The CHAIRPERSON (Ann Hartley): When the Committee was last considering the bill, the question before the Committee was that new clause 8 as set out on Supplementary Order Paper 153 in the name of the Hon Ruth Dyson be agreed to. Since then, an amendment to that amendment has been received from the Hon Trevor Mallard. It is set out on Supplementary Order Paper 160 in his name.

PAULA BENNETT (National) : It is hard to know whether we should be thanking the Labour Party or actually commiserating with it. At least Labour members are doing Supplementary Order Papers at this stage and will not bring this legislation back to the Committee many times in order to fix their mistakes, which they seem to have had to do with other employment legislation that they have put through—I have counted something like 17 times in the last 8 years since the Labour Government put through the Employment Relations Act when it first came to power.

I suppose that the main concern for National, as far as the Employment Relations (Flexible Working Arrangements) Amendment Bill is concerned, is that we have real fears that once Labour legislates, working arrangements are less likely to be flexible than they currently are for those people who actually need them. Once we start to put rules and regulations in place—and we see that Supplementary Order Paper 153 in the name of the Hon Ruth Dyson has a rule that a person has to be in employment for 6 months before he or she can actually put in an application to his or her employer for flexible working hours—we restrict the freedoms that are currently there and the conversations that take place between employees and employers on a daily basis in New Zealand. Currently, without a doubt—and we heard about this in the Transport and Industrial Relations Committee—flexible working arrangements are in fact happening on a daily basis as people talk to each other and work out what works between them, and that process is working.

Is there room for improvement? Absolutely! The National Party would be the first to put out a challenge to some employers by saying that if they are not getting with the programme and if they are not actually identifying the needs of their employees, they should look out in the war for talent. The war for talent that is currently out there is real and extreme, and it is getting worse, and that has been happening for at least the last 8 years. [Interruption] It is my war for talent. I am being mocked slightly on that one, and with good reason, I feel. So what we have is an absolute need for employees. Employers do not want to be turning over people lightly; they want employees to be coming in. Employers are recognising, time and time again, that what they need to offer is flexible working arrangements. Those conversations concerning flexible working arrangements take place at the contract stage when the parties are negotiating the conditions of employment, and they continue to take place throughout the employment relationship.

We also have many examples of employees sitting down and talking to each other, working out how they can help the business to run, and discussing amongst themselves the best arrangements for how that can work. Once we start to legislate, we start to lose that freedom. Once we start to legislate, we find that employees go by the rule of the book, and once that starts to happen we have real concerns.

Darien Fenton: I raise a point of order, Madam Chairperson. I thought we were debating new clause 8, set out on Supplementary Order Paper 153. I think we are straying away from that.

The CHAIRPERSON (Ann Hartley): We are actually on new clause 8. The other debate has finished.

PAULA BENNETT: After clause 7 there is new clause 8, and that is exactly what we were talking about. Once we start to look at the arrangements that are actually needed for employees and employers, and at how this measure will work for everyone, we find that it will not work out as well as it could. Those are the real fears arising from this legislation. Is it well intentioned? Will it actually fix the problems that are out there for a small minority? I do not think it will, and that is certainly the concern that we bring to this Committee.

It is easy for Labour members to bandy around statements that National does not care about employees and workers, and that that is why we are not standing up and supporting this legislation. But nothing could be further from the truth, and that deserves to be put on record today. What is best for those employees deserves to be considered. Once we start to say that an employee can put in a request only once every 12 months, and once the authorities start to make some order that the employer must be paid compensation if a flexible working arrangement does not work, all we are doing is putting in another layer of legislation, which at the end of the day is least likely to help those who need it most. It bears some consideration that the unions must be informed if a request is approved. That just seems absolutely ludicrous and really unnecessary; it undermines the employee’s right to negotiate how he or she can work flexible hours.

When it comes down to compensation, how the process works, and the jurisdiction that comes from it, the feeling is that this is just another level of legislation that will not do anything for those people who most need flexible working arrangements. As such, it is unnecessary. We should be educating people, not legislating on this matter.

Hon MARK GOSCHE (Labour—Maungakiekie) : It would be useful if the member who just resumed her seat, Paula Bennett, had a look at the Supplementary Order Paper and understood it before she got up and tried to speak about it. It is pretty simple stuff. It actually requires somebody who wants to make a request for flexible working arrangements to have been employed during the 6 months immediately preceding the request. I did not hear the member mention that little fact, at all. I just think that maybe the members on that side of the Chamber are very flexible. We know that some of the National members, like Mr Blumsky, had had enough, within 6 months, of working in the National caucus. Mr Blumsky requested flexible working arrangements so that he did not have to come to work any more! I thought that National would be supporting this Supplementary Order Paper, because it allows flexible working arrangements for its own members. National allows all sorts of flexibility for people who are supposed to be paid by the taxpayer to come to work.

What we are saying with this simple amendment in respect of people who need flexible working hours—and people came to the select committee and explained the reasons for it—is that there needs to be some sort of set of rules for employers. It is not unreasonable, in my view, for a period of 6 months to be met by a worker before he or she makes that request. As that member who has just sat down said, the employee will have negotiated his or her terms and conditions at the beginning when he or she took the job on. We know that in some cases there is a power imbalance, and that people who are keen to get a job will agree to anything. If those people then find their circumstances have changed in the next 6 months, they have a right to approach their employers and put in a request for flexible working arrangements.

Employers, as we know, in other parts of this bill have all sorts of factors they can take into account as to whether that working arrangement suits them. Now, how could anybody in their right mind argue against this Supplementary Order Paper? How could those people over there in the National Party, who pretend to want to represent the interests of business and employers, as if any of them know anything about it, oppose this amendment? It is actually—from my reading—a sensible position supported by employers. They want this sort of provision so that they know there is some period of time from when they took on the worker—a 6-month period—when the original terms and conditions of employment are intact. So I look forward to National members being sensible for once in debating legislation of this sort and saying: “Well, that’s a sensible move. We can support that SOP because it does set some criteria that employers will welcome and workers will respect, and that will make this a very workable piece of legislation.”

I suppose on the other side of the Chamber, members have such a fit of pique against any sorts of rights for workers that they have to get up and oppose things just for the sake of it, even when they have not bothered to read what the legislation means. Clearly with Kate Wilkinson, who has a law degree, absent, National has gone for fifth best in Paula Bennett and she does not bother to read the Supplementary Order Paper before she gets up and speaks.

Paula Bennett: Oh, don’t tell rubbish!

Hon MARK GOSCHE: She behaved like that on the select committee and fortunately she got shifted somewhere else because her talents in terms of industrial relations were sorely lacking. She pretended that she knew something about this. Apparently she was in the “recruitment game” out there—I do not know what that means.

Paula Bennett: I raise a point of order, Madam Chairperson. I am delighted to be talked about. It absolutely thrills me. But whether I was on the select committee and what I did prior to coming into Parliament is a longer story than the 3 minutes that that speaker has left so I would prefer that he actually stuck to debating the Supplementary Order Paper.

The CHAIRPERSON (Ann Hartley): The member knows that is not a point of order.

Paula Bennett: Point of order, Madam Chairperson.

The CHAIRPERSON (Ann Hartley): I warn the member not to contest my ruling. That was not a point of order, it was a debating point.

Paula Bennett: I raise a point of order, Madam Chairperson.

The CHAIRPERSON (Ann Hartley): You are not contesting my ruling?

Paula Bennett: No, I am not. I ask that the speaker stick to clause 7 of the bill.

The CHAIRPERSON (Ann Hartley): First of all, we are debating new clause 8 and we have been for the last 10 minutes. The speaker was speaking to new clause 8.

Hon MARK GOSCHE: Madam Chairman—

Hon Trevor Mallard: She’s one of their brighter members!

Hon MARK GOSCHE: Yes, that is right—one of the brighter ones. It is a simple fact that new clause 8, which is what I understand we are discussing at this point in this debate, deals with these issues around the 6-month period. I want to know from the next National speaker why that party opposes it because it just does not make any sense to anybody on this side of the Chamber as to why it would do so. We look forward to somebody with intelligence on the National side of the Chamber saying why it is opposed to this particular Supplementary Order Paper.

Hon TREVOR MALLARD (Minister of Labour) : I want to speak on a relatively narrow matter: the Supplementary Order Paper of my colleague Ruth Dyson and my amendment to it. I indicate to members that it is the position of the Government and, I think, the sponsor of the bill that this process not be an endless one that goes from court to court to court, or from the authority to court to court.

The difference between my Supplementary Order Paper and that of the Hon Ruth Dyson is that my Supplementary Order Paper leaves open the possibility of judicial review, which would have been removed under her Supplementary Order Paper. It is the Government’s view that leaving that possibility open is appropriate, and gets things within the New Zealand Bill of Rights Act and other judicial and legislative approaches that are appropriate, without opening out for employers the possibility of things going on and on.

I just say to members opposite that even if they are opposed to the legislation—and it is very hard to understand why they would be—the employers are quite keen on having this sort of restriction. Having this restriction opposed like it was by—was it Kate Wilkinson? Who was the one who was speaking?

Hon Lianne Dalziel: Paula Bennett.

Hon TREVOR MALLARD: Paula Bennett’s opposition to this is something that I think will be shared with employers around the country.

Hon Lianne Dalziel: Yes, we’ll tell them.

Hon TREVOR MALLARD: We will not only tell them, we will send them a copy of Hansard to show what she was saying about it. This is something that the employers want—

Paula Bennett: This will get you back in. This is the decider!

Hon TREVOR MALLARD: Well, I think, in fact, that if we are looking at the talent of the National Party—as I understand it, Paula Bennett has been described as the future of the National Party and one of its brighter members—sharing what she says on this with employers will be very, very good.

SUE KEDGLEY (Green) : A previous National Party speaker said that this particular bill had caused considerable consternation or—

Paula Bennett: Angst.

SUE KEDGLEY: —angst within the National Party, with quite a lot of division and debate. I think, in truth, the National Party is embarrassed; certainly many members are embarrassed that they are opposing something as basic and as simple as the right of employees to request flexible working hours. I am quite certain that many members of the National Party—and I can think of a few, like the women’s affairs spokesperson, Dr Jackie Blue, and Katherine Rich—strongly support this light-handed legislation and are deeply embarrassed that their party is opposing it.

I believe that the only reason National members are opposing the legislation is that Business New Zealand approached them and asked them to oppose it. I say that because, as I mentioned before, the leader of the Tory party—the Conservative Party—in England espouses this legislation and is one of its great advocates, so it seems curious to me that in one country a Conservative leader is embracing it and back here in New Zealand the conservative party in Parliament—the National Party—will be opposing it. It does not seem to make a lot of sense.

It is interesting that on this very day, Gordon Brown, the leader of the Labour Government in England, has said that he is extending the British legislation on flexible working arrangements. He has indicated in the Speech from the Throne that the Government will extend the legislation to cover basically the same people we cover in this legislation—that is, all persons with caring responsibilities. He is doing so because he said that this right has proven so popular and the legislation has had such a positive effect in helping to change the workplace culture in England and make it more flexible, which is, of course, the intention of this legislation in New Zealand.

The Green Party will support new clause 8, which we are talking about. This clause will enable a judicial review to take place. We need to remember that the reason the original amendment was put in place by Ruth Dyson, the previous Minister of Labour, was that she was trying to bend over backwards to accommodate the concerns of employers. She was trying to limit the process by having disputes resolved at the lowest possible level, and that is why she came up with this provision. However, the Government sought a New Zealand Bill of Rights Act assessment, and the Ministry of Justice strongly recommended that there should be provision to allow an employee to take a dispute to judicial review. That is what this amendment will do, and that is why we would expect it to be supported by all parties in this Chamber.

To put this legislation in context, we need to remember that we are addressing a particular problem here in New Zealand where we have some of the longest and most inflexible working hours in the world, with a fifth of our employees working more than 50 hours a week. The time that parents are able to spend with their children has declined steeply, and trying to balance those competing demands of paid work and raising a family has become one of the most acute sources of stress in New Zealand. That is what we are trying to address here.

New Zealanders are in danger of becoming a nation of wage slaves, with no time for children or for community work. Survey after survey shows that employees are feeling overloaded, tired, and chronically stressed. I think that we as a society are just starting to appreciate the huge price we are paying for these long and inflexible working hours, in terms of children not being able to see their parents, in terms of parents not having time for their families and relationships, in terms of workplace health stress, and in terms of our economy. We know, again from many, many pieces of research, that in workplaces where there is more flexibility employees are more productive and motivated. So passing this legislation, which creates a right and encourages more flexible working hours, will help to create, I believe, more productive workplaces in New Zealand.

Just to conclude on new clause 8, I thank the new Minister of Labour, Mr Mallard, for putting forward his amendment seeking to rectify a concern of the Ministry of Justice and making sure that the bill complies with the New Zealand Bill of Rights Act 1990. Who could possibly oppose that? I think Supplementary Order Paper 160 is very straightforward. Its explanatory note explains its purposes, the main one being to enable judicial review. But I repeat that the intention is to try to resolve at the lowest possible level any disputes that may arise, first of all by the Department of Labour inspector, then, if that does not resolve the matter, by a mediator, again at no expense or cost to the employer. Only then would an employee be able to go to the Employment Relations Authority.

National members, I am sure, will be very pleased to know that we are trying to limit the grounds for litigation in the courts. After all, the intention of the legislation is to give employees the right to request flexible working hours, to give employers a statutory obligation to seek to accommodate those requests as much as they can without undermining their business, to try to encourage good employment relations, and to resolve any disputes in an amicable and low-level way. It is not the intention to clog up the courts with disputes, and I do not believe that employees would seek to do that. After all, what we are talking about here is a very modest right, which is simply the right to request more flexible working hours.

It is amazing that the National Party, which claims to be so in favour of families and of supporting families, would oppose one of the pieces of legislation that seeks to accommodate the needs of families by lowering the stresses that families are facing today. And it is arguably the most light-handed piece of legislation that has come before Parliament, certainly in the few years I have been here. So I think the National Party is embarrassed to be opposing the bill; I know that some of its members are.

In conclusion, I want to say how pleased I am that virtually all other parties in the House are supporting the bill. Once again, I thank the previous Minister of Labour, Ruth Dyson, for her very constructive amendments and the present Minister of Labour, Mr Mallard, for his amendment. Thank you.

DARIEN FENTON (Labour) : I want to just make a few brief comments, if I may, in relation to the Supplementary Order Papers and new clause 8. Sue Kedgley has already mentioned some of these things, and I totally agree with what she said in terms of the efforts of the previous Minister and this Government to bend over backwards to accommodate employers’ concerns. I was on the Transport and Industrial Relations Committee, and we listened very carefully to what employers said. If members look at the EMA Central website, they will see that one of the concerns raised there is that the bill imposed unnecessary legislation that would bring increased compliance costs and legislative loopholes and was likely to give rise to additional litigation. We certainly took that on board. In fact, this is extremely light-handed legislation, as the member said, and I do not think it will surprise members to know that in fact I would like to see it much stronger.

I think that it is very, very good that we have improved this bill, and it is great that we are leading the way in terms of whom it applies to. I am glad, also, that the new Minister has proposed a provision that will allow for judicial review. But let us just get real here: we are talking about the right for someone to request flexible working hours—the right to request.

John Hayes: You don’t need a law to do it.

DARIEN FENTON: National says it supports that but is not prepared to have any framework or anything around it that will make it a reality.

Employers were given a year. We put the legislation on hold for a year, and employers were given a year to prove that it could be done by education. What happened? Not a lot! At the end of that time a survey was done by the Department of Labour that showed that people are still crying out for flexible working hours. The member Sue Kedgley referred to our long working hours and our problems, and it is the No. 1 issue that comes up.

I return to new clause 8 and say that the Committee needs to understand that this is probably the only employment legislation I am aware of that has such limitations on the right for people to go to the Employment Relations Authority, then to the Employment Court, then to the Supreme Court. This is our effort in terms of trying to make it work for both employers and workers, and I think we have bent over backwards.

I make just a final comment, in case National members have not understood who is behind this bill. We are talking about Rural Women New Zealand, the National Council of Women, the Parents Centres, the Federation of Business and Professional Women, the Young Women’s Christian Association of Aotearoa, Grey Power—the list goes on and on. They support what is being done in this legislation today, and I look forward to the third reading.

• The question was put that the amendment set out on Supplementary Order Paper 160 in the name of the Hon Trevor Mallard to proposed new clause 8 set out on Supplementary Order Paper 153 in the name of the Hon Ruth Dyson be agreed to.

PITA PARAONE (NZ First) on behalf of R Doug Woolerton (NZ First): I move, That the Principles of the Treaty of Waitangi Deletion Bill be now read a second time. Tēnā koe, Madam Assistant Speaker. Let me begin today by acknowledging the good work that many on the Justice and Electoral Committee did, in spite of my being the only one on the committee who actually supported the bill. But I want to thank them for allowing the process of this bill to take place in the way that it did. I mention this, having known that in the time I had, my caucus colleagues and I would possibly be the only members of this House to be supportive of this bill. In this regard, I acknowledge the support given by the Labour Government in keeping to the undertaking it gave in the confidence and supply agreement between the Government and New Zealand First.

We know that the passage of the first reading of this bill caused some angst among Labour’s Maori MPs, but it should not have. Let me make particular mention of the member Chris Finlayson from National, who made an effort to understand the intent and purpose of the bill, and who actually provided some useful ideas on how it could be improved, particularly in relation to the issue of Treaty settlements. I say “Tēnā koe, Chris.”

But, you see, one particular party in this Parliament, aided by its fellow travellers in another, has been peddling a litany of untruths in relation to this bill. This political party has let its veil slip, revealing the intent of its separatist agenda, and has chosen to use deceit and untruths, rather than confront this issue in an honest way.

Hone Harawira: Oh, oh.

PITA PARAONE: You see, we can excuse the member for Te Tai Tokerau for not understanding the bill because it is clearly beyond him, but his colleagues are not stupid. They know exactly the extent of their untruths and how they have distorted debate on this bill. Rather than take the honourable and honest path, they have chosen to distort the facts. And what is most regrettable is that nobody has held them to account for it. They have told the most blatant untruths in relation to this bill and have never corrected them—not once.

The member for Tamaki Makaurau knew all along that this bill was about the term “the principles of the Treaty”, not the Treaty itself. Yet he and his cohorts continually peddled the untruth that the bill aimed to eliminate the Treaty itself. This was not an oversight; this was deliberate. If members do not believe me they should go through all the speeches on this bill that any member of his party has given. Both here and offshore they have spread their untruths by calling it the “Treaty Deletion Bill”, and claiming that it aims to eradicate the Treaty. That is nonsense and untrue, yet not once have they been taken to task over it. Well, that is about to end.

It is a lack of intestinal fortitude not to debate the facts and to continue to tell untruths in order to win one’s case. If they are so uncertain about their ability to debate the truth, then they should go and find another job and stop wasting taxpayers’ money. That party’s continual displacement of the facts must end today.

