Hon RICK BARKER (Associate Minister of Justice) : I move, That it be an instruction to the Committee of the whole House on the Statutes Amendment Bill (No 4) that it take the bill part by part.

• Motion agreed to.

Hon PETE HODGSON (Convenor, Ministerial Group on Climate Change) : I move, That the Climate Change Response Amendment Bill be now read a first time. At the appropriate time I will move that the bill be referred to the Commerce Committee for consideration, that the committee present its final report on or before Thursday, 28 July 2005, and that the committee have the authority to meet at any time while the House is sitting, except during oral questions and during any evening on a day on which there has been a sitting of the House, and on a Friday in a week in which there has been a sitting of the House, despite Standing Orders 191 and 194(1)(b) and (c).

This bill deals with two issues. Firstly, it amends the Climate Change Response Act of 2002 in respect of the function of New Zealand’s Kyoto Protocol registry. Under the Kyoto Protocol, New Zealand is required to develop and maintain a registry to ensure the accurate accounting of emissions units. Emissions units are defined as the various types of units specified under the Kyoto Protocol that the Crown may offset against New Zealand’s greenhouse gas emissions during the first commitment period of 2008-12. Several domestic climate change policies, and the clean development and joint implementation mechanisms under the Kyoto Protocol, will require the Crown to transfer emissions units to New Zealand businesses and individuals. Units are awarded in recognition of activities undertaken by individuals to mitigate climate change. This bill will allow individuals to hold accounts in the registry and to trade in emissions units.

Under the Projects to Reduce Emissions policy, the Government has already offered contracts that are expected to result in the provision of 10 million units for around 40 projects that will reduce the emission of greenhouse gases beyond “business as usual”. Further, by allowing individuals to hold accounts and trade, the Government is providing the opportunity for individuals to participate in the international market for emissions units for speculative or other reasons. Allowing broad participation is consistent with supporting the development of the international market and encouraging the creation of opportunities for new business activities, such as brokering. The bill also provides for the accounting of two new types of emissions units in the registry, which were created by international decisions taken in 2003, and makes several amendments to provide for the official administration of the registry.

Secondly, the bill enables the establishment of the Permanent Forest Sink Initiative. Forests absorb carbon dioxide, one of the major greenhouse gases associated with climate change. The Kyoto Protocol recognises that by allocating forest sink credits for forests planted since its benchmark year of 1990. Permanent reforestation creates forest sinks of enduring value. Part 2 extends the regulation-making powers of the Forests Act of 1949 in order to enable the establishment of a mechanism to allow landholders to access the value of carbon sequestration created under the Kyoto Protocol. Regulations will establish the policy details of the Permanent Forest Sink Initiative and will provide for contracts between the Crown and landowners. There is no compulsion on either party to enter those agreements. To enter the sink initiative, the land must be eligible to earn emissions units under the Kyoto Protocol. That means the land must not have been covered in forest as at 31 December 1989, and that the new forest must be “direct human induced”.

The Permanent Forest Sink Initiative is a business opportunity that has been created by the Government’s ratification of the Kyoto Protocol. The initiative has the potential to attract many millions of dollars of investment into the New Zealand economy. The initiative would allow landowners to make better economic use of their land, particularly of isolated and erodible land not suitable for agriculture or commercial clear-fell forestry. The initiative is likely to produce positive environmental outcomes in terms of biodiversity, soil and water conservation, water quality and flood protection, funds for natural forest restoration, diversification of forest timber species, the development of a special-purpose timber supply, and the reduction in agricultural emissions through displacing some marginal pastoral agriculture. As a further incentive for reforestation, owners will be able to harvest some timber from their forests, but only after 35 years and only on a continuous canopy basis. Earlier harvesting or clear-felling of the forests would incur penalty payments.

Under current law, the tax treatment of the Permanent Forest Sink Initiative income and expenditure is uncertain. In order to remove that uncertainty, the Government proposes to amend the tax legislation to deem any business that primarily involves earning forest sink credits under the Permanent Forest Sink Initiative to be a forestry business. That will ensure that the existing forestry tax provisions also apply in that situation. Those amendments are expected to be included in the first tax bill following the tax bill scheduled for introduction in May 2005.

I commend the bill to the House.

Hon Dr NICK SMITH (National—Nelson) : This bill illustrates the serious pickle the Labour Government has got New Zealand into, with its premature ratification of the Kyoto Protocol. It is piecemeal law that will create some quite perverse incentives in terms of the proposed carbon-trading market. What is particularly bizarre about this bill is that if people go out and create productive forestry, if they plant a new area of Pinus radiata for commerce, despite the fact that that will have equally a gain in terms of the protocol, they will be able to register their credits only if it is unproductive forestry. It seems somewhat bizarre but when I really think about it, not unusual from Labour—that it would want us to encourage unproductive activity but discourage productive activity.

Russell Fairbrother: We don’t encourage unproductivity.

Hon Dr NICK SMITH: I would like the member opposite to explain it to me. Why is it that if people go out and plant trees for non-commercial purposes, they will be able to register it and get credits from this Government, but if they do this to create wealth, to earn income for this nation, the Government says no? It is truly bizarre. It really does illustrate the muddled mind of the Government, with respect to this whole issue of climate change. It is part of the folly of this Government’s desperate bid to be cleaner and greener than anybody else on the planet—without rational thought as to the implications for New Zealand, for our economy, and for our environment, of going ahead of the pace.

Just last week the Government announced a new carbon tax that will impose an extra $300 million or $400 million on New Zealand homeowners, on New Zealand businesses, and on New Zealand farms. It is interesting to note what the United Kingdom’s Guardian newspaper said last week about the Government’s announcement. It said it was going to be an interesting experiment for New Zealand. Well, an experiment is something with high risk. While the rest of the world will be watching New Zealand with great interest, this Labour Government has no right to play games of experiments with the livelihoods of the key industries and the families of New Zealand. It should be an embarrassment that the Government is experimenting with the New Zealand economy.

It is interesting that the Europeans, the ones whom Pete Hodgson and the Government are so keen to trot out after, in the 1990s abandoned any idea of a Europe-wide carbon tax. It is high risk, it will have a negative impact on the New Zealand economy, and it will be for negligible environmental gain. How many members of this House really believe that the 4c a litre carbon tax will result in any less petrol or diesel being used in New Zealand?

Hon Ken Shirley: None at all.

Hon Dr NICK SMITH: Ken Shirley, quite properly, says “None at all.” Labour members are silent because they know in their heart of hearts that it will make not a dot’s worth of difference. They know. They have twice already put up the petrol tax. When they put up the petrol tax in 2002, was there any reduction in the amount of petrol used?

Lindsay Tisch: No.

Hon Dr NICK SMITH: Not at all. Will there be any reduction since 1 April this year, when Labour again put the petrol tax up? So why is it that Pete Hodgson and the Labour Party want to impose this extra carbon tax on New Zealand business and on New Zealand households, when they know that it will not work? I say to Pete Hodgson that the carbon tax will be as successful as the “fart tax”, and it will not be long before this Government is scurrying off into its hole and apologising for getting this one wrong, as well.

The real difficulty the Government has got itself into with the Kyoto Protocol is going so far ahead of our major trading partners. It is National’s view that New Zealand needs to move in parallel with our most important trading partners, and it was a mistake in 2002 for this Government to ratify the Kyoto Protocol, when neither Australia nor the United States was part of it.

I point out to Darren Hughes, who is trying to interject, that New Zealand’s emissions amount to less than 0.5 percent internationally, and per head of population our emissions are about half that of Australia’s and the United States’ emissions. So why are we going to impose costs, and impose controls, and impose red tape on New Zealanders when countries like China, India, Singapore, Australia, the United States, and Canada do not have restrictions on them?

The devil of this bill will actually be in the detail. Because in that continuum—from a national park forest that is fully protected, all the way through to the production forest—where does this bill strike? The answer is that we do not know. We do not know, because, in fact, it is the regulations that will flow from this law that will sort out who is in and who is out. But I can bet one thing: this Government has no intention of providing the credits for those forest planters since 1990, who are eligible for Kyoto credits. Why will it not do that? Is there some great ideological reason? Is there some reason why, if it is indigenous forests, the Government will provide the credits, but not if it is plantation forests? Is there some rationale for the distinction that the Government is making in this bill, to give out credits to some but not to others?

It is very simple. The reason is that without the forest credits, this Government’s policy is absolutely naked. Without confiscating those forest rights from those thousands of Kyoto forest owners, unless the Government has those, it is seriously in the pickle. I ask Government members opposite, why should those who have this forest mechanism get credits, but not plantation forest owners? Why do those who use the cleaner development mechanism—say a wind farm—get the credits but not those that plant pine forests? Why are those who meet the requirements of the joint implementation mechanism of the Kyoto Protocol able to get their credits and to trade with them, but not the forest owner? Why is it that the forest owner who has planted Pinus radiata, in good faith, is out but these guys are in? I say that it will provide some very crude and wrongful incentives for all the wrong sort of behaviour.

This is all part of Helen Clark’s rushing in to get the cute photo opportunity without thinking through all the implications of New Zealand’s ratification of the Kyoto Protocol. It is National’s view that when we move to a point of this agreement being truly international—that is, when we move to a tradable emissions permit system, and this is a very big “but”, we need to move with everyone. We cannot pick just some. We cannot say to those plantation forest owners: “We’re going to grab your credits and nationalise them.”, and say to those who have an indigenous forest that has been newly created, or even, I understand, an exotic forest: “Your forest is not to be harvested; it is to be put into canopy.”, or that somehow they will be treated differently, and that if they have a cleaner development mechanism they will be treated differently.

National’s view is that we must treat all of those equally, we must move to a comprehensive emissions trading permit system—or none at all. We say that it is either all or none. Picking only some will cause all sorts of distortions. The Government’s Kyoto policies are in a mess. This bill will not work. It will only create more problems. The correct thing for the Government to have done was to hold back, wait until Kyoto becomes truly international, and then move all players into a tradable emissions permit system.

Hon MARIAN HOBBS (Minister for the Environment) : I rise to support the Climate Change Response Amendment Bill, and I am very much aware that the previous speaker has just said that the Government is in a pickle. No, the Government is not in a pickle; the earth is in a pickle. For too long we have had people like Don Brash actually saying in October last year: “I am one who thinks the science is still debatable on this issue.” That really concerns me, because I have just been over in New York listening while scientists, going up in the lift in the same hotel that I was in, brought out even newer, more recent evidence about how serious the situation is with regard to climate change and the fact that the issue is man-made climate change.

The member asked what the bill will do. The bill will allow individuals to hold registry accounts, and to trade in emission units. Several domestic climate change policies award emission units to individuals in recognition of activities undertaken to mitigate climate change. Yes, that is creative. Yes, we are out there leading, but is that wrong? I suggest that members of the House would be well advised to take up the most recent—probably 2 weeks’ old—copy of The Economist. I was reading it on the plane, and it actually discussed the fact that several party leaders—and I apologise to one of the other parties in this House—of Green parties throughout the world were relooking at how they actually managed behavioural change and change of attitude on things like nitrates, as well as on carbon. raised the question in the article that it had been the line of most parties to talk about rules and regulations to change people’s way of behaviour, when in actual fact there are market policies, as we are looking at around Lake Taupō, where one actually sets nitrate caps and says that one trades in the use of nitrate within that cap. That is what this bill is about. It is a creative way of trying to change people’s behaviour. I think that if members read article on that, they will find it is a very worthwhile way of thinking. That is what this bill is about.

I think this bill is a way forward for us, as a country. It is clever; it is innovative. However, I do not think there is terribly much innovation in saying we should wait until others do things. That has not been the New Zealand way. It is not the New Zealand way on things like nuclear policy, and it has not been the New Zealand way on disarmament policies. It has not been the New Zealand way on many issues, when we have gone out there and stated quite clearly where it is that we want to be. But the trouble is that the National Party must be a very broad church party, because there is Dr Brash saying: “I am one who thinks the science is still debatable …”, and then we have Guy Salmon saying: “Pete Hodgson remains on track with a consistent vision of a sustainable energy future. His Kyoto policy is being implemented. King coal has been held at bay. Electricity crises have been effectively managed without a loss of credibility, and wind farms are going ahead at an encouraging pace.” That is what we are about. We are actually trying to manage the process, not standing there without any leadership at all and trying to say the issue does not matter, so we will wait to see what the Europeans or somebody else do.

This bill is about trying to change behaviour in our own country, and for that reason I strongly support it.

DAIL JONES (NZ First) : In considering this bill, one must ask the question: will this bill, or, for that matter, a carbon tax, improve our climate in New Zealand? The answer is no. There is nothing in this bill that will improve our climate. There is nothing in a carbon tax that will improve the climate in New Zealand, or, for that matter, the rest of the world. As we know, the major emission problem we have is the flatulence that comes from cows and sheep. They are responsible for more than half of our total greenhouse gas emissions.

If we bear in mind that our proportion of all of this is 0.2 percent, and if the rest makes up more than half, then we are less than 0.1 percent in world standing. Whereas it could be said that a country could lose 0.2 percent in some countries’ roundings, most countries would not even recognise a loss of less than 0.1 percent. As far as this particular legislation and that concern affect New Zealand, those facts are absolutely irrelevant to us. This bill does nothing to reduce the flatulence of cows and sheep. I ask the next member who stands to speak in support of the bill to tell me how it does just that, because that is our problem. It does nothing to affect that.

As far as New Zealand First is concerned, we made it clear we would proceed with the implementation policies for the Kyoto Protocol that are aimed at reducing certain greenhouse gas emissions only in order to ensure they are in harmony with those of our major trading partners and once a coherent plan has been formulated to allow the appropriate targets to be reached. Well, this bill is no coherent plan. As we all know, our major trading partners do not support the Kyoto Protocol, and they have not finally ratified it. In referring to our major trading partners, I am referring to the United States, China, and Australia. They are not bound by the protocol. China is not affected by it at all, and the United States and Australia have not given their final ratification.

The Guardian stated—and I take issue with the headline; it had better be more careful—“New Zealand first to levy carbon tax”. New Zealand First is not levying any carbon tax, but I take the point—“New Zealand first to levy carbon tax.” The makes it clear that it is an experiment and that the rest of the world will observe us as we experiment our way through that particular solution at great cost to the New Zealand taxpayer, damaging small business, and suchlike. As the correctly states, we produce about 29 percent of our electricity from gas or coal-fired power stations. What will that do to the cost of electricity when these things are introduced?

Just where in this world is New Zealand situated, and just what effect does anything we do have in so far as gas emissions are concerned? If we look at our little globe, we see that New Zealand is at the top of the world. Some people call it the Southern Hemisphere, but we are at the top of the world. I ask my colleague to hold up for members a map of the world. How many countries south of the equator are bound by the reduction of emissions in line with the provisions in the protocol? How many countries south of the equator are bound by the protocol? Only New Zealand is. How many countries in Africa are bound by it?

Hon Ken Shirley: None.

DAIL JONES: Which country in the entire Americas is bound by it?

Hon Ken Shirley: Canada.

DAIL JONES: Only Canada. Mr Shirley can move to the top of the class. Which country in Asia is bound by this particular protocol?

Hon Ken Shirley: Japan.

