Hon DAVID CUNLIFFE (Minister for Information Technology) : I move, That the Unsolicited Electronic Messages Bill be now read a second time. In speaking to the second reading of the bill, I first extend my thanks to the Commerce Committee for its excellent work on the bill. The committee gave full consideration to all of the public submissions received, and the bill, as reported back, incorporates a number of changes that reflect those submissions.

Unsolicited electronic messages, more commonly known as spam, were estimated to comprise approximately 80 percent of all email traffic worldwide when this bill was first mooted. Since then the flood of spam has only got worse. I have seen estimates by Internet service providers that spam now makes up around 90 percent of all emails. This problem is serious, it is urgent, and this Government is taking action on it. Spam clogs up networks, reduces productivity, and is often used for scams and malicious cyber-attacks. Spam is always a nuisance, and is often much worse than that.

The Unsolicited Electronic Messages Bill is an important part of the Government’s strategy to curb spam in New Zealand. It aims to prevent New Zealand from becoming a haven for spammers, to promote good e-marketing practice, and to provide a basis for international cooperation on combating spam. It contains prohibitions and requirements relating to the sending of commercial electronic messages. It also establishes a civil enforcement regime, including high maximum financial penalties for breaches.

I now turn to consider some of the key provisions of the bill; firstly, the commencement and preliminary provisions. The Government supports the following changes recommended by the Commerce Committee: an extension from 4 months to 6 months for the transition period between the enactment date and the commencement date, so that organisations can have enough time to achieve compliance; an amendment to the purpose clause to better reflect the broad social and economic objectives of the bill; and an amendment to the definition of a commercial message so that an electronic message need not have commercial promotion or marketing as its primary purpose in order to be defined as spam, and so that messages containing hyperlinks to commercial promotional messages can also be deemed as spam.

In respect of restrictions on electronic messages, submissions were supportive of the provision that a recipient of a commercial electronic message must consent to receive the message. This is known as an opt-in system, and it is contained within the majority of such similar legislation worldwide. However, submissions expressed some concern about there being possible confusion between promotional messages and commercial messages. Promotional electronic messages are non-commercial messages from an organisation promoting its aims, such as religious or political messages. I note that this House has been treated in recent weeks to a considerable volume of such messages in a recent book by Mr Nicky Hager. The bill as introduced includes a requirement that persons do not send promotional electronic messages to any person who has “opted out” of receiving such messages from the sender—notwithstanding the fact that some members of this House occasionally forget whether they have opted out.

The Commerce Committee recommends the removal of promotional messages from the bill, and the Government supports this change in order to achieve clearer legislation focused on combating the main problem of commercial spam. The bill requires senders of commercial electronic messages to include accurate sender information and an unsubscribe facility, so that the recipient can unsubscribe from future commercial electronic messages from that sender. The select committee has recommended that the requirements of the unsubscribe facility be changed so that recipients can unsubscribe by using the method of sending. The Government supports these changes.

In respect of address-harvesting software, the bill as introduced included prohibitions on the supply and acquisition of address-harvesting software and harvested-address lists, with the intention to use lists for spamming purposes. The select committee has recommended the removal of clauses regarding the supply and acquisition requirements. This is to focus the bill on the use of address-harvesting software and harvested-address lists for spamming purposes, as this is where the harm has occurred.

Part 3, “Enforcement provisions”, proposes a civil enforcement regime. It provides for financial penalties up to a maximum of $500,000 for organisations and $200,000 for individuals. High maximum penalties reflect the potentially high financial gains to be made from spamming, and the fact that spamming is a business with a very low-cost business model, and one that potentially offers the spammer high financial returns. In order to address the problem of spam, it is important to ensure that that business does not pay.

The bill as introduced required that the enforcement agency could consider only complaints regarding spam from service providers but could not consider complaints from any other person. It could investigate possible breaches on its own initiative. The reason for that requirement was to make clear that service providers would be the first point of contact for their customers who may have had concerns about spam. The committee recommended removing that requirement. It was concerned that the requirement would place unreasonable burdens on service providers. The committee expected—and we agree—that most users would first contact their service providers if they wished to complain about spam, but it was inappropriate to require that as a legal obligation. The Government supports that change.

The Internet Society of New Zealand sought in its submission to have the enforcement agency, under the bill, take an expanded role in monitoring spam and receiving and investigating spam complaints. The select committee has recommended that the role of the enforcement agency be expanded by amendments being made to the provisions setting out the agency’s functions and powers. These amendments include a requirement that the enforcement agency monitor levels of spam that contain sexual material. The Government supports these changes.

The Legislation Advisory Committee has expressed the view that the proposed enforcement regime for the Unsolicited Electronic Messages Bill should be criminal rather than civil. The committee’s reasons were that the high maximum financial penalties for breaches indicated an intention to punish offenders, thus the protections of the criminal law should apply. The Government has consulted a number of submitters and considers that the civil enforcement regime should be retained. The purpose of anti-spam legislation is not the punishment of offenders but to curb spam. Fraudulent actions and cyber-attacks using spam are already covered by existing criminal legislation.

The Unsolicited Electronic Messages Bill is important legislation that reflects the significant role that information and communications technologies play in our lives both now and in the future. It provides a regulatory framework for commercial electronic messages in order to prevent New Zealand from becoming a safe haven for spammers, promotes good e-marketing practice, and provides a basis for international cooperation on combating spam. If New Zealand is to realise fully the benefits of information and communications technologies, then users of those technologies must have trust and confidence in them. The Unsolicited Electronic Messages Bill supports this objective. As such, I commend it to the House.

CHRIS AUCHINVOLE (National) : The security and confidentiality of one’s own mail, and the right to control it, be it electronic or otherwise, is fundamental to a free society. I rise to support the Unsolicited Electronic Messages Bill in its second reading. This bill will, I suggest, be well received by the general public, once it is ushered into law, as it makes a clear statement on the unacceptability of spam in the email systems that are used by an ever-increasing percentage of the population. Interestingly enough, as the Minister has advised, it transpires that 90 percent of all emails sent or received fall into the category of spam—that is, stuff that no one ever wants or has asked for, and that no one would have wanted if asked. I guess we all know from personal experience, or from the experience of members of our family, that feeling of opening up the screen and the first thing we see being a great pile of unsolicited, often rubbish, mail—much of which is offensive. The main difficulty most people have is that they have to trundle through all the rubbish to sort out the emails that they do want, deleting the rubbish as they go. It is a bit like rummaging through a dustbin. There is a very real perception that spam—unwanted electronic messages—could destroy email as a system of responsible communication, if it were allowed to continue unabated or go unchecked.

Very little spam is generated in New Zealand at present, it would seem. On the international scale only an infinitesimal amount is estimated to originate from here. However, in considering this bill at the Commerce Committee, and later in the National caucus, it was recognised that we have to put this bill forward as an important part in the international jigsaw of combined international activities. New Zealand is part of the international action against perpetrators of spam, and stands shoulder to shoulder with other sovereign States doing the same thing. We see that it is important that we do so in order to build fences beyond which spammers cannot reach. We also want to make it plain that we are not a soft target for spammers to use. This bill fulfils part of the strategy against spam, which also includes improved education, technical solutions, and international law enforcement.

Getting rid of the stuff is not a simple matter, and I have been very impressed with the quality of the submissions that the select committee received, and the detailed discussions during the committee process. To the recipients of spam, of course, the requirement is plain. In a lot of discussion, it has simply been said: “Get rid of it.” The important aspect of the legislation is to ensure that the laws we are bringing into being avoid having unforeseen outcomes that negate the good that is being done.

The officials worked diligently, I considered, in advising the committee as we made our considerations on this bill. The submitters were not without credence in the field of electronic messaging. TradeMe sent along its commercial and regulatory manager and its Government relations manager. It sends out 1.8 million site-generated emails each week, and is by far the largest Internet company in New Zealand. TradeMe, as a company, welcomes and supports this bill, and offered useful recommendations in its submission. The New Zealand Bankers’ Association provided a detailed submission on the issue and sought a slightly longer period to arrange for customers to have a transference of systems, which the Minister mentioned in his opening speech on the bill. The National Council of Women, the New Zealand Law Society, the New Zealand Marketing Association, the Privacy Commissioner, Microsoft, the New Zealand Press Association, Telecom, Telstra, Vodafone, and a whole host of others all made submissions supporting this bill. It is significant that there was such a united voice on the issue.

I think there are grounds to conclude that the same response would be received over the improper collection of other people’s emails by parties that the emails were not intended for. The control of one’s own correspondence is a subject that is not without current significance. I am not a betting man by nature but I am prepared to put a bob or two on the safe bet that most people in New Zealand find mail theft a repugnant practice, quite apart from the legal aspect of it. I have been impressed with the indignation of those with whom I have discussed email spam. I am equally impressed with the indignation of those who have spoken to me about people accessing other people’s emails. Those same persons are not inclined to be persuaded that such theft could be “justified” on the basis of political intrigue. They just find it disgusting to think that emails can be filched and used beyond the control of their author. Perhaps this legislation about unwanted electronic mail may impact, eventually, on those who want other people’s mail, which they have no entitlement to.

The bill restricts the sending of unsolicited commercial emails, which are punishable by large fines. Non-commercial emails can continue to be sent but must contain opt-out provisions. The details of what constitutes an electronic message are quite precise in the bill, and are detailed in Part 1. Those can be covered in the Committee stage but for the sake of clarity and as a courtesy to those members of the public who are listening in to this second reading, I will quickly read the meaning of “electronic message” and “commercial electronic message”. Clause 5, “Meaning of electronic message”, states: “(1) For the purposes of this Act, an electronic message is a message sent—(a) using a telecommunications service; and (b) to an electronic address. (2) However, the messages listed in clause 1 of the Schedule are not electronic messages. (3) For the purposes of subsection (1), it is immaterial whether—(a) the electronic address exists; or (b) the message reaches its intended destination.” Clause 6, “Meaning of commercial electronic message” states, on the other hand, that a commercial electronic message “(a) means an electronic message that—(i) markets or promotes—(A) goods; or (B) services; or (C) land; or (D) an interest in land; or (E) a business or investment opportunity; or (ii) assists or enables a person to obtain dishonestly a financial advantage or gain from another person;”. The details go on, and, as I say, will probably be covered in the Committee stage.

There was an initial amount of debate over whether one should be able to opt in or opt out of receiving mail. This was resolved in a straightforward manner by simply prohibiting unsolicited commercial emails. There was some initial confusion about the difference between commercial—

Darren Hughes: Why are you reading it out? Why don’t you speak from the heart?

CHRIS AUCHINVOLE: I certainly do speak from the heart. Has he got one?

I turn to promotional messages. The National members of the select committee can take some measure of credit for resolving the promotional aspect. In other words, we should be protected from spam ever originating in New Zealand and, should that occur, we have redress facilities available to us in the law. With regard to the law and its enforcement it should be noted that the search warrants required will be available to enforcement officers only when they apply for them on a case by case basis. The enforcement authority will not have a blanket warrant.

The legal proceedings involved in this bill are to be in a civil liability regime. When the bill was initially put forward a criminal liability regime was proposed. This was part of the original legislation that was looked at in Australia. It has been decided, though, to use the civil liability regime here, with a criminal regime able to be considered at a future date if necessary.

It is beyond doubt that this bill has been considerably improved by the select committee. A number of initiatives towards improvement were generated by the National and the United Future members of the committee and the whole committee, with Katherine Rich as chair, went very much in harmony to reach a sensible, practical, and workable outcome. The division of emails into commercial and promotional has been dropped so as to avoid spammers using the excuse of sending promotional emails. Promotional emails may continue to be sent but must be non-commercial and contain opt-out provisions.

There were submissions on the provision in the bill for members of the public experiencing spam to complain to their Internet service provider in the first instance. That provision has been dropped. It would have placed an unrealistic burden on the Internet service providers, which are already battling spam with technical solutions. One of the most impressive aspects of the submissions was the Internet service providers’ efforts, which they are currently engaged in, to avoid and eliminate spam. It has been most worthwhile putting this bill, after it was brought to the select committee, into its present form. Thank you, Madam Speaker.

Hon PAUL SWAIN (Labour—Rimutaka) : The problem with trying to follow that speech by Chris Auchinvole is that by the time we get to some of the brilliant contributions from the Government side of the House, virtually everybody is turned off. That is a shame because we wanted to introduce some new material into the debate—not the material that was dredged up from the research unit—and we noted on a couple of occasions that the pages appeared to have been read at least twice, and that did not help the nature of the argument.

Chris Auchinvole: Sometimes we have to emphasise the points for you guys. You wouldn’t get it the first time.

Hon PAUL SWAIN: No, we got it the first time. The member did not need to repeat it over and over again.

However, what members have rightly said is that the Unsolicited Electronic Messages Bill is part of the Government’s strategy to try to curb unsolicited emails—spam, in its more colloquial sense. Everybody hates spam. Everybody hates those unsolicited emails. We are told by the Minister that 80 percent of email traffic now is spam. Everybody hates it. It is like somebody blowing cigar smoke in someone else’s face. It is exactly like that. Everybody hates having cigar smoke blown in his or her face and everybody hates receiving unsolicited mail. There are now rules around second-hand smoke, as there should be. We have introduced tough measures on, for example, smoking inside and all those kinds of things because we know that second-hand smoke causes damage, from lung issues right through to concussion and possible sore noses.

The important thing about this legislation is that just as we have rules about second-hand smoke, so we should also have rules against spam email. As has already been described, the legislation prevents New Zealand from becoming a haven for spammers, promotes good e-marketing practices, and provides a basis for international cooperation on combating spam.

One of the issues that we need to look at is whether spam email is commercial or promotional. Someone is obviously going to have to make that judgment. For example, one could receive an email in one’s in-box stating: “To assist in the process, we represent a group of Christian businessmen concerned as to the course and direction of the current Government. Accordingly, we have put together an election programme with a budget of $1.2 million”—

Darren Hughes: How much?

Hon PAUL SWAIN: —it was $1.2 million—“with the goal of getting party votes for National as this is the only way that change will come about.” That was the kind of email from the Exclusive Brethren that went into the in-box of David Henry from the Chief Electoral Office. Would that email be a commercial spam or a promotional spam? Is it promoting the Exclusive Brethren or is it a commercial arrangement between the Exclusive Brethren—

Darren Hughes: Sounds like a purchase bid to me.