Hone Harawira: I raise a point of order, Madam Speaker. I take exception to the comment that the Māori Party lacks intestinal fortitude and tells untruths.

The ASSISTANT SPEAKER (Ann Hartley): I think the member needs to be very careful with his language. I thought he was talking about issues but I think he has strayed, really, to talking about parties telling untruths. So I ask him to desist from taking that line.

PITA PARAONE: I am disappointed that the member who took the point of order could not face the tenor of such words, when I know that he is quite used to providing something similar—

Hon Tau Henare: I raise a point of order, Madam Speaker. You made a ruling and I do not think that it is within the Standing Orders for the member to relitigate the issues of the point of order raised previously. I think he should really come back to the bill.

The ASSISTANT SPEAKER (Ann Hartley): The member is right. The member speaking should not comment on the matter once it has been ruled on.

PITA PARAONE: As a consequence of this campaign to not provide the facts relating to the bill, three distinct features of the submissions made in relation to it stand out. Firstly, there is the obvious and sometimes clearly deliberate misunderstanding of what the bill was aiming to achieve, what it would achieve, and what the exact wording of the bill was. Secondly, there was an obsession with the wording of the explanatory note, rather than the bill itself. Thirdly, there was ongoing confusion about, and lack of an exact definition of, the so-called principles of the Treaty, which highlights why the bill has been necessary all along.

Many submitters were under the impression that the bill aimed to remove the Treaty of Waitangi from legislation; it does not. I suppose I cannot blame them too much, given the publicity and the inaccurate comments made by a political party in terms of this bill. Anybody who actually read the exact wording of the bill, rather than focusing just on propaganda by a party in this House, would have realised that the bill related only to the terms “the principles of the Treaty”, or “the Treaty and its principles”, and not to the Treaty itself. These terms are relatively recent additions to New Zealand statutes, and they have added great confusion and a huge amount of expensive litigious activity because they have not been adequately defined.

The intent of the bill is not to undermine the place of the Treaty, or to remove reference to the Treaty itself from legislation; it is to remove references to the contentious term “the principles”, which has sprouted an equally confusing spread of attempts at definitions and policies, none of which are coherent or clear.

Many submitters were drawn to some of the more provocative language they described as being contained in the explanatory note, rather than to the actual details of the bill. This is regrettable and shows an area where the bill might be improved in future, because a sensible and constructive discussion could not ensue. It was a case of not dealing with the substance. One submitter maintained that everyone in New Zealand knew what the principles of the Treaty were, to the extent that even primary school children knew what they were. When I asked him to articulate to the committee what these principles were, he either could not, or did not know.

The most critical aspect of the select committee report is the recognition that confusion still reigns as to the lack of a clear and concise definition of the term “principles of the Treaty of Waitangi.” That is primarily because, by its nature, there cannot be one. Some will point to judicial and bureaucratic attempts at defining these terms, but these definitions remain vague and unacceptable. That situation simply reinforces New Zealand First’s view that the bill is a necessary and much-needed development. Let me give members one example. Many people often point to the Lord Cooke ruling in relation to these terms, and his use of the term “partnership” as one principle. But here is the problem. What type of partnership are we talking about—50:50, 70:30, 80:20, or whatever? Is it like a marriage or is it a business arrangement? It is simply not clear, and all sorts of arrangements have resulted from the use of this term. Let me remind this House that it is here, in Parliament, that the laws of this country are made. It is therefore incumbent on us that the law is made clear. It should not be left to people or entities outside this House to clarify our laws.

This bill is based on the premise that all New Zealanders should be treated equally. The Treaty or any other race-based proposition should not be the basis for different treatment by the Crown or its agencies. Access to services should be equal—not any less or any more preferential. If a person breaks the law, the colour of that person’s skin should not determine the level of justice he or she receives. The nonsense surrounding the term “the principles of the Treaty” is based on the fact that some, with the continued support of this House, try to generate preferential treatment based on race. That is wrong—

Hon Tau Henare: You’re not going to come back next time.

PITA PARAONE:—and I hope that those who choose to interject will take a call in this House and tell us just what those principles are that they are talking about. The principles are not about hitting one another in this House, either. It is time for the untruths to end and for honest debate to replace them, and I remind the House of that.

Further progress of this bill today may come to a halt, but I assure the House that this bill will not be going away. As long as New Zealand First is here—and we will be here for a long time—this bill and its aims will always be here. Members have not heard the last of this bill. Tēnā koe, Madam Assistant Speaker.

CHRISTOPHER FINLAYSON (National) : National supported the Principles of the Treaty of Waitangi Deletion Bill to go to the select committee at its first reading, because we thought that there was an issue of principle that needed to be looked at. But having considered the evidence, heard the submissions, and looked pretty closely at the bill, the National Party has concluded that the bill is poorly drafted and that no real effort has been made by New Zealand First to repair the obvious mistakes. So we cannot and will not support the second reading of the bill.

In my speech I want to deal with three issues. First, I will address the point raised by Mr Paraone about exactly what these principles of the Treaty are. He asks a fair question, he deserves an answer, and he will get one. Secondly, I will analyse the bill, and, thirdly, I will look at the New Zealand First response, some of which was dealt with by Mr Paraone in the speech he has just given.

There has been a lot of talk over the years about vague references to these principles of the Treaty. Indeed, when the Law Commission made a submission to the Health Committee on the New Zealand Public Health and Disability Bill in about 2000, it urged Parliament to provide courts, as far as possible, with guidance as to its precise intention when referring to the principles of the Treaty of Waitangi. It is fair to say, in fairness to Mr Paraone, that in some legislation one cannot discern exactly what Parliament intended when it referred to the principles. But in most of the legislation we deal with I think it is tolerably clear, and in answer to the specific question raised by Mr Paraone about exactly what the principles mean, I can go no further than to repeat what Lord Woolf said in the Privy Council, when delivering the advice of that body in New Zealand Maori Council v Attorney-General in 1994. He stated that both the Treaty of Waitangi Act 1975 and the State-Owned Enterprises Act 1986 referred to the “principles” of the Treaty, and “In their Lordships’ opinion the ‘principles’ are the underlying mutual obligations and responsibilities which the Treaty places on the parties. They reflect the intent of the Treaty as a whole and include, but are not confined to, the express terms of the Treaty. (Bearing in mind the period of time which has elapsed since the date of the Treaty and the very different circumstances to which it now applies, it is not surprising that the Acts do not refer to the terms of the Treaty). With the passage of time, the ‘principles’ which underlie the Treaty have become much more important than its precise terms.” In my first reading speech I referred to the work that had been done by the Law Commission, which, in various cases over the years, has given people a pretty good understanding in most cases about what exactly the principles of the Treaty are all about. So I think the question that Mr Paraone has raised generally lacks merit.

In looking now at the bill, which is the second thing I will do, I say that it comprises four classes of statutes—general legislation, private Acts, settlement legislation, and a couple of important Treaty statutes. There are references in general legislation, and by and large I think they could benefit with some redefinition. A good example of legislation that sets out the Treaty obligations very well is the Public Records Act of 2005, which, interestingly, was not referred to by Mr Paraone in his legislation. Section 7 of that Act sets out the fundamental principle that in order to recognise and respect the Crown’s responsibility to take appropriate account of the Treaty of Waitangi, certain sections will provide x, y, and z. I think that that is a very good way of drafting, and I think that the Minister in charge of that legislation, Marian Hobbs, did a good job there, because that is an example of a good definition of exactly what the principles are supposed to be. Some of the general legislation could benefit from a tidying up, but doing it in omnibus legislation is not the way to do it; it requires focus on the particular legislation and the particular aims of the legislation.

The second category is private Acts; for example, the Royal New Zealand Foundation of the Blind Act or the Royal Society of New Zealand Act. These private Acts contain Treaty clauses, and they were passed, as we all know, for the benefit of particular individuals or legal persons. It seems to me to be inappropriate, where bodies like the Royal Society of New Zealand or the Foundation of the Blind have come to Parliament and asked for legislation that has a Treaty clause in it to be passed, that we should unilaterally remove that clause without at least consulting those individuals.

The third category of legislation is settlement legislation. This category comprises statutes where there is no need for amendment, as in many instances they contain acknowledgments of breaches of the Treaty by the Crown. I refer, for example, to the Ngati Tama Claims Settlement Act of 2003 and the Ngāi Tahu Claims Settlement Act of 1998. I cannot see that there is any justification for removing references to the Treaty or the principles of the Treaty from that legislation.

A couple of important Treaty statutes require close consideration. The first is the Treaty of Waitangi Act 1975, from which Mr Paraone seeks to delete any reference to the principles of the Treaty. But such an amendment would remove the very jurisdiction of the tribunal, which was established to investigate breaches of the Treaty. How can one responsibly remove that provision from the 1975 Act?

Hon Georgina te Heuheu: They don’t even know it existed.

CHRISTOPHER FINLAYSON: In answer to what my friend Mrs te Heuheu says, I agree that I do not think they even knew it existed.

The second important Treaty issue concerns section 10(a) and (b) of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, which remains in force even though the Maori Fisheries Act 1989 has been repealed. The Hon Shane Jones would know all about that. There are references to the Treaty there, and it is fair to say that they could be tidied up. For example, section 10(a) provides that claims by Māori in respect of non-commercial fishing “Shall, in accordance with the principles of the Treaty of Waitangi, continue to give rise to Treaty obligations on the Crown;”. I think that reference to Treaty principles in section 10(a) is meaningless, and it could simply be amended to read that any claims shall continue to give rise to Treaty obligations on the Crown, because that is what article 3 of the Treaty provides.

In looking at the four categories, then, I say that in respect of general legislation some refinement along the lines of the Public Records Act would, I think, be useful. In respect of private Acts there is no justification for change. In respect of settlement legislation there is definitely no justification for change, and in respect of the important Treaty statutes there is no justification for change. So when one looks at the four categories, one sees, really, that this legislation lacks merit. What is more, it is disappointing that in a bill like this the member did not list all statutes that contain references to the principles of the Treaty, and so on.

Finally, I want to look at New Zealand First’s response, which was petulant. Having thundered from the pulpit about activist liberal judges and having brought in the example of South Africa, New Zealand First members, after receiving submissions that responded in equally strong terms, said they were very disappointed because they wanted to have a principled discussion of the matter. They said that people should not have reacted to rhetoric but should have dealt with the substance of the legislation. With respect to Mr Paraone, I say that that is a joke. If one goes down that cheapskate, rhetorical kind of road, one will get submissions—and there were a lot of submissions—that will respond to it. My advice to New Zealand First is not to misuse the member’s procedure in the future. If that party is going to introduce legislation like this, it should do its homework and at least find out which legislation contains the references, then work out what really has to stay and what can be properly finessed along the lines of the Public Records Act.

Mr Paraone is quite right that there is an issue here, but New Zealand First did not do very well with this bill, at all. For that reason, the National Party will not be supporting its second reading.

Hon Dr MICHAEL CULLEN (Minister in charge of Treaty of Waitangi Negotiations) : It is my pleasure to speak today on the second reading of the Principles of the Treaty of Waitangi Deletion Bill in my first speech as the Minister in charge of Treaty of Waitangi Negotiations. I might say that I find myself in a dangerous level of agreement with Mr Finlayson on this particular matter. I trust we will not hear speeches about the two tired old parties ganging up on this particular matter as I suspect there are a number of “untired” younger parties who will also be opposing the passage of this particular legislation.

I agree with Mr Finlayson that there are some statutory references, particularly in some of the older statutes, which could do with more particular contextual reference to make it clear what the principles are in that particular case. It is interesting that the case he cited of the archives legislation is a much more recent piece of legislation since the Government adopted the approach of giving a more detailed contextual reference rather than simply a vague reference to the principles of the Treaty of Waitangi. I think we will need to continue, as legislation comes up for renewal and review, to work through some of those clauses to make sure that that reference continues to be updated and modernised.

This bill—the Principles of the Treaty of Waitangi Deletion Bill—is an overly simple attempt to resolve a complex issue that faces us as a nation. Quite obviously it is how we achieve a sound and enduring basis for the relationship between Māori as New Zealand’s first peoples and those of us in this country who arrived later. I find it very strange for Mr Paraone to say that any reference to the Treaty or the principles of the Treaty is by itself race-based legislation. It is a kind of cheap, logical trick—if I may be permitted to say so—in the middle of that. Obviously one partner in the relationship is Māori and that therefore, if you like, is race. But then to move from that to argue that the legislation is race-based seems to me to make a giant leap that has got a little bit of logic but not much else to justify that kind of statement.

The Crown actually represents the whole of New Zealand, which by definition is a very broad collection of different peoples and races, including Māori. In other words, in the relationship, say, between the Crown and Ngāti Whātua, the Crown in that respect represents all other Māori as well as all other New Zealanders in relationship with Ngāti Whātua. There is no such thing as a kind of collective or whole of Māori that the Crown has a relationship with, and that, indeed, itself would be a misreading of the Treaty. Strictly speaking, the relationship, of course, is with hapū, but increasingly in recent times the relationship has tended to be at the iwi level.

The Treaty is a document of significant constitutional importance. It is the basis for the ongoing relationship between the Crown and Māori, and although it may have fallen into abeyance in the 19th century in many respects, nevertheless it has been revitalised during the 20th century and into this century. Although it is incorporated into our constitutional arrangements it has to be a matter of ongoing discussion, but it is clearly a question that requires a considered approach and, ultimately, mutual agreement between the two parties to the Treaty. Any change to that approach has to be consensual between Māori and the Treaty partner, the Crown, in that respect. Unilaterally seeking to delete all references to the principles of the Treaty in legislation, without reference to the wider question of the Treaty’s constitutional place, one can end up in a very, very difficult position, indeed.

Incorporation of the principles, by and large, is an important and appropriate mechanism to ensure that the Government considers and meets its obligations as a Treaty partner, and appropriate references to the Treaty provide a baseline level of protection to ensure the Crown meets those obligations. Removal of those references would undermine the partnership between the Crown and Māori and undermine Māori interests and rights under the Treaty. As Mr Finlayson said, removing the reference from section 6(1) of the Treaty of Waitangi Act 1975 would render that inoperable arguably leaving the tribunal with no jurisdiction to hear claims. We might just as well repeal the whole Act as opposed to simply removing reference to the principles of the Treaty. What would the tribunal be doing at that particular point?

There also arises the issue of the removal of the references to the principles of the Treaty in sections 8(1) and 8HB of the Treaty of Waitangi Act 1975. The bill would remove the ability of the court to consider and apply the principles of the Treaty. It is worth remembering that those principles have now been the subject of 20 years of judicial and policy work, identifying the principles in particular contexts, applying them to real issues: how the Crown should deal with historical and modern injustices, how it should make decisions that involve Māori, and how Māori can have input into those decisions. That covers, at the moment, an extraordinary range of things going on: issues around climate change; issues around the sustainable water programme; issues around forests in general—all these things and many other issues still ongoing around fisheries and fisheries management. All these involve the Treaty relationship and cannot avoid the Treaty relationship.

Even if this Parliament got cute and tried to remove the references to the Treaty, the courts themselves would still intrude those references back into the consideration of the jurisprudence around those kinds of matters, and properly so, in fact. Many of the pieces of legislation affected by this bill represent hard-won and important compacts between the Crown and Māori—as I said, the 1975 Act. The very apologies the Crown has offered for serious historical grievances could be effectively revoked by this bill opening up Treaty settlements already concluded yet again, and so we would go around in those circles yet again.

As I say, the Government has moved in a variety of ways to incorporate references to the Treaty in legislation more appropriate to specific pieces of legislation and the particular issues that arise in the context of that legislation. We need to think about the way we move forward, but this legislation is not, in my view, a way of moving forward. In the end this is a way of creating further confusion, which would not help Pākehā New Zealanders, it would certainly not help Māori New Zealanders, it would not help the Crown-Māori relationship, and it would throw us into a state of very considerable confusion—ironically, and I have to say this to Mr Paraone, probably leaving members of the judiciary in a stronger position to impose their own particular views and interpretations rather than to be guided by Parliament in that respect.

HONE HARAWIRA (Māori Party—Te Tai Tokerau) : Tēnā koe, Madam Assistant Speaker. I will start my speech by referring directly to the Principles of the Treaty of Waitangi Deletion Bill and reading from the purpose clause, which states: “The purpose of this Act is to delete and remove from every enactment those provisions which contain the expressions—(a) ‘the principles of the Treaty’; and (b) ‘the principles of the Treaty of Waitangi’, and (c) ‘Treaty of Waitangi and its principles’.”

Now I must say that it was a real privilege and a joy to be on the Justice and Electoral Committee and to hear the submissions on this bizarre bill to delete the “Treaty of Waitangi and its principles” from legislation. It was a privilege because it enabled me and the rest of the committee to get a real sense of how united the country seems to be in opposing this mean-spirited piece of legislative malevolence, and a joy because I got a buzz from the passion, the intensity, and the rationale that backstopped the overwhelming opposition to this bill sponsored by Doug Woolerton and represented by Pita Paraone on behalf of New Zealand First.

And it was also a joy to hear the submissions because I was able to listen to all the groups, many of whom were non-Māori, who were able to tell us what an incredibly dumb idea this bill was. They were not telling us that it was a good idea at the wrong time, or that it had merit but had simply been badly written. Nor, in fact, were they saying that there were some good clauses that might benefit from being rewritten. They were saying that this bill would do unspeakable harm to race relations in this country, roll back any gains made over the past 25 years, and work to the detriment of the whole nation. Te Korowai Aroha health centre said that taking the “Treaty of Waitangi and its principles” out of legislation would not enhance Māori health but would, in fact, make it worse. Ngāi Tahu-Māmoe said that the principles of the Treaty actually help to protect our ecosystem from pollution and the excessive extraction of resources. Sir Ivor Richardson himself said “for its part, the Crown [in 1840] sought legitimacy from the indigenous people for its acquisition of sovereignty, and in return, it gave certain guarantees”.

Those words—legitimacy, sovereignty, and guarantee—which all refer to concepts that are pivotal to the status of the Treaty and the relationship of the Treaty partners, came up time and time again through all the many submissions we received. The majority of submissions—some 160 out of 171—said that those concepts had been discredited by successive Governments and would be permanently scarred if this bill were to go through. In its submission, Te Kaunihera Kaumātua o Te Whanganui-a-Tara said: “Maori have honoured their part of the Treaty … as for the Crown, they have never fully honoured their part of the Treaty and continue to use legislation to steal what is rightfully owned by Māori—for example, the foreshore and seabed”.

The Treaty was supposed to establish a partnership in which both partners have a duty to act reasonably and in good faith, but this bill goes a long way towards destroying utterly a partnership that is already in dire straits following this Government’s support for police use of the Terrorism Suppression Act as a vehicle for mounting attacks against Māori communities and individuals, and for engendering widespread feelings of anxiety throughout the wider community. The Māori Party absolutely rejects New Zealand First’s unsubstantiated and ludicrous claims that taking the “Treaty of Waitangi and its principles” out of legislation would actually be good for the relationship between Māori and Pākehā, just as we also absolutely reject its preposterous claim that the “Treaty of Waitangi and its principles” will harm race relations in Aotearoa.

