how the interests in the relevant real property should pass.

Clause 9 goes on to provide that the killer is not entitled to apply under the Family Protection Act 1955 to be provided for out of the estate of the killer’s victim. Clause 10 deals with three types of claim: claims made under the Matrimonial Property Act or the Property (Relationships) Act, as a previous speaker indicated, relating to property disputes between spousal partners; valid claims made for restitution of economic benefits conferred on the killer’s victim in anticipation of a reward; and claims made under the Law Reform (Testamentary) Promises Act 1949. In the case of any of these types of claims, the bill provides that the killer can make a claim, but the death of the victim gives the killer no more certain, immediate, or valuable benefit than that to which the killer would otherwise have been entitled but for the homicide.

The final major provision of the original bill is in clauses 13 through to 15 and relates to evidence of homicide. The rules are relatively simple. The conviction in New Zealand of a person for homicide is conclusive evidence of that homicide and of that person’s guilt, unless there has been a successful appeal resulting in an acquittal. Acquittal in New Zealand by reason of insanity in the case of homicide is conclusive evidence that the killer is not guilty of homicide for the purposes of the bill. Where a person is alleged to have committed homicide but no prosecution has occurred in New Zealand in respect of the homicide, the court may decide whether the person did commit homicide, but will do so on the civil standard. In such cases, a person who alleges that he or she is not guilty by reason of insanity must prove that state of affairs, again on the civil standard of the balance of probability. A conviction for homicide outside New Zealand is admissible evidence as to the person’s guilt of homicide and is to be given such weight as the court determines.

Having had the privilege of sitting on the Justice and Electoral Committee, I can say that the quality of the submissions we heard was extremely high. Generally speaking, the submissions were supportive of the need to codify the common law in this area. We recommended three major changes to the original legislation. I am pleased to hear that the Minister and the Government will support these. First, in respect of property owned in joint tenancy by the victim, the victim’s killer—and any other person, if any—that property should be distributed on the death of the victim as if it were the property of each of the owners as tenants in common in equal shares. Obviously, this will allow for only the share of the property owned by the killer to continue in the killer’s ownership, but it will not allow the killer to profit to any greater extent.

In respect of claims as to matrimonial property, testamentary promises, and restitution, we were at pains to make clear that any payment for services promised to the killer by the victim prior to death would not be regarded as an additional benefit from the victim’s death. We felt that this change was consistent with the general principle of the bill, which was to deprive unlawful killers of any profit from their wrongdoing but otherwise not to adversely penalise them or affect them any further.

Finally, also hopefully acting consistently with that principle, we recommended in our report—and the Government has accepted—that when applying section 88(2) of the Property (Relationships) Act 1976, the court should be at great pains to favour the granting of leave in those cases, if refusing to do so would allow the killer to retain a more certain, or more valuable, interest in the property than that he or she would have had but for the unlawful killing. Again we have tried to reinforce the principle of not profiting from wrongful action.

I am glad that this Parliament has progressed legislation on this issue and I am pleased to have risen and taken a call in support of the second reading of the bill. Thank you.

NANDOR TANCZOS (Green) Link to this

I rise to give a reasonably brief contribution on behalf of the Green Party to the Succession (Homicide) Bill, because much has been said already about the bill and colleagues have made very useful contributions. The bill is more or less a codification of the law as it stands; it is primarily that.

I want to take a moment to acknowledge, as previous speakers have done, the excellent work of the Law Commission in one of its reports. I have to say that one of the criticisms of successive Governments is that the enormous amount of very valuable work done by the Law Commission, often on fairly technical areas of law reform, is often shelved and ignored by Governments. I think the current Labour-led coalition Government is to be commended for having found the time, in its extremely busy and tight legislative schedule, to progress these important pieces of work by the Law Commission. I commend the Associate Minister of Justice and the Leader of the House for having made the space to do this very important work.

I want to touch on a couple of areas in the bill. One area mentioned by previous speakers concerns the definition of homicide. Clause 4 defines “homicide” as “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; but does not include— (a) a killing caused by negligent act or omission;”—which Mr Harawira referred to—“or (b) infanticide under section 178 of the Crimes Act 1961; or (c) a killing of a person by another in pursuance of a suicide pact; or, (d) an assisted suicide.” It is important to dwell on these exemptions for a second. An earlier speaker, Lynne Pillay, referred to the principle behind the bill, and I think she is right, but moral culpability is what we are trying to get at. So I think it is right that those issues are exempt from the definition of homicide.

Another area that caused me a little bit of concern, and that the previous speaker, Mr Chauvel, talked about, was around clause 15, “Evidence if no criminal prosecution or unsuccessful prosecution in New Zealand”. Subclause (2)(a) states: “the court hearing the proceedings may decide for the purposes of this Act whether the killing of a person or a child that has not become a person has taken place …”. Basically, it is saying the court would decide, on the balance of probabilities, whether the person was guilty, and that the conviction of a person elsewhere than in New Zealand is admissible evidence and is to be given any weight that the court determines. I have to say that it causes me concern that a person who has not been prosecuted, or who has been acquitted other than on the grounds of insanity, or where the prosecution has been stayed or withdrawn, can undergo a second process for the purposes of this bill to decide whether he or she has committed homicide. So in that respect a bit of disquiet remains with me.