Hon PAUL SWAIN: Possibly it was a purchase bid; possibly it was almost a tender bid. Yes, it was almost a tender from the Exclusive Brethren to the Chief Electoral Office. If it had been a commercial spam email, Mr Henry would have had the opportunity of opting in, which means that he probably would not have received it unless he clicked on “Yes, I want to receive this.” If the spam was promoting the Exclusive Brethren, there would have to be an unsubscribe facility, which means someone could open it but could send a message asking not to be sent any more of that garbage—that junk mail. The Exclusive Brethren were donkey deep in this kind of thing, and if this legislation had come in a bit sooner, then possibly National might not be in the position it is in today.

Darren Hughes: Don Brash could still be leader!

Hon PAUL SWAIN: Don Brash could still be the leader.

The ASSISTANT SPEAKER (Ann Hartley): This is hardly—

Hon PAUL SWAIN: No, no, Madam Assistant Speaker, this is absolutely on email spam, which is a subject introduced by the previous speaker.

The kinds of emails that people get in their in-boxes every time they open them, the sorts of things that annoy people, the sorts of things that the previous National speaker raised, are emails such as this, from people who state that they believe “… time is of the essence. Our campaign … is direct and simple—It creates and demonstrates MISTRUST in the current Government. It builds TRUST in a DON BRASH led Government.” An email such as that has gone into an in-box for Don Brash and has also been copied to John Key. When someone received that piece of electronic information, would it have been a commercial electronic email or a promotional electronic email?

These are the things that the select committee had to decide on. In the end it decided—I think absolutely quite rightly—to distinguish between the two of them. I think in this case it could well be argued that this was a commercial email and therefore there would be an opt-in provision. If the Exclusive Brethren had sent the email under this legislation and either did not have an opt-in part of the email or did not have an unsubscribe facility, it would be in breach of this particular legislation and it would be up for a fine of potentially around $50,000 in the case of promotional activity and—

Darren Hughes: Plus GST!

Hon PAUL SWAIN: Yes, there would be then a question of whether it was inclusive or exclusive of GST. That is something the National Party would take a long, long time to determine, but whatever it was, there would be some considerable fine.

The email was sent to Don Brash and John Key. John Key then said he did not believe he ever received that email.

Simon Power: I raise a point of order, Madam Speaker. Whilst we know the member is heading for retirement and has taken the opportunity to give a semi-valedictory speech, the fact remains that the bill relates to quite a technical issue relating to spam and its invasion of the computer systems and Internet arrangements in this country. The member should be drawn back to the provisions of this bill.

Hon PAUL SWAIN: Speaking to the point of order, Madam Speaker, I have had a lot to do with this bill. I have studied it. I was one of the Ministers who promoted it. The issues of what went into people’s in-boxes and what did not, and what was the appropriate action to be taken by someone receiving such email, whether it is a commercial or a promotional email, is absolutely in line with this bill. Using examples as a way of trying to elucidate what we are talking about here for the people at home is a perfectly legitimate way of debating this.

The ASSISTANT SPEAKER (Ann Hartley): The member is addressing the issues within the bill. Please continue.

Hon PAUL SWAIN: What we then get is an email that has been sent to Don Brash. We have already tried to work out whether it would be classed as a promotional or a commercial email. John Key then said he did not believe he received the email and has no record of receiving it. He said: “In my opinion, that may indicate it was sent to the wrong address.” I think what we need to do, of course, under the current legislation and without this piece of legislation in place, is to decide whether that is believable. That is probably something that people—

Chris Auchinvole: Talk about believable!

Hon PAUL SWAIN: Well, people will need to consider it and think about it. In relation to an important email like that—“Did I not get it; did I get it?”—it was the old “Well, I can’t quite recall.” I think that was the way it was described.

Darren Hughes: “I remember not opening it.”

Hon PAUL SWAIN: Yes—“I do remember not opening that email.” That is a very good line and it is kind of “Brashy” in its logic.

But then, of course, there are other kinds of emails, and I think that these would fall, probably, within the ambit of what is called a promotional email. Here is a promotional email that went, for example—

Darren Hughes: To whom?

Hon PAUL SWAIN: —from Bill English to Don Brash. This is a promotional email that under this legislation would have to have a little “unsubscribe” box in it. So when the email is opened a message box comes up labelled “unsubscribe”, which if clicked means there would be no more messages. That is the message box’s objective, and quite rightly it is different, possibly, from the other. The promotional email from Bill English that I am quoting from states: “There are a few lessons here,”. It states that Brash’s strategy team had been “pushing Judith [Collins] as a star”, but she was a second-year MP “pushed beyond her capacity” into a hard portfolio, and “with an unfortunately high estimation of her own competence”. It said that Collins, “with apparent backing from the top”, had “spent too much time cultivating the media herself, and believing the resulting publicity.”—a very dangerous thing to do in this job—“She will find it hard to recover her credibility in caucus where she has been a tough critic of her colleagues behind the scenes and they know it.”

What did Bill English, in another email, say to his leader? He said that he believed John Carter had been “promoted beyond his capacity”.

Darren Hughes: Is he still here?

Hon PAUL SWAIN: I think he is still here; he is over there somewhere. And what do members think about this email about Murray McCully? “Unfortunately the middle of the road caucus people are coming to the conclusion their fate is largely in the hands of McCully, who is happy to burn off anybody who gets in the way, Long who just pushes stars and Brownlee who looks after his own interests not theirs. You cannot afford to be seen to allow these guys to burn off the talent we have and reward self promoters who turn out to be incompetent.”

This is the new, united National Party, and I am saying that if the National Party had actually assisted in helping promote this legislation a bit sooner, then it might not be in the position it is in today. It might have its old leader—I think the fourth or fifth leader since our Prime Minister has been facing that party—and as a result it might not be in this position today. The important thing about this legislation, I tell members, is that first of all they must be very careful about who sends them what in their emails, and they should not encourage people who are promoting themselves. Worse, they should not promote people, or open emails from people, who are trying to do a deal with them behind the scenes, sneakily—notwithstanding the fact they are supposed to be a Christian organisation—and trying to get away with it.

This is important legislation and I support it.

RODNEY HIDE (Leader—ACT) : I rise on behalf of the ACT party to oppose this bill. We believe that when we pass law in this Parliament it should be able to work. I listened most carefully to Mr Auchinvole’s speech, which I thought was a very, very good speech, but I listened in vain—to a man who had sat on the select committee—to hear how this bill would stop spam. I heard that the bill—and I think this is the purpose of the bill—“will send a signal”, I think was the phrase used, that spam is unacceptable. Well, we can signal all we like but at the end of the day signalling through Parliament that we do not like spam, achieves nothing.

Chris Auchinvole: In itself, no.

RODNEY HIDE: Well, we have now had an acceptance from the key proponent of the bill from the National side that this bill “in itself” does nothing. So we are sitting here in Parliament debating a bill and putting a bill on our statute book that does nothing “in itself”. If we want to have respect for the law, and if we want our law to mean something, it actually has to serve a purpose and achieve a result. But this legislation does nothing. It is true that everyone hates spam, it is true that everyone is bothered by spam, but nothing sticks in the public’s craw more than having MPs stand up and, in a high and mighty way, say that they oppose spam too, and say: “Look at us; we are passing a law against it.” But it is a law that will not stop one piece of spam in New Zealand, whatsoever. Members should ask themselves where this spam comes from. It does not come from Mrs Brown in Te Kūiti; it comes in from overseas. This bill will do nothing to stop spam.

I listened very carefully to the Hon Paul Swain, who has clearly given this legislation some thought—and typically, vacuously, come up with nothing. But Mr Paul Swain drew attention to a series of emails in his speech, and I suggest to the Government that when Mr Swain is thinking about those emails, it is a problem the Government could do something about. But is the Government interested? What we have seen with the emails and correspondence that appear in Mr Nicky Hager’s book is a degree of political espionage that we have never seen in New Zealand before. I do not think we have seen it in any Western country before. It is not possible for those emails to have been leaked, and it is not possible for those emails to have been a series of leaks. When I read the book it is clear to me that there has been covert surveillance of members of Parliament of this House, offices broken into, and computers hacked into from outside. The Leader of the Opposition’s computer has been hacked or broken into. Staff members in this Parliament have had their computers hacked, and so have other MPs. The computers of private citizens have been accessed.

I am appalled that a former Minister of this Government has stood up and made trite comments about those emails, trying to score some political points, yet has not dealt with the serious issue here, which is, who is behind this espionage? Who is behind this criminal activity? Who is behind putting MPs of this House under surveillance? What terrible forces that would stoop so low are operating in our democracy? I should put on record that I do not believe for a second that the Labour Party is behind it. I do not believe for a second that any political party in this House is behind it. But as MPs, as representatives of our democracy, and as believers in the rule of law, we should be united in saying that this sort of activity and espionage is totally unacceptable in any country, in any democracy.

I find it somehow richly ironic that Nicky Hager in his book makes his conspiracy theory about the few trying to dictate to the many—and trying to do so secretly—when he himself is party to, or is perhaps a pawn of, the few who have been behind this espionage, in order to effect an outcome in an election. Nicky Hager has admitted to taking emails criminally obtained through espionage and selectively leaking them to the media in order to effect an outcome in an election. That material has been obtained in that criminal way, that covert and systematic way, not once or twice, not just for days or even weeks or months, but for years.

Nicky Hager does not reveal his sources. He does not tell us who these shadowy figures are. He does not tell us who is behind the book and the material he has. He does not tell us—the people of New Zealand and the people in this House—what their motives were. Oh no! It is enough that Nicky Hager has this material.

I say to the Hon Paul Swain and to the members of the Government that something very serious has gone on here. I heard my colleagues from the National Party mention Watergate. Well, actually, with Watergate there was only one break-in. Several break-ins—serial break-ins and surveillance—were involved in what we have here. We all as MPs have an interest in this, because which others have had their computers hacked? Do we seriously believe that what has gone on here has been done just on the National Party? Why would it be just the National Party? I am sure that every one of us is as vulnerable as the previous National leader found he was in respect of his system and as National MPs, their staff, and supporters found they were with their systems. What happened to them can happen to each and every one of us. Who is behind it? What is it saying about our democracy?

I take grave exception to the Hon Paul Swain trying to score some cheap points, and I expect our Government to be pursuing whoever is behind this espionage. I tell members that the noose is tightening around the necks of the perpetrators of this. We are closing in on them and they will be revealed. I say that there is a big story to be told here, and I believe that every political party in this Parliament—indeed, every New Zealander—has to believe that the systems we operate in this Parliament are secure. If Don Brash’s computer can be penetrated, then the computers of Michael Cullen, the Prime Minister, and any other Minister can be penetrated. There is a very, very serious issue here.

GORDON COPELAND (United Future) : That speech was a very interesting one for me to follow on from, and I for one hope that Rodney Hide will follow up on what he said and lodge a complaint with the police. At the very least, as he pointed out, we in a free and open democracy should be looking at this. Thinking back, we remember that Watergate started off as one small burglary. But Watergate grew and grew until eventually it forced the resignation of the President of the United States. If, indeed, we have seen a pattern of similar covert behaviour in our nation, then it is something we should worry about. So I think that the points the member brought to the attention of the House need to be addressed by the Government and, indeed, by Parliament.

United Future welcomes this Unsolicited Electronic Messages Bill to tackle the urgent problem of unsolicited electronic messages, commonly known as spam. The creation of the Internet, which, I understand, now has about 1 billion participants, has given the people of the Earth unprecedented access to information and has been an irreplaceable element in the globalisation of commercial and political activity. Undoubtedly, therefore, the creation of the Internet and the ability to send messages instantly and electronically has greatly advanced the common good. As we also know, however, there is also a downside, and it is called spam. Microsoft, one of the organisations that gave evidence at the Commerce Committee on this bill, told us that 4 billion spam messages a day currently enter its network alone. I understand that in the short period of time between that organisation’s representatives appearing before the select committee and now, that number has grown from 4 billion to 10 billion. It has more than doubled, and at current rates we should see it doubling again. I am told that it is now possible to send up to 1 million spam messages for $10. So we have a massive problem on our hands. In many ways, therefore, spam is the curse of the Internet and I am delighted—for the benefit of Rodney Hide—that the New Zealand Government, in concert with many other Governments around the world, is now taking positive steps through this bill to reduce, control, and rein in gratuitous spam.

In my speech today I want particularly to focus on gratuitous spam containing sexually orientated material. This matter was drawn to the attention of the committee by Judge David Henry, who noted that spam messages containing links to pornography sites are not covered by the Films, Videos, and Publications Classification Act 1993 and that the commercial nature of the definition of spam may not, therefore, adequately protect children. I shared those concerns and fully back the recommendations of the committee to amend the bill so that the functions of the enforcement department are broadened to allow levels of gratuitous spam that contains sexually orientated material, whether or not it is commercial in nature, to be monitored and controlled.

Spam containing sexually explicit material is somewhat in a class of its own. The original spam may not be selling anything and therefore is not commercial, but it may contain soft porn images and links to provide a teaser that grooms the recipient to visit a pornographic website. At that point, the transaction certainly becomes commercial. I understand that pornography on the Internet is now worth tens of billions of dollars per annum and is growing at the rate of thousands of new porn sites every week. All of this represents a threat to New Zealand children and is, as I know, a deep concern to New Zealand parents. My children did not grow up in the Internet age, but I am simply amazed at how my grandchildren, from age 7 or 8, or younger, can surf the net with consummate ease and familiarity. Put that ease of access and skill together with the literally millions of porn sites, and the problem becomes all too evident.

Shortly after the Unsolicited Electronic Messages Bill was reported back to the House, I issued a press release drawing attention to the provisions I have just mentioned in relation to sexually orientated material. I was surprised at the information that has been sent to me as a result. Let me quote, for example, directly from a letter sent to me from a school principal in Auckland. He says this: “The concern is the use of Internet pornography by pre-adolescent though to adolescent boys and girls. The volume of pornography available on the Internet is enormous. It is available in a variety of forms—pictures, movies, clips, story texts. Access is virtually unlimited. Some sites charge and require a credit card, although many normally have free samples. Others may require you to click an enter box that declares you are of age to access adult material.” Members can imagine how well that works in the hands of people who are determined to get access. They simply lie about their age. “For thousands of others, there is no restriction at all. Teenagers are curious and are likely to look at pornography, given the opportunity. They may access it accidentally. Search engines, like Google, facilitate this. The concern is that the level of access is growing and that many parents have no idea of what is happening or how to limit it. Many are less computer savvy than their children and are unable to monitor their activities effectively.” The letter goes on to lament how little is being done in New Zealand to address this issue.