DAIL JONES: Only Japan. Those are the only countries. No country in Africa is, or in the Americas, except Canada. No country in Asia is, except Japan, and, of course, one might add the Asian part of the Russian Federation. That is all. And we are binding ourselves into something like that! What effect does our less than 0.1 percent have on the rest of the world, after one takes out the flatulence aspect of it? Absolutely none whatsoever.

Here we are again, wasting time on legislation that the Minister obviously cannot understand. She is losing her cool once again. We are wasting the time of the House on something that will have no effect at all on the world’s climate. It will, of course, help Prime Minister Helen Clark’s standing in relation to her next job at the United Nations. It will move her up in standing, and when the Labour Ministers go overseas and have their cups of tea, etc. with other people, and when job applications are on the way, they will say: “Yes, we’ve really signed up to the Kyoto Protocol, and down there in little old New Zealand our efforts will reduce emissions right throughout the world.” Our emissions will have absolutely no effect whatsoever on the rest of the world. We have less than the roundings of other countries, which would not even take into account the amount we have to offer in that respect. We should, of course, try to reduce our emissions, and New Zealand First is concerned that any action taken should ensure an improvement. But this bill gives no example of how anything can be improved for the benefit of the environment. Of course, we must not forget that we live in the roaring forties, that New Zealand is one of the windiest countries in the world, and that our various emissions tend to get blown away into the ocean, where I am sure they cause no particular damage.

It was interesting to read the recent report from the Pew Centre on Global Climate Change that stated: “A relatively small number of countries produce a large majority of global greenhouse gas emissions. Not surprisingly, these countries tend to also have large economies, or large populations, or both. Indeed, most of the largest greenhouse gas emitters also rank amongst the most populous countries and those with the highest gross domestic products. An analysis of emissions change over time underscores the importance of population and GDP drivers of emission growth. The significant diversity among the major emitters is to be noted, and the group includes almost an equal number of developed and developing countries, as well as economies in transition. There are 25 countries with the largest of GHG emissions, which account for approximately 83 percent of global emissions. They range from the United States, with 20.6 percent of global emissions, to Pakistan, with 0.8 percent. If the European Union is counted as a single entity, it and four other largest emitters, the United States, China, Russia, and India contribute 61 percent of global emissions.” I shall just pause at that point.

So the European Union, the United States, China, Russia, and India contribute 61 percent of global emissions. Which of those five are part of the Kyoto Protocol treaty? Only the European Union and Russia are. The United States, China, and India are not. China is now very close to being the second most polluted country on our planet, just a short way behind the United States. China is one of our major trading partners, as is the United States. Here we are giving more and more opportunities to those other countries to out-trade us. India is not far behind. As the Vegetable and Potato Growers Federation stated just the other day: “This type of legislation, and the tax, is likely to see some growers forced out of business, particularly those within the greenhouse industry. The overall legislation, and especially the carbon tax, will do considerable harm to small business.”

The legislation achieves absolutely nothing in so far as the forestry sector is concerned. Looking at it from a Māori viewpoint, it is a contemporary Treaty of Waitangi claim. That is what this Government has created. It is taking away Kyoto interests of Māori incorporations in forests, selling them off, and doing what it cares to do with them, just as a typically socialist Government would do. We have covered that in the first reading. So here is a contemporary Treaty of Waitangi claim coming up in this type of legislation.

We cannot possibly support legislation that has no benefit to our environment. It damages our economy and, in the long run, it damages small business. New Zealand First opposes this bill.

Hon KEN SHIRLEY (ACT) : It is beyond doubt that climate change is a reality. The point is that the planet has always been undergoing climate change—sometimes quietly, sometimes very dramatically; periods of change in climate tend to be quite dramatic. We have had huge variations through the ages, and evidence is overwhelming for that. So to say that it is climate change is not the point; the issue is what is the anthropogenic impact—that is, the human-induced climate change—and that debate is very much alive and unproven. The Minister for the Environment said she is just back from New York where she spoke to a few scientists, but there are thousands and thousands of scientists who fiercely debate that the anthropogenic effect is minimal. The overwhelming evidence would suggest that solar variations, principally caused by varying orbital patterns, with the Milankovitch cycle and others that we could go into in depth, are the real drivers of periods of climate change.

Be that as it may—we can debate that—we then come to the Kyoto Protocol, which is the UN kind of response mechanism. The ACT party’s position on the Kyoto Protocol is this: it is fundamentally flawed. It is unfair; it will not achieve its stated objective; and even the proponents of it, and the key scientists, say that after 100 years of full implementation it would make only a 5 percent difference. So it is an instrument that does not achieve its stated objective, and is grossly unfair for the reasons we have just heard, with only a very few countries having any obligation whatsoever. And here is New Zealand, thanks to this Labour Government, putting on the thickest hair shirt, and saying: “We’re going to save the planet!”. What absolute and utter nonsense!

Of course, last week we had the new carbon tax that Labour has trotted out, and it is another round of retro-socialism. I would like to go through some of the aspects of that, because we have heard in this debate that it will put an additional burden of $300 million to $400 million of costs on New Zealand and New Zealand businesses. But the Minister dressed it up as a market instrument. Unfortunately, retro-socialists do not really understand the market. She referred to The Economist—I am pleased that she is at least reading —but the article was actually on global environmentalism. It virtually stated that Rachel Carson, the author of a few decades back—the 1960s, I think—has to meet Adam Smith, and I could not agree more. Rachel Carson does indeed have to meet up with Adam Smith.

I support market instruments. In fact, I was a member of the Government’s Working Group on Carbon Dioxide Policy back in the 1990s, with Bill Falconer, Keith Turner, and Guy Salmon, which wrote the durable response report on how to set up a tradable carbon regime—and I actually believe in it. But the purpose of a market instrument is to put out incentives and disincentives to change behaviour. Let us examine this retro-socialist Labour Government’s market instrument. It thought: “Oh yes, carbon credits in forestry! The sequestration of carbon! Fast-growing trees sequester carbon.” If one believed that, one would leave the credit there to encourage the behaviour—that is, the planting of more pine trees to sequester more carbon. What did the Labour Government members do? As good socialists, they nationalised it. They said: “We’ll take that.” So there is no incentive to plant more trees.

At 6 o’clock I am going to the farewell function for Rob McLagan, who is retiring tonight as the Chief Executive of the New Zealand Forest Owners Association. He, of course, took my former job—the job I had before I came back to Parliament. I will be reporting back to the executives of the forest industry there just how bad it is. They know they have had their property right stolen by this retro-socialist Labour Government. It has nationalised the carbon credits and destroyed the market instrument.

Let us look at the other side of the ledger. It then imposed a carbon tax. But it will have these negotiated greenhouse gas agreements. Having confiscated the property right, the Government will dish out largesse to selected industries. If one lobbies, politicises, and comes knocking on the door of the Government, the Government—at its pleasure—will dish out dispensations, shall we say. Again, the market instrument is destroyed. Neutrality is destroyed. The energy-inefficient will be subsiding the energy-efficient. How smart is that, if one truly wants an economic instrument to work? It is pretty dumb. It is not Rachel Carson meeting Adam Smith. No, it is Rachel Carson meeting Stalin, or Karl Marx. It does not work. It fails. It will not work at all.

Let us look at the electricity market. The Government is going to slap a big tax on electricity based on the carbon component. But how does the electricity market work in New Zealand? We have 200 nodal offtakes, and every half-hour we run an auction, and the highest bidder sets the price for everyone else. Contact Energy runs the Huntly power station, which is based on coal. A lot of the time, particularly when our lake storage is low, it will bid the highest, and will set the carbon tax, and all the hydro operators—the non-carbon emitters—will pay the same price. So all consumers will be hit with this tax, irrespective of how much carbon is emitted. Of course, the non-carbon emitters, the hydro operators, will then get a super-profit by that amount. Let me think who the main hydro producers are in this country. There is Meridian Energy, there is Mighty River Power, and there is Genesis Power.

Hon Dr Nick Smith: Who owns them?

Hon KEN SHIRLEY: Who owns them? The Government of New Zealand. So they get big fat dividend payments back on super-profits that have been gouged out of poor, struggling New Zealand businesses and poor, struggling New Zealand households. I ask the Minister how smart that is. It sounds pretty stupid, does it not? But that is her Government’s policy. It is not a market instrument, and how dare this Government come to this House masquerading it as a market instrument. It is a complete failure. All that it is is nationalisation of the economy and an excuse for the Government to get its hands on the levers of control. Industries now have to lobby and politicise to get dispensation. The Government is taking hold of the levers of the economy. We know that energy drives the economy, and under this Government’s application of what it calls a market instrument it is taking control of all of the market instruments and all the levers of the economy. It is doomed to failure.

The position of the ACT party is quite clear: we should scrap the Kyoto Protocol. It does not achieve its stated objective. It is grossly unfair. The National Government should not have signed it in 1997. Simon Upton was just as eager to sign it, and wanted to rush to ratify it just as keenly, although he might have understood the market instrument a wee bit better. But it was fundamentally flawed from the outset. I attended several of the working-group preparatory committees leading up to Kyoto in 1997 and I was aghast at the politicisation of the process. It is a UN process out of control. It is all about bureaucracy. There are thousands of the so-called scientists that the Minister spoke to in New York last year. All of their funding is dependent on their perpetuating this story. They swan off around the planet, flying in jets, depleting the ozone and using up great amounts of energy, to attend conferences every other month that are just hot air and garbage, where they reinforce their views. They ask: “Where is it spring next month? We’ll move there for our conference next month.”

The Minister tags along like a little patsy lamb, and they wind her up and tell her that it is humans who are causing all of these problems. It is utter nonsense. The Minister should go back to the basic science. There is 50,000 times more carbon dioxide in the oceans; if we take total carbon, there is 50,000 times more. We know that temperature changes the solubility of carbon. It is change in temperature that is driving carbon out of solution and into the atmosphere, as it has done for millennia. It is change in temperature—because of changes in orbital pattern, and changing solar radiation—that is increasing atmospheric carbon; it is not atmospheric carbon increasing temperature. Thousands of scientists around the world have come to that conclusion. This Labour Government has missed that basic point because it is so wound up in its UN committees. In a way, it is just an excuse to apply this control, to apply this movement towards a command economy.

JEANETTE FITZSIMONS (Co-Leader—Green) : We have heard the knockers, as we always do when the Kyoto Protocol comes up in this House. It is not surprising that ACT is challenging this, because ACT does not believe that climate change is real. [Interruption] Except, it has changed its position. It has changed its view over a very short time. []

The ASSISTANT SPEAKER (H V Ross Robertson): Order!

Hon Ken Shirley: I raise a point of order, Mr Speaker. The Standing Orders are quite clear. When a member in his or her speech deliberately misrepresents what a member has said—which, through implication, Jeanette Fitzsimons has done—then a member has a right of reply, and certainly a right of interjection.

The ASSISTANT SPEAKER (H V Ross Robertson): No, if the member considers that he has been misrepresented, then he should look at Speaker’s ruling 35/3. I also point out to him Speaker’s ruling 57/5. When a member is speaking and other members sitting close by on the cross benches interject, it muffles the microphone. Members know that it is a longstanding convention that that is out of order.

JEANETTE FITZSIMONS: I have sat in the House many times and heard ACT party members argue that the climate is not warming. They base this stance on satellite records that state the temperature is not warming 1 kilometre above the Earth, therefore we can discount what is happening on the surface of the Earth. They state that the science is all wrong. But ACT cannot carry on that line any longer, because the evidence is becoming incontrovertible. So now, all of a sudden, its members say that the climate is warming after all, but it is not humans who are causing it. I wonder how long ACT will be able to sustain that argument. However, we cannot expect a Plan B from ACT, because it is not prepared to engage with the issue, at all.

The National Party, however, does not claim that climate change is not real, but once again it has opposed the Kyoto Protocol and opposed, as it always does, any measures that anyone has ever suggested. Whether it be energy efficiency, renewable energy, low-energy transport, or any other measure for tackling climate change other than the protocol, the National Party says no. We have not seen it come up with any positive alternative to do something about the problem.

New Zealand First does not believe in collective action. If reducing our emissions or absorbing more carbon here will not help our climate in New Zealand, it does not believe that we should be part of any collective, international action to do something about it on a global scale. Of course, nobody’s emissions affect just their country’s climate; it is only if we all act together that there will be an effect. The Kyoto Protocol is a very flawed instrument but it is the only one on the table.

We had a nice geography lesson from New Zealand First with a map of the world. But the member neglected to say that it is quite simple: countries that are part of the OECD have the highest emissions over history and have caused the problem, and therefore they are required to take action first; those countries that have developed more recently or are still developing, and do not have a long historical record of changing the climate, will join in later. So we have had denial of the problem, denial of any alternatives, and denial of collective action.

The indications that climate change is proceeding faster than anybody predicted have been accumulating over the last year. Arctic sea ice has melted at a rate that has staggered the scientists working on the models. There is the risk that the exposure of dark ocean instead of pale ice will increase heat absorption and accelerate warming, even if we were to miraculously stop emissions. Huge shelves are carving off the Antarctic ice sheet into the sea at a faster rate than anyone predicted. Glaciers are in retreat around the world. The incidence of unusual floods, storms, droughts, and heat waves has increased—none of which can be proven to be directly attributed to global warming, but the pattern is consistent with that predicted by the climate change models.

Carbon credits in this country have got wind power going. The Government’s policy on carbon credits has got the best new source of clean and renewable electricity off the ground. We have several wind farms up and running, and quite a lot more being built. This is a new industry that needed some help to get going, but that can now stand on its feet. It will not continue to need carbon credits. I think that is a victory. Although there is much I disagree with in the Government’s energy policy, I congratulate it strongly on that move.

The Greens support the provisions for reforestation that this bill makes possible. We need permanent forest sinks. It is too risky to allow people to claim carbon credits for planting a forest that they intend to clear-fell in 25 years, when nobody will be able to force them to take responsibility for the emissions caused when the forests are clear-felled if they are not replanted. We need to encourage permanent forests, and this bill does that. There are so many reasons why we need to establish more permanent forests, particularly of indigenous species, although that is not the only thing that this bill allows. These reasons include soil conservation, water conservation, flood control and protection, erosion prevention, biodiversity, and landscape. We have ranges and ranges of bare hills around New Zealand that have lost their forest cover. The farmland that has been provided through that loss of forest is in many cases of very low value, but it is too expensive to replant the forest. This bill is a mechanism by which that can happen.

We need a regular supply of New Zealand indigenous timbers from forest that is planted, because we have so little of the original forest cover left that we cannot afford to hack into old-growth indigenous forests to supply timber. But it will be a shame if future generations have to get all their furniture just from pine or, worse still, from imported old-growth timbers from other countries, which is what is happening at the moment and which the Greens very strongly oppose. The provisions in the bill for the forests that get the credits not to be logged for 35 years, and then only to be logged selectively under a closed canopy system, gives us the opportunity to recreate what we could once have had in this country if we had stopped logging soon enough—that is, some sustainably managed indigenous forests for timber.