I also want to touch on the issue of Te Ture Whenua Māori Act, because Mr Finlayson is right about the need for some clarification. My understanding was the same as Mr Harawira’s understanding, and that was that the select committee was reassured that the interests of children would not be affected by the passage of this provision, and that, in addition—and this was something that needed to be checked—when the bill came into effect the killer could still have any interest in that land returned to him or her, as well. We do need to be reassured that those provisions in Te Ture Whenua Māori Act are not affected, not unduly affected. Because the meaning is quite different. When we say “not unduly affected”, we have to ask what the residual effect is. What does it actually mean? My understanding is as I have stated.

The final area I will just touch on is where someone has a valid claim against the State with regard to a testamentary promise. As previous speakers have said, there was a little bit of twisting our heads around the idea that someone who has been assured of some kind of benefit would continue to receive that benefit—despite having killed that person—because that benefit was not dependent on the killing but was a pre-existing matter. In working through the principle of what we are trying to get at here—that a killer should not benefit from his or her deed—we could see that, in that case, that principle did not apply. So that is as stated.

Once again, I thank the Government for progressing important pieces of Law Commission work, because the commission does important work. It is often not highly exciting, inflammatory kind of law reform, but it is important work. Given that the Government has such a tight schedule and the Order Paper is so full, it is gratifying to see that the Government has made a special place to ensure that this important work is progressed.

R DOUG WOOLERTON (NZ First) Link to this

I rise to support this bill, and to say it is good that it is written down and cast in stone that people should not profit from murder. That is the way it should be, and it amazes me that it has not been done before, but all credit to the Government for doing that.

Having said that, when we look to the future there are a few areas in this respect that one could be concerned about. One area is euthanasia and matters like that, which are quite socially changing steps, but there are people who propose them. In this area one would have to be a little bit worried, and I think this legislation at some time in the future could be extended to cover those situations.

It is not so much the fear that one would go and kill a person, because that is covered in this legislation, but I would put forward the thought for people to ponder how they would feel if one day we should have a law that allows euthanasia. How would those people who already feel under some obligation to family members now because they are infirm, or they have to be looked after by their sons, daughters, relatives, or even by their partner, feel if we were to have such a law?

I put it to this House that if such a law came to pass, those people would need some protection from themselves, as well as from the people around them. This legislation covers the people around them, but they need some protection from themselves, when they feel so guilty about being a burden on their family that they would look to, would be talked into, or would be persuaded into taking their own lives by way of euthanasia. I think that that would be a very, very sad thing, and an added burden on elderly people who are already in a situation of guilt, shall we say.

So although I applaud the architects of this bill, and I applaud the Law Commission that brought it about, I agree with Nandor Tanczos when he said that in the past not enough consideration has been given to the thought processes of, and reports brought down by, the Law Commission. But this legislation is a result of that, and I think it is wonderful that it should be so.

I just put it out there so the House can think about what could happen in the future and the pressure that people could be under in the future. Although I am not a lawyer myself—and nobody would ever accuse me of having too many deep thoughts in this area—the area of euthanasia is one area that I think should be considered in the future. It is being talked about, and I think that in a bill such as this, it should be covered. So I leave that with people to ponder.

CHRIS AUCHINVOLE (National) Link to this

I am happy to rise and speak to this Succession (Homicide) Bill. I think that it was the Justice and Electoral Committee chair, Lynne Pillay, who used the word “repugnant” when we were discussing this bill at the select committee. The whole subject does have a degree of repugnance associated with it. It was pretty grim stuff. But Parliament has to face these issues; indeed, I would like to add my voice to those who have commended the Law Commission for bringing this one forward. The question, of course, is why it has taken so long to reach this point.

When we spoke with Law Commission members at the select committee, it was interesting that one of their concerns was that over the past 7 years, a large number of their recommendations have been, frankly, ignored. So it is very heartening to know that at least people are starting to listen to the commission. I would share with the speaker before last in congratulating the Government on finding time in its extraordinarily busy schedule to fit this bill in. The bill codifies the law to stop a person who kills another from benefiting through that action. I think that the details of the bill have been widely canvassed and spoken about by other speakers.

Where the bill took us in debate at the select committee was interesting. The submissions we received were moving and of a very high quality. The one that particularly interested me concerned Te Ture Whenua Maori Act 1993. It is a very interesting aspect, and I agree with previous speakers that that yet requires resolution.

In terms of what was said by the previous speaker, I tell the House that assisted suicide has in fact been excluded, so that has been determined—

Hon MARK GOSCHE (Labour—Maungakiekie) Link to this

I am pleased to be following the previous speaker in this debate—