That is no longer the case in Australia. The Australian Government has announced a $116 million comprehensive package of measures to crack down on the scourge of Internet pornography. The central part of this package is a national filter scheme, costing some $93 million, that will be provided over a 3-year period to Australian families free of charge to be installed in their homes. I should say, too, that filter technology even now has been overtaken; earlier today I saw some breakthrough technology that actually has the capacity to block porn in its entirety. It is really almost Star Trek technology. It is now available and already 850,000 Malaysian families are hooked into that system, for example. It actually blocks and filters out something like 96 percent or more of all pornography on the Internet so it cannot be replicated on the screen of anyone who has that program installed. I forwarded this material on to the Minister for Information Technology, the Hon David Cunliffe, and I believe that the Government and Parliament need to address this matter with a degree of urgency. All of us are duty-bound to do what we can to protect the beauty and innocence of our children. The corruption of children must never be tolerated, as it can wreak great damage on boys and girls as they move into adulthood and, hopefully, into stable adult relationships.

The computer industry also needs to play its part. I was encouraged that after the executives of Microsoft New Zealand appeared before the select committee, they spontaneously called by my office to say that their interaction with the select committee in relation to spam was such that they now believe they have a real responsibility to rein in the unsatisfactory elements of this wonderful technology; not, essentially, for commercial gain—although I have no doubt that that may be a part of it—but for the common good of New Zealand and its citizens, including children. I applaud the attitude taken by Microsoft, and I would challenge other Internet companies and program design companies to follow suit. I believe that Internet service providers and others who take a close interest in the growth of the Internet could also actively take more steps to reduce the exposure of children to pornography. What I am suggesting here is a multifaceted approach, whereby we in Parliament could address this issue, along with Internet service providers and program designers in companies set up for that purpose.

In the 1980s it was said that New Zealand had become a sex-saturated society. If those sentiments were true then, then the Internet has introduced a veritable flood of objectionable material right into the living rooms of New Zealand families. Therefore, we should together resolve to change that situation for the better. This bill makes a small start and takes a positive step in that direction, because in future when people get unsolicited sexual material by way of spam on their computers, they will be able to contact the enforcement agency and bring that material to its attention. That agency, in turn, can clamp down on the people who are sending that spam and also, of course, feed into the international apparatus that we, in concert with other nations, are building around the globe, so that if the spam originates, for example, from Hungary, then the Hungarian Government will come down on the people who are sending it in Hungary or if it is being sent from the United States, then the US Government will come down on those people sending it in the United States.

This needs a worldwide strategy and worldwide action, because we have a worldwide problem. The future of our children is too precious for us to run the risk of failing to take whatever steps we can to bring this most unsatisfactory situation to an end. United Future will be supporting the bill both at its second reading and through its remaining stages.

BARBARA STEWART (NZ First) : On behalf of New Zealand First, I rise to support the Unsolicited Electronic Messages Bill. Unsolicited commercial spam is increasingly becoming a problem on every PC, and the bottom line is that we dislike it intensely. We do not care whether it is promotional or commercial; we do not want either. We just want it done away with on our PCs. We want to be able to unsubscribe so that we do not have to bother with this total waste of time.

It is quite interesting to note that spam appears to be more sophisticated and more difficult to detect, because even the software here in Parliament can manage to detect only a percentage of some of the spam emails that come through. Like most MPs, I received over 400 emails during the recent adjournment period, stored in the spam folder. But this was not all of the spam that was on my computer; some of it actually went through into my new emails and bypassed the spam filter.

Of course, spam is a total waste of time. What do we have coming through to us? We have deals on software that we do not need; medications that, of course, we would not want to buy off the Internet; online drugstores with various medications, and again we do not even want to know about them; nonsense words all put together; programming symbols; and even Asian words or some other writing. It all comes through into the spam filter. We also have stocks and bonds, which are something that one would never ever just buy on the Internet.

If we look back over the history of spam, the first instance of spam occurred way back in 1978, when Gary Thuerk, from the Digital Equipment Corporation, sent an email to every ARPANET address on the west coast of the USA—ARPANET was a very early version of today’s Internet—and that resulted in 600 emails being sent. His actions prompted many angry emails in reply, due to his inappropriate usage of the Internet. What do we have now? We have spam as a serious, worldwide problem that, basically, is threatening to cripple the Internet, due to the huge volume of unsolicited mail. The phenomenal number of emails generated each day is growing exponentially, with the most recent figures showing that in June 2006, worldwide, 55 billion spam emails were generated each day. This figure has roughly doubled since June 2005, when 30 billion spam emails were generated each day.

As previous speakers have said, spam is one of the curses of the Internet. I think it is worth reflecting that although we receive quite a few hundred emails each week, perhaps we should spare a thought for people like Bill Gates, who receives over 4 million junk emails each year—far more than we hope ever to have to cope with.

Although this bill is a good start, it is worth reflecting that only 10 percent of the spam affecting New Zealanders actually originates here in New Zealand. Minister Cunliffe stated that the bill will really be enforceable only in New Zealand. Because of this, to deal effectively with the spam we now have there needs to be serious international cooperation. New Zealand by itself can do absolutely nothing. Ninety percent of the spam in Kiwi email in-boxes comes from outside New Zealand, with the majority of it coming from the USA, China, South Korea, and Russia. This bill will not have a direct impact on those nations, unfortunately, but it does show our commitment to doing our bit to try to stem this international problem.

When I looked at the Commerce Committee’s report I noted that the select committee recommends amending clauses 23, 24, and 25 in order to remove the requirement that complaints from spam recipients were directed back to Internet service providers. This is a good move, as the original provisions may have placed an unreasonable burden and significant enforcement cost on Internet service providers. It is likely, however, that the Internet service providers will remain the first point of call for customers who want to complain about unsolicited electronic messages, but that is not a role we can force upon the Internet service providers. The select committee also recommends extending the transition period before the bill takes effect, from 4 months to 6 months. It is good to see that on this occasion the committee did take the advice of submitters and it recommended the extension, which will allow organisations to implement the required changes—which, of course, they have to do.

New Zealand First does support this bill. It is only a small start. We know that spam is providing a real challenge and that it will continue to do so. New Zealand First wants to see every possible assistance given to all Internet users and to all email users in order to prevent New Zealand becoming a safe haven for spammers, because that is something we definitely do not want to see. Thank you.

NANDOR TANCZOS (Green) : I am rising on behalf of the Green Party to speak to the Unsolicited Electronic Messages Bill, also known as the “Spam Bill”. It is something the Green Party has had discussions with the Minister about at various times, because it is an issue of growing significance.

Having said that, I do want to acknowledge the comments made by Rodney Hide about the bill and questioning how much it actually achieves. I think he is absolutely right that it is arrogant and counter-productive for this Parliament to pass legislation that has no effect other than to salve the conscience of parliamentarians or to send some sort of message to the public. I think he is quite right to oppose the bill if that is what he thinks we are doing. It is not unusual for this House to do that very thing. There are many pieces of legislation I can think of that have passed through this House with great support, and are really just about making politicians feel they are doing something positive and have no effect out in the real world. So, as I say, I think Mr Hide is right to oppose the bill if that is what he thinks we are doing.

I am not entirely convinced, though, that that is all we are doing, because I think there are some benefits to this legislation. It is predicated on the assumption that we all oppose spam—and, of course, we do. I think we are pretty familiar with our in-boxes filling up with enormous amounts of all kinds of stuff that we certainly do not want to see, so we are as aware of that here as anyone. I think we do all agree that we need to try to do something about it if we are able to.

I would not go quite so far as Mr Auchinvole who talked about the right to control our own mail regardless of the media. I am not sure that such a right has actually ever existed. If it did, then I certainly would be making sure I did not get speeding tickets and bills through my mail, but I do not have that ability. We are always going to receive unsolicited mail of some kind, so I think we have to have some perspective on how we look at it.

It is important to see whether there are things we can do about what is clearly a growing and significant problem that is getting out of control all around the world. The Greens are supporting this legislation as a brave attempt to try to grapple with the problem. Obviously, I think, we are limited in what we can do in this Parliament to address the problem, and this bill is probably about as much as we can do for the meantime.

Of course, the reality is that New Zealand is a minor contributor to spam internationally. We are not seeing enormous amounts coming out of this country and what we can do will be limited. But, having said that, I do not think that means we should not try to do anything to address the spam that does originate in this country. I take, as an analogy, the whole issue around climate change where we are told that New Zealand is a small contributor to climate change and greenhouse gas emissions and, therefore, maybe it is not worth our doing anything. But we know that if we are to get international solidarity, and if we are to work at a global level to reduce global problems, then we all have to play a part. These agreements work only if we are all willing to participate as far as we can to address the issue.

The other thing is that, like climate change, it is also a question of moral authority. It is hard for us to go to international forums and make the statement: “Well, they should be doing something.” about countries where perhaps their contribution to the spam problem is more significant, if we are unwilling to do anything at all in our own jurisdiction. So I think those are strong reasons why we have to see what we can do to address spam in this country.

The other issue is that we may become a haven for spam. The reality is that one does not need to relocate huge numbers of people or equipment to alter where the spam is originating from. New Zealand could easily become another haven for spam if we become out of step with the international consensus. If we do not move towards regulation of spam as other countries do so, then certainly we will see relocation to New Zealand, and that is something that we do not want to see. So, like Mr Copeland, I think we have to look at a regime where we work with an international consensus as much as possible and rely on each country to enforce responsible, realistic legislation within its own jurisdiction. I think this is what this legislation attempts to do.

Having said that, and having expressed support for the bill regardless of its limited ability to address the problem, there are a couple of issues I would like to address that raise some concern in my mind. The first issue is that I am a little confused as to the intention of removing the exemptions or the different regime that applies to promotional material as opposed to commercial. I understand the argument. I understand the concern of the Commerce Committee that the distinction could be abused by people who are simply trying to stretch the boundary between commercial and promotional messages. I can see the real potential for uncertainty and confusion. I understand the argument about why one would want to do something about that. I guess I am really asking—and I would be interested to hear a member of the select committee express a view, if the committee had a unified one—whether this was actually an intention to apply as restrictive a regime on an organisation such as Oxfam as on those who fill up our in-boxes promising greater sexual satisfaction—

Rodney Hide: It works!

NANDOR TANCZOS: I am sure Mr Hide would know because he is looking fit, tanned, and ready to go. But—

Rodney Hide: I am going to pass it on to Mr Doug Woolerton.

NANDOR TANCZOS: And Mr Woolerton looks like he is welcoming that! But members can continue that discussion outside the Chamber and we will continue to discuss the bill. But I think there is an argument to say that there are reasons why we might want to have a different regime applying to some of those promotional activities, and, in my mind at least, that is an unresolved issue. I would be interested to hear from the select committee members as to what the clear intention was.

The other issue was around clause 12, “Commercial electronic messages and promotional electronic messages must contain functional unsubscribe facility”. This clause sets out provisions around what the message must look like in order for that to work. The difficulty is that the advice we are always given is “Don’t unsubscribe to spam because that just encourages them.” That is the difficulty. If we are planning a regime that is very much dependent on this kind of unsubscribe facility, I think that will create enormous difficulty, confusion, and mixed messages. It means that members of the public will have to be very careful about the distinction between spam that does originate in this country and spam that does not, because even if that regime is realistic, and even if one could make it work, it clearly does not apply to anywhere else. I think that will cause enormous difficulties.

There is one other thing that I want to touch on, and that is in relation to the definition of an electronic address. An electronic address includes a telephone account, an email account, instant messaging, etc. Clause 5 states that “an electronic message is a message sent—(a) using a telecommunications service; and (b) to an electronic address.”, which clearly includes a telephone account. However, the excluded messages listed in clause 1 of the schedule, “Messages that are not electronic messages”, are voice calls made using standard telephone service or voice-over Internet protocol or facsimiles. I am just reminded of the election campaign, and Mr Hide could confirm this, where one of the strategies in Epsom was to use recorded telephone messages to ring people up and solicit—

Rodney Hide: It was not Epsom.

NANDOR TANCZOS: Oh, not Epsom—

Rodney Hide: Everywhere else but Epsom.

NANDOR TANCZOS: I thank the member. So the strategy of using recorded messages to solicit political support is not a far step to that happening for a commercial purpose. The definition of a facsimile, which is an electronic message of some kind, being excluded—

Rodney Hide: People love them!

NANDOR TANCZOS: That is not the feedback I got, I have to tell the member. I think there is a real anomaly here that it does not include telephone and facsimiles. It leaves an enormous loophole that we will see commercial companies exploit in the very near future if this bill passes.

HONE HARAWIRA (Māori Party—Te Tai Tokerau) : Kia ora, Madam Assistant Speaker. Kia ora tātou te Whare. This stuff can get a bit too serious and a bit too detailed. When I first heard about spam, my initial thought was of a Monty Python skit about canned meat. It was a skit set in a cafe, and some members will remember it. A group of Vikings were wearing horned helmets, and whenever somebody said “spam” they all stood up and started singing, chanting, dancing, and carrying on. Eric Idle and Graham Chapman in drag, playing his wife, entered the cafe and asked what was on the menu. The waitress said there was egg and spam; egg, bacon, and spam; egg, bacon, sausage, and spam; spam bacon, sausage, and spam; and spam sausage, spam bacon, spam tomato, and spam. Members will get the idea. Sometimes when I check my email it is like Monty Python all over again—whether the issue is section 59, trans-Tasman therapeutic goods, or the Auckland stadium, it all seems to be spam: spam bacon, spam tomato, and spam.