The Minister for the Environment said that the bill is about markets and not regulation. Then ACT told us that markets are all good and regulation is all bad. That is a totally false dichotomy. Therefore economic instruments cannot achieve environmental goals without putting them in a regulatory framework. That is what the Kyoto Protocol does. It is a “cap and trade” system. The trading is the market bit; the cap is the regulatory bit. The trading of emissions that the National Party suggests will not achieve anything at all without a regulation setting a ceiling to those emissions. This system is supposed to work in the fishing industry, where everyone talks about individual transferable quotas being the great thing. They are the trade part of the system, and are of no use at all in sustaining fish stocks unless there is also a total allowable catch, which is the regulatory bit of the system. So we should stop getting hung up on ridiculous arguments about regulation or market and accept that we are a mixed society and that a mixed system works best. Regulation is used to ensure the environmental goals are met, and markets are used to ensure the goals are met in the most efficient way by those who can most easily meet those goals.

LARRY BALDOCK (United Future) : I rise on behalf of United Future to speak on the first reading of the Climate Change Response Amendment Bill. It gives us an opportunity to outline United Future’s position on climate change and the Kyoto Protocol, and to list the reasons for which we oppose, as we have always opposed, the ratification of the Kyoto Protocol. It is a flawed instrument—even the leader of the Green Party admitted that it is far from perfect. Why on earth would we sign up to something that we know to be flawed? The idea that the world will be able to work, through that instrument, to achieve its ends is ridiculous.

I will outline the reasons why United Future has taken that position. The first one, as has been mentioned earlier, is that to join up with something that our major trading partners have not joined is ridiculous. It is unwise and places a greater burden upon our own industries than they would otherwise have as they try to compete in a global market. That is the first reason that we have considered it unwise to ratify the Kyoto Protocol.

• Sitting suspended from 6 p.m. to 7.30 p.m.

LARRY BALDOCK: Before the break I was outlining the reasons why United Future has been opposing the ratification of the Kyoto Protocol. I had covered point one, which was that our major trading partners have not joined it. Point two is that despite the plethora of media articles that we encounter about the scientific evidence for global warning—and, in fact, for the human-induced cause of global warning—there is still considerable uncertainty amongst many well-informed, credible scientists and meteorologists, who cannot seem to get their view presented in the media. We can ask questions about why that is, and about the influence of the environmentalists’ lobby in the media, but that point is clearly made. Many scientists are not convinced of the science as yet, and have opposing views.

Point three is that even if the theory were correct, the chances of achieving worldwide targets are questionable, to say the least. The ability of the Third World and the developing countries to come up with any commitments into the second commitment period is very questionable. I lived in the Third World for 15 years—in the Philippines—and I spent a considerable amount of time travelling throughout Asia. The idea that Asian countries will be able to meet the targets imposed upon them by 2012—or begin to meet those targets—is absolutely ridiculous. Those nations need a lot more in terms of basic infrastructure before they will be able to think about the effects of carbon dioxide emissions. Point four is that even if the targets were met, the effect on so-called human-induced climate change is very debatable—it is negligible. The figures of the UN itself state that if all targets are met, by 2100 the reduction in temperature that could be achieved by meeting those targets would be only 0.14 percent of the warming effect. So even if we are successful, the chances of us making any lasting change to global warming—if it is actually coming from human-induced effects—are negligible.

It makes no sense to impose a carbon tax on our businesses and economy, in the light of the points that I have just made. The money could be much better spent on things that will benefit not just our country, regardless of the protocol, but also the Third World, instead of pursuing the ideology that is behind the protocol. Research and development investment is to be welcomed in our nation and around the world, in order to find alternative sources of energy and to find energy efficiency. We could do a lot more by spending money on improving the age of our vehicle fleet in New Zealand, and shifting, as soon as possible, to hybrid cars. That would help to reduce emissions—if those emissions have an effect on our climate. Because we do not know for certain what is causing climate change or how long it will last, it would make a lot more sense to spend money on mitigating any effects of climate change, than to try to play God and stop it.

The Climate Change Response Act was bad legislation, and United Future opposed it. This Climate Change Response Amendment Bill makes that bad legislation a little better and a little more business friendly, so in United Future we have had to ask ourselves what we should do about this bill. If, in the future, a new Government was to come into the House that wished to withdraw New Zealand from the protocol, United Future would be prepared to support that move. But at the moment New Zealand is committed to the protocol. We have ratified the treaty, and it is not an easy process to extract ourselves from treaties once we have committed to them. It is important to United Future to make sure that, at least in the first commitment period, the commitment to the protocol does not end up costing New Zealand a whole lot of unnecessary money, resulting in New Zealand having to buy carbon credits from nations like Russia, for example, that are not doing any more about addressing carbon dioxide emissions than we are, but that have simply benefited from certain historical circumstances. It would be ludicrous if we had to buy carbon credits from Russia.

We have had to ask ourselves what we will do about this bill. It makes bad legislation a little better, and we have therefore concluded that we will support the first reading of the bill and send it to the select committee, in the hope that more discussion and more debate in the select committee will lead to a better response in the end. I believe that this bill is an indication that the Government does not believe in the protocol as much as it says it does, and that it is beginning to have some serious doubts about whether it has been the right course of action. Hopefully, as further submissions from the public come to the select committee and as the legislation is debated further in the House, we may be able to see a further change in the Government’s policy.

We welcome the provision in this bill to extend the regulation-making powers of the Forests Act in order to enable the establishment of a mechanism to allow landowners to access any value the protocol creates for carbon from newly-established permanent forest sinks. That will be achieved via a contract between the Crown and a landowner, and will encourage the planting of new forests by landowners. The one thing we know we could do in New Zealand in order to address the concerns about carbon dioxide emissions is to plant trees. One of the ways to encourage that is to give people the benefit of the carbon credit and the carbon trading mechanism that is to emerge from planting trees.

There are other reasons, not just for the sake of carbon credits—because anybody who invests money on that basis would be shooting in the breeze somewhat, particularly with the potential for Governments to flip-flop around on their policy—to plant trees. It is good for us to reforest areas in New Zealand. We face incredible challenges to do with our water quality, and it would make a lot of sense to plant riparian strips around every river and lake in New Zealand, so that we could filter a lot of the nutrient runoff that comes off our land, goes into our waterways, and causes us so much difficulty. One of the best things we could do would be to plant a 10 to 20 metre riparian strip of native bush around our waterways wherever possible, and to provide nature’s best solution to that problem. Also, as a by-product of that, we would achieve further carbon credits from the planting of that new forest. We will pursue the issue at the select committee to make sure that the bill enables some benefit from that planting to pass to the landowner, so that there is an incentive to pursue that course of action.

We will support the bill through its first reading and its referral to the select committee, but we make very clear United Future’s position on the protocol and on the principal Act, which we consider took New Zealand in the wrong direction.

DIANNE YATES (Labour—Hamilton East) : I rise to support the Climate Change Response Amendment Bill. I point out, as the Minister has done, that it deals with two issues. The first one is the amendment of the Climate Change Response Act in respect of the function of New Zealand’s Kyoto Protocol registry. I am sure that Simon Upton, a former Minister for the Environment, would be very pleased with this legislation. His work on it is coming to fruition. The second thing the bill does is to enable the establishment of the Permanent Forest Sink Initiative. I would like to reiterate a very good part of the Minister’s speech. He said that under the current law, the tax treatment of Permanent Forest Sink Initiative income and expenditure is uncertain. To remove that uncertainty, the Government proposes to amend the tax legislation to deem any business, which includes farms, that primarily involves earning forest sink credits under the Permanent Forest Sink Initiative to be a forestry business. That is what Federated Farmers have been lobbying for, and I am pleased to see that the Minister has acknowledged that. It will ensure that the existing forestry tax provisions also apply in that situation. Those amendments, as the Minister said, are expected to be included in the first tax bill following the tax bill scheduled for introduction in May.

I commend this legislation to the House. I think it is forward-thinking, and it does show what New Zealand is all about. I also commend farmers who, as has been mentioned, are planting riparian strips and who are responding to measures such as the ones Environment Waikato has encouraged through the sustainable farming awards—the carrots rather than the sticks that are working in that regard. There is also the amount of money that the Minister of Local Government has allocated for clean water. Those matters are linked, as the previous speaker mentioned. In particular, I think the initiative around the Permanent Forest Sink Initiative is a good one, and I look forward to farmers being involved in that area.

JOHN KEY (National—Helensville) : I rise on behalf of the National Party to give the good news to the people of New Zealand—that is, the Climate Change Response Amendment Bill is a load of rubbish and the National Party will not be supporting it, for very, very good reasons indeed.

I want to start off with a broad-ranging discussion, if I may, around the Kyoto Protocol and the absolutely nonsensical road that this Government is taking New Zealand down. I know we have a Prime Minister who is very confident, and all the rest of it, but maybe she would like to step out of her office on the 9th floor and realise which planet she is on. She is on the same planet, she may be surprised to learn, as India, China—

Hon Ken Shirley: And Mugabe.

JOHN KEY: And Mugabe, yes—and a lot of other countries out there that have ratified the Kyoto Protocol. And why would they not, because they have absolutely no requirements on them, whatsoever. Yet here we are down in New Zealand, a very little country with about 0.2 percent of the world’s emissions, putting a self-imposed straitjacket on our businesses, and waving a huge flag that says: “Foreign investment, don’t come anywhere near us. Australia is over there—the West Island. Go over there to pour your dollars in.” To the Chinese we are saying: “Come in and buy as much coal as you like from our West Coast. We’ll sell it to you and you can burn it without a carbon charge—but, by the way, to those back here in Aotearoa New Zealand we will be slapping on a carbon charge and you won’t be able to operate.”

This is a complete and utter hoax, if I may say so. The impact of the Kyoto Protocol, even if one believes in global warming—and I am somewhat suspicious of it—is that we will see billions and billions of dollars poured into fixing something that we are not even sure is a problem. Even if it is a problem, it will be delayed for about 6 years. Then it will hit the world in 2096 instead of 2102, or something like that. It will not work.

Let us have a look at the Government’s response to the Kyoto Protocol. Our friends in Australia said they do not want a bar of it. They do not want to know anything about it; neither do our friends in America. I saw George W Bush, the President of the United States of America, talking about the Kyoto Protocol on CNN one night. George Bush is not necessarily known as the most eloquent speaker in US history. He is a fairly straight shooter, but he is not necessarily seen as being one of the great orators of all time. I plugged in the TV set, turned it on, and what did I see? There, on CNN, late at night, at about 11.30, was George Bush saying that America would not be ratifying the Kyoto Protocol, because it is not good for jobs and it is not good for the American economy. I understood that. I got it. Then I saw John Howard, the Prime Minister of Australia, addressing the Australian people and saying the same thing—that it is not good for jobs and it is not good for the economy. So when I turned to New Zealand TV and found out that we not only would be ratifying the Kyoto Protocol but in fact would be the first country in the world—that is right—to be blazing a trail to put on a carbon tax, I was somewhat astounded.

Now, I should not have been quite so worried, because when we questioned the Convenor, Ministerial Group on Climate Change last week, he said not to worry. He said that the carbon charge was not a tax increase; it was a tax shift. I was beside myself, as members can imagine, because I just could not understand it. So the next day I asked the Minister of Finance to point out to me what the discernable difference to the average New Zealand worker would be when they received about $400 less from an average, run-of-the-mill tax increase. I might add that this Government has had about 35 of those in the last 6 years, but that is another debate that we will come back to. I asked him what the difference would be between the $400 less they will get because of a tax increase and what they will get from a negative tax shift. Dr Cullen is no slouch in the House, is he? He is no slouch in the House, but he gave a sort of garbled response. We raised a point of order and he had another bit of a go at it, but that was a complete and utter failure. Then he came out with the real doozy. I said to him: “You know the carbon charge that you’re telling us will cost the people of New Zealand $200 a year, based on carbon prices of $15 per tonne of carbon dioxide emissions, or whatever? Well, actually, you have given yourself provision for it to be $25 per tonne. That will actually double the cost to about $400 per household, especially when you add in all the second-order effects, because supermarkets are going to have higher prices for its electricity, and more for a sink.” “No!”, said Dr Cullen. “You’re wrong!”, he said to me. I asked the Minister of Finance, Dr Cullen, what role he played in devising the carbon charge. He replied that he was responsible, along with the convenor. Well, that is very good. I thought to myself that a new member like me could possibly be wrong—I mean, I do not want to question the Minister of Finance, after 30 years—

Jill Pettis: Yes.

JOHN KEY: Exactly! I tell the senior Government whip that that is what I thought the case was. So I scurried up to my office, got the transcript of the questions and answers, came back to the House, and took a point of order. Questions and answers are a sort of fancy term for “small print”. I read out what he said: “Oh, well. Actually we may allow the carbon charge to go to $25, because we are not quite sure what rate it will hit at internationally.” I said that it happened to be trading at about €17 that day, which, with the New Zealand exchange rate, was about $30 to $35, and that would mean the price would double. Dr Cullen looked at me, smiled, and acknowledged the fact that I had understood that. He sort of nodded quietly, and away we went. That is a tax shift. So if any New Zealanders are feeling in any way better off today, it is because of that tax shift.

That sort of tax shift, recycling—all that sort of stuff—would not be quite so bad, I suppose, except for what we are doing to the public of New Zealand. What are we doing to the consumers and businesses of New Zealand? We are putting a tax on them. I could understand that if the Convenor, Ministerial Group on Climate Change was coming to the Chamber and saying that every single dollar would be spent on reducing emissions in New Zealand—every single dollar. But no, that is not the case. At the International Fiscal Association conference, where the Minister of Finance was speaking on the previous Friday, he said that his fringe benefit tax cuts—yes, he wanted some business tax cuts, because business confidence was collapsing around his ears, and he therefore needed to prop up that vote a little bit—would be partly funded by the carbon charge. Very good—that is a good one, is it not?

So the consumers of New Zealand are now paying an additional tax shift—it might be negative in their case—to prop up the failing business confidence that has been caused by the Government making such an atrocious job of managing the economy. All of that is actually happening while the Government has a $7 billion surplus. Now, excuse me, but George W Bush, at 11 30 at night on CNN, is starting to make a hang of a lot more sense than the Convenor, Ministerial Group on Climate Change when he tries to tell me the difference between a tax shift and a tax increase. So my prediction is that that will be the straw that breaks the camel’s back. The public are sick and tired of paying additional taxes for all sorts of crazy ideas. They have heard the message from that promising Opposition spokesperson on finance, when he told the public—

Simon Power: Who is that?

JOHN KEY:—John Key, apparently—that $50 billion worth of additional taxes have been imposed in the last 5 years. And on top of all that—and with a $7 billion surplus—they have to pay a carbon charge. It will be paid for by consumers so that other businesses, which have absolutely nothing to do with emissions, can have a tax cut.

I want to make one last point before I sit down. I remember that about a year or so ago Pete Hodgson said on radio that this first commitment period would be free money for New Zealand—worth $500 million. What sort of idiot, he asked Larry Williams, would rip up a cheque for $500 million, as the National Party would do? What sort of idiot would do that? Well—hello, Minister! I do not know whether he has noticed, but forests are being chopped down around his ears. In fact, the first commitment period will, at best, probably be very close to flat, and could even be negative. So the $500 million is a typical Labour Party cheque, if I may say so—it is bouncing all the way back to the bank.

This is not a good idea for the people of New Zealand. This is not the best thing for the planet. If the Prime Minister of New Zealand wants to get out there and convince the Prime Ministers of India and Australia, and the Presidents of China and America, to sign up, then I will be with them all the way to the bank. But the last time I looked, we were part of the same planet. New Zealand going it alone has not worked in the past; it will not work on this issue, either.