But—and I repeat “But”—that is not nearly as ludicrous, as preposterous, or as farcical as Labour’s Māori MPs going along with this legislative foolishness. For Labour’s Māori MPs to vote to delete the “Treaty of Waitangi and its principles” from legislation is as dumb as it would be for turkeys to vote for an early Christmas, or for Helen Clark to call for a snap election. But vote for it they did, and not just a couple of them, either, but the whole lot of them: Parekura Horomia, Nanaia Mahuta, Mahara Okeroa, Mita Ririnui, Dover Samuels, Dave Hereora, and Shane Jones. Who on earth do they think will support them after they have voted to delete the “Treaty of Waitangi and its principles” from legislation? Can Labour’s party politics be as dictatorial as that, and can Labour’s Māori MPs be rendered voiceless, so powerless, and so helpless that they would willingly sacrifice their very Māoriness by voting to delete the “Treaty of Waitangi and its principles” from legislation?

For heaven’s sake! This country is founded on the Treaty of Waitangi, and—dare I say it again—this very Prime Minister herself even went so far as to contradict her own vote on this bill when she called the Treaty of Waitangi the foundation document of this nation. It is not the principles that have caused harm; it is the principles that have not been honoured that have caused the real harm. The Ngai Tahu Māori Law Centre spoke to that very point when it said that “If passed, this bill will do unspeakable harm to the race relations of New Zealand Aotearoa.”

In that light it is very easy to see exactly what the mighty co-leader of the Māori Party, Dr Pita Sharples, meant when he said that the recent terrorist raids in Rūātoki had “set race relations in this country back a hundred years.” And in the same way that we condemn this damnable piece of legislation to the refuse heap, so too do we condemn in the strongest possible terms the recent actions taken against the Tūhoe nation, the Rūātoki community in particular, and tangata whenua in general.

The Waitangi Tribunal says that acting reasonably, honourably, and in good faith requires both Treaty partners to acknowledge each other’s respective interests, authority, and values. Yet what Te Runanga o Ngati Apa told us was that the “removal of the principles would signal a continuing erosion of the already fractured relationship between Maori and the Crown”. It described this type of behaviour as not befitting a partnership but, rather, as demonstrating the arrogance of a domineering partner. Ngāti Apa also reminded us of the words of the great Tahupōtiki Wīremu Rātana when, through Rātana MP Eruera Tirikātene, he placed before Parliament a petition calling for the Treaty to be enshrined in all legislation, a call that Ngāti Apa told us has been virtually ignored.

The New Zealand Chinese Association said that this bill was nothing more than an attempt at the “denial, erasure or the forced forgetting of New Zealand’s history”, when what we all need is to remember and acknowledge our history, accountability, reconciliation, and healing.

We could not help but notice that while we were hearing submissions on this bill, the United Nations Committee on the Elimination of Racial Discrimination was noting with concern the proposal to remove statutory references to the Treaty of Waitangi through this very bill. That United Nations committee was, of course, called in to respond to the Foreshore and Seabed Act, which was frequently and consistently referred to throughout select committee hearings as representing the ultimate breach of the Treaty.

Te Runanga o Te Rarawa, however, came at it from another angle altogether when it suggested that if New Zealand First’s argument that putting in the principles of the Treaty of Waitangi was made “not at the request of Maori, but by paternalistic and interfering Ministers”, then on principle New Zealand First should also have supported striking out other legislation like the Foreshore and Seabed Act, which was made “not at the request of Maori, but by paternalistic and interfering Ministers”. But did the New Zealand First members do that? Oh, no. The stated aim of their bill is not to help Māori; it is to eliminate all references to the “Treaty of Waitangi and its principles”. This bill, this callous attempt to wipe out all references to the “Treaty of Waitangi and its principles” from legislation, confirms the intention of this Government and its partners to minimise the Treaty, to marginalise Māori, and to reduce Treaty rights to a nullity.

The Māori Party will never accept the arguments of those parties, and of Labour’s Māori MPs in particular, who voted to destroy the Treaty. The Māori Party stands by its commitment to the principles of partnership, active protection, and the duty to act reasonably, honourably, and in good faith. The Māori Party stands by its commitment to “defending Maori rights and advancing Maori interests, for the benefit of the whole nation”. The Māori Party invites all other parties to enter into discussions as to how we might make the Treaty the basis of a positive future together, rather than the rock on which our uncertain alliance will forever founder. The Māori Party opposes this bill with every fibre of its being. Kia ora tātou katoa.

SUE BRADFORD (Green) : I think this bill has to be one of the most ridiculous member’s bills I have ever seen in the 8 years I have been a member of Parliament. It is a real pity that the Justice and Electoral Committee has had to waste its precious time considering seriously the proposition that words relating to the principles of the Treaty of Waitangi should be removed from a number of New Zealand statutes. The Green Party is delighted that the committee has reported back to Parliament wholeheartedly recommending that the bill be scrapped once and for all. And it was not just the committee that has condemned the bill in such an unqualified manner; it was also the submitters. I note that out of 171 submissions, 160 opposed the bill. That in itself is a great tribute to the progress that has been made in our community towards the population at large understanding the significance and meaning of the Treaty and its relevance to Aotearoa today.

It seems, thank goodness, that New Zealand First is quite an isolated outpost of the old colonialist, paternalistic way of thinking in its efforts to naively or otherwise overturn over 20 years of hard-won progress around the application of Te Tiriti o Waitangi to the life of our country.

The New Zealand First members are, quite unbelievably, trying to deny the relevance of the Treaty, by replicating, for example, the 1877 ruling of Chief Justice Prendergast who, in the case of Wi Parata v The Bishop of Wellington, declared the Treaty to be simple nullity, as Hone Harawira has also referred to. We have come a long way since 1877, and even further since the first reference to the principles of the Treaty in law with the Treaty of Waitangi Act 1975. If this bill was passed, the impact on the functions of the tribunal itself would be devastating. All the settlements already made would be at risk, and it is likely that the whole settlement process would justifiably be started up again. Decades of interpretation of statute would be cast into doubt, as would any legal obligation to ensure that tangata whenua are not further disadvantaged.

Nor is there any evidence of any major tangata whenua groupings making a call for the principles of the Treaty to be deleted from legislation in the way proposed. In fact, the situation is quite the opposite. Although there are still many problems around the implementation of Te Tiriti o Waitangi from a tangata whenua perspective, these problems come more from the Crown’s reluctance to fully honour the Treaty than from some blind over-adherence to it, as New Zealand First seems to believe. Moreover, there is nothing wrong with the Treaty principles, which have evolved through things like the work of the Waitangi Tribunal. In fact, all of us should welcome the mahi that has happened as part of our long journey towards making the words of Te Tiriti a reality.

These principles include, among other things, the fact that the Treaty established a partnership—both partners having a duty to act honestly and in good faith—that the needs of both Māori and the wider community must be met with compromise from both sides at times, and that there is acknowledgment of the special place of Māori in this country as tangata whenua. The Treaty is a living document, and we can use these principles as a guide as we all join in the journey towards a future together that truly enacts and embodies our key founding document. The inclusion of the Treaty as a core part of our new school curriculum, as announced yesterday, is the kind of positive step every party in this House should be endorsing, rather than giving any support whatsoever to suggestions like those put forward in the bill before us today.

Furthermore, if this bill or anything like it were in danger of succeeding in this or any future Parliament, it would be hugely damaging to the relationships long struggled for between the Crown and Māori. This relationship still has a lot of problems, as evidenced, for example, in the current devastating impact of the police terrorist raids on the people of Rūātoki, but the situation would be set back even further if this bill or anything like it ever become law in this country again.

The impact of the passing of this bill would be to decrease even further tangata whenua trust in the Crown, to throw hard-fought settlements into doubt, to minimise the significance of the Treaty overall, and to take away all the hard work that has been done to develop principles to help guide us all in resolving all those grievances from the past and ongoing. Some tangata whenua submitters also feel justifiably aggrieved that they have had to waste time on this nonsense, at all. Because the Labour Party voted for the bill at its first reading, a whole bunch of organisations—including Māori rōpū with an intense interest in the matters before us—have had to, as Te Runanga o Te Rarawa say in their submission,“expend precious time, energy, and resources to respond to a matter that ultimately will not see the light of day”.

In other words, this bill itself, and the fact that a sufficient number of votes were cast to get it past its first reading, is yet another attack and encroachment on the goodwill of tangata whenua to keep working with the Crown on a basis of responsible good faith. As a Parliament and as a society, instead of debating a bill like this we should be doing things like providing far more opportunities for public debate and discussion about the meaning and the place of Te Tiriti o Waitangi in our society, and working towards constitutional arrangements that ensure its enduring status and full implementation of the agreement we made with each other back in 1840.

Hon GEORGINA TE HEUHEU (National) : I am very pleased to take a call on the bill before us. I find it ironic that New Zealand First, which is the party that promulgated the Principles of the Treaty of Waitangi Deletion Bill, now finds itself in the ignominious situation of having to write a minority report on it. That has to be a first for this Parliament, I would have thought. It flags that all the other parties across the House have found this bill to be of no merit whatsoever. I think that New Zealand First should learn something from that. Hopefully, New Zealand First will look at all of the speeches that have been given here this afternoon so far—and I support all of the speakers who have rejected this bill—and understand exactly why the bill they propose is a nonsense and has the potential to set back the whole Treaty and to upset an ongoing dialogue between Māori and the Crown. It is a dialogue that was promised in the Treaty itself and that, were this bill allowed to go through, would result in claims such as we would never imagine could happen.

Would that not be ironic, as well, that the very party that says that the principles of the Treaty have led to untold complications over the last 20 years would be the one responsible for creating a whole new gravy train of claims, as New Zealand First members like to put it?

I think it is absolutely right that all parties in this House oppose this legislation. Although National supported it to its first reading, we did so because we felt there was some merit in examining some of the places where the phrase “the principles of the Treaty” have been inserted—for example, some legislation. But, overall, the Justice and Electoral Committee, having examined the bill, has come to the right conclusion, which is that, by and large, this bill is completely without merit.

In my first reading speech I talked about the jurisdiction of the Waitangi Tribunal and the 1975 legislation that places that jurisdiction before us. Quite frankly, I do not think that New Zealand First members had any idea at all that section 6 of the Treaty of Waitangi Act 1975 was where the phrase first surfaced. They never mention it. It is not mentioned in their bill. I do not recall any of them mentioning it in their first reading speeches. I find it absolutely appalling that a political party that presents itself as being responsible and caring about the future of New Zealand would promote a bill in this Chamber the source of which, for the substance of it, they have no idea.

Section 6 was never mentioned, as far as I can tell. Section 6 sets out the jurisdiction of the Waitangi Tribunal. In my view, it deliberately refers to “the principles of the Treaty of Waitangi”, which is the phrase that New Zealand First so objects to. There is a good reason for it, and I will give credit to Matiu Rata from the north, who would probably be turning in his grave right now at his whanaunga Pita Paraone and at the speech he gave about this bill. I give credit to Matiu Rata for realising that, yes, there is a Treaty of Waitangi, but there are two versions of it. So if we are going to create legislation that talks about the Treaty of Waitangi, which version are the courts or Parliament going to refer to?

What Matiu Rata did—because he is far more intelligent than anybody who promoted this bill, in my view—was provide for both the English version and the Māori version in that legislation. Why did he do that? Because he had to, in my view. He had to because the English version was obviously going to be put in, but the Māori version had to be put in because that is the version most Māori signed. So if we are going to take out the phrase “the principles of the Treaty of Waitangi” and leave “the Treaty of Waitangi”, which version? As I said, I credit Matiu Rata with the understanding and appreciation of the importance of including both those versions and of leaving it to the tribunal and subsequently to the courts, as has happened, to discern the underlying principles that come from a reading of both versions.

That is why we have that phrase “the principles of the Treaty of Waitangi” in our legislation. It is a proper reason to have it there. I will agree, with my colleague Chris Finlayson, that in some instances we should maybe be more specific about what we mean by that phrase, but, generally speaking, when there are two versions of a Treaty—the Māori version having been the one signed by our tūpuna—then we must include them both. What do we do when we are interpreting and measuring Crown action against those versions? We look for the underlying principle: the spirit of the Treaty.

That is what we have been doing, I would have thought, in a very measured, sensible way, as best we can, over the last 20 years, looking for those principles, eliciting the essence of the Treaty, and trying to find our way forward towards reconciling those things that Māori were guaranteed, those things that the Crown undertook to protect, and those things that the Crown, in its role as the Government, must also make sure it adheres to on behalf of all New Zealanders. That is the purpose of that phrase.

I urge Pita Paraone, in particular, to think hard about that. It absolutely pains me when he talks about the Treaty as being some race-based proposition. As Dr Cullen said, there were two peoples who came together. One happened to be ethnic Māori, the other happened to be ethnic English. That does not make it a race-based proposition, for goodness’ sake! I just do not know where Pita Paraone comes off saying that. It is an appalling statement that that member makes, in my view.

We have a basis for finding our way in this relationship between Māori and all other New Zealanders, and for recognising that Māori have a special place in New Zealand by virtue of the Treaty. It could have been some other group of people who were here; it happened to be Māori. They have a special place in this country, as tangata whenua, and that special place is recognised in the Treaty through the guarantees that were given to them of certain protections.

New Zealand First has been here for 10 years and prides itself on being a good party no matter what the issue is. Again, it also amazes me that this party, after all these years of asking what the principles are—which my colleague Chris Finlayson, in his first reading speech, had read into Hansard, I might say, if anybody is interested in looking at them—is still asking that question. What is the New Zealand public to make of that? I will tell members what some people will make of it. A year before the election next year, this party, as it always does before an election, loves to raise the spectre of the Treaty, race, or Māori. Those members love to do that. That is their legacy, and that will be the legacy of Pita Paraone if he is not careful. I would not like to have that legacy.

I will just conclude with a quote from Sir Henry Ngata, who was giving evidence in one of the cases before the court. He said that “… a contentious matter”—and I think that even I would concede that it is a contentious matter—“such as the Treaty will yield to those who study it whatever they seek. If they look for difficulties and obstacles they will find them.”—they will find them—“If they are prepared to regard it as an obligation of honour, they will find that the Treaty is well capable of implementation.” And I would ask New Zealand First members to set aside this ridiculous mantra that they are intent on and to think about the honour of the Crown, the place of Māori in New Zealand, and the duty that lies before us as parliamentarians to show leadership and to reconcile our peoples in this country as we go forward.

Hon SHANE JONES (Associate Minister in charge of Treaty of Waitangi Negotiations) : Kia ora anō tātou. Mō te wāhanga tuatahi, māku tēnei take e kōrero ki tō tātou reo Māori. E kore tēnei pire e neke whakamua. E kore tēnei pire e whakatūturungia e te Whare i a tātou e whakamene nei. Te ingoa o te pire nei, ko ngā mātāpono o te Tiriti o Waitangi. Āpōpō, āhea rānei ka rite tēnei pīre ki tētahi tūpāpaku, ka ngaro ki te ngākau o te whenua. Tāku i kōrero pēneki ai te take, he raupatu, he whakahāwea, he takahi i te Tiriti o Waitangi. Ko wai o tātou e māia ana te pērā.

• [An interpretation in English was given to the House.]

• [Greetings to us once again. In respect of the first part, I will speak to this matter in our Māori language. This bill will not progress. It will not be passed by the House as we assemble here. The Principles of the Treaty of Waitangi Deletion Bill is the name of this bill. Tomorrow or whenever, this bill will be like a corpse and be lost to the heart of the land. The reason I speak in this manner is that it confiscates, belittles, and violates the Treaty of Waitangi. Who amongst us is brave enough to do that?]

Aroha ki taku whanaunga mai i Ngāti Hine, tā te mea tēnei tangata he mokopuna nā ngā kāwai ariki o roto o Ngāti Hine, mei i kore a Te Kauiti tōna tūpuna i hakamana i te Tiriti o Waitangi, kua kore te Tiriti e whai pūtake i roto i te nuinga o te takiwā o Ngāpuhi nui tonu. Aroha ana au ki a ia nā te mea, ko rātou ngā kaumātua o Ngāti Hine i tino pupuru i te mauri o te Tiriti o Waitangi.

• [I sympathise with my relative from Ngāti Hine, because this man is a grandchild of the chiefs from within Ngāti Hine, and had it not been for his ancestor Te Kauiti, who empowered the Treaty of Waitangi, it would not have meant anything to the vast majority of Ngāpuhi. I feel for him because it was really the elders of Ngāti Hine who held true to the essence of the Treaty of Waitangi.]

I see and understand the anxiety, if not the apprehension, of my fellow Māori parliamentarian who hails from Ngāti Hine, the largest of the subtribes of the Ngāpuhi confederation of tribes, whose elders supported this Treaty. Indeed, the ancestor of his tribe, Kāwiti, gave the power of his moko to the Treaty and there were very few chiefs in the north who could rival that man’s status and power. So I acknowledge the role that the member plays today as a parliamentarian. It is a role, however, that is definitely at odds with the powerful role his tupuna played.

I come back to talking about the Principles of the Treaty of Waitangi Deletion Bill in this sense: I want to advance the notion that it is wrong to say we do not know what the principles of the Treaty are. In 1987 arguably our greatest jurist, Lord Cooke of Thorndon, with a bunch of completely westernised, highly educated jurists, who probably came from a classic New Zealand Pākehā upbringing, were seized of the issue. David Baragwanath, Sian Elias, and various others—including Martin Dawson, who is not with us today but whose name must always be remembered in the list of people who played a key role in enabling the Treaty to journey forward to the respectability and legitimacy our tūpuna saw in it—those men and that woman, placed before the Court of Appeal a set of pleadings. And Lord Cooke, with his colleagues, repudiated what the Crown said at that stage, and through their findings they distilled a set of principles—mātāpono o te Tiriti o Waitangi.

It is disappointing that in our political lexicon those principles have not been imported and are not heard on a regular basis, but it is wrong, it is mischievous, and it shows a shallow understanding of our recent history to say that there has not been a distillation of the principles. Any jurist worth his or her salt will turn to that particular rendering of the Treaty to gain guidance. Yes, it might be said that the presence of the principles of the Treaty of Waitangi provides an opportunity for courts to steer themselves into areas that perhaps are best left to bureaucrats or parliamentarians. But the judiciary plays a key role, and it enjoys a great deal of respect and esteem in the eyes of our iwi. They realise that the courts can be called upon to check the power, the authority, and the decision making of statutory decision makers, whether they are of executive government, regional government, or local government. Those courts have proven on various occasions that they are able to make decisions that are both favourable to Māori and very unfavourable to Māori.