Although there is a sense of the sublime and the ridiculous in all of this, it is also worth noting that spam comes in emails, texts, and instant messages from all over the place, all over the world, at a rate of 350 million a month. That is big-time nuisance stuff. Sure, there are filters to counter spam, but they often delete good messages. The fear is that amongst a whole bag of rotten apples there are often a couple of good ones, but they get dumped along with the rubbish. I know this only too well because some of the excellent contributions the Māori Party has made in this House have been blocked by some email addresses because of the use of some language that could be termed to be rather passionate and colourful.

Rodney Hide: Direct.

HONE HARAWIRA: Direct! Of course, spam artists just bypass the filters by changing the addresses. The thing is that spam is just plain hōhā—crackers, slackers, Viagra vendors, and hackers who attack websites and threaten computer security. It reduces productivity, it creates stress, it wastes networking computing resources, and it often perpetrates financial schemes like those emails from somebody’s long-lost Uncle Albert in Nigeria, who wants someone to take his millions before a brutal new regime takes over and who says that person can also have a couple of million dollars, as long he or she enters his or her bank account details.

Of course, the whole issue of security and computer theft has served us spectacularly through the blaze of publicity surrounding Nicky Hager’s claims that his latest publication The Hollow Men was based conclusively on material gained from emails obtained from Dr Don Brash’s address. Nicky Hager says that his use of the emails was justified because they show that National had been acting unethically and dishonestly, and getting away with it. Dr Brash got an injunction to stop them from being published, and in TV3’s application to have it thrown out Carol Hirschfeld said the emails were in the public interest and blocking them would be an unreasonable restriction on freedom of expression. Whether or not those emails are private, spam, or items of public interest, I suspect that this is not the last we have heard of that scandal.

We are pleased with the Commerce Committee’s suggestion that Internet service providers not have to deal with the complaints about spam, because, at 350 million messages a month, they would be doing nothing else but answering their mail. I include here the Māori Internet Society, Te WhanauIpurangi, which promotes a strong Māori presence on the Internet and lobbies for Internet administrators to better accommodate Māori needs. I know that it certainly does not have time to deal with the thousands of complaints that it would receive about spam.

I want to raise a couple of other matters about commercial and promotional spam, pre-recorded voice-over phone calls, and unsolicited messages that come in the form of junk mail. I turn to the comments of the Parliamentary Commissioner for the Environment, which are a bit “out there”, that the Government’s failure to follow through on the New Zealand waste strategy “undermines the whole process of democratic engagement with government”. He went further to suggest: “This loss of confidence may raise questions about government’s commitment to the NZWS”. That raises the question of why the Government does not also take action to stop the phone and mailbox trash while it is dealing with the electronic trash.

The drain that electronic spam places on personal and professional productivity will only increase as Internet traffic itself increases. Here in Aotearoa, Internet access has increased in the last 6 years, for Māori from 27 percent to 47 percent, and for Pacific Islanders from 11 percent to 40 percent. Although the total for Polynesians is still dramatically lower than that for Europeans, who are on 65 percent, and that for Asians, who are on 80 percent, if the trend is anything to go by access to the information highway will only increase. The Māori Party will support the Unsolicited Electronic Messages Bill in order to ensure that our access to that information highway remains free and open. Kia ora koutou.

ERIC ROY (National—Invercargill) : I would like to take a brief call on the Unsolicited Electronic Messages Bill. I have listened with a great deal of interest to the debate as it has taken place this afternoon, and it is pretty clear that the bill has enough support to pass its second reading in the House and ultimately become law. But I wonder why we are passing this law. It is not because of the argument that has been proposed, that this can have only a minimal effect. The point I make is that we are passing a law, and in the course of the debate this afternoon we have seen a past member of the executive of this Government, the Hon Paul Swain, use stolen material gleefully and for what he perceived to be his or the Government’s advantage. We know that this material was stolen. We know that it is the subject of a police inquiry. It has been purloined from the privacy of some people’s computers by a series of acts that could only have been calculated and then perpetrated for gain.

So here we are passing a bill saying: “Joe Public out there, do not spam us.” We have laws about stealing and laws about using stolen goods. But we have had an example this afternoon of a past member of the executive gleefully using stolen goods. I ask the House what sort of an example that is. What sort of a role model is that? We hold up our hands in disgust when we hear of people in State houses subletting them and going into their own private homes. Again, if we want the public of New Zealand to behave in a way that is acceptable, the standard that we as leaders of this nation set cannot be compromised. I believe that this afternoon we have seen a degree of compromise that I have not witnessed here for some time. I am concerned, and no doubt this will not be the last of it, but I say to the House this afternoon that if the members opposite were not part of the conspiracy to steal, then why are they now so gleefully and with complicity using the material? Their very action today approves what happened, whether or not they were involved. They are sanctioning, by their behaviour, what went before. The question that I will leave in this respect is—

Hon Judith Tizard: I raise a point of order, Madam Assistant Speaker. My understanding of the Standing Orders is that it is absolutely against the Standing Orders to imply that anyone in this House who is involved in any criminal act whatever, let alone a conspiracy to steal, as that member asserted. I am outraged.

ERIC ROY: Speaking to the point of order, Madam Assistant Speaker, I have not asserted that anyone stole; I have asserted that people have been using stolen goods. Madam Speaker, you allowed this debate to be advanced when you—

The ASSISTANT SPEAKER (Ann Hartley): No, just speak to the point of order.

ERIC ROY: The point is that you have allowed this section of the debate to be promoted by myself now by allowing the debate in the name of the Hon Paul Swain. I am just responding to that.

The ASSISTANT SPEAKER (Ann Hartley): The member certainly did not accuse any member of stealing. He raised it as an issue. The member will continue.

ERIC ROY: I will wrap up now. I simply want to say that I and the public of New Zealand, and can I say to members of the Opposition, the police, will want to know what the Government knew and when it knew it. The Government’s behaviour over the next few weeks will be of great interest to myself, the public, and the police.

DARREN HUGHES (Labour—Otaki) : I rise to take a call on the second reading of the Unsolicited Electronic Messages Bill. It has been reported back to us from the Commerce Committee, which has made a few changes to the bill that was referred to it by the House at its first reading.

Can I just pick up on the point made by the member for Invercargill. His basic assertion was that some emails were stolen and were turned into a book, and that Labour should ignore that because they were stolen, even though there are 3,000 copies around the country of a book containing all the details of these emails. That is patently absurd.

Hon Mark Gosche: It’s embarrassing, though.

DARREN HUGHES: It is embarrassing for them, I accept that. The unsolicited emails have been foisted on the country; none of us asked for these emails. They have turned up in a book, and they are unsolicited in that regard.

One of the most important things the Commerce Committee did was to delete references to promotional messages. It decided that when it came to spam, it was too hard to define what a promotional message was; it would be problematic to try to determine what a promotional message was. This is a very interesting point, and Mr Hide, Mr Harawira, Mr Roy, and my colleague the Hon Paul Swain have commented on what these promotional messages might be.

We have seen unsolicited promotional messages quite a lot lately—most recently, of course, in this book that has been referred to several times throughout the debate. I wonder whether the select committee possibly had that in mind when it was looking at deleting that reference to promotional messages. Of some of the emails that have been sent around this country, we know that one email was sent on 24 May to the Leader of the Opposition, Mr Key. That was a promotional email message, because it actually offered services to assist in the National Party campaign. The email, which was an unsolicited electronic message, was headed: “Urgent, Important and Strictly Confidential”. The letter began: “Good afternoon Don and John, Doug Watt and myself enjoyed your presentation this morning at Millennium Hotel.” In that sense, the author was trying to personalise the message, even though it was an unsolicited one in terms of the promotional message provisions of the bill.

The email goes on to explain how the Exclusive Brethren sect had been involved in a defence campaign. The Brethren actually had a misleading campaign saying that the Labour Government had decreased the amount of money being spent on defence in this country, when in actual fact we have rebuilt the armed forces of this country while we have been in Government, with some significant increases in defence resourcing. The email goes on to state: “Basically, we believe marketing is the name of the game.” Of course, the bill as reported from the select committee refers quite a lot to marketing being the purpose of a message, and there is reference to clause 6 being removed.

The email states: “Whilst the meeting this morning was excellent it would not have got one extra vote for National. (Everyone there is going to vote National anyway). Getting the message out and to a younger age bracket is paramount.”—because the Exclusive Brethren are quite in touch with the youth of New Zealand, being on the hip side of things. The author of the email believed that that was a paramount goal, and said: “time is of the essence. Our campaign (a total of seven nationally distributed flyers) is direct and simple:—It creates and demonstrates MISTRUST in the current Government. It builds TRUST in a DON BRASH led National Government.” That was the unsolicited promotional message sent to the National Party on 24 May.

Why do I mention that date? It is because later in the year the National Party, including the Leader of the Opposition, tried to argue that National knew very little about the Exclusive Brethren’s role in the election campaign, the unsolicited electronic messages they were sending, and the promotional material and services they were offering. In actual fact, John Key has said that even though the email was sent to him—and that is demonstrated by the material in front of me in the book—he did not open it. I ask colleagues in the House how on Earth one remembers an email one never read. If one never knew one had received it and one never opened it, how did one know that one had not actually seen it in the first place? Can this be so? No one really bought that as an argument.

Then Mr Key had to move to the next stage, whereby he made what I would call the President Bill Clinton defence: “I did not have email relations with that sect.” That seemed to be the defence—that he did not have any email relations with that sect, at all. That was getting to the point of being preposterous. Although the message was unsolicited—I accept that; National did not ask for this email to come forward from the Exclusive Brethren sect—it was offering promotional services to, and was trying to market the putting across of messages for, the National Party. Part of the bill addresses the issue of address harvesting, and of how people are able to get email addresses and then bombard people with messages. That is in the book as well, funnily enough. The book says that addresses were harvested from various National MPs. One thing I am interested in, building on the point that Mr Key said he had no idea that the Exclusive Brethren were involved in the National Party campaign and that he did not remember opening the email that he did not remember receiving back in May, is what else was happening.

I read in the book that some bloke in Napier, a Mr S Lusk, who was a campaign manager for the National Party, said in an email that he was shown details and copies of Exclusive Brethren election advertisements that had been shown to other National members of Parliament. So an unsolicited email came in from a campaign manager in Napier who said that he was with National MPs who were shown copies of the Exclusive Brethren election advertisements, and that some of the MPs were a little uncomfortable about it. Well, I bet they were. I bet they were uncomfortable about that in terms of what the bill does to try to deal to this concern about unsolicited electronic messages that offer marketing services and that try to put out promotional messages to people. It is absolutely farcical that a campaign manager in a provincial city could know about these things and the leaders of the party could not. But, as we know, the email was not opened and could not be remembered, even though it was already in John Key’s in-box.

What the bill is trying to do in cracking down on electronic messages is a very important measure. It is a frustration to many members of Parliament that they cannot get into the decent emails sent by constituents because there is so much spam. As a speaker previously said, we still have to go into the Mimesweeper programme and scroll through emails, because genuine messages are often captured by that programme, and we want to make sure we are not missing out on those. It becomes quite a difficult issue for members of Parliament, members of the public, and those conducting legitimate e-commerce activities to put up with.

One other aspect is the market research that goes on by way of unsolicited electronic messages. In that regard, I notice that Crosby/Textor, a public relations company that I understand the National Party has quite an intimate relationship with, has done some work on how to communicate electronically. I am sure there is rich material indeed in this book.

I make one other point regarding messages containing links to other websites. I have been using a series of examples to try to highlight the changes the select committee has made to the bill, and there is an amendment around spam that links to other websites. I was interested in the role that the so-called non-partisan Maxim Institute played in emails to the National Party. The institute gave website links to its organisation, showing very clearly who it was trying to assist in the last election campaign.

When we go through it all, we see that primary resources we have are rich material. We can line these emails up against the bill and see whether the bill would be effective in the case of these messages—

Simon Power: Sit down!

DARREN HUGHES: —which I know are of enormous embarrassment to the member for Rangitikei, but which sadly exist. I say to Mr Roy that the Labour Party is not responsible for these emails coming into the public domain. [Interruption] The Labour Party was not involved in hacking into others people’s computers or any of the other things that Mr Finlayson is talking about. He thinks it is possible on his Commodore 64 to hack into the parliamentary server. I do not have quite the same confidence in the ability of members of Parliament and their information technology skills in that regard. But what I do absolutely know is that now that the emails have been made public and made into a book, it would be wrong of Parliament not to put its attention to some of the unsolicited electronic messages going between National and the Exclusive Brethren, the racing industry, and the Maxim Institute. And, of course, there were the wonderfully rich emails—about which I have run out of time to inform the House—that were unsolicited electronic messages that members of the National front bench sent to their leader complaining about and bagging their own colleagues. I do not know whether there is a legislative solution to that; I suspect there is not. I think the problems have gone too far for the law to change that, but it is certainly worthy of the attention of members of Parliament. I am very happy to support the second reading of this important legislation.

• Bill read a second time.

Hon MARK BURTON (Minister of Justice) : I move, That the Criminal Justice Reform Bill be now read a first time. At the appropriate time I intend to move that the bill be referred to the Justice and Electoral Committee. The bill will give effect to the legislative components of the Effective Interventions package of initiatives for the reform of the criminal justice system. The aims of these initiatives, which were announced in August, are to reduce and prevent crime, address New Zealand’s growing prison population, and take genuine steps to help build safer communities. The initiatives focus on three broad themes: tilting the balance earlier to prevent crime, using alternatives to prison where this is appropriate, and adopting smarter uses of prison resources.

As members will be aware, the issue of the growing prison population is one of the most significant challenges facing the justice sector. We have an increasing prison population that is at odds with the long-term overall decline in New Zealand’s crime rate.

Simon Power: Crime is up!

Hon MARK BURTON: The member should read the statistics. The overall trend over the decade is clear and unmistakable. I say to Mr Power that if he cannot read statistics, then he really should not be on the front bench opposite. The social and economic consequences of imprisonment are significant, and I do not believe that the current situation is one in which most New Zealanders should—or, indeed, overwhelmingly do—take any pride. As the Prime Minister said when we announced the reforms contained in this bill, further increases in the prison population are neither financially nor socially sustainable—nor, in my view, are they financially or socially desirable.

It is important to reiterate, though, that there will be no change in the tough approach that this Government has taken with serious, dangerous, and, particularly, repeat offenders. These offenders will continue to go to prison, and for lengthy periods. The safety of the community will always be this Government’s first priority.