JILL PETTIS (Labour—Whanganui) : That was Mr John Key. He used to be good, but he is not any more, and it is a sad misfortune that has befallen such a young and promising man. He talked about George Bush at 11.30 at night. George Bush is not awake at 11.30 at night, and we have that on authority from his wife, Laura Bush, who described herself as a “desperate housewife” because George retired at 9 p.m. at night. So I think Mr Key is a bit mistaken.

His views, while almost Neanderthal in their approach, are sad coming from a young man who showed such promise when he first came into this House. I am proud to say that this Government’s position is based on environmental integrity, whereas the Opposition’s position is opportunistic, and inconsistent with its earlier stance. We have flip-flops all over the place. The jandal award is being dusted off yet again, because Nick Smith—that “blue-green” spokesperson—said at one stage that National would opt out of the Kyoto agreement at the first chance if countries like the US and Australia did not sign up. Well, we know that our good friends in Australia mine uranium in a national park, which is something that we would never do in New Zealand.

Nick Smith went on to say that eventually climate change and issues associated with it would—in his words, not mine—“…stuff life on earth. New Zealand can’t ignore the problem. New Zealanders must do their bit.” That is representative of National’s position on this issue, or rather its total lack of position, because those members change their views. They do not give leadership. They do not send a very clear and unequivocal message to the public of New Zealand, who are incredibly interested in this issue.

Guy Salmon has spoken positively about this Government’s environmental policy in this particular regard. So I am pleased to say that this bill actually extends the regulation-making powers of the Forests Act to enable the establishment of a mechanism to allow landowners to access the value of carbon sequestration that is created under the Kyoto Protocol.

Hon Ken Shirley: Absolute rubbish!

JILL PETTIS: That is absolutely a fact, and this Government is sending a very clear and unequivocal message to the people of New Zealand. We are a country that has a proud record on the environment. New Zealanders from all walks of life want to look out for the environment, and this Government is very happy to be a partner in doing that.

SHANE ARDERN (National—Taranaki-King Country) : Those who were listening on the radio to the soon-to-be former member for Whanganui must have been absolutely amazed at that speech.

I want to pick up on a number of areas in the bill. Firstly, it does absolutely nothing—sum total zero—in terms of the environment. Secondly, it does nothing to enhance the economy of New Zealand or the welfare of its people with regard to jobs and suchlike.

John Key: It makes it worse.

SHANE ARDERN: It makes it worse. It imposes yet another tax. I do not know whether it is new tax No. 36. My colleague John Key said that we were up to No. 35, so I suspect that this is tax No. 36. Guess what? Dr Cullen is supporting this bill, only because it increases taxes. He does not believe in the concept, at all. In fact, he does not believe in the notion of global warming. I have seen evidence of that in his body language in this House when there have been questions from the Green Party. I have watched Dr Cullen crouch down at the thought that he may have to cuddle up to those members at some time in the future for the numbers. He ducks down behind his seat and pulls his papers up. I do not believe they are saying this in an open democracy like New Zealand, but they are.

But it gets worse. Our good friends in United Future are supporting this bill tonight, even though they have campaigned up and down the country saying there are too many taxes. Those members have parroted on about the McLeod report on taxation, yet tonight they will roll over. They will agree to send this bill to the select committee. There is only one possible reason—that is, they signed up on confidence and supply with this socialist Labour Government, so they have no option but to follow along because they have been whipped into line. I ask United Future and the Minister to show us the evidence that New Zealand has a carbon deficit.

I have looked at some figures that I received from the Parliamentary Library. They say that agriculture has had an increase in carbon emission of 15 percent—from 31.9 percent to 36.8 percent. But the question that has not been answered, and there certainly is no science around this matter, is how much of an increase have we had in plantations on areas that would traditionally be described as farming areas—that is, riparian margins that are carbon sinks. That is the increase in pasture growth, which is an activity of photosynthesis—some members will understand that well—and a carbon sink.

I cite the example of my own farm. Some 20 years ago it grew 8,000 kilograms of dry matter per hectare per year. Last year it grew 14,000 kilograms of dry matter per hectare. It increased from 8,000 to 14,000 in 20 years. That is a massive increase in carbon sink. I put this question to the Minister. He said that it is cyclical and that it happens very quickly, so therefore I have a negative sum gain. I do not believe that, because when we grow trees we cut them down. Exotic forests are cut down. I say to the Minister that if we put that wood into leaky homes, the homes are rotten within 5 years, the emission is back in the environment, and we have a zero sum gain. It is just that the cycle is quicker. That is the only difference. It is every 30 days instead of every 5 years, or it might be every 40 days instead of every 5 years. What is the difference? There is no science yet that I have been able to study or that anybody has been able to explain to me as to where that difference lies.

The third point, which certainly has not been raised to any great extent as far as I can tell, is that the bill actually picks on forest owners. It isolates them and says that they will give up their property right and their carbon sink, and the State will take it from them and there will be no compensation for that, but then it turns round and puts a tax on all other industry. I say to Government members that if I am wrong, they should take a call and explain to me why I am wrong.

Further, when we look at our good friend Tony Blair in the UK, who has just become Prime Minister for the third time, we see that the Brits are saying—this is what the papers there have reported—that the Kiwi carbon tax is an experiment. That is what those papers are saying. It was reported in the Guardian this week that the carbon tax is an experiment that will be watched by the bigger countries around the world to see how it works out, because they cannot believe that a small trading country like New Zealand would enter into such a mind-numbing, brain-dead tax before its major trading partners the US and Australia, and a range of other countries as well, and before the science is robust and before there was a proper reason to do so.

I say to the previous speaker, the member for Whanganui, that she should go back to Whanganui and tell people that the Government is slapping yet another 4c per litre on their petrol because it will save the environment from all those rural people who have to travel up and down the Whanganui electorate all the time to go about their business. She should tell them that another 4c on their petrol will not hurt them and that it will somehow or other save the good folk of Whanganui from disappearing under the sea. They will not buy that explanation, and I remind her that Chester Borrows is knocking on the doors as we speak. This issue will be the final nail in the coffin for that member.

I say to the Labour members and to the Minister in the chair that if I am wrong, they should take a call and tell me why I am wrong. I have seen no science at all that can demonstrate to me why Dr Cullen should be able to introduce yet another substantial tax increase and put it on to every hard-working Joe Bloggs, yet be selective in what he takes from forest owners and from other parts of the community. How can he explain to those people that, at the end of the day, this will be in any way helpful in reducing greenhouse gas emissions? It is just another socialist tax grab.

The other question that has to be asked is where the Hon Pete Hodgson got his information from, because nobody has been able to trace that, either. There is a substantial amount of evidence that Peter has been making it up on the hoof. Dr Cullen has been saying to him: “Look, we’ve only got a $7 billion surplus. We need to get some more tax from somewhere else. Pete, we need you to come up with another innovative idea on how we can get more tax.”

The ASSISTANT SPEAKER (H V Ross Robertson): The member will use the Minister’s full name.

SHANE ARDERN: The Hon Pete Hodgson—I thought I had said that. I am pretty sure that the Hon Pete Hodgson is the name I used. I will check the Hansard afterwards, but I am confident that that is what I said. The Hon Pete Hodgson has no evidence at all to back his argument. I ask that Minister why he believes that placing another tax on energy users—on our household power bills—will save the environment, when the Resource Management Act is stopping the development of major hydro activity and a range of other power-generating activities in this country, which somehow will be beneficial to the environment. Coal-fired power stations are being built, because hydroelectricity cannot get consent. There is a simple piece of logic that has not been answered in any of the debate tonight.

Why was the first step not to shift the roadblocks in terms of developing renewable energy and removing the need to use non-renewable energy sources such as coal as the back-up in the case of an energy shortage, when we could thereby have achieved as much carbon emission saving as we could potentially get from anything we might do in the short term? Why does the Minister not answer that question? Why does New Zealand, a small island nation at the bottom of the South Pacific that represents 0.2 percent of the world’s carbon emissions, feel the need to blaze a trail and be the first in the world to introduce yet another tax—a tax that has no science to back it up and on which a whole lot of questions need to be answered and none have been answered—when the Government could do so many other things to reduce the amount of carbon being used?

Hon JUDITH TIZARD (Associate Minister of Transport), on behalf of the Convenor, Ministerial Group on Climate Change: I move, That the Climate Change Response Amendment Bill be referred to the Commerce Committeereferred to Commerce Committee.

Hon PHIL GOFF (Minister of Justice) : Thank you for that formality, Mr Speaker. I move, That the Evidence Bill be now read a first time. It is my intention to move that the bill be referred to the Justice and Electoral Committee. This bill brings together in one place the common law and statutory provisions relating to evidence. The bill will replace most of the existing law on the admissibility and use of evidence in court proceedings. Evidence law is largely judge made, comprising decisions made in response to a particular set of facts before the court. The statutory provisions dealing with evidence are contained in a number of statutes, and have been reformed over a long period of time on a piecemeal basis. The resulting complexity and inconsistency of the law of evidence results in undue legal argument, expense, and delays in proceedings in order to accommodate arguments over the issue of admissibility. The bill brings the current mosaic of statute and case law into one comprehensive scheme.

The bill has its origins in 1989, when the Law Commission was given terms of reference by the then Minister of Justice. The purpose was to make the law of evidence as clear, simple, and accessible as is practicable, and to facilitate the fair, just, and speedy judicial resolution of disputes. With this purpose in mind, the Law Commission was asked to examine the statutory and common law governing evidence to proceedings before courts and tribunals, and to make recommendations for the reform with a view to codification.

The Law Commission was thorough. It spent a decade reviewing aspects of the evidence law, publishing discussion papers, and seeking the views of those involved in the justice sector, including a wide variety of community groups, academics, officials, and members of the legal profession and the judiciary. In 1999 the Law Commission published its report on evidence and an evidence code amalgamating the various aspects of the law of evidence.

The proposals in this bill are generally based on the recommendations of the Law Commission and on the provisions of the evidence code. The purpose of the bill is to help secure the just determination of proceedings. It sets out to provide for facts to be established by the application of logical rules. It aims to promote fairness to parties and witnesses. It protects rights of confidentiality and other important public interests. It seeks to avoid unjustifiable expense and delay.

The bill’s fundamental principle is that all relevant evidence is admissible unless there is some policy reason to exclude it. Evidence must be excluded if it is irrelevant, if its probative value is outweighed by its prejudicial effect, or if it would needlessly prolong a proceeding.

The bill is over 200 clauses long and covers a wide range of matters. It deals with rules of admissibility, including matters such as admissibility of hearsay, opinion evidence, improperly obtained evidence, and propensity evidence. It deals with privilege and confidentiality, including various types of privilege such as that enjoyed by legal advisers and ministers of religion. It also includes the privilege against self-incrimination, and provides a protection for confidential information. It deals with the trial process, including compellability of witnesses, support persons, and rules around questioning witnesses, as well as alternative ways of giving evidence. The admissibility of documentary and machine-generated evidence is also covered in the bill. It deals with overseas evidence. The bill covers the rules for giving evidence from overseas to a New Zealand court, and evidence given in New Zealand to be used overseas.

The bill is generally consistent with existing trends in the law, and clarifies the existing law by addressing ambiguities and inconsistencies. It does, however, fundamentally change the current law in some areas. There are some matters in the bill where the arguments for and against are finely balanced. In recognition of this, I invite the select committee to seek submissions regarding those matters, and I anticipate that those expert in evidence law will make submissions. Changes to the proposals may be considered after the arguments have been fully canvassed by the select committee.

I now want to refer to three areas to which further consideration may be given by the select committee. The first relates to the reform of the hearsay rule in relation to a defendant’s out-of-court statements being admissible against co-defendants. Currently, the common law provides that one defendant’s statements cannot be used to implicate another defendant. Juries are directed to use evidence for one purpose, but not for another. This gives rise to a jury direction, which may seem illogical to the jury—that is, one can use the evidence in respect of one defendant but not for a co-defendant even though it seems relevant to the jury. The bill proposes that evidence in this regard will either be admissible against all defendants or none at all. Arguments against admitting prosecution evidence include oppression, unreliability, or improperly obtained statements. If the defence leads the evidence, then arguments against admitting it include the rule against hearsay and the previous statements’ rule. The effect of this rule will be that statements that previously were not admissible against co-defendants will be.

The second area is the proposed truthfulness rule, and the subsequent abolition of the collateral issues rule. The truthfulness rule provides that evidence of truthfulness will be admissible if it is substantially helpful in assessing that person’s truthfulness, with additional special rules for the defendant. The collateral issues rule is abolished by not being included in the bill. The rule applies when cross-examination is directed to a matter that is not a fact in issue—usually questions about a witness’s truthfulness. The rule treats answers given by a witness as final, and prohibits evidence intended to challenge those answers. I invite submissions on the abolition of the rule.

The Law Commission states that the policy behind the rule is essentially one of efficiency and that the court’s attention should not be needlessly diverted from the main issues. It goes on to state that although this reasoning is sound the rule can result in excluding helpful evidence, if it is applied too rigidly. Further, the Law Commission considers that other rules, such as the relevance requirement and the general exclusion rule, will operate as a restraint on offering evidence of truthfulness that has little value.

The third area covers changes to the law of self-incrimination. The privilege against self-incrimination permits a person to remain silent when required to provide information, on the grounds that the information would incriminate that person. Currently, the privilege is available where a reply may lead to prosecution for any criminal offence or to liability for a civil penalty. The Law Commission proposed that the privilege should be restricted to incrimination for crimes punishable by imprisonment. The bill provides that privilege should be available where the information required would be likely to incriminate the person in relation to a criminal offence, not just those punishable by imprisonment. That is because the stigma of a criminal offence justifies the retention of the privilege for non-imprisonable offences.

The need for reform in this area is long standing. The terms of reference were given to the Law Commission in 1989. In 1999 the commission published its report. Following from that report, this bill, which generally follows the recommendations of the commission, is being introduced. I look forward to the bill being thoroughly considered before the Justice and Electoral Committee and the ultimate passage of this bill as the culmination of a long process of consideration of a complex, but important area. I commend this bill to the House.

Dr RICHARD WORTH (National—Epsom) : It is a pleasure, on behalf of the National Party, to speak in support of the Evidence Bill, and National will support its referral to a select committee for the processes of public submission and consideration. It is also an opportunity to follow Philip Goff, who I do not think will be the Minister of Justice when this bill is enacted. It seems clear to me and to my colleagues on this side of the House that there will be a change of Government, and Philip Goff will, no doubt, seek more remunerative employment in other fields of human endeavour.

I would like to talk about some aspects of the bill, perhaps more in a preliminary way, in the context of what the law of evidence is all about. But before I do that, I would like to pick up on a comment that Philip Goff made, and I would just like to say that the pressure to see this legislation advanced to its present position has come from a variety of sources, and one of those pressure points has been the media. I would single out for special mention the commitment to a new Evidence Bill of the business weekly magazine Independent, and the unflagging efforts of one of its very senior editors, Denise McNabb, in that regard.