This bill cannot, and will not, proceed, because it interferes with—indeed, I say it molests—the settlement legislation that ought to be seen as the signature of our race relations journey since 1975. To overturn, to undo the work of Ngāi Tahu, Ngāti Tama, Ngāti Awa, Tainui, Pouakani, and a variety of other iwi that colleagues of mine, no doubt, will refer to later on, is actually to undermine and to reduce the mana of those tribes as they have sought to lay history to rest—to allow the debts of history to be paid and for tribes, the Crown, and the public at large to move forward. Through this bill, for those references to the Treaty to be overturned or undermined is actually to unilaterally rewrite those settlements. That would be a very bleak day, which is why this bill will not proceed.

The Treaty—naturally, a number of us talk about it as the foundation document—was taken around Aotearoa, and I want to share a little story about when it came to my small settlement in Muriwhenua. The ancestor was Ngākuku Panakāreao, later called Nōpera by the Anglican missionaries, and when he embraced the Treaty, after hearing about it from his Ngāpuhi kin, he described it in this fashion: “Ko te ātākau o te whenua ka riro, otirā, ko te mauri me tōnā mana ka mau tonu, ka mau tonu: the shadow of the land to the Queen; the essence, however, will remain with us forever.”

Unfortunately, a small period of time passed before our tupuna, Nōpera Panakāreao, was forced to revisit that very wise saying of his, as he challenged colonial administrators to live up to the Treaty. But his people never stopped either believing or conceiving of an ongoing role for the Treaty in the time of their mokopuna. Of course, this is embraced today through Aotearoa—indeed, overseas. All sorts of people choose to celebrate the day on which the Treaty was signed, and it is unfortunate that far too much discord is visited upon the Treaty-signing commemorations at Waitangi. But being a character of the north and having added a little bit of discord myself, I say that such is life.

However, it is good to see—which is why this bill will not proceed—that generations of our mokopuna, of our tamariki, of New Zealanders are coming forward, of mixed blood and of all sorts of backgrounds, who realise that in the rich heritage of our short and youthful nation, the Treaty will sit as a foundation. Who knows when—perhaps in the time of current members of this House—we will see a constitution evolve, presumably in an organic way, and it will place on the record the key role that our founding document has played. People should not fear the Treaty. It will not eclipse the manners, the powers, or the authority of this House. It does not undermine the role of Pākehā, Asian, and Middle Eastern people here in Aotearoa; rather, it roots the history of our country as being something that belongs to the races that came from Europe and to the people of the Pacific, known as the tangata whenua te iwi Māori of Aotearoa. That is something we should be inordinately proud of.

If one goes across the Tasman and talks to the people over there, who are constantly searching for a remedy to their own indigenous issue challenges, one learns that they look longingly at the fact that we have a Treaty. They look longingly at the fact that we have been able to embrace the principles of the Treaty, which, after all, are simply a normative reflection of what the people of the time sought to create when they constructed the Treaty.

The Treaty is not fossilised. The Treaty is not frozen in time. Each generation, surrounded by its own vicissitudes, its own freshness, and its own promises will visit upon the Treaty what it thinks ought to be seen as a prevailing and sustainable meaning. But the meaning reflected in this bill coming forward from our colleagues from New Zealand First is not meaning but very mean. It is very short-sighted, and designed to cause people to be frightened about something they should be proud about. The future belongs to all people of Aotearoa, in accepting that this country was founded upon a document that reflected obligations, rights, and shared promises between the indigenous chiefs and the British Crown. Kia ora tātou.

Hon TAU HENARE (National) : First of all, I am pleading for a bit of leeway from the House because of my voice. I congratulate those members who sent the Principles of the Treaty of Waitangi Deletion Bill to the Justice and Electoral Committee. I cannot abide by the criticism by the Māori Party of the Māori members of the Labour Party for sending the bill to the select committee. We sent it to the select committee to find out whether there was any merit in the bill.

I understand completely the politics of why Labour supported it. I will just say that when one needs some numbers at the beginning of the term, one will not do anything but one will do some things that will hasten one’s opportunities on the Treasury benches. That is enough said about that.

I am sad that my relation stood up in the House this afternoon and said that this bill is not about the deletion of the Treaty of Waitangi. All one needs to do is look at the bill under the purpose clause and read: “The purpose of this Act is to delete and remove from every enactment those provisions which contain the expressions—(a) ‘the principles of the Treaty’; and (b) ‘the principles of the Treaty of Waitangi’; and”—most important—“(c) ‘Treaty of Waitangi and its principles’.”

That is the key message of this bill. It wants to paste over the issue of the principles of the Treaty of Waitangi, but it also wants to get rid of the Treaty of Waitangi. There is a party in this House—and I have been a member of that party, so I know what it does every 3 years when it falls behind in the polls—that brings out the worst aspect of this country, which is division. It brings down a nation rather than building up a nation. I want to put on the record that I abhor that sort of politics.

If this bill were to go through—and thank God it will not be passed—we would see civil unrest. We can put our finger on that. We have been talking of late about terrorism, and have been hearing the advice to wait until all the evidence is in. We would not have to wait for any evidence, because the passing of this bill would put this nation’s security at risk. I am not joking.

This bill is a foolhardy attempt to garner votes from what I would consider to be the fringe of New Zealand’s society. I would not even call them rednecks; I would call them the 5 to 7 percent of that fringe. There are parties in this House, on both sides of the political spectrum, that pander to the people in that fringe. We just happen to have a bill by one of those parties before the House today.

The interesting thing is that the effects of this bill would be far-reaching. My grandfather’s brother said that we have done too much not to do more, and that we have come too far not to go further. If we were to see the passing of this bill into legislation, then 25 years of hard work by some enormous people in our society, both Māori and Pākehā, would be flushed down the toilet within 5 seconds—not only the past 25 years but we are talking since 1840. The work that has been done by people in our communities would be flushed down the toilet in 5 seconds. So I say it is a good job—not to New Zealand First—that this bill is not going through.

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

Hon TAU HENARE: I return to where I left off when the House rose. This bill is nothing more than a poor attempt by a party to rile up a certain section of the community so that it will—hopefully in some eyes—garner enough support to get over that magical 5 percent.

This is a poorly thought-out bill. Not even in the select committee process was there an attempt to redraft or rewrite the glaringly obvious wrongs of the bill. Maybe it should have been sent to the Māori Affairs Committee. Maybe that select committee could have helped in some way. But never mind, the damage was done when somebody thought they could delete not only the principles of the Treaty of Waitangi but the Treaty itself.

Inherently, that is where the biggest mistake has come from—trying to delete reference to the Treaty of Waitangi from so much of our legislation that actually needs that reference. I have no compunction whatsoever to say that a number of statutes do not require any mention whatsoever of the Treaty of Waitangi, but some need it. One glaringly obvious piece of legislation is the Treaty of Waitangi Act itself.

Maybe what we should have done—and what New Zealand First should have done, if it had taken its blinkers off—is use the opportunity, for the benefit of the country rather than for the garnering of 4 percent or 5 percent of the vote, to try to pull the nation together and build the opportunity to define, once and for all, the principles of the Treaty of Waitangi and to recognise how they should play their part in the statutes of this country.

The bill is in the name of Doug Woolerton. Is it Doug Woolerton’s bill or was it just given to him because he is the go-to man in New Zealand First? When there is dirty work to be done, it is shunted on to poor old Doug Woolerton. He will take the blame like the good soldier he is.

This is a no-win bill that is going nowhere, and it should be treated with the contempt it deserves. It is not about building nationhood or national identity. It is not about referring to what has happened over the last 25 years—to how both sides of this House have tried in their own ways to reconcile the past and to build better relationships.

This bill does not do anything of the sort. All it does is pander to a small section of New Zealand society. It panders to an obvious circle of people out there who have an unfortunate view of New Zealand and New Zealand’s history. I am so glad that the vast majority of the House tonight will put this bill where it belongs—in the rubbish bin.

Hon MITA RIRINUI (Minister of State) : I do not intend to take a very long call in terms of my views on the Principles of the Treaty of Waitangi Deletion Bill. I certainly want to thank the previous speaker, Tau Henare, for his contribution and his enlightenment of the House in terms of what the Treaty has done in relation to the bringing together of a number of communities—particularly Māori and non-Māori. The non-Māori community is made up of a lot of ethnic groups, as well. But I think the previous speaker undersells the value of this bill, even though it is our intention to oppose it at this stage.

I want to thank the New Zealand First members. Although I was very concerned at the outset when they tabled this bill in the House, I want to thank them for one simple reason. This bill gave us the opportunity to debate the purpose of the Treaty of Waitangi in our society. I always had the view that when I spoke about the Treaty of Waitangi, I would be speaking about Māori and the Crown—the Treaty partners. I found through this whole process that I am actually talking to a lot of ethnic groups. I never believed at any time in my life that I would be talking to the Indian community, to the Bangladeshi community, or to the Chinese, Vietnamese, Malaysian, or other Asian communities about the Treaty of Waitangi, yet I found myself doing exactly that.

When I say thank you to Doug Woolerton for introducing this bill—although I know that Pita Paraone had a lot to do with it—it is because we should have an open discussion from time to time about who we are as a nation. Certainly, this bill has provided us with that opportunity. Although I have some concerns about the intentions behind the bill, I think it is well accepted that the Treaty is very well embedded in the history of our country. I have had the opportunity many times to speak about the importance of the Treaty in terms of who we are as a nation.

I understand that during the select committee process a number of ethnic groups requested the opportunity to speak to their submissions at the select committee, and that they expressed concern that such a bill was before the House. They expressed concern that there may be some attempt to play down the value of the Treaty of Waitangi in terms of who we are as a nation. There was an expression of gratitude for the opportunity to actually express their views from an ethnic point of view about the Treaty of Waitangi and on what it does for them in terms of their value in this country. So I say again, on having been given this opportunity to speak to this particular bill, although I am opposed to it going any further, I thank the New Zealand First members for the opportunity for all New Zealanders to debate the value of the Treaty in our society and debate who we are as a people.

Statements have been made about a lack of understanding about the Treaty, although we have inserted the Treaty of Waitangi into something like 32 Acts of Parliament, and the question is raised as to what those principles are. There is quite considerable pressure on Ministers and the Government in general to identify what those principles are. In the Health and Disabilities Services (Safety) Act 2001 those principles are very strongly defined, so there should be no argument about what it means in terms of the health of our nation. But even though those principles are defined in the legislation, it should not limit the extent of how the Treaty can be used or defined in law. We have a number of legal academics of all persuasions who, from time to time, offer up some views of how the Treaty should be interpreted in certain situations. What that tells us is that the Treaty will speak for itself.

There is an old proverb amongst Māoridom from the great Ngāpuhi leader, Āperahama Taonui, whom they call the great prophet, and who many in this House are familiar with. I am not talking now about Willie Jackson or John Tamihere, who are the prophets of doom from time to time. The prophet said: “Waiho mā te wā. Mā te Tiriti anō hei kōrero āna ritenga, ehara mā te tangata.” The translation of that is: “If we listen very carefully, the Treaty will speak to us. If we do not listen very carefully, we will never hear what it is telling us.”

So in terms of our development as a nation, let this particularly important document speak to us and tell us about who we are, our genesis, how we became a country, and how we became a nation. We must let ourselves grow without being too academic about this whole exercise. It is incredible how the words of wisdom of the past come back to remind us that rather than talking too much, we should be listening a lot more.

I do not intend to speak too much more about this particular bill, but, once again, I thank the member who introduced this bill and New Zealand First for giving us the opportunity to have an open discussion about the Treaty of Waitangi, its principles, and who we are as a nation. Kia ora.

Hon BRIAN DONNELLY (NZ First) : I want to commence by saying to members of the House that since we left here at 6 o’clock I have been involved in a Māori language lesson. It was very, very intensive, but I have to say te reo Māori Kuki Airani.

As I sit and listen to the slings and arrows of the outrageous criticism of New Zealand First I cannot help but feel like Galileo must have felt when, under torture, he recanted, but at the same time he whispered: “But the earth still goes around the sun.” The issues that are inherent in this particular legislation, which have been presented in a distorted fashion by a number of speakers—in fact, many of the speakers—will not go away. They will continue to be here and will continue to be issues that have to be addressed.

The most unfortunate distortion, which has been peppered through many of the speeches, has been the suggestion that New Zealand First through this legislation is attempting to delete any reference to the Treaty of Waitangi or, in fact, to delete the Treaty altogether. The Treaty is a historical fact and is the document upon which our nation was founded. We cannot make it go away unless we want to change our history—not only the history of 1840 but our history ever since that particular time. Anyone suggesting that New Zealand First is trying to get rid of the Treaty of Waitangi is either being mischievous, ignorant, or malevolent.

Georgina te Heuheu is, of course, correct. In 1840 there were two Treaties, and the Māori version was the one that was signed by most people. But we need to realise that the two versions are quite inconsistent. For example, article 1 in the English version refers to sovereignty; we all thought that sovereignty was what had been signed away. In fact, in the Bible, the missionaries had translated the word “sovereignty” as “mana”. It was well known by the missionaries who were translating the Treaty that no Māori chief would ever sign away mana so they changed the word to “kāwanatanga”, which is a transliteration of “government”. The word was used in the Bible; kāwana was the position held by Pontius Pilate, and the Māori leaders would have known the powers that Pontius Pilate held. But certainly there is a difference between the words “sovereignty” and “government” that are in the two versions.

We have to recognise that, as distinct from the expertise available to the Americans when they were developing their founding document, Hobson was certainly no academic or constitutional lawyer—in fact, he left school at 10, he was Irish, and he spent most of his time on ships. Obviously he was literate, but certainly he was no scholar in this particular sense. He made a valiant attempt to put together his instructions. Nevertheless we are left with a document that is very difficult to put in place as it is.

Previous Governments have come up with this term of “the principles of the Treaty”. Why is New Zealand First concerned about this? It is purely and simply because the term has been put into legislation without any cognisance of what it actually means. Shane Jones, our new Minister, said we should all know what the term means, and that it has been defined by Lord Cooke of Thorndon. That was in the Lands case, where it was defined specifically in relation to lands with reference to the three Ps: protection, participation, and partnership. But I suggest that anybody who goes to any of our health boards where people have to draw up the principles of the Treaty will not find two that are exactly the same.

In fact, in this House in 2002 we asked a series of questions of Ministers. First, we asked the Prime Minister where the principles were written down. She said she was not aware they were written down anywhere. We then asked the Minister responsible for Treaty settlements, and she gave us the principles upon which the settlements were to occur—not the principles of the Treaty but another set of principles. We asked the Minister of Education and he said: “Look in the Education Act.” There is only one reference in the Education Act and that is in terms of the governorship of tertiary institutions.

But the doozy of the lot was when we asked the Minister of Local Government how the ministry ensured that the principles of the Treaty were put in place. She said that the ministry required all local authorities to ensure that the principles of the Treaty were complied with and that the principles were in their documents. We then asked her what those principles were that she required the local authorities to comply with. She said to us: “It’s not up to us to tell the local authorities what the principles of the Treaty are.” Herein lies the issue that New Zealand First is trying to address in this particular legislation. If there was a set of principles that we could all agree to, and was easy to find, then I guess we would not even be looking at this.

We in New Zealand First would like to refer to a paper that was written in, I think, 2000 by Matthew Palmer, the son of Sir Geoffrey Palmer. Sir Geoffrey Palmer was the one who put the reference to the principles of the Treaty in the State-Owned Enterprises Act. When asked why he was doing it he made the comment: “It’s just a simple flourish.” That is what led to the Lands case, and to judgments made by Lord Cooke of Thorndon and people like David Baragwanath. Matthew Palmer argued that it was not good enough to put in legislation just an ethereal principle of the Treaty clause. He said that people have to look at the legislation and spell out in more precise language what the obligations were for the Crown flowing from the Treaty of Waitangi and—if they wanted to use the term “the principles of the Treaty”—from the principles of the Treaty itself.

So what are those obligations that flow out in terms of legislation? It is quite ironic that Dr Michael Cullen and a number of people have spoken eloquently about the need to preserve “the principles of the Treaty” clauses in all our legislation. We have just had legislation go through our Education and Science Committee in which there was no reference to the principles of the Treaty of Waitangi. Some of the submitters argued very strongly that there should be. Interestingly enough, the Minister for Tertiary Education did not think it was a good idea to put a clause about the principles of the Treaty into that legislation.

The question has to be: if these clauses about the principles of the Treaty are so good, why would people not put it in the legislation in this case? The reason is that the legislation already holds a clause—that is believed, anyhow—which was put in place by Māori MPs. I can remember when that was done. It spelt out more clearly what the obligations through the tertiary education system to Māori people were under the Treaty of Waitangi. The legislation talked about meeting the developmental aspirations of Māori people. In other words, it took the principles concept and codified it more directly in terms of what that legislation needed to do, so the compliance could be measured against that. If, for example, the legislation does not bring about the developmental aspirations of the Māori people, we can say it is not being complied with. But if we had a clause about the principles of the Treaty in there, we would not know what we were talking about.

That is exactly what this Principles of the Treaty of Waitangi Deletion Bill is about. It is not about trying to get rid of the Treaty of Waitangi; it is not about playing a race card, as has been suggested. To those people who think it is about trying to get 5 percent at the next election, I say “How stupid.” This was put into the confidence and supply agreement with Labour following the last election.

It is good that this legislation is being discussed and debated. If there are flaws in the legislation that have been exposed that is probably good too, because that is part of the open discourse that we have. But let me say, and say it once again, that there has never been any intention in this legislation to deny the place of the Treaty of Waitangi in our society or to deny the importance of that Treaty in our society both today and into the future. Any suggestion that that is the case is not us playing the political card, it is other parties playing that card. That, I guess, is what I take greatest offence at—that where people are attempting to try to do something that an esteemed academic like Matthew Palmer has suggested should be done, we are then being accused of all of those terms, etc. That is unjust and unfair, because people are playing that card for their own political ends and not for the end of the development of the nation.

Dr JACKIE BLUE (National) : I move, That the Human Tissue (Organ Donation) Amendment Bill be now read a second time. This bill started for me 2 years ago. As a new MP I was approached by a constituent, Andy Tookey, who then lived in Auckland. He had been very keen to get, and lobby for, an organ donor register, and together we devised and put together this bill. It was drawn up, put in the ballot, and actually drawn out very, very quickly, in only a matter of weeks. So I am very grateful to Andy for coming to me to talk about the issue of organ donation, because it really raised an issue I had been unaware of until that time.

Andy has a daughter who may yet need an organ donation at some time in the future. He raised the matter that there really was an issue of not enough organs being available for donation, and there was a huge need out there. As I said, I was grateful to Andy. We put the bill into the ballot. It got drawn out, it wended its way through the first reading, and it was supported all the way through to the Health Committee. Sadly, it will not be supported after its second reading. None the less, Andy is a great campaigner. He is not going to give up; neither am I.

There is provision in the Government’s Human Tissue Bill such that if a future Government feels there is a need for an donor organ register, then a register can be established without the need for regulation. So the door is open and the cause is not completely lost. There is still hope. But from now on, the focus will be on how Organ Donation New Zealand, which is the organisation that is being funded to retrieve organs for donation, will step up to the mark, because in the last few years organ donation in New Zealand has been steadily dropping. For instance, from 2001 to 2004 the number of organ donations was between 38 and 40. It dropped to 29 in 2005, and in 2006 plummeted to 25 organs. So there has been a steady drop in the number of organs that have been available for donation.