The Criminal Justice Reform Bill comprises two parts. The first part provides for the establishment of a Sentencing Council, which will be responsible for producing sentencing and parole guidelines. Over time the council will lead to significant improvements in sentencing consistency and transparency. The council will also play an important role in ensuring wider input into the development of sentencing policy.

The Sentencing Act 2002 included considerable guidance to the judiciary when imposing sentences on offenders. It codified the purposes and principles of sentencing, listed aggravating and mitigating factors, and required judges to impose the maximum penalty available—or something close to it—in the worst cases. The 2002 legislation, however, left a great deal of discretion in relation to sentence severity. Research undertaken for the Law Commission showed that this resulted in considerable inconsistency in sentencing throughout the country, particularly for less serious offending. The Criminal Justice Reform Bill provides for parliamentary scrutiny of the sentencing guidelines before they come into force. Once the guidelines are in place, judges will be required to comply with them, unless they are satisfied in individual cases that it would be clearly contrary to the interests of justice to do so. This will leave room for discretion in appropriate cases.

The Sentencing Council will comprise a mix of judicial and non-judicial members. The non-judicial members will be appointed by the Governor-General on the recommendations of this House of Representatives. This recognises the special constitutional role of the council. Judicial members will be appointed by the heads of bench of the Court of Appeal, the High Court, and the District Court respectively.

I am confident that the Sentencing Council will prove a valuable addition to our sentencing framework. I note that similar bodies have been established in Victoria, New South Wales, and the United Kingdom in recent years, enabling us to draw on their experiences in developing our own council. Indeed, my own recent meetings with the chair of the UK Sentencing Council, Chief Justice Lord Phillips, and the chairman of the Law Commission of England and Wales, Justice Etherton, strengthened my confidence in the structure provided for in this bill. Sentencing guidelines—and parole reform, which I will refer to later—are a proven mechanism for managing the effective use of penal resources. Under the bill, the Sentencing Council must assess the cost-effectiveness of its proposals by modelling the effect on the prison population in developing guidelines for particular offences.

The second part of the bill includes provisions for the introduction of a clear hierarchy of sentences, and establishes three new non-custodial sentences. This part also contains changes to the parole eligibility regime. An amendment to the Parole Act sees the tightening up of management of child sex offenders under the extended supervision regime. I think many members will welcome that provision. Minor amendments to the Bail Act and the Prisoners’ and Victims’ Claims Act 2005 are also included. The amendment to the latter defers the sunset clause that would otherwise take effect on 1 July of next year.

Most important, this part of the bill significantly increases the range of non-custodial sentences available to the courts. There are three new sentences. Home detention will be established as a sentence in its own right, rather than a way of serving a term of imprisonment, as is presently the case. The effectiveness of this penalty is well-established. Home detention has low rates for reconviction and reimprisonment, high compliance rates, and is a positive support for offenders’ reintegration and rehabilitation. It is seen as an appropriate alternative for those who would otherwise receive a short sentence of imprisonment. Establishing home detention as a sentence in its own right will afford far greater opportunity to the courts to shape sentences to fit the particular circumstances.

The bill includes two new community-based sentences: community detention and intensive supervision. Each of these new sentences will provide a higher level of restriction and supervision of offenders than the two existing sentences of community work and supervision. Community detention, which involves an electronically monitored curfew, will be particularly suitable for those whose offending has a specific pattern, or tends to occur at particular times. Intensive supervision provides a larger and more complex range of special conditions than are currently available under the supervision sentence.

The bill also includes a new process called judicial monitoring, which will be available to be imposed as a special condition with the home detention and intensive supervision sentences. Judges will receive progress reports and be empowered to order the offender to attend a hearing, which is intended to enhance and maintain judicial confidence in these non-custodial sentences. I think one of the overarching objectives, both for the legislation and the package more generally, is to improve judicial confidence and community confidence in the sentencing package.

In addition to these new measures, the bill contains various other reforms to improve the effectiveness of the existing community-based sentences. There will be a greater emphasis on the acquisition of basic work and life skills, which can be major factors in preventing reoffending. Enhancements to the community work sentence to ensure that it is an effective sanction and holds offenders accountable for the harm their offending has caused are also included in this bill. As a result of these changes, judges will have a greater range of options when sentencing offenders, particularly at the lower levels of offending. Sentences can be used that genuinely fit the specific circumstances of the offence and the offender.

The final matter I refer to in introducing the bill is the proposal for the reform of parole eligibility. Since 1993 offenders subject to finite sentences have generally been eligible for parole after serving one-third of their term. There is provision in the Sentencing Act for a judge to impose a longer term in certain circumstances, but experience has shown that this is done only in a minority of cases. In 2002 legislation abolished automatic release at two-thirds of a sentence. This has resulted in a long period of parole eligibility, which has increased the uncertainty about how long an offender will actually serve.

So the Criminal Justice Reform Bill will postpone eligibility for consideration of parole until two-thirds of an offender’s sentence, and reinforce the requirement that release on parole should be determined solely by the risk of reoffending. The new regime will lead to a significant increase in the proportion of their sentences that offenders are required to serve, and, I think, will give a far greater sense of clarity to everyone concerned. These changes will establish more certainty in the sentencing process. All involved—victims, the police, and, of course, the offender—will know that the offender will be serving the lion’s share of the sentence as given from the outset. The parole reforms will come into effect when the sentencing guidelines are in place. This will ensure, of course, that the overall objectives of the bill can be met.

I believe that the reforms contained in this bill will help reduce criminal offending, increase certainty around penalties given to those who break the law, and help address New Zealand’s rising prison population. I commend this bill to the House.

SIMON POWER (National—Rangitikei) : The National Party rises to make some comments on the Criminal Justice Reform Bill. I will do so slightly differently from the way the Minister Mark Burton did, by concentrating firstly on Part 2 of the bill and then moving to Part 1 later in my comments.

I start by saying that Part 2 does offer some positive contribution to the debate around incarceration rates and reoffending rates, as opposed to the crime rate in the first instance. Part 2 represents a backing down on the Government’s Sentencing Act 2002 as it relates to parole and eligibility for parole. The Minister all but acknowledged in his remarks that the eligibility of offenders for parole after serving one-third of their sentence has not worked, because it has created massive uncertainty around release dates and the length of time served. Although the National Party told the Government in 2002 that the Sentencing Act would create those problems, the Government has now acknowledged that mistake, and eligibility for parole will apply after two-thirds of a sentence has been served. That is to be welcomed.

What is not welcomed by National is the fact that those sentence lengths will be 25 percent shorter, on average, than they would have been previously. [Interruption] I ask the Minister to just wait. The explanatory note of the bill states: “Because the proposed parole changes are predicted to increase the average time served by prisoners from 62% of their sentence to more than 80%, sentences imposed by Judges would need to be about 25% shorter on average”. The problem with that logic, of course, is that that is not what 92 percent of the population voted for in 1999. What they voted for, and what the Government said it would deliver on, were longer sentences for higher-end offending. That will not be the case if that particular measure is imposed.

I agree that the sentences of community detention and intensive supervision have merit, and I look forward to discussing those issues in more detail on the Justice and Electoral Committee. I think that the Government has its head around that portion of the sentencing problem, and I believe that some constructive solutions can be offered there.

I worry, though, when the Minister says, as I recall him saying, that the bill is designed to deal with the issue of crime and the issue of the prison population. This bill is designed to do one of those two things, and that is to try to have as few people as possible end up being incarcerated. What the bill does not do—and members should remember that it is part of the Effective Interventions package—is to talk about solutions that will prevent crime from occurring in the first place. So National remains open-minded about parts of Part 2 and very concerned about the shortening of sentences that would come about as a result of that part. That, I guess, is the olive branch.

Part 1 concerns me deeply. The introduction of a Sentencing Council really worries me. I understand the argument that the council is designed to bring consistency to the application of sentencing and to codify mitigating factors at sentencing in a way that makes sentencing transparent. But let me just tell the Greens, the Māori Party, and United Future to beware of a Government bureaucracy that comes between the powers of the executive to legislate and the independence of the judiciary to pass sentences. My great concern is that the Sentencing Council will become the district health board of the justice sector, and that what we will hear is the Government simply saying the sentencing process had nothing to do with it, and that because the Sentencing Council makes those decisions, it is to blame for them. Then the Minister stands in the House and says we should not worry, because the council will be directed to assess the cost-effectiveness of its guidelines and to undertake prison population modelling. Well, we know how successful that has been. The Ministry of Justice has been unable to do that with any degree of accuracy for the last 4 or 5 years. Yet out of nowhere we are to create a Sentencing Council that will simply be able to do all the things to model and forecast the prison population that the ministry, with all its resources, has been unable to achieve.

I worry deeply about the fact that the Sentencing Council will undermine the discretion of the judiciary. This is a move by the executive to shuffle into the judicial discretion an independence that should be guaranteed by the separation of powers. If we wanted to undermine the discretion of the judiciary, or, more important—perhaps, more accurately—if we wanted to limit its discretion in a way that sent a message to the public that we were taking back as a Parliament some of the sentencing options available to the judiciary, then we should legislate—we should legislate in this Chamber to narrow that discretion. I say to the Minister that we should not create a separate body and a separate bureaucracy that would act as a buffer between those two crucially separated powers: the judiciary and the executive. This is a big constitutional change, and it is not to be undersold in this House today as just a mechanism to ensure that judicial discretion is limited and sentencing guidelines are tightened. This is a fundamental departure from the demarcation this country has had between the judiciary and the Parliament up until now, and National remains gravely concerned about the prospects of it. The Minister said a similar system worked in Victoria. My understanding is that such a council has not been adopted federally in Australia, and we should be asking in this Parliament why it has not.

Although I agree that there is some work to do around the prison population—and the Minister of Corrections knows that is my view—and I am open to suggestions around issues of intensive supervision and community detention as part of a new sentencing structure, National will not support this bill at its first reading because of Part 1: because of the Sentencing Council, and because of the discretion that will be taken away from the judiciary in an effort for the Government—the executive—to separate itself out from sentencing, which is always controversial in the public’s mind. But the public made it clear in 1999 what they wanted. This Parliament cannot say to the public that it will solve the problem by putting in place a Sentencing Council and reducing the length of sentences by 25 percent. I say to the Minister that we can argue about the sentencing options, but I am not convinced by the proposal for the Sentencing Council. I will sit on the Justice and Electoral Committee myself to hear submissions on that issue, but I remain determined that there should be a clear demarcation between the legislative arm in this House and the judiciary and its ability to sentence. National will not condone the creation of a district health board model in the justice sector.

Hon DAMIEN O'CONNOR (Minister of Corrections) : I listened with great interest to Simon Power’s contribution. It would be nice to have the National Party supporting the Criminal Justice Reform Bill going to the Justice and Electoral Committee, because it is very significant legislation.

I came into the role of Minister of Corrections at a fortunate time. Prior to that, this Government had acknowledged that there were issues right through the justice system that had resulted in an escalation in prison numbers that was not sustainable. The Government had initiated the Effective Interventions programme, which was, effectively, a 12-month review of the justice system, from front end to back, and what we could do to try to reduce prison numbers over time. We did that not necessarily just because we wanted people out of prisons, but the number of people in prisons is an effective measure, unfortunately, of failure right across our society. The fact that we have to lock people up indicates that we are failing at some point; it might be at parenting, at preschool education, in training—or wherever. But the number of people we put in prison is a measure of failure within our society. The Government is determined to improve that situation, because these figures have not been great.

We have a strong record of action on law and order and have made many improvements to the system since 1999. New Zealand’s crime rate is now the lowest since 1982, but that runs contrary to the trend in the prison population, which drove the need to look carefully at what we have been doing and where we needed to make changes. This legislation is the outcome of that very thorough and considered process.

New Zealand will still need prisons. For the serious repeat offenders and hardened criminals, from whom the public must be protected, there is no other option than imprisonment. We maintain that position. But non-custodial sanctions will end up being more productive for many others in our prison system, and for this country, and will allow us to make smarter use of the resources we have at the back end of the justice system.

I came into the role facing additional cost to complete our new rebuild programme of prisons, and that, along with the realisation that we were locking up people at, I think, the fourth-highest per capita imprisonment rate in the OECD—I say the second-highest in the Western World—is both embarrassing and something that should not be tolerated. This Government will not tolerate it. That is why we have to make some changes through this legislation.

My colleague the Hon Mark Burton, Minister of Justice, has outlined some of the key points of the changes that we hope the legislation will make, after thorough consideration by the select committee. For example, we hope to turn home detention into a sentence in itself. Home detention costs a third of what it costs to imprison someone. Some people have said that home detention is an easy option, but it is not. That fact was clearly identified by those who have been on home detention. Yet, it results in far greater rehabilitation, far lower reoffending rates, and a far better outcome for the justice system, the corrections system—indeed, the whole of society. So we hope the introduction of that initiative, along with the new community sentence options, will give a greater number of tools to judges when handing down sentences for offenders. The Government is not going to step back from that. People who commit crimes will be caught, will be processed, and they will have to repay their debt to society for that crime.

However, we must be smarter at working on ways to have that repayment to society made in full, and enabling and assisting those offenders to rehabilitate themselves—or habilitate, unfortunately, in the case of many—and reintegrate themselves into society. At a time when we have the lowest levels of unemployment, when we have a desperate need for skilled and semi-skilled workers throughout our entire economy, we have locked up over 7,500 people, most of whom are males who are very capable of contributing usefully to our society. By means of this legislation and other programmes in the corrections system, we must boost rehabilitation and reintegration. It is a very, very difficult area of the corrections system.

Internationally, neither rehabilitation nor habilitation gives outstanding results but we are a little country and we do not have to copy the trends or, indeed, the practices of other Western nations. We have the ability to develop practices and programmes that will be truly effective. We have a sad statistic that 50 percent of the prison population are Māori, the indigenous people of this country. Many of the influences on those offenders are unique to this country, so we must develop our own programmes. The Government has reviewed and assessed programmes within the prison system and found that some of them are not as good as they could be, and we have made changes. We will continue to do that. We have introduced workers within the corrections system specifically to help prisoners beyond their sentence, to rehabilitate them into their homes, into jobs, and into society. That work will continue and is part of the ongoing achievements and improvements the Government has made within the corrections system.