What I want to say about the law of evidence is this, really. It is a set of rules by which judges determine what testimony and exhibits may be accepted, and how they may be used. It is central to the day-to-day operation of New Zealand’s administration of justice. It affects, obviously, every piece of evidence given by every witness in every court, so its rules must be clear, principled, and readily accessible. The problem has been that in its present form the law of evidence is really a patchwork of disparate elements that have never been coordinated and whose effect is frequently disputed by experts. I see Mr Fairbrother is in the House. He has had substantial experience in the criminal law, and I am sure he will agree with this. The problems result from ancient rules of the judge-made common law that themselves are often not really precise and often not readily accessible, and they have been met by ad hoc statutory reforms that have, in turn, presented difficulties both of construction, and, I would also say, of scope.

A good example of that would be the Evidence Amendment Act (No. 2) of 1980, which responded to an over-narrow expression of the law of hearsay in a case well known to lawyers and law students alike—Myers v . So it was a good move when in August 1989 the then Minister of Justice, Sir Geoffrey Palmer, gave the Law Commission an evidence reference, and the terms of that reference were to make the law of evidence as clear, simple, and accessible as practicable, and to facilitate the just and speedy judicial resolution of disputes. In that reference the commission was tasked to examine the statutory and the common law governing evidence in proceedings before courts and tribunals with a view to making recommendations for reform with a view to codification. That is what this bill is all about. It draws together the common law strands and the statutory strands, primarily based in statutory terms in lawmaking in 1908—some significant period ago—to produce the now Evidence Bill.

I think it is also relevant to say something about the adversarial system. New Zealand and other common law democracies, particularly Western democracies, have a system known as the adversary system. The guts of it is that the parties present evidence to a judge, if the judge is sitting alone, or to a jury if the judge is sitting with the jury. They make decisions, after applying the relevant law to the facts. The fact finder must first decide what the facts are, by assessing the evidence offered by the parties. According to one scholarly evidence text—and huge amounts of material have been written on the law of evidence—evidence of a fact is information that tends to prove it.

I would like to speak about the operation of the adversary system, because when the Justice and Electoral Committee considers this bill it will have to look carefully at whether what we are doing is consonant with the main features of that system. I would say that there are probably four factors of that adversary system. The first is that the judiciary plays a passive role in dispute resolution. One need only to look at what goes on in the French courts, which have an inquisitorial system, to see that their system operates on a very different basis. But here, under our adversary system, the judiciary does not actively seek out cases or embark on investigations. The judiciary reside in our courthouses, and is only activated when litigants bring cases before them. Even when adjudicating, our judges should not archetypally move from passivity to activity and interfere with counsels’ development of cases.

It has been said in the past that the judge who speaks too much is “no well-tuned cymbal” and also that a judge who descends in the arena is liable to have his vision “clouded by the dust of the conflict”. [Interruption] I cannot hear the interjection that is coming from the other side but I can assure Mr Fairbrother, who is making troublemaking noises, if he has read widely on the law, that these are direct and well-sourced quotations. So the judiciary is not only to be passive; it is also to be neutral. It is not to pursue some particular theory of a case. It is to allow counsel to put their separately formulated cases before the court.

The second point is that counsel bear the burden of actively prosecuting clients’ cases before the courts. So their obligation is to put as strongly as they can their client’s case, and to diminish their opponent’s case to the greatest extent possible, and this is the linkage of the adversary system with the old system of trial by battle. The lawyer is the champion of the client. I remember the words of Lord Denning: “In litigation as in war, no holds are barred.” The third point is that our adversary system is accusatorial. The accuser, the party who asserts some cause of action against an accused, bears the express burden of proving his or her case to a high level of certainty in criminal cases. The fourth point, in particular reference to criminal cases, is that our adversary system employs the institution of the jury. In jury trials the judge is the trier of law, and the jury is the trier of fact. So the jury injects this lay assessment of the evidence in the law into the trial.

So our rules of evidence—and they are particularly relevant in the context of this Evidence Bill—are framed because we have chosen as our system of law this adversary system. So what is this bill about? Philip Goff has made some comments about it. The public can judge whether those comments are helpful. I choose to judge them as not particularly helpful, but I would say that the bill covers such matters as rules of admissibility including things like hearsay, opinion evidence, improperly obtained evidence, and propensity evidence. It deals with questions of privilege and confidentiality. It deals with the trial process—and that is why I spoke about our adversary system—and then, perhaps less significantly, it deals with rules for giving evidence from overseas to a New Zealand court, and evidence given in New Zealand to be used overseas.

The bill has several purposes, and I will conclude on this point by saying that it is to help secure the just determination of proceedings by, first of all, providing for facts to be established by the application of logical rules, promoting fairness to parties and witnesses, protecting rights of confidentiality and other important interests, and, finally, avoiding unjustifiable expense and delay. It is technical legislation, and appropriately is referred to the Justice and Electoral Committee. National supports this bill.

Hon JUDITH TIZARD (Minister of Consumer Affairs) : It is always a pleasure to follow the member for Epsom, who, with his indomitable determination to wring every last word out of every issue, must have cost his clients a great deal over many years. In his own words he is “no well-tuned cymbal”; however, I think he is a symbol of much that needs to be changed in the legal system. It is probably good that he is in Parliament, bringing his undoubted experience in the padding and obfuscation of the law.

It is a great pleasure to follow my colleague the Minister of Justice, the Hon Phil Goff, who is bringing in yet another profoundly researched piece of legislation, following a great deal of work done by the Law Commission.

It is absolutely vital that New Zealanders have access to the law in the simplest, most accessible, and cheapest way possible. Yes, many cases are extremely complex, but it is unconscionable that so many New Zealanders do not go near courts because they fear the cost and they fear the complexity—often, when they have a very good case. Every electorate MP worth his or her salt will have any number of cases where constituents have come to them with perfectly just cases that should have been resolved in our courts but have not been, because of the complexity, the inconsistency, and the cost of almost every case.

This is a vital piece of legislation that has been reviewed over many, many years by the Law Commission. Indeed, more than 10 years have been spent researching and consulting on this legislation. I think we all recognise that although common law is one of the great strengths of the Westminster system, it is also very piecemeal, and legislation has to bring it up to date and reconcile it on occasions. I am delighted to follow my colleague Phil Goff, who has yet again demonstrated his profound interest, and rigorous approach.

I think the Justice and Electoral Committee will be able to call for submissions on this. I am sure there will be many interminable submissions on the lines of Dr Worth’s recent peroration. I look forward to this bill coming back to the House, representing an improvement that will clarify existing law by addressing ambiguities and inconsistencies. It does fundamentally change the current law in some areas, so it needs to be well examined. The bill is the next step in a lengthy process, and I do hope it will result in better access to, and clearer understanding of, the law and the right to justice for all New Zealanders

DAIL JONES (NZ First) : New Zealand First will be supporting this legislation. The law of evidence is probably the cornerstone of our legal system. How evidence is presented is the crux of a case, in my view. One can be as academically clever as one likes, but if one is incapable of presenting one’s case in a court, one may as well never have gone to law school. So how we set up our laws of evidence is very important. Of course, the reverse is also the case. One may not be terribly bright academically but one can make a very good court lawyer, many times, if one is quick on one’s feet, knows the rules of evidence, and can deal with people. The Evidence Bill is extremely important legislation.

I was amused by the Minister of Justice, Hon Phil Goff, adding yet another of those lovely Labour phrases. This bill, as we were informed, went to the Law Commission in 1989, and he told us the commission was “very thorough”, and now 16 years later we have this bill. We can add that Labour homily to the Labour phrase for sex change—“gender reassignment”. We seem to have these lovely expressions from the Labour Party. Another example is a tax increase becoming a “tax shift”. We are going to have a list of as many of these wonderful phrases from this Labour Party as we can possibly get—possibly even more than there have been tax increases!

However, I pick up on one point made by the Labour member for Auckland Central, Judith Tizard. She talked about cost, and, of course, one of the reasons we have costs with court proceedings is that the Labour Government increased the cost of civil proceedings from a filing fee of about $100 to $1,000. That is why we have costs. That is why people cannot afford to go to court.

But let us put those things aside. I am not going to make a long speech. This is very important legislation. I am sure the Law Society, and lawyers generally, will pay very close attention to it. We have a great responsibility as a Parliament to make sure this legislation is right when it comes out of Parliament.

STEPHEN FRANKS (ACT) : First, I want to dissociate myself from what I thought were some slightly churlish comments made by a member whose words I usually listen to extremely closely—Dr Richard Worth. I felt that the introduction to this bill by the Minister was one of the most workmanlike, sober, and respectable addresses I have heard in introducing a bill. There were no exaggerated claims to a new millennium for criminal justice, and I thought he gave us a good survey of what the bill is about. So on this rare occasion I feel I cannot adopt Dr Worth’s position that it was, in so many words, a “useless speech”. I do not think it was useless, at all.

This is, of course, a bill that has been lurking about in gestation for a very long time. About a year ago I was sounded out as to whether I wanted to be part of what might have been a legislative experiment for the Government, to go through a draft so that the kinds of questions that might be raised at select committee by members could be flagged or explored in advance. I thought that was quite a useful idea, because, as is undoubtedly the case, once the Government has introduced the bill, even if it is on areas that are regarded as lawyers’ law, where there should not be—or it is not expected there be—major political divides, it is nevertheless still not easy for a Government to see a Government bill dramatically changed, because people will tend to say that it must have been a muck-up in the first place.

I was interested to see that the Government had not slavishly followed the recommendations of the Law Commission. Clearly, an independent view has been taken of a number of the issues. But it does not seem to me that it truly matches up to the claims to be a codification. I do not think the Minister used that term in his introduction, and the precise words are not used in the explanatory note that the Government has attached to the bill, but certainly the claim to be simplifying a complex morass of case law is the usual description of codification. The word “fake” is far too strong, but, some of this gives the appearance of codification when, in fact, all it is doing is listing the factors that judges look at, without making the likely outcome any more obvious than before to the lay reader or the reader who is not a specialist in the area.

For example, I wanted to see whether we were going to have more or less encouragement to a kind of Miranda Law developing in New Zealand—that is, trials whereby the primary effort of the defence is to attack the legality of the evidence, so that the whole trial turns into a trial of police practice, instead of a trial of the guilt or innocence of the offender. So I look at clause 26, “Improperly obtained evidence”, hoping to see strong guidance to judges that the overall importance is whether the offender is guilty. Instead I find, in subclause (3), a long list of the kinds of things that judges probably weigh now, and no real indication of where the balance should lie. Will we have a relatively automatic exclusion of improperly obtained evidence, or will we not?

This is an area where the Government should have, in fact, taken a view, or at least have indicated that the judge’s consideration should be primarily on the defendant—because the defendant should be judged on guilt or innocence, and that might well be best determined on the basis of the improperly obtained evidence—but instead of on whether excluding the evidence is essential as a disincentive to future improper investigatory practice. In other words, what is not there is a focus on the reason why evidence should be excluded, not because it is wrong for the particular defendant, but because we have a set of rules and it is wrong for them to be disobeyed, and the judges are presumably deciding that disciplinary procedures are not as effective as simply making the evidence useless. At the same time, of course, they may be causing grave offence to the victims of the particular crime, and the select committee should do quite a lot of clarification on matters like that.

I am concerned also that I see nothing in here to deal with the so-called right to silence. It is possible that I, not being an expert in these matters and not having practised in the courts for many years, have not seen this dealt with, but I have been through the bill and I think eliminating the right to silence is a long-overdue reform.

Murray Smith: No, it doesn’t. It retains it.

STEPHEN FRANKS: I thank the member. That is an interesting one. Judges—I do not like to use the term left or right—from a conservative and from a radical bent of mind, like Justice Thomas, Justice Williamson, and various others, have in print called for the end of the so-called right to silence, because it actually is inimical to justice. The so-called right to silence does not mean a right that protects people from being forced to say something, but means it is difficult, or is not appropriate, for a judge or jury to draw conclusions from the failure of the accused to give evidence.

We have situations that really affront lay people, and obviously affront some judges, such as the Marlborough Sounds case. In that case the defence counsel could cross-examine on all kinds of fanciful theories about what might have happened, postulating alternative explanations for the facts, when the one person in the court who actually knew—who must have known—what the real facts were, could choose never to put himself at risk of being cross-examined on the theories advanced by his own counsel. That is wrong, and it should go.

I am concerned also that there is not a clear repudiation of so-called cell-mate confessions. I think cell-mate confessions have brought the criminal justice system into disrespect. Although they may have secured convictions for some deserving criminals, the loss of confidence that many have in it, and the fact that it encourages groups to form around offenders and to assert their innocence, means that it has been a very expensive victory in some cases. There are references to co-offender confessions, but I do not think they rule out cell-mate confessions in the way they should.

I am also concerned that there is not the reform I would have expected about children’s evidence and what used to be called—as lawyers listening will know—section 23G, which were the misguided changes made by Sir Geoffrey Palmer in 1989. There is change, but I do not think the bill is as clear in this area as the Court of Appeal has been very recently. In some senses it is a shame that the bill has not caught up with the courts. This is no longer a codification; this would actually take the law back from where judges have now tried to steer it. Having decided that that rush of blood to the head in 1989 left our law in a dangerous position, with some ancient rules of evidence that protected against improper convictions abandoned, judges decided that it was time to go back. Children’s evidence has particularly been a problem in sex offender cases, and some theories of child molestation, and in this decade and the last part of the last decade we have seen a horrified realisation of miscarriages of justice all around the world.

Finally, I am concerned too that the penalties for perjury have not been dealt with in a way that I would have hoped. The provisions about witness anonymity and protection of witnesses are a substitute, basically, for the creation of a system where it is simply not worth trying to pervert the course of justice. That is the reform we would have liked to see signalled. We look forward to trying to improve this bill in the select committee.

METIRIA TUREI (Green) : The Green Party will be supporting this bill to a select committee for further consideration. We are very pleased to see the work on this bill come to fruition. The fundamental presumption that evidence is admissible unless it is determined otherwise is a very sensible approach and we are pleased to see that the complex provisions that have been developed over time are getting some clarification and a degree of simplification.

One of the things we are pleased to see, although I confess I am not 100 percent aware of some of the previous legal situations in terms of children’s evidence, is that it seems from the bill that the way children’s evidence is considered will be given some real consideration. Serious concerns have been raised about the way children’s evidence has been managed—those concerns particularly arising out of the high-profile civic creche case, but in other cases as well—and there does need to be better management of the way children’s evidence is dealt with. The proposal in this bill that seems to ensure that there is a judicial conference before the matter goes to hearing, in order to work out how to manage how that child complainant’s evidence is given, seems like a very good provision to have.

On reading the Law Commission’s report, I note particularly for the House that the Law Commission said that children do have a very good capacity for detailed and accurate recall of events and things that happen to them. The commission did a lot of analysis and research with experts on child psychology and other areas of children’s evidence and it was very concerned that the previous situation where judges were required to give directions to juries that children’s evidence was to be considered with caution, because of their natural tendency to fantasise and fabricate, was not an appropriate way to approach children’s evidence. The Green Party completely agrees with that. Children’s evidence should not be dismissed as an immediate approach, as a presumption.

The commission goes on to say that it is not the evidence of the child that needs to be given special particular consideration, but that scrutiny is needed of the manner by which that evidence was obtained from the child—the way the child was questioned and the circumstances that have led up to that child’s evidence. We think that is a very, very important point and still deals with only part of that matter, because, of course, it can deal only with evidence in court and the judicial process. But the commission’s approach is about the process by which that evidence is dealt with and the process by which the evidence is brought out of the child. It needs to be a very clean process and one that does not involve any kind of influence from others. It is very difficult to do that with children, not to influence them, because they are very, very receptive to emotional states, particularly of the adults around them.