There has been a greater need for organ donation as a result of the diabetes and obesity problem we have in New Zealand. Of course, the consequence of long-term chronic diabetes is end-stage renal failure. People with that problem are hooked up to a machine and receive quite expensive dialysis treatment. Their quality of life is poor and the only way they can get off the machine is through means of an organ donation. Also, we have an estimated 200,000 people who suffer from either hepatitis B or C. The complication of that disease can be end-stage liver failure, and there is no way out of that problem. There is no dialysis treatment for liver failure; those people need an organ donation. So there is a greater need for organs but there are fewer organs being offered for donation. Also, over the last few years, since 2005—and I have looked at the statistics—the number of organ transplants has been dropping steadily. They may have increased in the last year; I do not have those figures to hand.

Organ donations are not just for those illnesses. Originally we were just doing organ transplants for kidneys and livers, but now we are doing them maybe for spleens, hearts, and lungs. A lot more illnesses have the option of organ transplant. Also, the threshold to receive an organ donation has actually been lowered. Patients who are a lot sicker are now being accepted as eligible for organ donations. So there is a lot of need out there and, currently, it is not being met. That was the whole point of the register. It was to provide a mechanism for New Zealanders to indicate their wish to donate an organ after they die. Currently, we just have an indication on a driver’s licence, which is a “tick a box” system. It is not the informed consent that is universally accepted. There is no dispute over that, and it is not acknowledged even in the intensive care situation.

Concurrently, we have fewer brain-dead patients in intensive care. That is due perhaps to fewer road deaths, obviously because of the promotion of drink-driving campaigns and road safety generally. Also techniques have been developed in intensive care units where doctors do more aggressive procedures on those people who have been brought in with brain injuries, such as craniectomy, where they reduce the pressure on the brain. This means there are fewer people who can be termed brain-dead, and therefore obviously they are not available for organ donation.

New Zealand per capita has few intensive care unit beds compared with other countries in the world. It is also a factor that the fewer intensive care unit beds there are, the fewer the patients who conceivably could be on machines. Their brains could be kept alive, and their organs could be kept alive for possible donation. New Zealand, at the last count, had 69 intensive care unit beds per million people, compared with France with 384, USA with 305, and Spain with 148. So we are well down in the number of intensive care beds that we have per capita, and that could be a factor.

So there are a lot of reasons why we need an organ donor register. There have been two previous reports from the Health Committee on this issue. These were done in 2002 and 2003, and both called for the establishment of an organ donor register. Even the Labour Party as part of its 2005 election manifesto said it would establish an organ donor register. One would have thought there was hope that this bill would pass.

Hon Member: They obviously didn’t vote for it.

Dr JACKIE BLUE: Yes, absolutely. One would have thought it would go all the way. The statistics were compelling: donor rates were dropping, the need was greater, the threshold to go on the waiting list was lower, and so on. With the diseases we face in our community, such as obesity, diabetes, and the renal and liver problems, it seems really amazing in the face of such huge demand, the backing of the Government in its 2005 policy, and the two previous Health Committee reports, all backing a donor register, that the bill should fail at this point. We were told by the Ministry of Health that there is no international evidence for a register. That did sway a number of members on the select committee, and I was really quite disappointed in that summary of the situation. I have seen a steady stream of media reports of countries turning to legislation to improve donor rates. We in New Zealand need to reflect on the world situation. It might be that the ministry felt the evidence was not there, but the reports I have seen are that the countries that initially turned away from a possible organ donor register are now coming back to that. Our lag time is a bit slower and we may be looking at this issue in another year or two. But certainly a lot of countries are turning to organ donor registers, or are going from intent registers to consent registers. They have all had to face this issue and find their own solutions to a fall in organ donor rates in the face of increasing demand. We are not alone. This is a worldwide problem.

In January 2006 the Australian Capital Territory issued a press release stating that its impressive increase in organ donations confirmed the importance of registering with the Australian Organ Donor Register. In September 2006 the UK Human Tissue Act came into effect to ensure that if a person registers his or her wish to donate organs, then that wish takes precedence over objections. In April 2007 the Texans expanded their organ register into an online register. And in the same month there was a Canadian media report calling for the establishment of a national database network, in the face of falling donations. There are many, many examples of countries coming on board. In July 2007 it was Switzerland that was establishing an organ donor register. I just think that we have missed the boat, and I am really disappointed because I think we will have to face this issue again in a year or two. I am the last person who would want to propose legislation for the sake of legislation, or bureaucracy for the sake of bureaucracy. That is not what my party stands for. But I am really concerned that without an organ donor register, the Government’s Human Tissue Bill, in which the donation of organs is actually based on informed consent, will fail in terms of increasing organ donor rates.

There is no talk of a public publicity programme at this stage, and there is no mechanism for individuals to register their wishes unless they wish to carry around an advanced directive or have something mentioned in their will. I think it will be just too hard for many New Zealanders. Any publicity campaign for organ donations will involve a call to action, and there will be no call to action if there is no organ donor register. So I think, basically, that we will be re-looking at this issue in a year or two. Precious time will have been lost, opportunities will have been lost, and maybe people will have died because we did not have a register—or maybe not. I cannot prove that, of course.

I am very sad that this bill will not be passed. Maybe other parties will have a change of heart. That would be great. In summary, I would like to think there will be support for an organ donor register, and if there is not, then a future Government will decide its fate. Thank you.

LESLEY SOPER (Labour) : As the deputy chair of the Health Committee, I rise to speak on the Human Tissue (Organ Donation) Amendment Bill with some feeling. This bill was referred to the select committee with wide support from most parties, with acknowledgment given to Mr Andy Tookey and Jackie Blue for doing the work on the bill, but with some reservations around its intent and likely effectiveness. It was referred to the select committee with Labour’s support, because there was definite acknowledgment that New Zealand’s organ transplant rate was one of the lowest in the world and that we needed to do anything that could reasonably be done to improve that rate, in order that the detail around organ donation, particularly the international evidence on the establishment and effectiveness of organ donation registers, could be examined.

The bill was also referred to the select committee to give the public a chance to comment on a very emotive topic, and it has certainly stimulated and increased discussion about organ donation. At the time the bill was referred, it was signalled that the Labour Government had a broader and more comprehensive bill in preparation, to replace the Human Tissue Act 1964. That bill, the Human Tissue Bill, which deals broadly with the collection and use of tissue from dead human bodies, was introduced in 2006 and referred to the Health Committee, and much of the evidence on the two bills has been heard together.

The Health Committee has heard much heartfelt and very emotional debate on organ donation. We have heard the views of members of the public who have experienced the death of loved ones. We have heard the views of intensivists, who actually make the decisions in our intensive care units. We have heard the views of those who want organ donation with no family veto, and the views of many, including tangata whenua, who want whānau to have the ability to make an overriding objection. We have heard about the general lack of awareness of organ donation realities in New Zealand, and all of us on the select committee would probably say that we are now much more educated than we were on just how many organs are actually available for donation in any given year in New Zealand.

We have heard of the inadequacy of the current driver’s licence register, and we have heard family members say that they wished they had known what their loved ones had actually wanted done with their organs, and that they would definitely have that discussion with their families in the future. I do not think it would be too much to say that no members of the Health Committee are now in any doubt themselves about discussing this issue with family members if they have not already done so, and about discussing the need for further education and promotion of organ donation. However, we have also heard clear evidence that there is as yet no compelling evidence that an organ and tissue donor register increases the overall rate of organ and tissue donation, and that was found after a wide canvassing of the international experience.

The Health Committee has elected to recommend that this bill not be passed, as the compelling evidence for a legally binding register is not available at this time. However, the select committee has recommended the inclusion of a clause in the Government’s Human Tissue Bill to permit the establishment of an opt-on organ and tissue donor register, should the evidence make that a desirable course in the future. Evidence did point to increased public awareness about organ and tissue donation, improvements in processes around donation, and improvements in coordination between agencies as being most likely to lead to improvements in donation rates. Organ Donation New Zealand, which was set up last year, has initiatives under way in this area, and welfare assistance for living donors is already available.

I also need to point out that the Government’s Human Tissue Bill aims clearly for a balance between respect for the wishes of the deceased person and the cultural and spiritual needs of the family. It endeavours to treat all with dignity and respect. Jackie Blue’s organ donation bill does not acknowledge the needs of the deceased individual’s family. The Government bill also regulates trading in tissue, export and import of tissue, and use of tissue for non-therapeutic purposes. It establishes a crucial new consent framework for the donation of human tissue, and in all respects it is broader in scope than the Human Tissue (Organ Donation) Amendment Bill we are currently discussing.

I am very comfortable to commend the Government bill and to oppose the passage of the now unnecessary Human Tissue (Organ Donation) Amendment Bill. In conclusion, I need to point out that the National Party has not opposed the decision of the select committee that the Human Tissue (Organ Donation) Amendment Bill not be passed. It did not put in a minority report opposing that decision. Thank you.

JO GOODHEW (National—Aoraki) : I rise to speak to this Human Tissue (Organ Donation) Amendment Bill with some sadness in my heart. Although the previous speaker, Lesley Soper, is absolutely correct that the National Party has not opposed the recommendation of the Health Committee, its members, nevertheless, have seen the whole process that has been gone through when the two bills—the Human Tissue Bill and the Human Tissue (Organ Donation) Amendment Bill—were considered in the select committee at the same time. I cannot help but wonder what would have happened if Jackie Blue’s member’s bill had been the only one being considered—and I see some members opposite nodding—because there is a huge feeling amongst New Zealanders that somehow we need to do something to address the donor shortage.

We heard heartfelt stories. We heard a story from the parents of a young man who had drowned. His mother described him as a loving, giving young man, and she said that no one had asked them whether, maybe, he could have donated some of his organs. Although that was not uppermost in their minds at the time, she wishes now that he had had a chance to give, because she believes, knowing him as well as she did, that he would have liked to give. Thirty-eight people out of a possible 104 donors were donors in 1999-2000.

It is a sad tale, and during the course of the debate on these two bills it really hit home to me because a very close friend of my mother’s rang my mother to say that her niece had died in the South Island; she had died very suddenly of a brain haemorrhage. But her organs had been kept going on life support for some time, and that family was taking comfort in the fact that they knew her wishes and that she would be an organ donor. Just a day or two later a very close friend of mine who lives not far from my home rang to tell me that a close friend of hers was so excited because her husband was going to be travelling to Auckland to receive organs. I could not help but feel—and maybe I was right and maybe I was wrong—that maybe I was close enough to know that on this occasion one life have been saved, most certainly saved. In fact, my understanding is that many, many lives were saved because of that young woman being able to donate her organs. That was a great story, and it brought things home to me during this whole process.

I commend Jackie Blue for bringing this bill to the House, and I commend Andy Tookey for bringing the petition to Parliament. I know that their passion will not go away, and that they will be watching very closely to see whether we have any improvement, and whether education programmes or any actions on the part of New Zealanders can bring our organ donation rates higher. We know that in the Human Tissue Bill there is provision for a register, because there is still debate about whether a register can be useful.

We know now, in respect of drivers’ licences, that ticking the box about whether one wants to be a donor is a very interesting process. Most young people will get their licences when they are very young. I know that our teenaged daughters—our 17-year-olds and our 15-year-old—have all been through the initial test and have been asked to declare whether they want to have their organs used for donation. It is a very, very big question to ask a 15-year-old. I would have to say that most 15-year-olds do not really know what they are answering. It is not really surprising, given that they are still quite young and have not discussed their wishes with their families, that when the time comes that they are in a potential donor situation their family may not know what they want; they may not tick the box, because the thought is too horrible that they might die young.

The concept of having an organ donor register in the future is, perhaps, cold comfort, or maybe just slightly warm comfort—I am not sure. But the debate on this bill has been useful. It has raised the profile of the issue. Many New Zealanders have read articles in the paper. I know that some of the magazines have got on board more and have printed the stories of donors and also of recipients. That is pretty neat, because that is the sort of thing that gets people talking around their kitchen tables. That is the sort of thing that gets families discussing—“Well, it happened not too far from me. Should we talk about what we really want?”.

Again, I commend Jackie Blue for bringing this bill to the House and for generating such discussion around the breakfast tables of New Zealand. The health professionals who came to the Health Committee and submitted in the process of this bill had to search their souls too, because there was a question about who should decide whether one’s own wishes about one’s body should be paramount, and whether health professionals should be able to take the wishes of the family rather than the organ donor to heart. So they had to search their souls when they came to the select committee and told us where they thought their responsibilities lay in the event that they were part of the process of asking a family whether they would give permission, or of determining whether organ donation would take place.

In closing, I say that this has been a very useful debate, and I am sad that the bill will not go any further forward, though I am relieved that there is provision in the other bill for an organ donor register. I commend the Health Committee for discussing this bill fully.

Hon STEVE CHADWICK (Associate Minister of Health) : I too would like to congratulate Jackie Blue on this Human Tissue (Organ Donation) Amendment Bill. I am very aware of the amount of effort that goes into the drafting of a member’s bill and there has been quite a history behind organ donation legislation.

It is nice to see Sue Kedgley, the chairperson of the Health Committee, come into the House, because we were both on the Health Committee when Andy Tookey brought his petition to us. We made an incredible effort to listen to all submitters around his petition, because we too felt like members today who are wanting to increase the numbers of people who are prepared to give up their organs for organ donation—such a lofty cause. We wrote our recommendations to the report, and I decided that I knew what I was going to do for a member’s bill, too. So off I went. I got halfway through drafting the bill—so I really do appreciate the member’s efforts—and then I went off to Auckland City Hospital to meet the intensivists. That meeting was memorable to me and it is imprinted on my brain, because when I came out of that meeting I remember Sir Geoffrey Palmer saying: “Well, we’re not going on any further with this, are we?”, and I thought: “No, we’re not.”

There was a coalition of some courses going on at that time. The Ministry of Health was beginning to draft the Human Tissue Bill, which was introduced into Parliament in November 2006. I had been told that the issues I was using as levers in the drafting of my bill would be caught up in the Human Tissue Bill, so I was happy to drop it. As chance goes, in came Dr Blue with the same feeling that I had. I know that Andy gave up with me and he went to Dr Blue, and good on him—he is a lobbyist and he will never stop, as the member opposite said.

I think we need to have so much more discussion about human tissue and organs. As has happened with this bill, issues of great cultural sensitivity have been raised through the process of consultation on the Human Tissue Bill. That is something that I had overlooked in my bill, but I was very aware of the concerns of iwi and Māori about what happens to body parts, and about the spirituality of an individual person being put into somebody else. I worked in the clinical service at Rotorua Hospital, where I was the one who had to ask people whether they would consider a young person’s organs for organ donation. We had a great deal of difficulty with iwi unless I had beside me somebody who could change the language that I used to convince Māori that we really needed those organs. That was the way we worked together and we set up the Hunga Manaaki Service.

I believe that cultural sensitivity about human tissue and human organs is now caught in the Human Tissue Bill, but I think those issues were also overlooked in Dr Blue’s bill. I think Andy Tookey can say “Well done. You’ve raised the issue again.”, and that is what we asked for as part of the select committee’s recommendations. We said we wanted a media campaign; we wanted a publicity campaign to raise people’s awareness—it is called a social marketing campaign. We got one more step ahead then, because the Government, in response to the inquiry report, set up Organ Donation New Zealand, and that was fantastic. That is the next step forward.

I believe that with the voting down of this bill—and I know how disappointed the member is; we all win some and lose some in this place—the Human Tissue Bill has picked up an enabling mechanism for a register. I too believe that the evidence, over time, will come out that we need to link up the expressed wishes of individuals when they want to make it very clear on their driver’s licence what is meant around giving their organs as a donor, with the involvement of the family practitioner. The New Zealand Medical Association was very supportive of a member’s bill, and it had a very different view at that time from that of the intensivists. So there were divergent views even within the medical profession itself.

I believe that the work on this bill has given a profile to the issue. I have read the stories and they were very similar to what we heard on the Health Committee. We heard that we did not want to follow some of the international examples such as in Spain, where the system really is like the harvesting of organs. We do not find that to be culturally appropriate in New Zealand, at all. We also heard how we will raise the rate of organ donation in this country.

I am sorry to say that Jackie Blue’s bill will go down, but the Human Tissue Bill will go forward. So the member has contributed to the fabric of Parliament and also to New Zealanders’ belief and hope that we will have more people feeling absolutely comfortable about having those family conversations. My family know my expressed will when I die: if there is anything good left, they can take it and give it to somebody else. More people need to feel comfortable about having those discussions in their families.

That is what Jackie Blue’s bill has generated, and I congratulate her on this. We will wait for evidence as it mounts, and one day we might be saying “We said so.”, but at the moment the evidence is not there. I do believe that everything we do in health must be evidence-based, not emotionally driven. This bill is down, but the conversation will go on and the Human Tissue Act will be in place. I say “Well done.” I have enjoyed the tenor of debate in the House tonight.

BARBARA STEWART (NZ First) : On behalf of New Zealand First I rise to speak to the Human Tissue (Organ Donation) Amendment Bill. New Zealand First supports the recommendation of the Health Committee that this bill should not be passed.

This bill was considered very carefully by the select committee, and we congratulate the member on bringing it to the House. The Health Committee heard two petitions on this issue and they were both some time ago. In the last Parliament we were very interested to hear from Andy Tookey. This bill is basically a logical extension of his petition. It was a very unique opportunity to examine this issue again. We heard some very sad stories from many submitters for whom organ donation is the only option they have, from those who believe that there should be mandatory harvesting of organs, and from doctors who deal with this issue in accident and emergency every day. We have to thank these submitters for their time and for their courage in coming before the select committee to tell their stories and give us their views. It really gave us a total, fully rounded view of the situation.

We considered this bill in conjunction with the Government Human Tissue Bill. We have ensured that within that legislation there is the ability to set up an organ donor register should there be the evidence that is required to support such a register when, and if, it is required. We are very aware that donor shortage is a fact of life in New Zealand. It is a problem in New Zealand, and it is also a problem elsewhere in the world. We know that there are very few organs available and that a lot are needed. With the increasing diseases that we have, sometimes organ donation is essential for keeping people alive.

Back in 2004 when we examined the issue in the select committee I stated in a press release that a more proactive stance was required on the issue of organ donation if a register was ever to be successful. There has not been any action on this front at all, apart from the setting up of a website since then, to justify setting up and maintaining a register. When we heard in the select committee that overseas studies show that registers have limited success, and that setting up a register does not automatically guarantee any increase in organ donation, it really made us sit back and think. We are very aware that much more needs to be done. The last thing that we want to do is to set up an organ donor register and actually set it up to fail because the work has not been done. We have not had any public information or education campaigns on organ donation, at all.