As I said earlier, the bill contains a number of provisions. It deals with law changes in the Effective Interventions initiatives. It aims, of course, to reduce criminal offending and reoffending and increase certainty around the penalties given to convicted offenders. Although I understand the views expressed by the previous speaker about the Sentencing Council, I think it is not a bad system to have fairer and more consistent guidelines for penalties that are laid down by judges. I think the member, along with most of us, would have heard from members of the public up and down this country about their dismay at some of the penalties.

Simon Power: Why don’t we just legislate?

Hon DAMIEN O'CONNOR: In fact we have legislation that provides guidelines, but its implementation is inconsistent. We hope that through the Sentencing Council we can assist the judges—not dictate to them—by giving them fairer and more consistent guidelines.

I think most members will welcome the new community-based sentences of community detention and intensive supervision, along with home detention. As I said, those initiatives will give judges a larger tool box in trying to ensure that those people whom they convict of offences are able to turn their lives around and be reintegrated into society as useful and productive members. The community detention and intensive supervision provisions, and the provisions that allow judges to review programmes that these offenders will undertake while on parole, will provide a higher level of confidence in those community sentences, as laid down.

One of the frustrations has been that through changes made for good intent, the community sentencing system has not offered confidence to judges, has increased frustration with probation officers, and has undermined the value of community sentencing right throughout society. We hope the adjustments we are making through this legislation, which I think will be widely supported by all members of the House, will result in fewer people going to prison, because anyone who goes into prison is three times more likely to go back into prison. Whether it be home detention, or community sentencing, or intensive supervision along with community work, if we can keep people out of prison, secure the public, and ensure the penalty is repaid to society, then over time we hope to reduce the prison population in this country. It is embarrassing and it is expensive that we lock up at the second-highest rate in the Western World. As a country that is made up of very small communities, where most of us are related to one another or know one another, we can make a greater effort in this particularly difficult area of Government and societal responsibility.

As Minister of Corrections, I welcome this bill into the House. I welcome the support and consideration for it through the select committee process. I trust we will have positive outcomes from its passage.

CHRISTOPHER FINLAYSON (National) : I am disappointed the member chose to give a waffly, generalised speech, rather than a first reading speech that addressed the very real concerns that National has about this legislation, and particularly Part 1. I am going to concentrate on Part 1 and elaborate on some of the concerns that Mr Power has expressed.

Sentencing councils, as the Minister said, have been established in a number of jurisdictions over the years. The Minister mentioned Victoria, and England and Wales. They have also been established in Scotland, New South Wales, and a number of American states. In its report Sentencing Guidelines and Parole Reform, the Law Commission has recommended the establishment of a Sentencing Council, and the Government has agreed that such a council should be established in New Zealand, hence this legislation, the Criminal Justice Reform Bill. Although I respect the work of the Law Commission and think it has done some great work this year, I believe that on this occasion what it has proposed will not work and is constitutionally unacceptable as it will undermine the independence of the judiciary.

My first concern is that this bill establishes a non-elected body to oversee a very significant aspect of the criminal justice system that has always been the province of the judiciary. The constitution of this body is unacceptable, and I refer members to clause 11, which provides for the appointment of one judge from the Court of Appeal, one judge from the High Court, two judges from the District Court, the chairperson of the Parole Board, and five members who are not judges. These lay persons will be appointed by the Governor-General on the recommendation of this House. One of the lay persons is to be the chairperson, and one of the judges will be the deputy.

Who will be the lay people who are appointed to this council? The Minister said the system works in Victoria. I strongly suggest that he speaks to the Victorian Attorney-General, Mr Hulls, on the problems he had in 2004 when he announced appointments to that state’s independent Sentencing Advisory Council. It was his bid to placate an angry public over apparently lenient sentencing laws that were said to fall short of what was needed. Mr Hulls announced that the new members would include victims of crime, police, youth, women, people with disabilities, the mentally ill, indigenous peoples, and the legal sector. The Crime Victims Support Association was so angered by what it called a lack of victims on the list that its members held a protest at the Victorian Parliament to express their views. Their president said that no new member of the council would qualify for the status of a victim and it did not seem right to have an independent committee of this sort that did not have a victims’ representative.

I have no doubt at all that similar issues will arise in New Zealand if a Sentencing Council comes into existence. For example, the Sensible Sentencing Trust people will be asking for a representative on the council, as will numerous victims’ rights organisations and the sorts of groups who are appointed by the Victorian Attorney-General. I also think it is unsatisfactory for the chairperson to be a lay person.

The proposed body is to prepare public guidelines, which will be published, as set out in clause 14. It may then consult on those guidelines “with any person or body, by any appropriate means.” There are numerous consultation regimes in statutes these days. There has been an explosion in consultation procedures since the 1980s and they are now an established part of the business of government. The consultation requirements inserted, for example, into the Local Government Act in 2002 have been a disaster, creating an avalanche of paperwork that entombs local authorities and their staff. I believe there will be similar problems with consultation by any Sentencing Council—it will end up consulting those who make the loudest noise. I cannot see how consultation of the kind proposed is going to result in rational decision-making.

Then there is the opportunity for parliamentary scrutiny of these guidelines. I think that will just give some politicians an opportunity to grandstand. Politicians rarely notice the judiciary except when it is convenient to criticise a judge for a decision that he or she may have made. This is nowhere more apparent than in the criminal law area. Once the guidelines are tabled in Parliament, one can expect that certain MPs will jump at the opportunity to say that the guidelines are too soft, the guidelines are too hard, or whatever.

In this extremely sensitive area of the criminal law, this Government is proposing to establish a council, half of whose members are to be politically appointed. This Government has an unfortunate record of appointing cronies to various bodies, and one can expect that this sort of cronyism is going to continue if this council is established. It is objectionable in principle, particularly as it seeks to usurp a significant aspect of the criminal justice system that is properly the responsibility of the judiciary.

My second objection to this legislation is that the Sentencing Council is not needed. The Sentencing Act 2002 was comprehensive legislation that provided guidance to judges on the factors they ought to consider when sentencing. What was established was both flexible and permitted the exercise of judicial discretion in individual cases. Lower court judges also receive guidance from the Court of Appeal, which, on a regular basis, gives judgments in areas of the criminal law that are often referred to as guideline judgments. More than that, following the passage of that legislation, we now have the abolition of the right to appeal to the Privy Council, and the creation of a Supreme Court, which will mean that many more criminal cases will be taken on appeal to the Supreme Court and that is happening now. The Supreme Court will thus have a major role to play in the development of guidelines for sentencing.

So what has been evolving in this country is a system that permits sentencing judges to have a degree of discretion but allows the superior courts to provide guidance from time to time. I cannot see how the publication of rigid guidelines developed by this kind of body will improve the present situation. It has to be emphasised that judicial discretion in determining a sentence is central to dealing with offenders in a criminal justice system. The legislation will set out the maximum penalty for a defence, then it is over to the judge who sentences the offender to determine the sentence that is most suited to the seriousness of the offence and to the individual circumstances of the offender. It is well established that discretion is a useful tool to mitigate the rigidity and the inflexibility of legal rules and it enables judicial officers to particularise their responses to particular circumstances.

A sentencing judge has to take into account a wide variety of matters that concern the seriousness of the offence for which the offender stands to be sentenced, and the personal circumstances of the offender. From all those elements the sentencing judge distils an answer that reflects human behaviour in the time or monetary unit of punishment. Yet this proposal will undermine judicial discretion. What really concerns me about Part 1 is the way sentencing guidelines will affect the independence of the courts. This committee will be more important in the sentencing process than the Supreme Court, and that is wrong.

My final point, arising out of what the Minister said about his discussions with members of the Sentencing Council in England, is that guidelines have not really worked in England, and a recent case illustrates this point. These guidelines have resulted in increased concern or bewilderment on the part of the public at the sentencing process, and a diminution of public confidence. I refer to the example of a person called Craig Sweeney in England who abducted and sexually abused a girl aged 3. He was sentenced to life, with the judge giving him a lengthy sentence, but will be eligible to be considered for parole in 5 years. Judges in England used to follow guidelines produced by the Court of Appeal but this was changed by the Criminal Justice Act 2003.

The Sentencing Guidelines Council produced recommendations to encourage consistency in sentencing, and one of those guidelines meant that Sweeney’s sentence was reduced by one-third because of an early confession of guilt despite his being caught red-handed. The Attorney-General, Lord Goldsmith, has decided not to challenge the sentence, because he has concluded that it is not unduly lenient. The mother of the abused child said she was gut-wrenchingly sick at the decision, and, as Lord Falconer said about this case, confidence in the judiciary had been undermined, and judges should not be whipping boys for a flawed system. He said there needs to be a very urgent look at the automatic discounts given on jail terms as a reward for guilty pleas.

There is a real problem in England, there is a problem with the sentencing guidelines, it is very much the subject of public discussion and debate, and the short point is that the sentencing guidelines in England are not working. The case I have described was entirely the result of the Government’s own Criminal Justice Act and the sentencing guidelines. The judge followed them to the letter and the result was an almighty mess. So Part 1 raises some very serious questions that were not touched on at all by the previous speaker and they will need to be addressed by the select committee.

Dr PITA SHARPLES (Co-Leader—Māori Party) : I want to talk today about the courage of a 13-year-old boy from Moerewa, Phillip “Piripi” Tautari. Members should remember the name, because all the marks of leadership are etched upon his signature. Piripi attends Moerewa School, describing himself as “a very reliable person to this community as a fire cadet, and an asset to my other friends within my class, in the way of life skills.” But 2 weeks ago that young boy became another mugshot protégé, as a photographer snapped him in a shot to accompany an article about the kidnapped Dutch tourists. As Piripi later reflected: “I am very upset to see myself pictured in the newspaper clipping as I felt that I was part of the criminal offenders.”

But the taking of offence did not stop just with Piripi. Letters flooded in from 150 schoolchildren in defence not only of the model student but also of Moerewa. The letters all protested that in associating a shot of Piripi with a story about the brutal abduction and robbery of two tourists, a perception was being created that served to cast that young Māori boy as part of the crime scene. And Moerewa was not having it. Its people articulated their outrage at the careless and irresponsible use of the media to project a false image of the boy and the town.

The actions of Piripi and his mates is an example of the sort of everyday revolution that inspires hope. The hope is what we must all think of when we consider the measures being introduced in the Criminal Justice Reform Bill to arrest the sharp increase in the prison population. The Māori Party has said loudly and often that achieving reduced prison numbers needs a system-wide commitment, not just an approach that merely tinkers with the management of penal resources. Just as Piripi, his mates, his principal, and the community stood up to be counted, so, too, do all New Zealanders need to become involved in an overhaul of the incarceration rates, to stand up to injustice, and to demand better.

A key initiative in this bill is to give effect to the Law Commission’s recommendations to establish a Sentencing Council. The council will issue guidelines on sentencing principles, levels, and types, and on the granting of parole. Sentencing councils or commissions have been established in England, Wales, Scotland, Victoria, New South Wales, and over 20 United States states.

At a very minimum, we would expect that whānau, hapū, and iwi must be consulted by the council when establishing sentencing guidelines. Surely, we must all be looking at indigenous alternatives for meaningful solutions to these enduring problems. An initiative that this Parliament could be investigating, as part of the consideration of this bill, is that of circle sentencing, or circle courts. Circle sentencing arose from a decision of the Supreme Court of Yukon, in the case of R v Moses in 1992. The presiding judge, Judge Stuart, was of the opinion that significant institutional change could be achieved by increasing meaningful community involvement before, during, and after sentencing took place. Accordingly, he consulted the local Indian community, and developed the concept of circle courts. Circle courts were known to First Nation Canadian peoples in more traditional settings, but have recently been applied in urban settings.

Over in Nowra, in New South Wales, the Aboriginal Justice Advisory Council’s circle sentencing pilot has been established from the local courthouse, and directly involves local Aboriginal communities in the sentencing process. In essence, it means that the sentencing court is taken to a community, where Aboriginal community members and the magistrate sit in a circle to discuss both the offence and the offender. Interestingly, this is the same concept that the Moerewa primary school uses. It is called a talking circle, and when children make anyone feel sad or hurt, they are called to account in the talking circle. Circle sentencing involves the victims of offences as well as the families of offenders, and other respected people within the community.

I come to this bill able to speak with absolute confidence, from the basis of my experience within similar initiatives put forward from tangata whenua. In the mid-1970s we established a restorative justice neighbourhood court in Te Atatū, west Auckland. This form of marae justice began as an independent, unfunded model, with schools and the community in general bringing their complaints of criminal or antisocial activity to be deliberated upon. It proved to be so successful in settling disputes, and in providing for some form of reparation or restitution, that the police and, later, the Waitakere District Court began to refer incidents and crimes to the neighbourhood court to be dealt with by us. The project was extremely successful because perpetrators appeared before a court made up of people from their own community. Expressions of guilt, sorrow, remorse, anger, and love were key features that ensured the success of the programme, which had a recidivism rate of almost nil.

That neighbourhood court and sentencing programme was later used by the local District Court judge of the time, Judge Michael Brown—Mick Brown—to create the family conferencing programme for New Zealand children’s courts that is in operation now. In turn, the elements of the conferencing programme were introduced to Australian children’s courts. In 2003 the BBC was so interested in the work we were doing in Tāmaki-makau-rau that it filmed a documentary for its Foreign Correspondent programme that aired in Britain and Australia.

This marae justice is about real life, not just crime. The focus is on restoring mana to the group, to the whānau, and healing the offender as well as considerations of restitution.

One of the great mysteries to me, then, is how come we know that great initiatives are occurring in Australia and in Canada, and that people from Britain are coming here to learn about our indigenous justice initiatives, yet in Aotearoa, in this bill, there is not even a mention of them. The intent behind this bill relies on full and active community involvement. The introduction of three new non-custodial sentence options for less serious offenders, including home detention and the two new community-based sentences of community detention and intensive supervision, places far greater emphasis on the involvement and support of the community. Similarly, the amendments to the Bail Act, so that offenders are not unnecessarily remanded in custody rather than being released on bail, demand a greater responsiveness on behalf of the community.

