The Government has created 2 new criminal offences aimed at cattle rustling. These have been generally well received. But there are reasons to be concerned, both about the laws themselves, and about the process by which they were made. This post focuses on what’s concerning about that, and is followed by another questioning the changes themselves.

By Simon Connell and Colin Gavaghan, Otago Faculty of Law

Cattle rustling. To many of us city slicker types, it sounds like a throwback to a by-gone time. Maybe old Western films on a Saturday morning. 

Apparently, though, cattle rustling is still a serious problem in New Zealand. Around $120 million a year worth of problem, according to Federated Farmers.  

Earlier this week, the Government decided to get tough with the rustlers. It introduced two new criminal offences, specifically targeted at theft of livestock. Unsurprisingly, this has been widely welcomed by farmers’ lobby groups. Equally unsurprisingly, this is the point where the academic lawyer types are going to tell you why this has all been a bad idea. Or, at least, why it might not have been obviously a good one.

In a second instalment of this blog post, we’re going to talk about the details of the new offences. In this part, though, we’re more concerned about how this change was brought about. We start off by setting out the normal process for making statute law (ie Acts of Parliament) in New Zealand, set out what happened in the case of the Crimes Amendment Bill (now the Crimes Amendment Act 2019), and discuss what we think’s wrong with that.

 

The usual process for making statute law in New Zealand

An Act of Parliament starts off as a Bill, and a Bill usually has to progress through the following steps to become law:

  • Introduction (The Bill is introduced to Parliament);
  • First Reading (Parliament debates the Bill and votes on whether or not to progress it);
  • Select Committee (The Select Committee gathers information, which normally includes public consultation by allowing for submissions on the Bill, and then prepares a report on the Bill);
  • Second Reading (The House debates the Select Committee’s report, then votes on (i) whether or not to progress the bill, incorporating any changes the Select Committee agrees on unanimously, and  (ii) whether or not to incorporate any changes that the Select Committee did not agree on unanimously; 
  • Committee of the Whole House (Parliament considers the Bill in detail, and votes on any further proposed changes, often made by Supplementary Order Papers);
  • Third Reading (The final debate and vote on the Bill as it stands after any changes in the previous stages. If successful, the Bill is passed);
  • Royal Assent (A formality – the Governor-General signs the Bill and it becomes an Act).

The Crimes Amendment Bill started life as a relatively minor and uncontroversial Bill repealing three outdated provisions in the Crimes Act (for the arguments for removal, see Justice Minister Andrew Little’s speech in the First Reading):

  • The offence of blasphemy;
  • The “year and a day” rule that prevented one person being held criminally responsible for a death that occurs a year and a day after the cause of death; and
  • Spousal immunity from being an accessory after the event.

The Bill was introduced on 19 March 2018, had its first reading on 28 March, went to Select Committee on 28 September 2018, and passed its second reading on 11 December 2018. The following day, Andrew Little introduced a Supplementary Order Paper (SOP 185) which added two new criminal offences aimed at rustling.

The Bill went to the Committee of the Whole House in February this year, where SOP 185 was accepted unanimously. The Third Reading followed early this month, and the Bill was passed, duly received royal assent, and is now law.

 

So what’s the problem?

The short version is this: creating entirely new criminal offences in a Bill that originally just removed outdated provisions, after the point where public consultation occurs and without Select Committee scrutiny, is undemocratic and really not something we should be happy with our elected representatives doing. Even if they all agreed on it, which they did.

Now, to be fair, the new offences weren’t added with no consultation at all. As it turns out, there was a targeted consultation. Before the second reading, the Law Society, and presumably some other bodies, were provided with a confidential issues paper called Addressing the theft of livestock, and asked to provide confidential submissions on a limited timeframe. The Law Society has released their response, as well as a letter to Andrew Little expressing concerns about the process, on their website, and we are grateful to them for having done so, as it helps shed light on this issue. We’re not sure if the occurrence of a super-secret consultation makes things better or worse, to be frank. It doesn’t help that the confidential issues paper didn’t provide the specific wording of the proposed offences. The expansion of the criminal law is not of interest to a select few.

We’d also note that section 7 of the New Zealand Bill of Rights Act requires that the Attorney-General “bring to the attention of the House of Representatives” any provision in a Bill that appears to be inconsistent with the rights and freedoms contained in our Bill of Rights on, or soon after, the introduction of a Bill to Parliament. Adding new criminal offences later in the legislative process by-passes this check, too. We’re not sure if these offences do raise any particular Bill of Rights issues, but, in general, creation of new criminal offences seems like exactly the sort of thing we’d like vetted for Bill of Rights Act compliance.