So we are very pleased to see that there seems to be a tendency in this bill that it is the manner by which evidence is obtained from a child that is as much under scrutiny as the evidence of the child itself.

In the select committee we will be looking at the changes to the provisions about the defendant’s right to silence in criminal and civil cases. We are not particularly happy with what looks like the narrowing of the right to silence. I have to say that I am very surprised at ACT’s position on that. ACT’s position, by arguing that a defendant’s decision not to give evidence should be, or could be, used as an inference of guilt on his or her part, goes directly to the question of whether we have a justice system based on the principle that one is innocent until proven guilty. ACT seems to be saying that if a person makes a decision not to give evidence, then that implies that person’s guilt.

If we are to go to a position of a justice system—which would certainly not be a justice system, it would be a legal system—where a person was presumed guilty until he or she was able to prove his or her innocence, then we are completely transforming the system that we have and going in a direction that is not appropriate in this country and in this day and age. I do not understand how Stephen Franks could have come to that position on that issue. In fact, the right to silence is a very, very important right and privilege that defendants have, and they need to be able to maintain that to the greatest degree possible. Certainly, we should not be proposing any legislation to narrow that, without extremely good research and evidence as to how it will enable and better the legal and justice process to do so.

We are also concerned about the use of cell-mate confessions in criminal cases. Cell-mate confessions are highly prejudicial and of extremely dubious reliability. In the bill it appears that the judge is enabled to make a decision on the reliability of those kinds of confessions on the balance of probabilities. We are concerned that that is not a high enough test. We would like to see greater consideration given to those provisions.

We look forward to hearing from submitters about those provisions. As much as some of us have been lawyers, and perhaps even been in practice for many, many years in this area, after having spent some time in this House it is certainly true that we have got a bit rusty and we need to hear from practitioners and people who are involved daily right now in the court process, criminal and civil, to get a full and clear picture of what is needed in the courts at the moment.

We note the provisions about anonymous witnesses, which look as though they are just carried over from the existing law. However, it does bring to mind the issue raised last year of women who wore the burka, and their right to give evidence wearing a burka. The courts finally ruled that, no, they could not wear the burka and give evidence, and they were required to expose their faces. The Green Party can certainly see the arguments on both sides—the rights of the accused to adjust process, and the ability to assess the veracity of the evidence against him or her, versus the cultural, religious, and human rights of the women who, for whatever reason, feel they are necessary. We can certainly see those two competing interests, so we look forward to some information being brought to the select committee to see what people have to say about that, and whether something about those issues in terms of evidence should also be specifically included in the bill, or whether the provisions in this bill can be modified to deal with that situation as well, in a way that meets those competing issues if at all possible.

We are looking forward to seeing how this bill pans out in the select committee. We very much look forward to hearing from the submitters and we will be supporting this bill at its first reading.

MURRAY SMITH (United Future) : This bill is only 3 years short of modifying a law that is 100 years old: the Evidence Act of 1908. Although over the course of those 100 years there have been amendments and a bit of tinkering to certain areas, we are still left with a justice system that is effectively a 19th century justice system. If we needed any convincing of that, it was to be found in Dr Richard Worth’s speech tonight, which was a speech that could have been given to this House in the 19th century. He referred to the four cornerstones of the adversarial system: the importance of the judiciary’s passive role and of it not descending “into the arena”, the counsel’s burden of putting the client’s case, the counsel as the “champion of the defendant”, and he discussed other things in the “accusatorial system”. Those are all 18th and 19th century concepts, and it is time we brought our justice system into the 21st century. In order to do that, we will have to make somewhat more of a radical change to it than we do in this Evidence Bill.

Insofar as evidence is at the very heart of the justice system, I am disappointed that although the bill makes some improvements—in particular, a degree of codification and modification of the existing law in what I see as a positive fashion—it does not go nearly far enough to provide a justice system that New Zealanders can again have confidence in. New Zealanders lack confidence in our justice system for the very reasons that Judith Tizard seemed to think this bill was going to address—namely, the cost and complexity of it. This bill will not solve those problems, and until we look at a fundamental change it will not happen.

I was pleased that the bill enunciates the principle that all relevant evidence is admissible unless there is a policy reason to exclude it. That starts to go down the path that United Future would like to go down, whereby evidence is brought in and maximised, rather than being excluded for all sorts of wonderful reasons. The United Future members believe that the sorts of principles that should be at the foundation of our justice system are, firstly, that as far as possible it should determine the truth, secondly, that it should punish those who wrong other people or society in general, thirdly, that it should promote the reconciliation of the offender and the victim, with a view to the restitution of physical damage and the restoration of the relationship between them, and, fourthly, that it should promote the restoration of the offender as a positive and law-abiding member of society. The civil justice system, similarly, should focus on determining the truth, and then assist the parties to reach agreement on the outcomes necessary to resolve the conflict between them, promote the reconciliation of the parties, and restore their relationship.

Until we get a justice system that is focused on determining the truth, instead of on a semantic game—which is what our system has been for hundreds of years—we will not get a justice system that delivers for the people of New Zealand. It is astonishing that when I say that our justice system is not primarily focused on finding the truth, people are horrified. But that fits in with their experiences. We need to make some changes in order to ensure that the truth is at the forefront of our evidence, and of our criminal justice system. One of the ways we could do that very easily is to require a defendant to give evidence. At the end of the day, what defendants say in answer to the charges brought against them is the most helpful evidence to a jury, and to a judge, in terms of determining the truth.

It was interesting that the Greens talked about not removing a right to silence. Well, there is no right to silence. In fact, the history of the so-called right to silence just demonstrates the 19th century situation we continue to have. In British law up until the end of the 19th century defendants were not allowed to give evidence, because it was considered that they would be self-serving in their evidence and could not be trusted. Therefore, their evidence was not considered fit to be heard in a court of law, which was meant to uphold truth and justice. New Zealand was at the forefront of the Commonwealth in the 1880s in extending that provision to state that although defendants could not be compelled to give evidence, they could do so if they chose. So the change was made from defendants not being allowed to give evidence to New Zealand leading the way by stating that defendants could give evidence if they wanted to. We have not progressed any further than that. It is time we progressed into a situation of requiring defendants to give evidence or, if they do not get on the stand and answer charges themselves, allowing an adverse inference to be taken. Clause 26 retains the anachronistic provision that no adverse inference can be taken if a defendant chooses not to give evidence. The defendant should be required to give evidence.

The second thing we should really look at changing, if we are to make a fundamental change to the system that is determined on the basis of the truth, is the whole area of admissibility—in particular, with regard to improperly obtained evidence. We have a situation now that if the police stuff up in terms of their obtaining of evidence, the truth is chucked out so that the police can be punished by the evidence not being allowed to be admitted. Therefore, we abandon what could be critical evidence in determining the real facts in a situation, because we feel we need to punish the police in order to make sure they do things right. I say that we can have our cake and eat it, too. I say that we could admit the evidence, albeit wrongly obtained, on the basis of other sanctions against the police, and against the Crown if necessary, in order to deter them from improperly obtaining evidence. But why should truth and fairness suffer in a court because one party—the police; those who are prosecuting—get things wrong and do not provide the evidence in the correct fashion? What that tells us again is that our system is all about the police versus the defendants—it is a game. It is, as Mr Worth says, an arena, a gladiatorial contest, and a championing—champions are pitted against each other, in the vain hope that the truth will emerge from the centre of it. Instead, it tends to be just a bit of a bloodbath.

We get ridiculous situations such as the Barlow case arising from the Thomas murders. Mr Barlow was able to give his version of events in the newspaper and to find other people to give his version of events. Then, when the police came up with more evidence, he came up with a different story that was contradictory to it. Then, when the police came up with more evidence, he changed his story yet again. By the time the case got to trial Mr Barlow had given three incompatible versions of the facts, but he elected, despite all the publicity that he himself had undertaken, not to give evidence at the trial. As a result we had two hung juries, and it took a third jury before he was actually convicted of the murders. That would never have happened if Mr Barlow had had to give evidence, because as one Queen’s Counsel said to me at the time, if Mr Barlow had had to give evidence he would probably have come up with a fourth story—another story that was incompatible with the other three—and the jury would have seen straight through him.

Another thing we should look at curbing is the law against self-incrimination. If a person is charged with an offence, it is reasonable that we should, under our criminal justice system, require that person to answer the offence in person. If that means that people incriminate themselves, well so be it. If people have committed an offence, they should be punished for it. If our system is based on truth—on finding the truth, convicting the guilty, and acquitting the innocent—then the fact that people may incriminate themselves if they give an answer should not be a barrier.

We should also allow judges far more latitude in terms of their questioning and calling for evidence. In this bill we make some leaning towards a greater allowance for bringing in evidence and for judges to be involved. I think that what we should have, but do not have, in this bill is a provision for judges to call for evidence. We need to have stronger provisions so that if a judge sees a situation whereby clearly the truth of the matter will be determined by the evidence of such and such a person, and if the judge considers that that evidence is critical to the case, he or she can ask whether the prosecution or the defence will call that person. If nobody calls that person, then the judge should be able to appoint a lawyer to assist the court in calling that evidence. It is important that evidence is heard when it is central to determining the issues in the case. That is the sort of approach we should take, whereby judges are proactive in terms of determining where the truth lies in a situation instead of being passive, as Mr Worth likes to state it, and simply acting as the arbiter in a gladiatorial contest.

Those are the sorts of changes that I would like to see. I am not overly confident that the select committee process will be sufficient to make such radical changes to the bill, but if we are serious about getting a 21st century justice system that people can have confidence in and that delivers results, that is the sort of thing we need to see changed. However, United Future will support the referral of the bill to the select committee, and we will see where we go from there.

LIANNE DALZIEL (Labour—Christchurch East) : I will take just a brief call to say how pleased I am to see the Evidence Bill finally in front of the House, with the recommendations of the Law Commission picked up. The Minister gave a clear message that the Law and Order Committee has a task before it: it can look at the issues and address them based on the evidence presented to it.

I will speak briefly about a matter of particular concern to me—spousal immunity. Anyone who was at my wedding will know that my husband’s wedding speech was predicated on the basis that the only reason he was marrying me was because of spousal immunity—and, of course, this legislation does away with that. He knew that he would be able to come home, weary from being on his motorbike, and be able to share his guilt with me in the knowledge that I could never be compelled to give evidence against him. This legislation allows for the removal of spousal immunity.

When I spent a period of time as Associate Minister of Justice, I managed to persuade officials to come up with an alternative that would allow spouses, and other partners very close to the individual concerned, to be excused by a judge from giving evidence. So the bill still allows for a little bit of immunity in order to ensure that the relationship is protected and, more important, that the veracity of the information being given to the court is protected, because that is what evidence law is all about.

I welcome the bill. I look forward to its coming to our select committee, and to the very hard work that we will do on it.

Dr WAYNE MAPP (National—North Shore) : As my colleague Dr Richard Worth, an eminent lawyer in Auckland—and I could say a good deal more eminent than some of the other lawyers who have spoken in the proceedings tonight—has said, National is supporting the first reading of the Evidence Bill.

I am concerned to hear that the party that consistently supports the Labour Government, United Future, has such a poor understanding of our civil liberties. One of the reasons why we have these protections, of which Murray Smith seems to be unaware, is precisely that the State is powerful and that people acting for it sometimes abuse their authority. Perhaps it is done with the best of intentions, but they nevertheless do so. Therefore, the law provides citizens with protection. Mr Smith would just throw those protections away with indifference, unaware of the lessons of recent and past history. So when he said: “Let us bring the justice system into the 21st century.”, it was code for: “Let us give more power to the State.”, because that is essentially his plea. I say that we should be very careful of that approach, because our democracy is built on the basis that the rights of citizens are protected. That is literally the foundation of Western democratic societies, and Mr Smith would apparently cast that foundation aside somewhat heedlessly.

One of the other things that comes to mind is the rather unusual reference by the Minister of Justice to the careful deliberations of the Law Commission. I guess he was referring to himself in that as well, because this bill has had an extraordinarily long gestation. In 1989 the Law Commission started work on it. I recall reading its numerous briefing papers and preliminary reports as they came out. The final report was in 1999—10 years later. It is one of those situations that we have become used to with the Minister—he announced things some years ago and then they were announced again, he issued press releases saying that he was getting around to it, he put it in the Queen’s speech, and all of that sort of thing. That is the Minister’s habit. Finally, just a couple of months out from the election, he introduces the bill. I guess that he will have the dubious pleasure of being in retirement during its progress, because a new Minister will be able to consider the deliberations and results of the select committee. He will not be there to do so.

I turn to a couple of particular points within the legislation: hearsay evidence and privilege. One of the things about giving evidence in court is that it is intended to establish the facts from each party’s perspective. By definition, facts are things that people know, which is why we do not rely on hearsay evidence. In a case, a person testifying cannot give a statement of fact. They can give a statement of opinion, but they do not know what actually happened.

One situation brought to mind is the Prime Minister’s statements in the House today. Apparently, she cannot say what happened in relation to what was said 5 years ago. At best she can only say what she believes happened. So there is the odd situation of her putting her reputation on the line and the public being asked to judge it, not on the basis of what she knows she said—she cannot remember it and she has admitted that—but rather on what she thinks she might have said. That is a pretty unreliable situation. Interestingly enough, in that situation—and we are talking about evidence—the evidence actually exists in the form of tape-recordings and contemporaneous notes. I say that, on the basis of evidence, she should produce the contemporaneous information so that this nation knows the truth. It is something that, apparently, United Future wants to know. It is a fair claim.

We deserve to know the truth, particularly from the most important constitutional position in our country, which is that of the Prime Minister. Surely, as a nation, we should be able to know what is true and what is not, and that can be done. So that is a pretty important issue. When we are talking about evidence legislation, we should be able to rely on the truth of what is said, and the Prime Minister needs to understand that.

That matter brings me to the issue of privilege. Legislation protects many of the traditional privileges. One of the privileges, of course, is parliamentary privilege. Members can say pretty much what they like and it will not be challenged. Today the Prime Minister said—with no evidence—that the National Party paid for the Doone’s lawyer. Surely that was an extraordinary abuse of privilege. So when the issue of evidence is being looked at, we expect senior members of the Government to follow those fundamental principles.

I turn to some other issues in the bill. I was intrigued to hear the Green Party talk about the burka. That was an issue on which I had something to say at the time. In giving evidence, it is fundamental that people be able to assess the character of witnesses. Even the judge admitted that. Yet I understood from the Green Party that its belief is, on the basis of cultural sensitivity, we should allow people to give evidence and, in a sense, for that evidence not to be tested.

If one were to take the view that the whole purpose of legal proceedings is to seek the truth—and a fair argument can be made about that—then, surely, the demeanour of the witness is one of the things that both the judge and jury ought to be able to assess. I think that the judge made the correct decision by ruling that the person could not wear the burka. I personally think that the witness should not have been behind a screen.