Yet bizarre twists of policy change are included in this bill that seem to achieve the opposite effect. The Parole Act 2002 is amended in clause 120, which raises the non-parole period for a long-term sentence from one-third to two-thirds of the sentence’s length. Clause 121 shifts the release date for short-term sentences from the date marking half the length of the sentence to the expiry date of the sentence. In effect, that means there is no longer any eligibility for parole. So here we have, in the midst of a bill purportedly designed to reduce projected growth in the prison population, moves to make people sentenced to short or moderate-term lags end up in prison for longer than before.

The Māori Party will support the Criminal Justice Reform Bill at its first reading, because we are passionately committed towards supporting moves to reduce prison incarceration rates. But all the tinkering and technicalities will result in more of the same. We must be prepared to learn from the example of Piripi Tautari and look at the bigger picture—the image from afar. We must apply our best thinking to stand, like Piripi, and say that this is not the prison profile we want for our nation. We can do something about it. We need to look through another lens. Sentencing circles, restorative justice, and involvement of whānau, hapū, and iwi may all provide some help for the solutions we seek. But, at the end of the day, I cannot help feeling that until the Government seriously tackles the big question—that is, how to reduce the amount of crime committed in our society—our prisons will continue to be disproportionately full of offenders. Thank you.

NANDOR TANCZOS (Green) : New Zealand has one of the highest rates of imprisonment in the world. I am profoundly ashamed of that fact, and have been since I have known it. I think that fact causes embarrassment to just about every New Zealander who hears it. But the fact itself is not a surprise, really, because since I have been in Parliament I have seen almost all the other parties—the Labour Party, the National Party, ACT, New Zealand First, and United Future—competing to be the most punitive party on crime. I remember many of the debates on justice and law and order in this House were truly odious, in terms of the way they were conducted. Some members seemed to relish wading into the tragic details of horrible crimes, although I accept that many of those members are no longer with us. Nevertheless, that is the backdrop to the various justice and sentencing changes we have seen over the last few years.

So I am really happy to see a bill, finally, that focuses on reducing crime rather than on simply locking people up. It recognises that a sharply increasing prison population is actually a symptom of failure rather than a symptom of success, which was the mentality here for so long. I am particularly pleased, of course, with the stance taken by the Māori Party, and with the comments it has made since it has been represented in this House, in terms of promoting some of the same things that the Green Party has been promoting around restorative justice, Māori justice processes, and the like. I note the indication we have had that legislation around restorative justice may be under way, and I will be very pleased indeed to see that come before the House.

I agree with Mr Power that this bill does not address the real issue, which is crime prevention. Although that has to be our focus, I also accept that it is a matter for another bill and that a Criminal Justice Reform Bill is not the place to address issues such as that. So I look forward to seeing initiatives on crime prevention come before the House, as well as this bill.

In relation to this bill specifically, I am pleased to see some of the clauses in Part 2 that relate to non-custodial sentences. I was very supportive of the approach taken in some of the provisions in the Sentencing Act 2002, where there is a clear presumption that a sentence should be the least restrictive sentence that is commensurate with public safety, and where there is a preference for reparation and fines rather than custodial sentences. I supported that. I think there have been some real difficulties in terms of how the Sentencing Act has actually been put into practice in the courts, and some of the things in this bill will help to tidy that up.

In particular, the provision to introduce home detention as a sentence in its own right is incredibly sensible and deserves support. We know that some of the advantages of home detention include low rates of reconviction and reimprisonment, high rates of compliance, and positive support for offenders’ reintegration and rehabilitation. Those are crucial matters when it comes to reducing crime, particularly recidivist crime. I think that the making of the stand-alone sentence of home detention provides clarity and makes it more efficient. It has just been crazy that a judge has been able to say an offender is eligible to apply for home detention, yet then the case goes off to another body to decide whether that will happen. It makes sense that a judge should be able to use home detention as a sentence in its own right, and I think that will lead to better decision-making.

The bill also introduces a couple of reforms around community-based sentences in relation to more intensive supervision and community detention. Community detention involves an electronically monitored curfew. The explanatory note of the bill says this is suitable particularly for offenders whose offending has a specific pattern or tends to occur at particular times. This reform is somewhat contentious. The introduction and extension of electronic monitoring is something we need to view with some caution, because when this monitoring was introduced we were told it would be only for very serious sexual offenders, in terms of extended supervision and the like. Although it is a contentious provision, nevertheless there are real and obvious advantages in extending the use of non-custodial sentences in ways where the safety of the public can be better assured, such as through electronic monitoring. So I think it is something to be supported, although, as I say, there are mixed views on that. Then there is the higher level of restriction that can come through intensive supervision. The reforms to community-based sentencing also include a greater emphasis on the acquisition of basic work and life skills. That is obviously vital and has been needed for some time.

One of the things I am unhappy about is that the bill comprises only three parts. Increasingly, we have seen a tendency by Governments to aggregate clauses into fewer and fewer parts, simply as a way of shortening the Committee stage debates. Those debates tend to be part by part now, and in Part 2 a whole bunch of stuff has been put together that could, for the purpose of debate, quite usefully have been separated into more parts. One example is the reforms to the Parole Act of 2002. I want to be clear: I do not believe in truth in sentencing. The phrase is a cliché that has been used to try to attack what I think is an important part of the criminal justice system, which is parole. Parole actually has enormous and proven benefits in terms of reducing reoffending, and I think we get rid of that to our danger. It also clearly has benefits in terms of behaviour control in our institutions.

The other point—which to me is a point of principle—is the issue of why we keep people in prison if they are not a risk to the community. One of the reasons I strongly supported the Parole Act 2002 was that whereas previously people had been automatically released at one-half of their sentence, now they can be kept in prison for the whole of their sentence or released at one-third of their sentence, with the deciding factor being the risk to the community. To my mind no consideration other than risk to the community should determine whether a person stays in prison. That has to be the most important thing. Prison is really about keeping people out of circulation because of the risk they present to the community. If they do not present such a threat, why keep them in prison?

One miscellaneous matter I have noticed is the extension of the sunset provision in the Prisoners’ and Victims’ Claims Act of 2005. That provision concerns me, because it has been sneaked into the bill and is not actually in line with any of the other reforms. Members should take notice of that.

The last thing I will touch on is the issue of the Sentencing Council, which I have real concerns about. I agree with Mr Power that it should be looked at with great caution, because it is a significant change. Sentencing is already subject to parliamentary influence through legislation that sets maximum and minimum sentences, but the Sentencing Council would appear to have far more direct power without the same parliamentary accountability, and that is an issue. Nevertheless, I recognise the arguments about inconsistency in sentencing, particularly around minor offences. It is a question of whether we prize judicial discretion more than consistency. In particular, with regard to the inconsistency around sentencing for minor offences, I would very much like to see a breakdown along ethnic, gender, and class lines. I would not be at all surprised to see a correlation between those and that inconsistency, because we know that Māori are treated disproportionately heavily throughout the criminal justice system. It is the same with young males and poor people. I think that analysis is worth bringing to that debate.

Although, as I said, the Sentencing Council needs to be looked at with caution, I think there are arguments to support it. I look forward to receiving submissions in the Justice and Electoral Committee. The Green Party will vote for this bill to go to the select committee, but we remain cautious around that particular proposal.

KATE WILKINSON (National) : In speaking on this Criminal Justice Reform Bill, it is useful, I think, to start with some introductory background. In New Zealand, as has already been highlighted, we really do have some appalling crime statistics. The latest statistics published by the New Zealand Police show that over the past 12 months total crime has increased by 6.9 percent—nearly 7 percent—contradicting previous claims from the Government that crime figures are actually falling. Violent crime has continued to trend upwards since this Government came to power. Since the 1999-2000 year, violent crime has risen by 26 percent, from 40,090 offences to 50,644 offences. Grievous assaults are up by 54 percent and serious assaults are up by 30 percent, and I do not think that that represents in anyone’s mind a decline.

There is an alarming increase in the intensity of violence across the community. We have had a sharp increase across a range of crimes in the past year alone. Violent crime is up by 10.2 percent. Grievous assaults are up by 19 percent. Homicides are up by 31 percent. Kidnapping and abduction are up by 46 percent. Intimidation and threats are up by 14 percent. Robbery is up by 20 percent. Sexual assault is up by 13 percent. Sex crimes are up by 8.2 percent. Dishonesty offences are up by 7.8 percent. Car conversions are up by 17 percent. House burglaries are up by 11 percent. Receiving stolen goods offences are up by 33 percent. Drug offences and antisocial offences are up by 6.3 percent. Busts for new drugs—methamphetamine—are up by 50 percent. Property damage is up by 15 percent. In all those figures, I do not see one decline, whatsoever. I have to say that these figures are a serious indictment on the crime prevention strategies of this Government. Its promises to reduce crime are simply not backed up by action.

This issue is about crimes against people, and the Government is failing to deliver safer communities. So what does the Government do to get on top of the crime problem? It introduces this Criminal Justice Reform Bill, which is designed to stop the increase in prison population, but it does absolutely nothing to prevent crime from occurring in the first place. As Dr Sharples has already mentioned, the big question that has to be answered and that needs to be addressed—and that has not been addressed—is how to reduce crime in the first place.

The bill creates a new Sentencing Council, and my colleagues Mr Power and Mr Finlayson have already adequately, and more than adequately, covered this matter. The council itself has some laudable objectives. One is to produce guidelines relating to sentencing levels, sentencing principles, types of sentences, and sentencing practice. The second is to produce guidelines regarding parole. The third objective is to produce guidelines in relation to the prison muster. It also assesses the cost-effectiveness of the guidelines—presumably, the fiscal cost of the guidelines, rather than the important cost to the community of the crime in the first place. The council is also to give advice, collate information, provide information, plus any other functions incidental to and related to any of the above.

The National Party’s concern, which has already been mentioned, is that this can very easily transform itself into the “Scapegoat Council”. This council can be given the blame for any criticisms whatsoever on sentencing. The rationale will be that it is not the Government’s policies that are at fault; it is the council’s policies. The council can take the blame for the Government’s lack of policies in relation to the reduction of crime. The priority must be to prevent the crime in the first place, not to put a bureaucratic council in place to act as a scapegoat, to act as a political tool, and to hide the failure of Government policies that are not addressing the problem of the increasing rate of crime.

The bill is about reducing prison populations. It is not about reducing crime. And how exactly does it reduce those prison populations? Well, it appears that it reduces the prison populations by letting people out of jail. Part 2 of the bill amends several Acts—the Bail Act, the Sentencing Act, the Parole Act, and the Prisoners’ and Victims’ Claims Act. It has been mentioned that it introduces home detention as a sentence in its own right, rather than as merely a way of serving a sentence of imprisonment, as under the existing legislation. It introduces a new sentence of community detention and intensive supervision. These are hardly sentences illustrating any policy of being tough on crime.

Under the bill, a court may sentence an offender to either intensive supervision or community detention if the offender is convicted of an offence punishable by imprisonment, an offence under an Act providing for a sentence of home detention, or an offence under an Act providing for a community-based sentence. In other words, it is an either/or situation. So any offence punishable by imprisonment can be—so-called—punished by intensive supervision or by community detention sentences.

We have to ask what message this sends back to the members of our community about how highly we regard their safety. We do know that, historically, community-based sentences have been a failure. For example, in the 2005-06 year 28 percent of offenders breached community work orders—up from 23 percent in the previous year, 2004-05.

The bill also amends the Parole Act. Currently, those offenders sentenced to under 2 years’ imprisonment are automatically released after half that time. Those with sentences of 2 years’ imprisonment or more will be eligible for parole after one-third. Under this bill those offenders with sentences of 2 years’ imprisonment or more who are eligible for parole will be eligible at two-thirds of their sentence. But, as the Law Commission pointed out, sentences would have to be about 25 percent shorter after the parole changes, if the length of time served was to be the same, and the size of the prison population unaffected. In other words, what is tougher about that?

The public have asked for truth in sentencing. People do not want to be hoodwinked into thinking that there is any truth in sentencing when a 25 percent reduction, on average, would not necessarily mean a reduction in the actual punishment, as the amount of time being served by the prisoner might be exactly the same. The net result is still the same—100 percent of nothing is still nothing.

We have an increasing prison population. We are building, at exorbitant costs, more prisons. But softening the sentences is not the right, or the safe, way to reduce the number of prisoners. The safety of our law-abiding citizens is paramount, and should not be endangered because this Government has run out of ideas and thinks that the best way to be tough on crime is to reduce, by whatever means, the prison population. The best way to be tough on crime is to reduce crime in the first place. This bill does not address that matter.

RON MARK (NZ First) : I seek leave to have the House lift and for me to resume my speech when the House resumes at 7.30. I see that there is less than half a minute on the clock and it would seem rather pointless to start a speech at this point in time.

Mr DEPUTY SPEAKER: Leave has been sought for that course to be followed. Is there any objection? There appears to be none.

• Sitting suspended from 5.59 p.m. to 7.30 p.m.

RON MARK (NZ First) : In speaking to the Criminal Justice Reform Bill on behalf of New Zealand First, I want to say that this bill is a bit of a mixed bag for us in New Zealand First—something of a pot-pourri. I say that because there are aspects of this bill on which we have been involved in extensive discussions with the Government, and which we see as being a definite improvement on the justice system as it currently is. I have to say that this bill is a final admission that the reforms passed by this House in 2002 under the Sentencing Act, which were championed by Phil Goff as being the answer to the problems in law and order and the justice system that have beset our nation, were wrong, or that those reforms overlooked some of the criticisms that were levelled at the Government at the time they were passed. In fact, the Government chose, on occasion, to demean and belittle commentary made by Opposition MPs at that time. This bill is final proof that some of those changes in the Sentencing Act were ill-advised.

I have to say that it has been quite interesting talking to some of the people who have been involved in the discussions behind the scenes. One of the questions I did ask in those discussions was: “So, who advised the Government of these changes in the first instance, and are they still working for the department?”, because, quite frankly, changes and reforms that actually reduced the amount of time that an inmate or a person convicted of an offence and given a jail sentence would serve—changes that saw jail sentences reduced by two-thirds—were clearly wrong. We know it was clearly wrong because this bill seeks to change that.