Also of concern are comments made by Members of Parliament in the various debates about the Bill, which suggest a level of awareness that there was something a little odd about significant extensions to the criminal law being made in this way, accompanied by a sort of self-congratulatory disregard for those concerns:

In Committee, Andrew Little said that:

[The addition of rustling offences] wasn't considered by the Justice Committee along with the rest of the bill, but it was considered by the Primary Production Committee in an earlier guise, under a member's bill advanced by Ian McKelvie when he sought to bring that along. As a result of collaboration between Mr McKelvie and Kieran McNulty and, indeed, in conjunction with myself in backroom discussions, we were able to reach an agreement that we could bring it in, with the concurrence of members opposite, to this bill and make it part of, I think, a long overdue part of our criminal code.

And, in the last speech prior to the Third Reading, Labour MP Kieran McAnulty said

Mr McKelvie, when he brought his member's bill to the Primary Production Committee, the advice that we got at the committee was that this was not workable. I don't blame Mr McKelvie for that; it was just the way that it was. The rules of Parliament said that we couldn't make the changes to it that we wanted to. Submitter after submitter after submitter said that we just simply needed to include a crime of livestock theft into the Crimes Act and we would achieve what Mr McKelvie wanted to achieve. But unfortunately because of the rules of the way that they were, we couldn't continue, we couldn't progress. The options that were in front of us were that we bring it to the House—because that was the advice—and it gets voted down, or that the bill be withdrawn and then it goes back to the luck of the draw into the ballot.

I had a bit of a thought, and I was only new and I wasn't all that confident, but I thought why don't we try and include this in a Supplementary Order Paper (SOP) into the Crimes Amendment Bill? I did it on the quiet, because I didn't want to make a fool of myself at the select committee. I got really excited, I drew it up, and I went to the people that give us advice, and I said, "Can we do it?" And they said no, because the Crimes Amendment Bill is about withdrawing things; it's not about including things. If there was a provision within it that included the inclusion of a new law, a new crime, then we could've; but it didn't, so we couldn't. However, if we got the approval from every party in the House, then we could do it.

The references here to National MP Ian McKelvie’s Bill is to the now-withdrawn Sentencing (Lifestock Rustling) Amendment Bill. That Bill sought to deter livestock rustling by identifying it as an aggravating factor at sentencing (that is, a factor that normally leads to a more serious response). A number of the submissions on that Bill recommended creating new offences to target rustling (see the Ministry of Justice’s Report on the Bill), rather than just trying to deter rustling through harsher sentences.

Were the government to have asked for submissions on the new rustling offences that they actually passed, the groups that made submissions on the sentencing Bill arguing for new offences probably would have done so again. But, the lack of consultation meant that people who may have wanted to sound a note of caution about the creation of these offences did not get an opportunity to do so (unless they were included in the confidential consultation, which did not provide the full wording).

In his speech in the Third Reading, Andrew Little argued that:

I'm conscious that the New Zealand Law Society expressed some concern that the new offences hadn't been subject to the usual select committee and legislative process. I understand that concern, but I disagree with it, because the truth is that these provisions were given close scrutiny by the Primary Production Committee through consideration of Mr McKelvie's member's bill.

 We don’t think that’s good enough, and we don’t think that Andrew Little is accurately capturing the Law Society’s objection here. The issue is not so much that Parliament did not get to give the offences enough scrutiny – it’s that the public did not. The Primary Production Committee never had the benefit of submissions taking a critical approach to the addition of new offences, because the addition of new offences was not part of the Sentencing Bill, it was instead a common theme in submissions.

A somewhat puzzling counterpoint to these triumphant speeches celebrating getting one over on the democratic process is that several of the other speeches in the third reading speak of the Bill as if it was just removing archaic provisions like it was originally going to (Chris Bishop, Darroch Ball, Golriz Ghahraman, we’re looking at you).

Finally, we want to contrast this with what happened with a different Bill. Like the Crimes Amendment Bill, the Births, Deaths, Marriages and Relationships Registration Bill began as a relatively straight-forward Bill to modernize the law relating to birth-certificates, including taking into account ways of accessing birth certificates and other information online.

The public had an opportunity to make submissions at the Select Committee stage. However, the Select Committee decided that the Bill should also allow people to change the sex on their birth certificate by self-identification rather than through the current process which includes providing evidence of medical treatment to the Family Court. A number of groups opposed to this change argued that there were wider legal implications of self-identification that they had not had an opportunity to consider or provide submissions on. Internal Affairs Minister Tracey Martin decided to defer the Bill, stating that:

[S]ignificant changes were made to the Bill by the select committee around gender self-identification and this occurred without adequate public consultation.  This has created a fundamental legal issue … . [W]e have to make sure that democratic principles are followed. Given the significance of the changes, there has been inadequate public consultation.

Much has been written on self-identification and on the lobbying against it that led to the Minister deciding to go back for more consultation. We’re not going to get into that. Our point is just that, if you’re going to accept that significant changes should not be made without public consultation, then surely that should apply to the creation of new criminal offences.

In part 2, we turn to look at the content of the new offences - click on and read what we think!

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