As we have heard from other speakers, we are only too aware that the option of becoming an organ donor on the driver’s-licence database does not work, because of the simple fact that the information is recorded for no apparent purpose. No one actually accesses that information. There is no communication with family members. There is no means to specify which organs a person might wish to donate, or even to specify which uses a person wishes to donate his or her body for. I know that my 17-year-old son recently went for his driver’s licence and I asked him which box he had ticked when it came to filling in the driver’s-licence form. He told me that he had ticked “No”, because he did not want to think about that at that particular point in time. Of course, we just have to accept that is how teenagers think; they are more focused on getting a licence than thinking about any other aspect of life at that particular time.

In New Zealand First we believe that more needs to be done to ensure success before a register is set up. We want to see any resources allocated to set up and maintain a register be successful. I would like to emphasise that the door has not been shut by voting against the establishment of a register at this time. I know that Andy Tookey will be very disappointed when he hears this debate tonight, but the possibility of establishing a register is there in the Government Human Tissue Bill. The consent framework is in that bill; the legislation is there.

We are looking forward to future debates on this very important issue, because it will become more important as time goes on. We in New Zealand First support the select committee report and we will be voting against this bill.

SUE KEDGLEY (Green) : I would like first to congratulate Dr Jackie Blue, as others in the House have done, on bringing the Human Tissue (Organ Donation) Amendment Bill to Parliament and to the Health Committee. Even though she has not won the war, as it were, her bill has made a very valuable contribution to the whole issue of organ donation. I suspect that the Government’s Human Tissue Bill was sped up because her bill was selected from the ballot. The Government had been doing research on similar human tissue legislation, but I think the Ministry of Health was galvanised and the whole work sped up because Jackie Blue’s bill had been selected from the ballot.

We agree with what many speakers have said—namely that this issue is an extremely emotional and also a very sensitive one. Who amongst us does not wish there were more donors, and who amongst us is not aware of the huge shortage of donors there is, not just in New Zealand but around the world? People are already having debates in America about rationing donors so that older people would not even be eligible as donors, only young people. We know that in China they are harvesting organs from prisoners and from people who have been sentenced to execution. They are taking those organs because of the huge shortage in China and everywhere else in the world.

I think all of us wish there were a magic wand we could wave to make more organs available, particularly when we contemplate the epidemic of obesity and diabetes in New Zealand. We know the huge demand for organs there will be. We look at the statistics and realise that only a tiny fraction of organs will meet the need—and it will get worse and worse. So there is a slight feeling of desperation around the whole issue of just how we are going to get enough organs to meet the huge demand as a result of diabetes and other diseases.

When we first looked at this issue, and Steve Chadwick was recounting some of the history—so too was Barbara Stewart who was there when we first began to consider the issue, and I think Judy Turner was, as well—I felt very strongly that not nearly enough was being done, and that, yes, of course we should set up a register. When Jackie Blue’s bill came in I had some concerns about her intention to make a register that would be legally binding—in other words, if people had indicated that they wanted their organs to be used in the event of death, then that would be binding on the family, no matter how much family members might be traumatised by that decision and despite the cultural sensitivities that Steve Chadwick spoke about.

I thought that I would, on balance, support the establishment of a register, but two particular issues persuaded me that, really, we could not, in all conscience, recommend the establishment of a register at this moment. The first was, as others have mentioned, the evidence that was presented to us by intensivists. They said that we might all feel good about setting up a register and it might make everyone feel better, but there was no evidence internationally that it has resulted in an increase in the number of organs available. Given that that is the whole purpose of our debate—to increase the number of organs available—it seems rather pointless to establish a register and raise all those expectations if there is not any evidence anywhere around the world that setting up a register increases the number of organs available. In fact, we were told that in certain areas it had resulted in a reduction in the number of organs available, rather than an increase. That came as something of a shock to me and, I think, to other members. But in the end, as one of the intensivists implored us, we have to look at the evidence. They said we should not just come up with a politically driven decision that might make us all feel good politically but that there is no evidence for and that would not address the fundamental issue.

The second issue was the realisation that only a very, very tiny number of people—I am afraid I do not have the statistics here—would be able to give an organ. First of all, people have to be brain-dead, and there are only a few dozen people who are in the category, firstly, of being brain-dead and, secondly, with organs that are in excellent condition. It is no use having an organ that is diseased, old, or whatever and that cannot be given to another body.

Only a tiny number of people can donate an organ, and I think that that fact is often lost in the debate. People seem to think that if only we had a register there would suddenly be more organs available, and the truth is, sadly, that that is not the case. Only a tiny number of New Zealanders every year would be able to have their organs taken from them once they have died. Secondly, even if there were a register, it would not likely increase the number.

Thirdly, there is the issue, which has also been touched on, of the incredible cultural sensitivity around donating organs and the transfer of organs from dead people into another person. There is no point just sweeping that issue under the carpet. There are very profound cultural issues around death and around the donating of organs from dead people. Amongst Māori and some other cultures there is a set of values that are very different from those of Europeans. We have to recognise and acknowledge those values, which is why the Green Party will be supporting the Supplementary Order Paper from the Māori Party in respect of the Human Tissue Bill. We want to ensure that that legislation is culturally sensitive and is not imposing Pākehā values on other cultures in New Zealand.

I say to Dr Blue that, like everyone else, we will not be supporting the Human Tissue (Organ Donation) Amendment Bill. We recognise that the Human Tissue Bill addresses some of the member’s concerns inasmuch as it has regulatory provisions for a register to be set up if there is evidence to demonstrate that it will be effective. At the moment, that evidence is not there. We have recommended that those regulatory powers be there so that a future Government could set up a register as soon as it is believed that there is compelling evidence that having a register would result in an increase in the number of donors available.

We certainly do not agree with the other aspect of Dr Blue’s bill—that any indication by someone that he or she will donate his or her organs after death should be legally binding. We think that the issues of the family and the whānau need to be taken into account. We congratulate Dr Blue on having this bill selected and considered at the Health Committee. We believe that it has contributed to the debate on organ donation. It has stimulated the debate and it has moved forward the consideration of the Human Tissue Bill. Even though Andy Tookey will not be pleased, because this outcome does not provide the magic bullet solution he and others wish, I think that, realistically, the decision we have come to is a considered decision and the right decision, and perhaps, in time, he too will see that.

Dr PITA SHARPLES (Co-Leader—Māori Party) : In the Book of Common Prayer there is a phrase that is commonly used in English burial services as clods of clay are ceremonially cast on to the coffin. That saying is “as we commit this body to the ground, earth to earth, ashes to ashes, dust to dust”. It is a phrase that denotes the end of one’s physical existence, the release of that person back into the ground—complete, final; his or her life on Earth done. In very many ways, it bears similarity to the spiritual process that we as tangata whenua, the people of the land, recognise in returning the tūpāpaku, the body, back to the land to the embrace of the Earth Mother. The process of dying typified in sayings like “I whānau tātou ki te mate” is a process that starts at birth, with the burying of the newborn’s placenta back into its whānau land. That process is completed with the burial of that same person as he or she returns to the original spring of life, the great ancestress, Papatūānuku.

The concepts associated with burial—the connection between birth and death—the healing, grieving, and cultural practices of iwi Māori, are deeply steeped in the sense of sanctity, of tapu and kawa. They are not concepts that are easily talked about or understood in this House, but they are concepts that are essential in any discussion around organ donation, strategies to enhance health and well-being, renal disease, and the collection and use of human tissue. These concepts are weighty issues to be considered fully by the whānau, hapū, and iwi when considering the context of life and death. These issues are more than that of an individual signing a register to either confirm or object to the opportunity to be an organ donor. It is a collective process for Māori; one that is absorbed into the process of whānau decision-making. So as we in the Māori Party considered this bill at our caucus, we were always conscious that the views of individuals must always be balanced with the wider context of whānau, hapū, and iwi. The proposal, therefore, to prevent whānau members from being able to override the wishes of an individual is a proposal that clearly privileges the individual and relegates the collective to an inferior status.

Whilst Māori recognise the immense benefit of wider organ donation, and of course are open to consider any solution that may improve the quality of life of a loved one, there are more issues involved than are evident in a medical discussion around kidney, heart, lung, liver, and pancreas transplantation. Tangata whenua are acutely aware of the data. The rate of Māori dying from kidney-related disease is four times greater than that for non-Māori, and Māori receive a disproportionately lower number of kidney transplants than is required. But we cannot resile from the reality that organ donation and transplantation is an issue that is intensely sensitive to our people, as it crosses cultural boundaries and impacts on tikanga Māori.

The answer, as always, lies in the quality of the kōrero. The Ōtākou branch of the Māori Women’s Welfare League made the point in its submission to the select committee that there will be ongoing issues for Māori around organ donation, and that Māori will continue to debate the advantages and disadvantages, no doubt with or without this bill proceeding.

Eight years ago, in 1999, Te Puni Kōkiri produced a guide for the removal, retention, return, and disposal of Māori body parts, and organ donation, which in essence reiterated the absolute need for kōrero or talk to be had with the whānau in the process of obtaining informed consent. That guide, Hauora o te Tinana me ōna tikanga, had itself arisen from the controversy that erupted in 1991 regarding the removal of organs from Māori bodies, either to determine the cause of death or to use for research or transplantation purposes. Some of those cases dated back some 44 years to 1963, and included the removal of the heart of a baby who had died from cot death, organs from an 80-year-old woman, part of the brain from a person who had died from lung cancer, and the heart from a patient in a psychiatric institution. In many cases it had not been necessary to remove the organs to determine the cause of death. The practice broke tapu, breached cultural protocol, and caused unacceptable delays in returning the tūpāpaku to the whānau. Another result of the 1991 controversy was that the then Minister of Justice appointed the first Māori coroner, Gordon Mātenga.

I have taken the time to recall this history because I believe that the hurt amongst our communities, and the suspicion that body parts may be removed without consent being sought from the whānau, have a very recent past. It is a history powerfully told in Patricia Grace’s novel Baby No-Eyes, which is a novel that led to her being named as the 2008 Laureate of the Neustadt International Prize for Literature, which is the most prestigious international literary prize after the Nobel Prize. The novel merges the telling of the contemporary trauma of eyes being removed for the purpose of genetic experimentation and research with the cultural context of mauri, whakapapa, and ira tangata.

When the Code of Health and Disability Consumers’ Rights regulations came in, back in 1996, the rights of consumers included the rights to make an informed choice, to give informed consent, and to be provided with services that take into account the needs, values, and beliefs of Māori. If we as a Parliament are truly to recognise the needs, values, and beliefs of Māori, then we need to understand that this bill, and the Government’s Human Tissue Bill, fall well short of the mark in terms of recognising tikanga in the consent protocols of removing and transplanting organs for whānau Māori.

Whānau, hapū, and iwi Māori need time to discuss the issues involved. In order for Māori audiences to be well informed, information needs to be conveyed in a way that is clearly understood and that reflects Māori world views. Misinformation and contradictions will cause only unnecessary stress. The concern that Māori have consistently expressed that body organs are tapu and should be interred with the body must be listened to and must inform our deliberations. Māori information will be best received if it has been developed and owned by Māori in the first place. The needs of Māori audiences taking part in any debate will be different from those of non-Māori. Māori may be concerned about the impacts on mauri and the implications of states of tapu and noa of organs. There may be considerations about the performance of karakia.

As I said earlier, this debate is a highly sensitive and complex issue of discussion for whānau, hapū, and iwi. We need to feel confident that the health system is able to respond appropriately and sufficiently to issues around protection, informed consent, and Māori control of information and medical processes, and that the health system is fully versed in the management of risks. This bill does not sufficiently allay these concerns, and it is on that basis that the Māori Party will be voting against it at its second reading.

I compliment Dr Jackie Blue; she has done a marvellous job. We have taken this bill up and down the country, and it has given our people the opportunity to debate the issues and come out with things, and to think about their cultural values at this time. I congratulate Dr Blue on bringing the bill to our notice. Thank you.

JUDY TURNER (Deputy Leader—United Future) : I rise on behalf of United Future to speak on the Human Tissue (Organ Donation) Amendment Bill in the name of Dr Jackie Blue. United Future will be supporting the recommendation of the Health Committee. I want to say that we do so with quite a heavy heart, because this issue is hugely important. I want to congratulate Dr Jackie Blue. I think that she has done the right thing and that she should hold her head high at the end of tonight, because she has kept this discussion going. I would hate to see that what happens to this bill ends the discussion. The fact that, to date, we have been unable to find an appropriate solution and a way forward for this issue should not mean we stop looking.

I believe that there is a stone that we have yet to turn over that would provide us with the opportunity. I have given it a lot of thought, dating back to the time when we looked at the issue when I was on the Health Committee in the last Parliament. My concern for this issue has not diminished. I also want to mention the work of Andy Tookey, who has certainly kept the issue before me. I appreciate every email I get that reminds me that we have young children in New Zealand who are desperately in need of an organ donation and who are waiting for that opportunity. I cannot even imagine what it must be like for a parent to be in that situation.

The fact that tonight we cannot move forward in a substantial way, as was hoped by the sponsor of this bill, I believe does not let this House off the hook in any way. I think it is good that the Government Human Tissue Bill includes provisions for a register. I think it is good that we are keeping the door ajar on that possibility.

Let me tell members a couple of things that have occurred to me and that I think are food for future discussion on this matter. One is that we acknowledge that the current system, whereby people notify on their driver’s licence their willingness to be a donor, is an inappropriate mechanism. When people go to sign up for their driver’s licence they are not thinking about organ donation; they are thinking about getting their driver’s licence. So there is a very big mismatch there with people’s intentions. But it occurred to me the other day as I was lying down giving blood that when one is in blood donor mode one is in donor mode. It occurred to me that that would be an ideal opportunity for information to be provided to people who are already open to the idea of donation—particularly information that would send them home to have those all-important discussions with their family. The crux of the matter is that people need to have clear and deliberate discussions with their families about their wishes and intentions should they be on life support, and the family has to make some very important decisions regarding organ donation. I think we miss a hugely good opportunity there to have that discussion.

The second solution or possibility I would like to put to this House today is that in the last year or so in Parliament we have begun the process—and I think the Minister of Health has been instrumental in this—of setting up some cross-party support groups around a number of health issues. One is around diabetes. I recently went to the inaugural dinner of a group to set up a support group on the issue of Alzheimer’s disease. Cross-party discussions are a very good initiative by which we keep the issues alive. We understand that they are not controversial issues; we all want a solution. Therefore, cross-party discussions are hugely helpful. It occurred to me that maybe we need one around organ donation. Maybe we need to form a cross-party group that gets together on a regular basis to hold meaningful discussions and look at what other jurisdictions are doing. We could discuss, for instance, the issue of how we progress the discussion in Māori and Pacific communities, where the needs are often the greatest. I would hate to see that tonight ends this discussion. I think we have a lot more to consider.

I think the Green member Sue Kedgley also raised an interesting point when she said that one of the reasons we need to respond to the rising rates of obesity is that a consequence of leaving it unaddressed is that the rates of people needing organ donations are going to skyrocket. Surely the need to discuss and look for more solutions to this matter must be part of that discussion.

We in United Future would like to put up our hands and say that if the will of the House—and, in particular, of the health spokespeople across Parliament—was to continue this discussion in some way, maybe outside the select committee and the debating chamber, we would be keen participants in that. We think it is a very noble cause. Our current low rate of organ donation is not something we can be proud of as a nation. We need to be doing better. Obviously, the solution that is put forward in this bill is unworkable; therefore, we are unable to support it. I finish by congratulating the select committee and Dr Jackie Blue, and signaling that we will be supporting the recommendation of the committee.

Dr JONATHAN COLEMAN (National—Northcote) : I think it is a real shame that the House is missing this opportunity to institute a voluntary organ donor register, because there is a real need in society for donated organs. The situation is getting worse and worse all the time; there is no question about that. We heard a lot of evidence from people at the Health Committee that with the rising rates of diabetes and liver disease, we will not be able to meet the demand for organs this country will have over the coming years. We heard that there were only 26 organ donors in this country last year, and when we think about the explosion of disease that results in organ failure, it is quite clear that there is a real mismatch between the supply and the demand of organs.

I think it is very disappointing that Labour members have not taken the opportunity to support this Human Tissue (Organ Donation) Amendment Bill, because in their manifesto last election, Labour stated that it would support an organ donor register, and if that is not a flip-flop, well, I do not really know what is. This would have been a great opportunity to do something positive for the country. This really was an opportunity for the parties across this Parliament to get together over this bill and actually do something positive.

The Ministry of Health said that there was no evidence. Well, we heard that several jurisdictions around the world are already instituting this type of donor register. If it is good enough for the Canadians, for places in America, and for states in Australia, then one would have to wonder why we are not doing this in New Zealand.

There was a time when, with the high road toll in this country, there was, unfortunately, a ready supply of donors. It is good that that road toll problem has been greatly improved over the years, but it has left us with the issue that we have only a very few people come forward to donate their organs at death. I just think that if we had a greater degree of education on this issue and promoted that through the institution of the register that Dr Jackie Blue was proposing, then we would start to go some way towards meeting that demand, because the situation at the moment means we will have New Zealanders on waiting lists dying this year because there are no organs available. We will have people dying of kidney failure, with end-stage diabetes and end-stage renal failure, and people dying of liver failure—people who could have been living and making a real contribution to society if an organ register had been instituted and if they had been able to get the vital organ that would have given them the gift of life.

We heard from a lot of families during the select committee process who said that it had made a massive difference to them personally to know that when their family member had passed on, that person had the opportunity to give life to someone in need, and some very moving tales were told. But we also heard evidence from intensive care specialists who were unwilling to take on the burden of responsibility involved in asking bereaved families whether they would be prepared for their loved one to give up an organ after his or her death. The problem we have at the moment is that if we register on our driver’s licence as an organ donor, there is absolutely no guarantee that someone will not overrule that wish once we have passed on. The National Party position is that if one makes a decision about what will happen to one’s body after one dies, then that should be absolutely binding and no one else should be able to overrule that decision. We feel that the organ register that Dr Jackie Blue was proposing would have greatly increased the supply of available donors and that it would have gone a huge way towards making sure that more New Zealanders would be able to live past end-stage organ failure in the years ahead.

I will pay tribute to Andy Tookey, who has really been the impetus behind this bill coming before the Parliament. Andy Tookey got in touch with Jackie Blue earlier this year and he explained the tragic situation that his family have been in. They have a lovely little girl who has end-stage liver failure and is waiting for a donor organ. That very brave little girl came and spoke before the Health Committee, and that really personalised for us the situation that many New Zealand families are finding themselves in. I would say to Andy Tookey that he should not give up on his goal of getting this register established, because I think that it is only a matter of time before it happens, and he certainly knows that he has the National Party’s support the next time this matter comes before the Parliament.

It is amazing when we think that there were two select committee reports that recommended the institution of this register, and that donor registers have been taken up in so many jurisdictions overseas. It is very difficult to face the fact that this Parliament is now to vote this bill down, but I think that this issue will raise its head in the future. It will not go away. There were only 26 organ donors this year, and I am sure that there may well be fewer next year, although hopefully some of the public debate that this has brought up will actually make people want to come forward and give their organs after death, despite the fact that we do not have a register.