I conclude on the point that the purpose of this legislation essentially is to codify the law, and to bring into the legislation a series of propositions and positions that have been held in case law and now need to be put into the legislation. That was the purpose and the intent of the Law Commission’s report. It disturbs me that we take so long to implement important Law Commission reports of this nature. This was an important report from the Law Commission. The commission did a huge amount of work on it over a long number of years. I read many of its reports during that time. Yet we do not have a procedure in this Parliament that would properly advance the commission’s important work.

As someone has pointed out, the current Evidence Act is from 1908. For 20 years now, that Act has been the subject of a review. For the health of the law of this land, we need to have a system in this Parliament that would enable Law Commission reports on issues that are certainly not fundamentally party political or in dispute to be passed into law for the health and effectiveness of the law.

Stephen Franks: Where is your sense of mystery? This one shouldn’t be passed until 2008.

Dr WAYNE MAPP: That is an intriguing interjection, but I think that it would not be good for the development of the law. This is something that the House needs to pay attention to. We need to find a mechanism, as exists in both Britain and Australia, whereby non-contentious but important legislation can be passed so that we keep the legal tool kit in good repair.

LYNNE PILLAY (Labour—Waitakere) : I am very pleased to rise and take a very short call as a former member of the Justice and Electoral Committee.

Darren Hughes: That powerful committee!

LYNNE PILLAY: That is right. The need for this bill has been anticipated for a very, very long time, and its passage will be the culmination of a lengthy process.

I want to acknowledge the Law Commission, which was very thorough. It spent a decade reviewing aspects of evidence law, publishing discussion papers, and seeking the views of those involved with the justice sector, including a wide variety of community groups, academics, officials, members of the legal profession, and our respected judiciary.

I will close by saying that this bill brings together decades of decisions and reforms of statutes. It is common-sense, practical, forward-thinking, and visionary—just like this Government.

JUDITH COLLINS (National—Clevedon) : I rise on behalf of the National Party to support the Evidence Bill. I am concerned that we have not yet heard from Mr Fairbrother, who was previously a criminal lawyer. He had a lot of experience in criminal law, and he acted for all sorts of people. It is important, when we are dealing with an issue like evidence, that Labour put up speakers who might know something, rather than speakers who contribute the nonsense we have just heard.

Tonight I will speak about something quite wide ranging. One of the areas I want to deal with relates to the law of hearsay. There are several reasons why the Law Commission might have taken a decade of taxpayer funds to sit around talking about the law of evidence. One of the reasons might be that it is a very difficult matter and maybe it wanted to get it right. I would like to think that is one of the reasons it took so long. We do not go into the area of evidence, and look at a mass of changes in it, without some fear and trepidation.

The National Party does not subscribe to the concepts of Mr Murray Smith from United Future. I am sure he would rather we had trial by ordeal than trial by jury. If we ever needed to have evidence as to what trial by ordeal might be like, then my goodness he gave it to us tonight. Has anyone heard anything like his contribution? It was one of the most out-of-this-world, 17th-century contributions on the law of evidence one could ever hear. Evidence is very, very important. That is why this bill will go to the Justice and Electoral Committee, and that is why, I hope, the Law Commission took a decade to review the area. However, that does not explain why the Minister of Justice has sat on this matter for the last 5 years. I can only think that it was not nearly as important as the Civil Union Bill, or the Relationships (Statutory References) Bill, which stated that marriage, civil union, and de facto are all the same, and which a lot of United Future members supported.

Murray Smith: I didn’t support it.

JUDITH COLLINS: If the member does not know it, his leader supported it.

One of the areas of evidence, relating to the Family Court and the Employment Court, does not seem to be covered in this bill, as far as I can see. I have thought for a long time that some of the evidence that goes into those courts is a load of garbage. I have seen affidavits put in that are absolute twaddle—a technical term—and nonsense, and I am appalled that some lawyers could take affidavits with that rubbish in them. I have had people to come to me on behalf of other lawyers, bearing affidavits that stated they were frightened of their husbands. When I ask why they were frightened, they reply that they were told to say that at Women’s Refuge. That is the sort of thing that passes for evidence in the Family Court today, and that is wrong. In this country people’s situations can be unfairly prejudiced because of what we would call false “evidence”.

Again, in the Employment Relations Authority, an awful lot of garbage is put in as evidence. I know that the Minister, Rick Barker, as a former trade unionist, might hate to hear it, but the sort of rubbish that passes for evidence in the employment area can be, for example: “So and so said such and such to so and so, and then they told me …”—and that is supposed to be evidence. In situations like that, with that sort of nonsense, it is very difficult for employers or employees to defend themselves—which is something that people like Peter Doone and his wife are having to think about today, as they have been so badly libelled in Parliament.

In relation to the burka, I think it is absolute rubbish to say that we have to have cultural sensitivity in the case of a person who comes here, makes accusations against someone, and then hides behind a veil so that the accused cannot see the accuser’s demeanour. Yet the person who was accused could well have gone to jail.

We tamper with the law of evidence at our peril. I do not view the State as a benign, wonderful State that is there to find the truth; I view the State as an all-powerful, very deadly machine that can be used against individuals at our peril as a free society. I see that that is, in fact, a view held by many of those who have previously practised criminal law—and I see that Mr Fairbrother agrees with me. The State comprises lots of different people, many of whom have abused, and will continue to abuse, their power, whether they be in various bodies of the legal profession, in the police, in the Customs Service, or in any other authority. The fact is that people are people, and some people will abuse their power. We tamper with rules of hearsay and of evidence at our peril.

However, it is very important to note that there are some good, positive parts in the bill. I am very pleased to see that attempts have been made to deal with issues like video evidence and the area where sometimes someone is unavailable as a witness. Privilege is an area that gets quite a lot of mention in the bill. That, of course, relates to the privilege between a legal adviser, or counsel, and his or her client, and also to religious confessions. It does not extend to doctors—a fact that they never believe until they are in court and are told they have to say what happened.

One of my concerns is about complainants in sexual cases. I am very pleased to note that the Government proposes to keep the restrictions on using the previous history of complainants in rape cases—for instance, their previous sexual history—against them. Once, when I was the tender age of 18 and in my first year at law school, I attended a rape trial. I did so at that stage thinking that one day I might like to be a criminal lawyer. Experiencing one rape trial, and seeing what happened under the old law—before the law on evidence in sexual cases was changed—was sufficient for me to know that I could never, as a lawyer, do that to another woman. The way in which that particular woman was treated, and the fact that she was not a virgin at the time of the rape, meant that she had her reputation sullied and muddied in open court, and it said to me that the law had to change. It was, of course, not her previous sexual history that was in doubt; it was the actions on a particular night that needed to be looked at.

Another of my concerns relates to children’s evidence. I do not share the fantasy of the Greens that children do not fantasise. I think that the Greens fantasise, and also that children do. It is very important, as any parent will tell us, that children enjoy fantasising. It is a natural and healthy part of being a child. Some of them still believe in Santa Claus—as I am sure the Greens do.

Peter Brown: Pigs passing by the window.

JUDITH COLLINS: Mr Brown thinks I am not being fair. I think it is very important that we look at the rules in relation to children and the giving of evidence. I am very concerned about the evidence that has been put to the Justice and Electoral Committee in relation to the trial of Peter Ellis. I am also very concerned about the fact that, again, screens are being used, and not only that they are being used, but that sometimes evidence is being given by people in relation to matters in respect of which it does not always mean that fairness reigns.

The administration of justice is a very, very imprecise science. It is something that does not come easily in a lot of those cases. Sometimes the most awful crimes have been committed, and people want to find the perpetrators. They want to know there is closure on those crimes. Everybody deserves a fair trial in this country, no matter how revolting and heinous the crime. I know it is not a great vote-winner to say things like that, but unfortunately it is the truth. Everybody, even the most despicable person, needs a fair trial.

RUSSELL FAIRBROTHER (Labour—Napier) : I have listened carefully to the speeches tonight, and I think that the lawyers who have spoken have indicated that this debate will be a positive one for the Justice and Electoral Committee. Those who are familiar with the art of practising law are aware of some of the subtleties, and they have been expressed tonight.

For example, in relation to the debate about truth being an absolute in the courtroom, it was picked up by Dr Wayne Mapp and Judith Collins that in the criminal law, where the State is the prosecutor, we are really not in a battle about truth but in a power relationship. That is a valuable thing to understand, because that imbalance of power underlies many of our rules on the law of evidence, and most of those rules will still be carried forward in this new Evidence Bill.

That takes me, of course, to the suggestion by Mr Murray Smith that this is a radical change. I do not see it as a radical change to the law of evidence; I see it as a sensible evolution in rules that have been changing gradually over time, piecemeal and bit by bit, both by change in the law and also by thecommon-sense development of the common law. We see the Family Court, which has been applying rules of common sense, when it comes to evidence, for a long time, despite the evidence code. We see the employment and disputes tribunals, which adopt their own rules of evidence. We see the development of the criminal law on propensity; we see the development of the criminal law on documentary evidence; we see the development of the criminal law on reputation. All those matters are carried forward in this bill. Reputation is now related to the truthfulness of the witness, which is an area that has been difficult in the criminal law—ill-defined, and with conflicting decisions as to how the evidence of a certain witness may be attacked on the credibility or the truthfulness of that witness. Those are all dealt with in the bill, and I refer particularly to clause 33, which brings a clear set of rules when assessing the reputation or reliability of witnesses, whether they be for the defence or the prosecution.

This bill expands what is a very good Law Commission report. In Part 4 the bill adds all the evidential rules relating to foreign judgments and foreign laws. Those have not been considered by the Law Commission, but I think the select committee will find that their incorporation in this bill is a sensible extension of that. The bill also adds clauses 104 to 116, which deal with the present laws relating to undercover officers. That practice is well established now, and it seems to be accurately reflected in the bill.

I think this bill is a very positive advance in the practice of law, and it should turn into sensible law. But I urge the select committee to make constant reference in its report to the Law Commission report, so that when the courts come to consider some of the changes in the bill they can go back to Parliament to ascertain its intention, and can hope that Parliament’s intention will reflect that of the Law Commission.

The main test we have now is in clause 7(3), which defines what is relevant: “Evidence is relevant in a proceeding if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding.” Of course, clause 8 is very important, and it is the current law—that a judge may exclude any evidence that is unduly prejudicial to the outcome of the proceeding or that will needlessly prolong the proceeding.

The Law Commission, I think, identified the real issue here. I refer to page 3 of its report, where it states: “The Code relies”—and the code is its draft code, which this bill very much reflects—“on the common sense of the triers of fact and the wisdom of the judiciary who will give them guidance on how to approach the evidence in a given case.”

I think that those who appear in court would accept, as Ms Collins did when she described justice as a science, that it is probably more of an art form. One can apply the rules and the evidence, but the application in each case depends upon a number of factors, including the competence both of counsel appearing and of the judge. It is my hope that the select committee has sufficient time to hear the evidence fully and to listen to all parties, because if this debate tonight has been indicative, then the report that emerges from a select committee that has sufficient time to consider the bill clause by clause will be a substantial report, and one that this House can embrace with some pride.

I conclude my remarks tonight by again going back to the Law Commission report. On page 3, at about line 10, the commission states: “The significant reform proposed by the Code will not achieve its purpose unless it is accompanied by a change in approach by practitioners and the judiciary.” Essentially, the Law Commission is stating that Parliament can change new laws. But unless the law profession rises to the challenge and reads these provisions of the bill, or the law that emerges from the bill, and reads it with the intent and purpose; unless we have judges who are prepared to establish a new culture in the courts, taking heed of some of Ms Collins’ comments about some of the terrible affidavits that are filed in the Family Court and in the lower employment jurisdictions; unless judges are prepared to give some leadership on what really is relevant and what really should be included; and unless lawyers exercise some common sense when dealing with clients—unless that is tackled—then this law will lead to greater litigation while our appellant process sorts out the problems at first instance. But if our Law Society is sufficiently re-educated, and if our judges take responsibility for the culture in their courtrooms, then the moving of this bill into legislation could be significant for New Zealand. I hope it is.

• Bill read a first time.
• Bill referred to the Justice and Electoral Committee.referred to Justice and Electoral Committee

Hon HARRY DUYNHOVEN (Minister for Transport Safety), on behalf of the Minister of Transport: I move, That the Land Transport Amendment Bill be now read a second time. I thank the Transport and Industrial Relations Committee for its work on this bill; it has given it thorough consideration. I note that the committee is recommending a number of amendments, which the Minister supports.

I take this opportunity to remind the House briefly of what this bill contains, and to discuss some of the select committee’s recommended amendments. This bill is not the result of a single comprehensive review but of a series of specific reviews. The intention of the bill is to improve the safety and security of road users in line with the objectives contained in the Government’s New Zealand Transport Strategy.

The bill can be summarised under three headings: the improvement of road safety by the provision of better enforcement options, the better alignment of existing law and regulation governing commercial transport with other transport legislation, and the updating of general transport provisions to account for changing technology. The bill will improve the safety and security of road users by making the enforcement, operation, and administration of land transport safety law more efficient and effective.

The Government has identified a number of areas where the legislative framework that sets out the responsibilities of road users, traffic offences and penalties, and the driver’s-licence system needs improvement. In addition, the Government has identified a number of problems with land transport legislation that frustrate its spirit and make it difficult to administer and enforce. The bill fixes those problems.

With regard to serious traffic offenders, it is clear that alcohol and excessive speed are the two biggest contributing factors to road crashes in New Zealand, together accounting for about 40 percent of fatal crashes. Such crashes are unnecessary and come at enormous social and personal cost. The bill gets tough on the most serious traffic offenders by reducing the speed and alcohol thresholds imposed for immediate driver’s-licence suspension, and by increasing the range of penalties for repeat drink-driving, including immediate vehicle impoundment at the roadside.

The bill introduces a “three strikes and you’re out” approach for any drink-driving offences, whereby a first-time offender will face the current court-imposed penalties for a first drink-driving offence. A second offence committed within 4 years of the first offence will carry immediate licence suspension for 28 days on top of the court penalties, and a third or subsequent offence within 4 years of the first offence will result in immediate vehicle impoundment for 28 days and extended disqualification of licence, which will also include a requirement to resit and pass the theory and practical driving tests. That is on top of the court penalties.

The bill will make the law around driver licensing clearer and more user-friendly. It will do that by allowing a temporary driver’s licence to be issued when a person’s licence has expired or been revoked. That will allow a person to drive for assessment purposes. Secondly, the bill will require a driver’s licence to show the original issue date rather than the date that the licence was last issued. That will assist New Zealand driver’s-licence holders who wish to drive or hire a car in other countries.

The bill will allow for the immediate suspension of a driving instructor or a testing officer in the interests of public safety, and it will prohibit driving instruction for financial or commercial gain when the instructor does not have a current driving instructor endorsement. I note that the select committee is also recommending an amendment that would require the licences of suspended drivers to be surrendered. I welcome this amendment, as it will address concerns raised by the police and the hospitality industry that superseded learner and restricted licences are being used to assist minors to gain entry into licensed premises.

In 2001 the Government reviewed the transport operator licensing system. This bill contains amendments to transport operator licensing in line with that review. It simplifies and clarifies licensing requirements, thus helping to reduce compliance costs for transport operators. At the same time, it puts in place measures to improve commercial driver standards through the rules programme. Those include enhanced accountability of taxi organisations, and strengthened offences and penalties.

I note and endorse the select committee’s recommended amendment to require approved taxi organisations to provide company details in Braille inside taxis. That step should enhance the security of visually impaired taxi passengers, and their ability to bring any deficiencies in driving or service to the attention of the taxi company or of Land Transport New Zealand.

The bill also prohibits persons convicted of serious violence and sexual offences from being passenger service drivers. That will address the risk to public safety of having convicted sex offenders and other violent offenders in a one-on-one situation with passengers. I note that the select committee recommends that the scope of that provision be extended to cover offences committed prior to the commencement of this bill. I support that amendment, but note that the select committee in its report unanimously suggested further consideration be given as to whether some individuals should be able to apply for reinstatement. My officials are currently examining how reinstatement could possibly work in very limited circumstances, whilst excluding the most serious offenders, and I expect to table amendments to address that issue.

With regard to driving hours and logbook reform, I tell the House that following consultation with the transport industry and the general public, and in line with the review of the driving hours and logbook system, the bill retains prescribed driving hours and logbooks for commercial drivers, in order to manage the risks to road safety from driver fatigue. However, the bill simplifies the driving hours and logbook system, and introduces a new, simpler definition of work time.

Additionally, it alters the current penalty system, in line with industry concerns, to a graduation of penalties according to the seriousness of the offence. It introduces a new “chain of responsibility” offence to ensure that employers and other industry participants are held accountable if they knowingly allow or cause driving-hour breaches. The select committee has recommended that “chain of responsibility” offences also be created for load security and overloading offences, and for speeding where commercial vehicles are involved. Those are positive measures, and by making the likes of consignees and consignors equally liable when they have knowingly contributed to an overloading or speeding offence, it will help to improve the safety of commercial transport services. The bill also provides for alternative fatigue management schemes to encourage operators to take greater responsibility for managing commercial driver fatigue.

There are currently defects in land transport legislation that frustrate its spirit and make it difficult to enforce or administer. The bill contains a number of common-sense amendments to address those concerns. They include: empowering police to serve at the roadside a notice of licence suspension on a driver with more than 100 demerit points, where the director has been unable to serve the notice; ensuring driving offences involving injury and death apply both on and off the road; and updating the definition of motor vehicle to exclude vehicles powered by very small motors. I support the select committee’s recommendation that the maximum power output for low-powered vehicles be increased from 200 watts to 300 watts, or higher for specified classes of vehicles, like electric bicycles for instance. That will better cater for small powered scooters and bicycles, which are increasingly being used by commuters and for recreation.

During the debate on this bill, United Future raised the issue of excessively noisy vehicles. Officials are looking at ways to strengthen existing sanctions and tools available to enforcement officers in order to deal with excessively noisy vehicles, including the possibility of assigning demerit points for vehicle noise offences, and an increase in fines. I also expect to table amendments on that matter.

This bill, as reported back from the select committee, proposes a large number of positive changes to the legislative framework underpinning land transport safety. Not only will the legislation improve safety and help save lives; it will also reduce unnecessary complication and business compliance costs. I thank the select committee and the officials for their work, and I commend the bill to the House.

Dr WAYNE MAPP (National—North Shore) : I guess it is evidence that the Government has finally run out of steam when the only things it can bring before the House are the mundane, the ordinary, and, indeed, some might say, the dreary. The kind of legislation it is dealing with does not speak of any grand agenda for the country. Here is a Government that is looking for a third term. Does it have any sense of an agenda to put to the country, or is its greatest concern whether a bicycle could have a 200-watt electric motor or a 300-watt electric motor? Is that the only thing it can think of? Ms Lianne Dalziel’s great concern was stationary engines. We even had a video to that effect. So this is the sense we get of the agenda of the Government.

There actually is a big transport issue out there, and it is not addressed by this bill. The big transport issue is whether the motorway system in Auckland will be completed. Will the western motorway—the one that could run through the current Prime Minister’s electorate—be completed before 2020? That is the big issue. Does the Government have any sort of plan for a second crossing across the harbour? What plan do the Government members from Wellington—the junior whip, for instance—have for Transmission Gully? Has that member even thought about it? Has he told his voters what he thinks about it? Does he have a plan to do it? Is there any sort of plan for Tauranga, the issue of great concern to the leader and deputy leader of New Zealand First? Instead, the Government is presenting to us the minor, the trivial, and the technical, and that tells us everything we need to know.

This Government has run out of steam. The bill, after all, is all about technical amendments, and the Transport and Industrial Relations Committee, which has not had before it the bills that deal with the big issues, spent months and months hearing evidence on things like bicycles—the electrical power of bicycles—and stationary engines. I guess one has to ask what sorts of priorities the Government has. What kind of agenda does it have for our country? If this is the best it can do and if the Evidence Bill is the best it can do, then, frankly, it is time for the Government to go so that the nation can have a Government with a real agenda. There are, however, a couple of particular technical points—well, one of them is not technical. One of them is quite big and important—it is a pity the Minister just glossed over it—and it is the protection of the public in relation to taxi drivers.

It is clear that the Minister had not actually read the report of the select committee, because if he had, he would understand that this is quite a significant issue, and I know that the leader of New Zealand First and, indeed, other members of the select committee, will be dealing with it. The question is whether members of the public should have an absolute assurance that taxi drivers today—those who currently have licences—have not previously committed violent offences. These include very serious sexual offences and offences like murder—literally—or manslaughter, at the serious end, aggravated assault, and a whole variety of sexual offences. Should the public be protected from such a person holding a P endorsement, as it is known, a bus driver’s licence, or a taxi licence? The select committee heard evidence on this. It was not in the bill that came before us.

Lianne Dalziel: Yes it was.

Dr WAYNE MAPP: It did not deal with current licensees who have committed those offences. We concluded by consensus—it was the unanimous view of the select committee—that the answer was yes. The Green Party would have allowed so many exceptions that its answer was effectively no, but for the rest of us the answer was yes.

The first issue is, of course, protecting the public. The second issue is this question: are there any people in that class who perhaps for 30 years have been safe, notwithstanding the violent offence, say, 30 years ago, and could nevertheless be permitted to drive? On balance we actually said no. There are too many examples of serious violent offenders assaulting women in particular. In a taxi one should be able to feel safe. One should be able to have an absolute assurance that the person in the vehicle does not have a prior serious conviction. There is one issue, however. Should there be any discretion—any system—that would enable a review of that proposition? Other parties in the House—and I will not speak on their behalf, because they will do so themselves—say yes. The Transport and Industrial Relations Committee—and this is why I was a bit disappointed in the Minister—did not even refer to the issue. The select committee concluded that all members of the committee recommend that further consideration be given to the issue of whether there should be some form of appeal procedure. The Minister did not actually acknowledge that fact. So that was a little bit disappointing. I can understand that he was essentially standing in for the actual Minister, so I note that particular point.

Lianne Dalziel: You weren’t listening, Wayne.

Dr WAYNE MAPP: Well, if I missed it, then I did miss it.

So that is probably, in terms of this particular bill, the single most important issue. The other issues, as I said, are fundamentally technical. They will not materially change the land transport industry in New Zealand and, indeed, neither should they.

I have to come back to my initial proposition. For the last several weeks this House has not had before it any bills that speak of some large agenda that the Government might have—some indication of where it might take the country. So the only thing one can conclude is that the Government is going to say: “Trust us, because we’ve administered the country for the last 6 years.” That is, in essence, the Government’s claim to govern the country for the next 3 years; just on the basis of what it has done in the last 6 years. Well, we have news for the Government. We will actually deal with the big issues, especially around transport, and it is not about log books. It is about the roading system of our country—

Darren Hughes: And the tunnel!

Dr WAYNE MAPP: —and the tunnel. I will reply particularly to that point. I have this to say. There is a huge transport crisis on the North Shore. The motorway is jammed for hours and hours at a time. I have simply put to the country, and to the citizens of the North Shore, the proposal of Transit, which is for a harbour tunnel from the northern abutment of the bridge to the southern abutment of the bridge. There is a way to pay for it, and it would be self-funding, by an average of a $3 toll. Is there a way to do it? Is there a precedent? The answer is yes. In Australia—in Sydney and Melbourne—that is how they solved their problems. New Zealanders know the reality of that. Aucklanders know the reality of that. Citizens of the North Shore know the reality of that.

I have polled the residents of North Shore, and let me tell the interjectors on the other side of the House that 80 percent of all people polled are willing to pay a toll to solve their transport problems. That is a simple fact. Eighty percent are willing to pay a toll to solve the problems, to get a second crossing. What do I hear from the Government? Objection. Do I hear a solution from the Minister with responsibility for Auckland Issues? No. Do I hear complaints? Yes. That, I guess, says it all. Labour is the party of complaints, National is the party of solutions, and the public will be able to test that at the coming election.

LIANNE DALZIEL (Labour—Christchurch East) : I want to take a call on the second reading of this bill to record a tribute to the chair of the Transport and Industrial Relations Committee, the Hon Mark Gosche. I have to say that he is one of the most competent chairs of a select committee whom I have ever had the pleasure to work with. His determination to go through this bill with a fine-tooth comb ensured that all interests were able to be balanced fairly—that is, to meet the concerns of road safety; to deal with the issues of accountability through new chain of responsibility offences; to deal with professional drivers, both self-employed and employed, in terms of their hours of work and logs required to be kept; and to look also at the wider interests for those employed in the industry and at public confidence in the road transport and passenger transport industries. I want to place on the record how satisfying it is to work on a select committee under the leadership of someone who knows the issues and is not afraid to test advice.

I guess this is a good point at which to acknowledge the officials, who were set very challenging time frames but who always delivered to the select committee. We are very grateful to the officials for that.

I also want to place on the record my congratulations to all elements of the industry, both those representing the interests of the workforce and those representing the road transport industry and the passenger service industry. All of them were willing to work with us as a select committee, both through the submissions process and also directly with officials, as we progressed through this very important legislation. I think that this bill as introduced was a good bill; I now believe it is an excellent bill.

But there is an amendment, as Dr Wayne Mapp mentioned during the course of his speech. He did not listen to the Minister’s speech and completely overlooked the fact that the Minister said that officials were drafting an amendment as we speak. The committee said unanimously that we would welcome this amendment by way of a Supplementary Order Paper from the Minister—I repeat that we decided unanimously.

The amendment relates to the prohibition on passenger service drivers having convictions for serious violent and sexual offences. In that regard I want to put on the record my congratulations to Deborah Coddington, who came to the select committee to argue that particular position. It was readily adopted by the committee. I think that all members of the committee respect Deborah Coddington for the contribution she has made in that regard.

We did ask for advice on prohibiting people from being passenger service drivers based on their having obtained very serious sexual or other violent convictions in the past. Once we had received that advice, we were unanimous in our recommendation to alter the bill to include prior convictions. We made the point that this is not only about passenger safety—it is about public confidence in the passenger service industry. Everyone is entitled to know that he or she is not getting into a taxi whose driver is a murderer or a rapist. Nothing will change that. The Minister’s Supplementary Order Paper will not extend any appeal rights to murderers or rapists.

However, as a committee we felt that there should be an opportunity to allow those who have been convicted in the long distant past of less serious sex offences to have a tightly framed appeal right. We could not do that as a committee in the time available to us. I take it from the Minister’s comments in his speech that such a provision is being drafted, and I welcome that.

In conclusion, I believe that this bill will make a real difference in terms of making the legislation more workable at an operational level and more effective in promoting road safety. I too commend the bill to the House.

PETER BROWN (Deputy Leader—NZ First) : I would like to comment on the last point that Lianne Dalziel made. If she reads the commentary on the bill, she will find it is quite different from what she has just said in the House. It states, and this refers to the Transport and Industrial Relations Committee: “We gave serious consideration to whether those convicted of serious offences before the commencement of the bill should be able to appeal against the prohibition from holding a passenger endorsement. While a prohibition from carrying passengers rules out this form of employment, they will be allowed to undertake other employment involving driving.” There is no mention of an appeal there, thus far. The commentary then goes on to state: “The majority believes public safety is of such importance that it is essential that people convicted of very serious offences should not hold passenger endorsements.”

Lianne Dalziel: Read the last two paragraphs.

PETER BROWN: If the member—who was once a Minister—just listens for a minute, I will get to that little bit.

Lianne Dalziel: All members of the committee.

PETER BROWN: Yes. Further on, the commentary on the bill states: “New Zealand First is concerned there is no appeal provision whatsoever for current drivers including those who might have been driving for many years and have subsequently led a responsible life and their crime is known to the public.” When that was inserted, the members of the committee would not consider appeal rights at all. That part of the commentary concludes: “All members of the committee recommend that further consideration be given to this matter.”

Lianne Dalziel: That’s right.

PETER BROWN: Well, that is quite different from the way the member explained the situation.

Let me just explain New Zealand First’s position on this aspect of the bill. We are not a party that wants to defend murderers, rapists, and other people who have committed serious crimes—not for one minute. But the officials told us we may be talking about as many as 200 people in this category, who have been driving for some time. We were told at the select committee that if this bill goes through as currently worded, the police could go along one night, stop a cab, and say to the driver that they are sorry, but cab driving is over for him or her. That could happen, whether or not the person had been driving cabs for 5 minutes, 15 years, or 30 years.

Lianne Dalziel: Do you think rapists should be allowed to drive taxis?

PETER BROWN: Now the member has changed her mind.

Lianne Dalziel: I have said no to murder, and no to rape.

PETER BROWN: Well, I have not seen a Supplementary Order Paper. The Government has not had the courtesy to show us even the glimmer of a Supplementary Order Paper.

Lianne Dalziel: So New Zealand First thinks it’s OK for rapists and murderers to drive taxis?

PETER BROWN: If the member over there on the Government benches would take a deep breath and listen for a moment, it would be of some assistance. We say that an individual who may well have been driving a cab for a considerable number of years may, in his or her youth, have been guilty of one of the lesser of the serious offences, and should have the right of appeal. It is not right to take away a person’s livelihood. That individual—

Lianne Dalziel: We have always agreed with that.

PETER BROWN: She agrees now. She did not agree at the select committee. Let me make that quite clear. Some individuals do turn their lives round.

Lianne Dalziel: What about rape and murder? Answer the question.

PETER BROWN: I will answer any question the member wants to put to me, but I wish she would put it at a more appropriate time. I am trying to outline New Zealand First’s position.

Lianne Dalziel: You agree with rapists and murderers?

PETER BROWN: No, I do not agree with rapists and murderers—

The ASSISTANT SPEAKER (Hon Clem Simich): Order!

PETER BROWN: Thank you, Mr Assistant Speaker. I do not agree with rapists and murderers driving cabs, but the bill has it right in terms of rapists, murderers, and goodness knows what else being prohibited from getting a passenger endorsement if they go for one. But we are talking about a person who maybe 20 or 30 years ago committed a serious offence, and who has led a responsible, blameless life since. We are saying, not that that person should drive a cab or do anything else, but that he or she should have the right of an appeal. It is not right that nanny State comes along and just takes away his or her licence.

Lianne Dalziel: We agree.

PETER BROWN: That member now agrees with me, and I am thankful for that. We have very persuasive powers in New Zealand First. Let me just say that such a cab driver may well, at this point in time, own several cabs. That person may be a successful business person in his or her own right, and may drive one cab and have drivers for other cabs. It is not right that we just withdraw that person’s livelihood, without a right of appeal. So New Zealand First is fighting for those individuals to have the right of appeal.

• Debate interrupted.