One of the problems with organ donation is that when we pass on from this life it is not just anyone whose organs are fit to be donated. So when a person is deceased, it does not automatically follow that that person can give his or her organs for medical purposes, especially for live medical purposes, or transplantation to a live recipient. I alluded earlier to the change in the road toll, and we actually need to have the organs of someone who has been recently deceased, usually in an accident. Of course, in those circumstances people are not generally expecting death. It comes tragically and suddenly, it is a massive shock for the family, it is obviously totally unexpected, and very often the family has not discussed the issue of organ donation, especially if it is a younger person who has passed away in an accident. That person might have made his or her wishes known by writing something on his or her driver’s licence, but the real issue is that that wish can easily be overridden. All it takes is for a family member to say to a doctor in the intensive care unit: “No, I do not actually want my spouse”—or that person’s brother, son, or daughter—“to give up an organ. We have never discussed it and, frankly, I do not feel comfortable with that.” But if we have a register, and we put informed consent and the right of the individual to determine what happens to his or her body at the heart of this debate, then I think we will find a lot more organs will become available.

There is also the issue of cultural context and different cultural practices, which came up in the course of the debate. I think that an issue that people need to consider is that at some stage we, or members of our family or of our group, may need to be the recipient of an organ, and if we are prepared to be the recipient, then we need to give more thought to the issue of whether we are prepared to be a donor. I think that issue will be a very, very important issue for some of our communities to discuss, because I know that keeping the whole body intact after death is a cultural issue for Māori and Pacific Island people, especially, but we also have to face the fact that the rate of diabetes and liver disease is on the rise. Many people from those communities will need organs and we have to look at where those organs will come from. Unless New Zealanders, as a people, come to the party and say that they are prepared to become organ donors and to support their families and whānau in their desire to give up their organs after death so that someone else can have a chance at life, then I think we will be faced with a situation where increasing numbers of New Zealanders will die earlier and needlessly because there are not the kidneys available to keep them alive and there are not the livers available to give them another chance at life. I think that is really what this issue is about.

An opportunity has been passed up, but I do not think that this issue will go away. I think that this legislation will come back before the Parliament, and that there will be a petition to the select committee at some stage. I hope that in the light of this debate parties may reconsider their position in the future, so that we end up having a donor register for the good of all New Zealanders. Thank you, Mr Deputy Speaker.

SUE MORONEY (Labour) : Thank you, Mr Deputy Speaker, for the opportunity to speak to the second reading of the Human Tissue (Organ Donation) Amendment Bill, which is a member’s bill put forward by Jackie Blue. I do congratulate Dr Blue on the work that she has done, because drafting such a bill, I know, is no mean feat. I hope the member feels proud of her efforts in bringing the bill through to its second reading and in knowing that it has encouraged further discussion of this very important issue.

I want to refer to a comment made by the member who has just resumed his seat, Jonathan Coleman, about an assurance that the National Party would back this bill. The bill was considered by the Health Committee and that member was on the committee. It is interesting to note that the bill was unanimously opposed by the Health Committee, which means the National Party team on the committee did not vote in favour of this bill, either. So the assurance by the National Party needs to be seen in that light.

However, I want to make sure that people who are listening to this debate understand what has occurred. This bill is one of two bills that the select committee heard concurrently on the issue of organ donation. Labour supported Jackie Blue’s member’s bill only to the select committee, because we felt it was important to debate the specific issues about an organ donation register and the idea that an individual’s wishes would override family members’ wishes in regard to organ donation, for example. We wanted to debate fully those issues, and that did occur in a very full debate in the select committee, through the very many heartfelt submissions we considered.

This bill sought to establish a register to make legally binding a donor’s decision to donate, whereas Labour wants the family of a deceased to have some power of veto in exceptional circumstances. The Health Committee recommended that the bill not be passed, as a register is considered unnecessary at this time. I stress “at this time” because the Government bill does enable a register to be established and sets up the framework for such a register to be established, should there be evidence that shows that the very expensive exercise of setting up a register would increase organ donation. The Health Committee was told that the international experience is that even when considerable time, effort, and finances were spent on setting up such a register, it did not necessarily mean that the rate of organ donations climbed. In fact, in some international examples the rate of donations dropped. I am not going to stand here and argue that the drop was because a register was put in place. In fact, the international trend is that organ donation rates are dropping across the board. That information and evidence told us that the formation of a register was not, in itself, an answer to the problem.

There is no doubt that all of the parties represented on the Health Committee, and I feel sure all of the parties represented in this House, agree on one thing—that is, when it comes to the issue of organ donation all parties would want to find a solution that increases the number of people prepared to have their organs donated, in the event of their untimely death. It is a difficult issue to discuss, because we are in the business of talking about the unthinkable. It is the unthinkable that we are now encouraging families to consider and sit down and have a good discussion about. The unthinkable is an untimely death, an early death, a premature death of a family member or a close loved one.

The Health Committee recommended a clause in the Government’s Human Tissue Bill—which was passed by the committee—to permit the establishment of an opt-on organ and tissue donor register, should it prove desirable in the future. I want to spend just a small amount of time talking about some of the submissions that the committee considered, and, in particular, I wish to clarify some of the statements made by intensive care specialists, who have been spoken about quite a lot during this debate. Although we have aligned the views of the intensivists to that particular group of people who work in the intensive care units, who are the people in the front line dealing with families in these very traumatic situations, it is important to give the full picture of what they were saying to us. Although it was coming from that particular group of health professionals, it was in no way a discussion about health professional capture, as some people listening to this debate may be reflecting on. In fact, they said to the committee that they did not want to be in the position where they were dealing with a family who was traumatised because of the untimely death of a loved one, and where the health professional was saying to the family: “Irrespective of how you feel about this, we are going to override your views and your concerns, and we will be taking out the organs of your loved person, despite your views on this issue.” They did not want to deal with that in that very critical period of time when there is much trauma going on for the family, in any case.

Although this was the view of a group of health professionals, I believe that what they were telling us was about the impact it would have on families already traumatised and then needing to deal with an issue that may be culturally alien to them, that may be alien to them for a range of spiritual reasons, and then the family feeling that they were completely disempowered, yet again, by having a medical professional telling them the professionals would do this against the will of the family. We had to take that view into consideration, because it was a very real issue faced day in and day out in the intensive care units in our hospitals up and down the land. It is a very serious issue.

The Government’s Human Tissue Bill aims for a balance between respect of the wishes of the deceased person and the cultural and spiritual needs of the family. Unfortunately, the select committee found that Jackie Blue’s member’s bill did not acknowledge the needs of the deceased person’s family, and that was an issue we could not escape. The Government’s Human Tissue Bill is broader in scope than the member’s bill, and that is to be expected. There are, of course, many more resources available to the Government to consult widely and to hear all of the views and put those into a Government bill, and members do not have that ability to do that. So the Government bill will regulate the collection and use of tissue from dead human bodies, as well as dealing with this issue of organ donation. It will also regulate trading in tissue, export and import of tissue, and the use of tissue for non-therapeutic purposes.

The Government bill will ensure that collection and use of human tissue occurs with dignity and with respect for the deceased individual and his or her family, and others who were in a close relationship with that individual. A key aspect of the Government bill is the establishment of a new consent framework for the donation of human tissue. I believe that dealing with these two bills concurrently in the select committee has done one very important job. As well as bringing a new legislative framework around the issue of organ donation and the use of human tissue, as it has done with the Government bill, I believe that it has provided a very good educational platform for families to discuss this very issue. As a member of the Health Committee I certainly urge people who have not done so already to have this discussion with their families—to discuss the unthinkable—“What would I want done with my organs in the event of my untimely death?”.

These are tricky issues. They are very emotive issues but they are very real issues. In closing, I again thank Jackie Blue for all of her hard work on the bill. I think it was a very good process that we went through in the select committee, so I also thank the chair of the committee, Sue Kedgley, who enabled us to discuss these two bills in the fullness of what they deserved to have discussed about them. Thank you.

GORDON COPELAND (Independent) : I move, That the New Zealand Bill of Rights (Private Property Rights) Amendment Bill be now read a second time. My bill, the New Zealand Bill of Rights (Private Property Rights) Amendment Bill, received its first reading, with the support of all parties of the House, except the Greens, way back on 11 May 2005—now almost 2½ years ago. It has therefore had a long gestation period, including detailed examination by the Justice and Electoral Committee. I take this opportunity to thank the officials from the Ministry of Justice for the several reports they provided to the select committee during those deliberations.

Private property rights have their origin in the Judaean commandment “You shall not steal.”, and have come down to us in 2007 from that source, via the Magna Carta and the common law tradition. In particular, I want to draw reference tonight to the Universal Declaration of Human Rights, which was adopted and proclaimed by the United Nations General Assembly on 19 December 1948. New Zealand was an active participant in the development of the declaration, and it was enthusiastically endorsed by the then Labour Prime Minister Peter Fraser. Article 17 of the declaration deals with property rights in two short sentences: “Everyone has the right to own property alone as well as in association with others.”, and “No one shall be arbitrarily deprived of his property.”

My bill, with the amended words now proposed, is expressed in virtually identical terms in new sections 11A and 11B inserted by clause 4: “Everyone has the right to own property, whether alone or in association with others.”, and “No person is to be deprived of that person’s property without just compensation.” I would like the House to note that, on the advice received from officials, I have dropped the words “use or enjoyment” from new section 11B.

Essentially, all my bill therefore does is specifically include in the New Zealand Bill of Rights Act 1990 the universal property rights that should be available to all members of the human race—they are, after all, human rights. Similarly, my bill simply aligns the position in New Zealand with the position adopted by a majority of the world’s nations. Let me list just some of them. The documents of all the existing regional human rights instruments—which include the European Convention for the Protection of Human Rights and Fundamental Freedoms, African Charter on Human and Peoples’ Rights, and American Convention on Human Rights—specifically incorporate property rights. So too do the Fifth Amendment of the US Constitution, the Australian Constitution, and, in the officials’ words, “the constitutions of most Commonwealth countries”, including India, South Africa, Malaysia, and many others. Therefore, it needs to be emphasised here tonight that the continued omission of private property rights from the New Zealand Bill of Rights Act puts us out of step with most of the developed world. Even China today has private property rights in its constitution.

In these circumstances, it is a vast understatement to say that I am staggered to find that both Labour and National have decided not to support this bill. Significant and well-researched submissions were made to the select committee in support of my bill by many organisations and individuals, including the Property Council of New Zealand, Federated Farmers, the Treaty Tribes Coalition, Business New Zealand, the New Zealand Business Roundtable, and the Human Rights Commission.

The only significant naysayer in relation to the bill was the New Zealand Law Society. However, its submission tended to lack credibility when, for example, it questioned whether a person’s entitlement to a State pension could be included within the word “property”—a matter long since determined by the courts in the negative. For that reason, the submission has pretty much been condemned by other lawyers who have taken the trouble to contact me.

The Justice and Electoral Committee also sought input from the Law Commission. A response was received from the Rt Hon Sir Geoffrey Palmer, who is President of the Law Commission. His submission has special significance, as he is regarded as the father of the New Zealand Bill of Rights Act 1990 and is, of course, a former Labour Prime Minister. Sir Geoffrey’s response was to forward to the committee a copy of the keynote speech he delivered to the Ministry of Justice symposium in February 2006—that is, 9 months after the first reading of this bill. The speech contained a clear and unambiguous sentence: “I took a deliberate action to exclude this”—that is, property rights—“in the 1980s, but, on reflection, I believe it should be included.”

It is relevant to note that the Attorney-General, Dr Michael Cullen, recently told the House that Sir Geoffrey Palmer has since advised him that before private property rights are added to the New Zealand Bill of Rights Act a great deal of additional work needs to occur. I note that comment, but I would like to make the point that Sir Geoffrey did not communicate those views to either the select committee or me as the member in charge of the bill.

I want to turn now to the comments of the Justice and Electoral Committee in relation to this bill. I must say that from the beginning I always harboured doubts about whether Labour would support the bill. Nevertheless, I remain disappointed with its decision not to support the bill, and with the illogicalities that accompany that decision. For example, Labour members state that my bill gives little guidance on legal interpretation. But that is the case with every single provision in the New Zealand Bill of Rights Act. Very deep texts have been written—

Hon Clayton Cosgrove: How deep?

GORDON COPELAND: —they are at least 4 inches deep—on the interpretation of the rights that were already in the New Zealand Bill of Rights Act and on every single one of those rights that had to go to the court for interpretation, and it will be no different with this bill. So the bill’s lack of guidance on legal interpretation is not really a very valid excuse for not supporting it.

Labour has also overlooked the common law tradition involving a vast number of cases and spanning several centuries, all of which are available to assist the court in determining the application of the rights contained in my bill. For example, the question of compensation has long since been settled in the common law tradition as being “full and adequate”. I am surprised that both Labour and National have acted as if that common law tradition simply does not exist.

Particularly troubling is the committee’s concern that the enactment of my bill might have compensation implications under the Resource Management Act. Surely, that simply illustrates that without the protection of property rights in the New Zealand Bill of Rights Act, Parliament can continue, even unknowingly, to pass laws undermining those human rights—rights that belong to the citizens of New Zealand based simply on their humanity. The whole point of including these rights in the New Zealand Bill of Rights Act is, in fact, to ensure that Parliament is constrained and that it will receive a clear statement from the Attorney-General should a future bill seek to undermine those human rights. Without the protection I am seeking through the New Zealand Bill of Rights Act, we may continue to see the property rights of the citizens of New Zealand being undermined by Parliament. I do not believe we should take that risk.

I want also to turn to the issue of the Treaty of Waitangi. As is well known, the Treaty, in both Article the Second and Third, establishes the right of Māori to their lands, and protects that right. For about 150 years after the Treaty was signed, the Government in New Zealand constantly and continuously breached the property rights of Māori. Nobody in this House would argue with that statement. Given that shameful legacy, I had hoped that Parliament, given this opportunity, would enshrine Māori property rights in the New Zealand Bill of Rights Act, once and for all. Sadly, tonight it will fail to do so.

I want to say that my new political party, Future New Zealand, has a commitment to adding property rights to the New Zealand Bill of Rights Act. I will be watching to see whether a similar commitment will be contained in the manifesto of the National Party in 2008, given their professed strong support for property rights. After all, the National Party, in its minority report, states: “We have a strong commitment to private property rights.” Given that statement, surely the National Party should follow through, but it is not supporting this bill. Again, National says there is more work to be done. There is always more work to be done. National members go to the officials time after time and they produce report after report. They ask the select committee whether there is any more information. Then there is silence from the National Party members and, after all that has happened, they say there is more work to be done.

If National is to have any remaining credibility on the issue of property rights—and I know National has had submissions on this issue from those people I have talked about who made submissions, since it decided to oppose the bill—then I challenge National tonight to make a clear commitment in its manifesto for the 2008 general election that it will add these important rights to the New Zealand Bill of Rights Act 1990. I will not hold my breath, but I hope I am proved wrong. Thank you.

LYNNE PILLAY (Labour—Waitakere) : Although, sadly, it is not in support of this bill, I am happy to stand to speak and perhaps talk about the process of dealing with the bill in the Justice and Electoral Committee in probably happier times than we are in at the moment. Although there were some differences, I think the select committee worked quite constructively on the bill. I would say to Gordon Copeland that the committee spent some time giving the bill really good consideration, and exploring a number of avenues that we could move forward on, but, sadly, at the end of the day, that was not possible. As Gordon Copeland has said, the purpose of the bill was to provide for the protection of private property rights in New Zealand within the New Zealand Bill of Rights Act. Labour certainly acknowledges that there is considerable public support for the further protection of property rights, and certainly, as Mr Copeland has said, in other jurisdictions there is such legislation with that purpose in place.

The first of the two new sections inserted by clause 4, new section 11A, was to provide that everyone had the right to own property, whether alone or in association with others. New section 11B was to provide that no person would be deprived of the use or enjoyment of his or her property without just compensation. I acknowledge that Mr Copeland amended his position on that issue in trying to find a way through for the bill, but in the end the majority of the voting members of the select committee voted unanimously against the bill proceeding. That is because we found problems with the bill in its current form. I have to acknowledge here the advisers from the Ministry of Justice who gave a very comprehensive report on the bill, and the select committee staff, who worked very diligently. As I said before, I want to acknowledge all of the committee members who listened intently to the submissions and gave careful consideration to the bill.

From the perspective of the Labour members there was a definite concern that more work needed to be done on such words as “property” and “deprived” and the right to “just compensation”. This, indeed, was a concern of mine—that outcomes could be created and costs incurred that were perhaps not necessarily intended. As well, the National members on the select committee did not support the bill. Sadly, in their minority report, which I know they will speak to, they acknowledged, as did members from other parties, that there was support for property rights but they could not support the amendment. Given the support that Mr Copeland has given the National Party, in terms of exercising his vote in the House, I can understand his disappointment that the National members did not, until very late in the piece, advise that they would not be supporting the bill. I really do empathise with Mr Copeland on their decision. I think that the purpose of the bill, as I acknowledged before, is a very worthy purpose and I commend Mr Copeland for his intent and goodwill.

Some of the concerns that I had, which I know a number of members shared, were perhaps—if I can use the term—unintended consequences of the bill in terms of the effect it could have on local bodies. I think there was very much a degree of uncertainty around the consequences should the bill come into force in its current form around, certainly, its relationship to the Resource Management Act and its effect on that. As I said before, the bill’s effect on local authorities and the potential costs would remain pretty unknown until—and I think I heard Mr Copeland say this—such issues were tested in court. That, certainly for many of us, was something we did not see as a tremendous right—the ability or the possibility of substantial litigation around this bill because of uncertainty.

Despite, as I said before, Mr Copeland’s stating that he was willing to remove the words “the use or enjoyment” from the new section 11B in clause 4, we still felt that that did not go far enough to resolve the concerns of the committee. Given the possible consequences of the bill’s enactment in its current form, it was just not possible for the bill to proceed. I note that perhaps sometime in the future there may be more work done and it may be possible to address the concerns that Mr Copeland attempted to address in the bill that he put before the House, which was supported to select committee so we could hear from submitters. I commend the submitters. We had submitters who obviously supported the bill in terms of property rights, and we also had a number of submitters who, like members of the committee, shared concerns about some of the impact and unintended consequences should the bill proceed.

I cannot add much more to that except to say that I congratulate Mr Copeland. I know it was with very good intentions that he brought this bill to this House. I hope he recognises that parties supported the bill to go to the select committee to enable a greater scrutiny, to enable submitters to have a say on the bill, and to look at any aspects that were raised during the submission process. I believe all members can put their hand on their heart and say that process happened—due consideration was given. But unfortunately I am standing in this House to speak in support of this bill not proceeding. Thank you.

CHRISTOPHER FINLAYSON (National) : There is no real debate, I would have thought, from any party in this Parliament about whether there is significant support for further legal protection of private property rights in this country; nor do I think there is any real debate about the proposition that in many jurisdictions private property rights have been enshrined in legislation, or, moreover, that the right to compensation for loss of property is widely supported. So far so good. But, unfortunately, the National Party cannot support the second reading of the New Zealand Bill of Rights (Private Property Rights) Amendment Bill, for a number of reasons that I will elaborate on.

I join the chair of the Justice and Electoral Committee in praising the member in charge of this bill, Mr Copeland, because I think he did a very good job and showed great patience over an extended period as the select committee dealt with the legislation. It reflects no credit on this place that a bill introduced in 2005 is only now, in late 2007, being debated in its second reading stage.

The New Zealand Bill of Rights Act 1990 is deceptively simple legislation. Its author, it is fair to say, was Sir Geoffrey Palmer, who at the relevant period was Attorney-General and Minister of Justice. It contains a number of simple parts. There are the preliminary provisions set out in Part 1, and there is a statement of fundamental civil and political rights in Part 2—for example, provisions that recognise the importance of life and security of the person, rules about non-discrimination and minority rights, and rules dealing with search, arrest, and detention. What Mr Copeland’s bill seeks to do is to insert in the subpart—as we would call it now—dealing with life and security of the person a couple of sections that recognise fundamental property rights.

The Act is important legislation, and in the 17 years since it has been enacted it has spread its influence into all areas of the law. I for one, prior to coming here, practised as a civil and commercial barrister, and I never paid very much attention to the New Zealand Bill of Rights Act, because it did not interfere too much in the areas in which I practised. Since coming here and having a wider brief to look at public law and criminal law subjects, I have begun to realise the importance of the New Zealand Bill of Rights Act and the responsibilities of those who deal with it.

In that regard I refer to section 7, where the Attorney-General has a very real independent, quasi-judicial responsibility to report to Parliament when any bill appears to be inconsistent with the New Zealand Bill of Rights Act. As we know, sometimes the Clerk advises us that the Attorney-General has tabled a report dealing with an aspect of legislation that may or may not offend the New Zealand Bill of Rights Act.

Chris Auchinvole: Did he do it?

CHRISTOPHER FINLAYSON: In relation to one major piece of legislation, the Electoral Finance Bill, the Attorney-General failed to do it, because he put party above principle. As I have often said, the real test of the worth of politicians is not whether they stand up to their enemies but whether they stand up to their friends, and it is very apparent in the case of this Attorney-General that he puts party above principle. He failed demonstrably to provide a report under section 7 of the New Zealand Bill of Rights Act, and stands condemned for his failure to do so. Of course, if the Attorney-General is not up to the job, perhaps his self-appointed parliamentary private secretary could do it, although I cannot say I would have a lot of confidence in the quality of his opinions. As all of us in Parliament have witnessed in the last week or so, Mr Chauvel’s real skill is self-promotion.

It is very interesting to observe that in England the Attorney General’s current responsibilities as legal adviser to the Government and independent guardian of the public interest have been seen to be fraught with conflicts of interest. Indeed, those tensions were highlighted during the period that Lord Goldsmith was Attorney General, when controversy erupted over his advice on the legality of the Iraq war, his insistence on having a say in whether to prosecute Downing Street aides over the cash-for-honours affair, and his part in the decision to drop a bribery investigation against BAE Systems. Like our Attorney-General, he showed himself to be a man of party rather than a man of principle. That is why the role of the Attorney General in England—and Wales—is being looked at, and why the role of the Attorney-General here, after this Attorney-General’s shabby performance in respect of the Electoral Finance Bill, will have to be looked at.

I have explained exactly where in the Act Mr Copeland’s amendments would have inserted sections. In fairness to Mr Copeland, I now want to say a couple of things about why National will not be supporting the second reading of the bill. Although we strongly support property rights we cannot support the bill, because the amendments would have far-reaching implications and could well be the cause of a great deal of litigation against the Crown. Some people would say that is just par for the course with legislation like this, but it is fair to say that the New Zealand Bill of Rights Act, in its current form, has given rise to a great deal of unintended—speaking in 1990 terms—litigation against the Crown and Crown agencies, and before we embark on inserting amendments such as those sought by Mr Copeland we ought to be very clear about what we are seeking to do.

The ambit and the scope of what is proposed are very unclear. Ms Pillay spoke in her speech of seemingly innocent terms such as “property” and “deprived”, and that very difficult phrase “use or enjoyment”, which is proposed in the bill. When we start to think about those phrases, and when we look at the litigation that has been generated in other jurisdictions, we see that the ambit and the scope of those phrases are very unclear indeed.

The point that National members have made in the minority report is that this bill is a member’s bill, and although the Ministry of Justice officials provided us with some assistance—

Chris Auchinvole: Responses.

CHRISTOPHER FINLAYSON: —or some responses, as Mr Auchinvole has said—the select committee has not had the benefit of Crown advice to the same extent as it would have if this bill were a Government bill. So the first point is that before Parliament amends the Act, much more research is required on the implications of the amendment.

The second issue is that we consider that compensation issues should not simply be left to the courts; indeed, there should be a proper statutory basis for compensation. In recent times, I have been looking at the Public Works Act 1981 and the Resource Management Act 1991. I do not disagree with Mr Copeland, at all, that the compensation provisions of the Resource Management Act are unsatisfactory. But I do think there is certainly a respectable argument that an alternative approach to dealing with this kind of issue in the New Zealand Bill of Rights Act is to review and enhance existing compensation provisions or, better still, to have a comprehensive statute that deals with compensation issues.

I congratulate Mr Copeland on his endeavours to deal with this legislation. I think he showed the patience of Job in putting up with a delay of up to 2 years while the select committee meandered through its work plan. His legislation never seemed to have the priority that I thought it deserved. I congratulate him on raising a very important issue, which is of fundamental importance in a society such as ours. But, on this occasion, I do not believe that this legislation is an appropriate amendment of the Act. If we are to introduce provisions that protect property, the use and enjoyment of property, and compensation for loss of property, a lot more work is required.

Hon ANNETTE KING (Minister of Justice) : I, too, congratulate Mr Copeland on getting his bill, the New Zealand Bill of Rights (Private Property Rights) Amendment Bill to this stage. For an MP, to get a member’s bill out of the ballot, and to have it debated and considered, is an achievement in itself. We have heard tonight how patient Mr Copeland has been, and how cooperative he has been in terms of attempting to get this bill through this House.

We have heard that the purpose of this bill is the protection of private property rights in New Zealand, within the New Zealand Bill of Rights Act. Labour acknowledges that there is significant public support for further legal protection of property rights, and that other foreign jurisdictions enshrine property rights in legislation. Having said that, I say that Labour does not support this bill, and we do not support it for the following reasons. The bill seeks to add the right of property, as I said, to the New Zealand Bill of Rights Act, as has been recognised in various international human rights treaties and national constitutions. However, the language used in this bill would result in the right to property being given a broader meaning in New Zealand than it has been given or is given, under these instruments.

Four areas of potential concern arise from the terminology used in the bill. One has been identified in the terms of property itself: the words “deprived”, “use or enjoyment”, and “just compensation”. Because of the vagueness of the terminology used in the bill, it appears to encompass a wide array of Government activities, and therefore its potential impact is far-reaching—more far-reaching than we can know, at this stage. We have already heard from Mr Finlayson that further work ought to be done in that area. The uncertainty around the effect of the bill’s terminology, and what would constitute a justified limit on the right of property combined with the requirement to pay compensation, are believed to be likely to cause administrative difficulties and to increase transaction costs for both Government and property owners. They could also lead to complex and costly litigation against the Crown and local authorities.

It is also questionable as to whether the bill raises a problem that requires a legislative response, particularly one that encompasses a wide array of Government policies and practices that impact on property use. My understanding is that the Justice and Electoral Committee recommended that the bill not be passed, but in its report the committee acknowledges there is significant public backing for further legal protection of property rights in New Zealand. It noted that the notion of a right to compensation for the loss of property has wide support. Nevertheless, the committee considered that the bill is not an appropriate way by which to protect private property rights in New Zealand or to establish an equitable compensation regime for the loss of property. The committee agreed with the concerns about the bill’s terminology, and considered that further work needed to be done.

In Mr Copeland’s contribution this evening he mentioned Sir Geoffrey Palmer, the chair of the Law Commission. Given Sir Geoffrey’s support for the inclusion of the right of property within the New Zealand Bill of Rights Act, justice officials consulted with Sir Geoffrey Palmer on the desirability of including property rights within that Act, and the possible changes to reduce the uncertainty around the effects that the bill’s terminology may have on Government activities.

Although Sir Geoffrey reiterated his view that property rights should be better protected in New Zealand, he advised that the bill was not the best means to do so. In particular, Sir Geoffrey was concerned about the terminology used in the bill. He considered that without undertaking a comprehensive policy analysis of the issue it was impossible to determine the exact impact the bill would have on Government activities, and it was dangerous not to do such an analysis. So I think if Mr Copeland is looking to Sir Geoffrey to support his bill, it is quite obvious, from Sir Geoffrey’s discussion with justice officials, that that is not the case. He does not believe that this is the bill that property rights ought to be included in, and that is probably a pretty comprehensive summary of Sir Geoffrey’s opinion.

As I said, we heard from Mr Finlayson this evening; he has given the National Party’s view. National has been urged by Mr Copeland tonight to vote where its principles are and to support property rights. Although one could argue that, I would have to say to Mr Copeland, without wanting to put a sour note into the debate, that supporting one’s principles was something that I would suggest he should have done, as well. I am sure that Peter Dunne has not forgotten to this day that it was only hours before Mr Copeland set up his own political party that he was promising he would not do so, though he came into this Parliament supporting the principles of a particular party—

Gordon Copeland: I raise a point of order, Mr Speaker. I take personal offence at those remarks. Peter Dunne and I were present in the room when that conversation occurred—no one else was there. I did not give such assurances, and I think it is wrong, therefore, for the member to repeat that accusation.

Mr DEPUTY SPEAKER: No, it is a debating matter.

Hon ANNETTE KING: I certainly agree with your ruling, Mr Deputy Speaker, because I have heard the comments from the leader of United Future, and he would dispute the point of order just taken by Mr Copeland. I would have to say to Mr Copeland that I have had my own experience in terms of keeping one’s word. As I said, I do not wish to put a sour note into the debate, but when one berates parties about sticking to their principles—and I am in support of the National Party on this occasion—then one is expected to stick to one’s principles, as well.

In conclusion, Labour will not be supporting this bill. We acknowledge the work that has been done in the preparation of this bill. We acknowledge that Mr Copeland has laboured hard and that he has gone through the process and endeavoured to get agreement on it, but at the end of the day it has to stack up and it has to be workable. From the evidence that was received at the Justice and Electoral Committee and from the deliberation of the select committee itself, I can say that the bill is not believed to be workable, and we ought not pass legislation that would lead to problems further down the track that we would have to fix—problems that could be costly to the Government and local government but also to private property owners.

Labour will not be supporting this bill. That does not mean that we do not acknowledge that there is significant public support for further legal protection of property rights. That issue will no doubt be addressed in another form, and perhaps in a more appropriate form than this bill.

PETER BROWN (Deputy Leader—NZ First) : I do not intend to speak for any great length on this New Zealand Bill of Rights (Private Property Rights) Amendment Bill—

Hon Clayton Cosgrove: Good!

PETER BROWN: —I am glad I have made someone happy; I like making people happy—because New Zealand First was not represented on the Justice and Electoral Committee. There is a concept here—a principle, if you like—that we think should have been looked at in some detail.

If people own property and that property is taken from them, then they are entitled to compensation. It is as basic as that. If the State or somebody else takes something from somebody, then that person is entitled to compensation. We think that this bill, with the Government’s resources—and I accept what the Minister of Justice, Annette King, has just said—needed some tidying up or amendment to get it right.

Hon Annette King: They tried at the select committee, but they couldn’t.

PETER BROWN: I say to the Minister that I accept that also, but I think a little bit more effort could have gone into it because it is a very important concept and a very important principle.

I sympathise with Gordon Copeland to the extent that he has tried very, very hard to have this bill examined fully. He has waited patiently for some considerable length of time to get it through the select committee.

I think he has been let down by the National Party. I listened to Chris Finlayson. When that member talks, he puts legal language into everyday language and he makes quite a lot of sense. But I think his contribution tonight was a long-winded way of saying that National could not really care a stuff about Mr Copeland. It has his proxy vote, and it is not prepared—

Chris Auchinvole: That is not fair, at all.

PETER BROWN: Those were not the actions of a party that believes, as it states in the select committee report, that it strongly supports property rights. That is what that party over there says, and what does it do with a bill that could well have been amended? National, with its resources, could have been of assistance to Gordon Copeland and it could have made this bill much more acceptable.

I just want to say that New Zealand First believes that Gordon Copeland has been let down. I do not want to go into his past or what he has done. I am simply saying that Parliament has let him down. We could have done more for him. We will support this bill, but we realise now that with National and Labour opposing it, it is a dead duck, so to speak.

Gordon Copeland has touched on a principle that I think should be close to everybody’s heart. It certainly should be close to the hearts of people who believe in free enterprise and believe in private property rights. I simply say that we, collectively—this Parliament—could have done better with this bill, and I think we should go home tonight thinking that, but New Zealand First will support it.

JEANETTE FITZSIMONS (Co-Leader—Green) : The Greens did not support the New Zealand Bill of Rights (Private Property Rights) Amendment Bill when it was first introduced and we do not support it now. It has been quite obvious from the beginning that we have perfectly good laws against theft now. We have perfectly good laws for compensation when the law takes one’s land for some public purpose. Gordon Copeland says this legislation is based on the Judeo-Christian principle of “thou shalt not steal”. Well, stealing is quite adequately provided for in the criminal law at the moment, and I do not see why that needs to become a New Zealand Bill of Rights Act issue.

How can we add to the New Zealand Bill of Rights Act a right that has no agreed meaning, that has changed over the years and the centuries, and that will continue to change? It used to be a property right for men to beat their wives. If that right had been enshrined in a Bill of Rights Act at the time, where would that have left us? Until very recently it was regarded by many people as a property right to beat their kids. That is no longer the case, either. For much of our history women could not own property, at all; they had no property rights. So what exactly would we have been enshrining in a Bill of Rights Act then?

Rights conflict, they can never be absolute, and they are always relative to the rights of other people. Four hundred people a year have a right to clean air, but they die prematurely because somebody else thinks they have the right to operate a motor vehicle with a dirty exhaust. Whose rights are we enshrining in the New Zealand Bill of Rights Act there? Are we enshrining the property right to use and enjoy the property of a motorcar over and above somebody else’s right to life and health? I have a right to enjoy my property—the stereo—at 3 o’clock in the morning and to play my favourite music very loudly. But my next door neighbour has a right to peace and quiet. Does my property right to enjoy my stereo because it is a thing that I own override my neighbour’s right to a decent sleep, and perhaps to the health that depends on it? Should my neighbour compensate me if I am not allowed to play my stereo loudly at 3 o’clock in the morning, given that my stereo is a property, my neighbour’s health is not actually property, and my neighbour’s sleep is not property and is therefore not defined as a property right?

The nub of this debate is actually the often-claimed right to do what I like on my own land, and to enjoy my land by doing what I like on it because I own it. Well, that right has been increasingly circumscribed by law for very good reason for a long time. Do I have a right to clear and burn the forest on my land? Do I have a right to burn the tussock and the stubble? Are there some wider public rights that override my right to do what I like on my land? Do I have a right to exterminate rare species and to make whole species extinct because of my actions? Do I have a right to pollute the air and the water of those whose properties adjoin mine?

Hon Harry Duynhoven: No, because you’ve got a wider responsibility.

JEANETTE FITZSIMONS: Well, exactly. As the member says, there is a wider responsibility, but the New Zealand Bill of Rights Act is not about responsibilities. It does not say anything about the responsibilities that go with those rights.

It is a good idea to have a Bill of Rights Act. It is very important to protect the right to life, the right to liberty, the right to free speech, and those other personal rights. But when we get to property rights we are dealing with a very confused and conflicting issue where people’s rights conflict with other people’s rights, and where property in this respect could be seen as having a higher status than health or, in fact, life itself. There are many situations in the world where the right to property is held in law to override the right to life of other people, and I am glad we are not heading in that direction in New Zealand.

Hon PETER DUNNE (Leader—United Future) : A bit of history is important here. This bill was introduced in 2005 by the member in charge of it at the behest of the United Future caucus, and we are a party that believes in consistency and in upholding decisions we made previously. Despite what has gone on this evening, we will continue to support this particular piece of legislation, because, actually, being consistent, saying what one believes, and standing by it are values we hold as particularly important, even if some others see them as a tradable commodity.

There is a bigger issue here. The New Zealand Bill of Rights Act is an important part of our legislative and constitutional framework, and the glaring absence from it at the moment is the issue of any form of protection for private property. I have listened very closely to some of the speakers who have taken part in the earlier stages of this debate, and some of the concerns they have expressed about the potentially open-ended nature of this provision in the bill, some of the risks inherent within it, and some of the dangers that the Government might be exposed to if such legislation were to be passed. I think that none of those are insurmountable issues. All of them could be worked through, and the reason we are continuing to support this bill in the face of fairly overwhelming opposition in this House is that we think the issues are important, and we think that the Government should have taken them on board during the period this bill was before a select committee and indicated a work programme to address them.

This evening we have heard a number of speakers say that although they sympathise with the concerns that underpin this legislation, although they understand the point that is trying to be made, and although they believe it does need to be addressed, it is just all too difficult at the moment. I do not accept that thinking. I think that if that concern is genuine, then the Government should have indicated a work programme enabling these measures to be addressed and some assurance to be provided in the longer term that there would be legislation along these lines. The fact that that has not been the case persuades my caucus that this is an issue we should continue to support despite some of the flip-flops and vacillations of others, and we will continue to do so because we believe this is a case where principle is more important that pragmatic practice.

So I simply conclude, as the House is about to rise, by indicating our ongoing support for this legislation. That was why we urged its introduction in 2005, and that is why we continue to support it today.

CHRIS AUCHINVOLE (National) : The New Zealand Bill of Rights (Private Property Rights) Amendment Bill is a well-intentioned bill. It has no hidden agenda, and it seeks to address an exclusion, by specifically mentioning private property, from the New Zealand Bill of Rights Act. The first reading—

Hon Clayton Cosgrove: Aw!

CHRIS AUCHINVOLE: Does the member have a problem?

Hon Clayton Cosgrove: Yeah—you.

CHRIS AUCHINVOLE: Well, long may that last. The member should get used to it now. The first reading debate was on 11 May 2005, a couple of years ago. Members from all sides and from all political flavours seemed to be very much in favour of the bill when it was introduced, with the exception of those from the Green Party. Dr Wayne Mapp, Dr Michael Cullen, Dail Jones, Stephen Franks, David Parker, Georgina te Heuheu, and Peter Dunne were all very supportive in their comments about the bill. Even though the party representation was diverse, there was a common thread in many of the speeches.

• Debate interrupted.