Unlike Nandor Tanczos, who says that he does not believe in truth in sentencing, New Zealand First says that although we initially opposed some of the thoughts on the concept of truth in sentencing, we have come to the point of view that it is the most honest means of delivering justice. For too long citizens of this country have stared open-mouthed and gaped with absolute incredulity at the notion that a person sentenced to 3 years’ jail would be out on the street in a year, or less than a year. We applaud the fact that home detention is about to see its closing days in the form under which it has been operating. We applaud the fact that back-end home detention will go. We applaud the fact that the nonsense known as deferred sentencing will go.

We accept—and still reserve the right to pass judgment again, once we have seen the system operating—that home detention has a place. It is good to see that home detention will become a sentence in its own right. We see that as smart. The concept that the person or body of people who makes the decision as to whether a convict should be given home detention, some months after that person had been sentenced, should not include the sentencing or presiding judge was a nonsense from day one, and it remains a nonsense today. That proposal, I think, was introduced by a National Government, although National does not want to seem to accept or stand up and recognise the errors of its ways. The sooner this bill can put paid to that nonsensical situation, the better for all concerned. We are comfortable and happy that under this proposal the presiding judge, who hears the case, who sees the evidence, who hears the witnesses, and determines the sentence, shall be the person who will decide whether at that point a person is deserving of home detention, how long that will be, and what conditions will be imposed upon that person. Far better that it be that judge than a body of people in a different venue with different authorities, different powers, and no understanding, really, other than what those people read on a piece of paper about the case and the impact that it had on the victims.

There is much debate about short sentences and about how ineffective they are. Well, New Zealand First does not disagree with that, but we would propose something different. We say to the House that rather than doing away with short sentences, maybe in the select committee stage we should be talking about minimum sentences of 1 year. We proffer that thought because one of the greatest reasons we can see as to why short sentences are not working is that within that short, undefined, unknown period of time it is impossible—and I say it again, it is impossible—to put that inmate on a structured treatment programme with any certainty. If one has a person who is in jail because of an alcohol-induced crime of violence, and one wants to truly address his or her past recidivism and criminogenic needs—the fancy psychobabble term they use these days—one needs a specified period of time over which one can complete, conduct, and carry out a specified training course or package of training courses or treatment courses to deal with those. It is hopeless for the Department of Corrections to be expected to put together a rehabilitation plan for an inmate who has been given a 12-month sentence, only to find out that the person is actually going to be released at the 6-month mark. It is absolutely impossible. Therein, fundamentally, lies the reason that many of the issues that beset a particular inmate are never addressed—and then we wonder why the inmate is back again.

I have to say something about the explanatory note of this bill before I run out of time. We do not agree with the introduction. We do not agree with the background notes to this bill. Fundamentally we do not agree because the approach in this bill has been wrong from day one. The explanatory note states: “The purpose of the Bill is to introduce a range of measures to arrest the sharp increase in the prison population in recent years. This increase is no longer sustainable, neither financially nor socially.” What drivel. That is a politically correct approach to a problem that this Government finds embarrassing. Let me make it clear. New Zealand First does not have a problem with the large number of people in jail. What we have a problem with is the absolute ineffectiveness of the rehabilitation programmes and plans, which results in people going back to jail. We put on the record here and now that the discussion should not have been about effective intervention. That is a recipe for a disaster, for a start. We will be back here debating whether the effective interventions were effective 1 or 2 years from now, when we note again that violent crime is still on the increase.

What all this should have been about was effective rehabilitation. I will say that again. The focus should not have been on effective interventions. I am astounded that the Greens bought into this as well, and I actually have a sneaking suspicion that they do not. We should have been focusing on effective rehabilitation. Effective interventions is not about passing laws to stop more people being put in jail. Effective rehabilitation and, thereby, intervention is about putting in place programmes—alcohol addiction programmes, drug addiction programmes—designed to counter those issues that are effective in rehabilitating the inmate. The fact is that 85 percent of the people who are released from jail are back in jail in 5 years. A knee-jerk reaction that we are embarrassed that we are sitting at the wrong end of the OECD levels with the number of New Zealanders incarcerated should not be the driving motive for this legislation. It is wrong, silly, and fundamentally flawed, and is doomed, actually, to failure.

But there are things in this bill that we support. As I have a minute remaining, I have a brief word to say on the Sentencing Council. How ironic that the National Party should stand against what the Government is proposing here! The Sentencing Council is to be made up of a panel of five judges—former lawyers, the very people whom Chris Finlayson objects to being interdicted in the justice process. The big issue that has to be dealt with from one end of this country to the other when it comes to sentencing is consistency and—I am sorry—public acceptance of the sentences. There have been too many cases in this country where the public has been angered and upset by what they see as inappropriate and inconsistent sentences. New Zealand First does not have a problem with the Sentencing Council, but we will take this to the select committee and we hope that it will be debated there. We hope to see whether the evidence is there to support it, but at this stage I am comfortable with the notion that five esteemed judges should sit on that council. We support the bill going to the select committee, and we will deal with the rest from there.

Hon TAU HENARE (National) : I raise a point of order, Madam Speaker. We have a bit of an impasse here. We have a Minister in the House who does not seem to be aware of what is supposed to happen. With that, surely the vote goes back to the status quo. Nobody is here to move that that bill go to a particular select committee. I think that is an absolute shock. It is shameful that nobody is here to do his or her job properly, considering a Minister gets $200,000 or $300,000 a year as a ministerial salary.

Hon PAREKURA HOROMIA (Minister of Māori Affairs) : I move that the Criminal Justice Reform Bill now be read a first time. At the appropriate time I intend to move that the bill be referred to the Justice and Electoral Committee.

Hon TAU HENARE (National) : I raise a point of order, Madam Speaker. How can the bill be read a first time when we have just finished reading it a first time? That was the motion. The motion on the floor was to read it for the first time, and then there needs to be a motion to send it to the select committee. I am not sure where the Minister has been, but we have just finished the first reading and now he should get up and move that it be sent to the appropriate select committee.

The ASSISTANT SPEAKER (Ann Hartley): The member is quite correct. Is the Minister moving a motion?

Hon PAREKURA HOROMIA (Minister of Māori Affairs) : I move, That the Criminal Justice Reform Bill be referred to the Justice and Electoral Committee.referred to Justice and Electoral Committee

• Motion agreed to.

Hon PAREKURA HOROMIA (Minister of Māori Affairs) : I move, That the Māori Purposes Bill be now read a second time. The Māori Purposes Bill is an omnibus bill bringing together amendments to several Acts affecting Māori. The bill includes amendments to Te Ture Whenua Maori Act 1993, the Treaty of Waitangi Act 1975, the Maori Fisheries Act 2004, and the Maori Commercial Aquaculture Claims Settlement Act 2004.

There were 20 submissions on the Māori Purposes Bill, and I want to thank all those who put their time and thought into commenting on the bill’s provisions. I would also like to thank the Māori Affairs Committee for its careful scrutiny of the bill. The committee has made some useful suggestions that have improved the bill and clarified some of its provisions.

Part 1 includes a range of amendments to Te Ture Whenua Maori Act 1993. Significant settlements have been achieved in recent years between the Crown and Māori. These have contributed to an asset base that provides real opportunities for sustainable Māori economic development, and for the New Zealand economy as a whole. One of the ways the Government can support this potential is to provide an effective and responsive legal framework and infrastructure. Recent legislation, such as the Maori Fisheries Act 2004, the Maori Commercial Aquaculture Claims Settlement Act 2004, and the Foreshore and Seabed Act 2004, has extended the Māori Land Court’s jurisdiction. Part 1 ensures that the Māori Land Court will be able to respond effectively to this new environment.

The bill increases the statutory cap on the number of permanent judges who can be appointed to the court from eight to 14. This will enable more judges to be appointed, if and when they are needed. The bill gives the court more flexibility to balance the workloads of the Chief Judge and the Deputy Chief Judge. This will help the court to deal efficiently with the range of matters referred to it. The Chief Judge will have the express ability to delegate some or all of these functions to the Deputy Chief Judge. The Deputy Chief Judge is also given the ability to exercise the special powers of correction set out in sections 44 to 49 of Te Ture Whenua Maori Act 1993, subject to the direction of the Chief Judge.

Part 1 also validates certain judicial decisions. The Chief Judge’s special powers of correction have for many years been delegated to the Deputy Chief Judge. Concerns have arisen that this may not have been valid under the Act’s current provisions. In addition, in November 2000 a former acting judge sat beyond the term of his temporary warrant. The bill validates those judicial actions, to provide certainty and minimise disruption to the parties affected. Those individuals and whānau will have acted on the decisions in good faith. In all cases, the actions concerned were taken by highly experienced judges.

The bill also clarifies the powers of the Māori Land Court to hear and determine disputes referred under the Maori Fisheries Act 2004 and the Maori Commercial Aquaculture Claims Settlement Act 2004. The effect of the changes in Part 1 will be to help to ensure that Māori asset owners continue to have an effective forum and processes for dispute resolution.

Part 2 amends the Treaty of Waitangi Act 1975. The main change is to introduce the statutory closing date of 1 September 2008 for submitting new historical claims to the Waitangi Tribunal. Many of the 20 submissions made to the Māori Affairs Committee were about Part 2. This reflects the importance of the Treaty of Waitangi to Māori and all New Zealanders. One of the Labour Party’s election pledges was to introduce a closing date of 1 September 2008 for all historical Treaty claims. This bill delivers on that undertaking.

Since the announcement of the policy in 2005 there has been a great deal of discussion about what a closing date will mean. The date will help to provide greater certainty about the number of historical claims that have yet to be inquired into by the tribunal. I look forward to greater emphasis on the settlement of claims and on the future that can be built on these settlements. We have seen many examples already of iwi using their settlement assets to invest in their children. Iwi are also rebuilding their governance structures and taking part in a whole range of commercial ventures.

Claimants will not have to complete all their research or finalise all aspects of their claim by 1 September 2008. As long as a claim is submitted on or before that date, it can be amended later. The Government intends to provide information to make Māori aware of the closing date for the submission of historical claims.

Contemporary claims will still be able to be submitted to the Waitangi Tribunal after 1 September 2008. Contemporary claims relate to events occurring after 21 September 1992. This date of 21 September 1992 is when the Cabinet of the day agreed to principles for settling historical Treaty claims. It has been used to define the difference between historical and contemporary claims in all Treaty settlements of the past 14 years.

A closing date for the submission of historical claims will provide greater clarity about the historical claims yet to be addressed. This bill will help to move us forward, so that Māori and all of New Zealand can enjoy the benefits of settlement.

Part 3 makes a number of technical amendments to the Maori Fisheries Act 2004. These address some oversights in the original legislation in its interaction with the Fisheries Act 1996. The bill amends the list of quota shares held by Te Ohu Kai Moana Trustee Ltd to reflect changes that have already occurred as a result of the exercise of preferential allocation rights under section 23 of the Fisheries Act 1996. Section 23 triggers the redemption of preferential allocation rights when a total allowable catch limit is raised for certain stocks. The bill clarifies the proper course of action for Te Ohu Kai Moana Trustee Ltd to follow in allocating quota shares affected by these redemptions.

Part 3 also corrects an oversight in drafting that omitted to provide a complete process for allocation of harbour quota in accordance with the agreed allocation model. As a result of consideration by the Māori Affairs Committee, it has recommended that three additional matters be dealt with in the bill. Further amendments to the Maori Fisheries Act 2004 have been added to the bill to correct an error in the classification of red crab stocks, and to allow for the effects of changes to quota management areas on the quota shares held by Te Ohu Kai Moana Trustee Ltd. A provision has also been added to validate the actions of Te Ohu Kai Moana Trustee Ltd in allocating quota based on its actual holdings, rather than those holdings currently listed in schedule 1 to the Act, during the period until this bill is passed into law. These amendments will assist in the transfer of fisheries settlement assets to iwi in a timely manner. Consistent with the original intentions of the legislation, they will reduce the risk of costly disputes.

Part 4 makes a technical amendment to the Maori Commercial Aquaculture Claims Settlement Act 2004. It corrects an error in the current wording of the definition of pre-commencement space in the Act in a way that is consistent with the understanding of the stakeholders at the time. This does not affect the Government’s commitment to provide the equivalent of 20 percent of aquaculture space that was promised to iwi under the fisheries deed of settlement.

In conclusion, the Māori Purposes Bill is practical legislation that makes amendments to legislation affecting Māori and their assets. The amendments in the bill will help the Māori Land Court to function efficiently, promote greater certainty and a forward focus in the settlement process, and help to ensure that the distribution of fisheries and aquaculture settlement assets to iwi is able to proceed smoothly. Māori are fast becoming increasingly important contributors to the New Zealand economy. With Māori managing and leading the growth of their assets and people, the benefits will be felt not only by Māori but by New Zealand as a whole.

Hon TAU HENARE (National) : Let us cut to the chase. Labour members love to talk about how much mana the Treaty of Waitangi has. Let us take just that part of the bill first. If the Treaty had the mana the Minister speaks of, then the bill would be just about the Treaty. It would stand alone as an amendment to the Treaty of Waitangi Act 1975 and place the Treaty in its proper place. That is the first point. The second point is that National actually agrees with the Minister and Labour about a close-off date. It is not to say to Māoridom that they cannot put in any more claims; it means basically that they have until 1 September 2008 to get with it and make claims. It does not mean that a claim cannot be put in; a claim can be put in that basically says on one piece of paper: “We, on behalf of such and such a hapū, such and such an iwi, submit a claim over the following pieces of land.”, or whatever.

During the claim’s lifetime and during the research, the claim can be amended, as long as it has been submitted by 1 September 2008. So I would not say that this bill is throwing a spanner in the works of the whole claims process. I actually think that, firstly, it will speed up the process; secondly, it will make the process more interesting; and thirdly, hopefully, by getting claims in on time, by 1 September, they will also be worked out earlier. There will be a concertina of the submission of a claim, the research of the claim, and finally, if one is lucky, getting whoever is in Government to come to the party in terms of some sort of arrangement, such as we have seen in the past.

The National Party does not have a problem with the amendments to the Maori Fisheries Act. In fact, they are a seamless way of tidying up a few problems that have arisen. I am glad that the Minister said that the provisions would not hurt the 20 percent of aquaculture space allocated to Māori some years ago.

We come now to what I think is an issue of great concern. There are a couple of issues. One—and here we go again—relates to retrospective validation. We have just come out of a huge argument about the retrospective validation of electoral spending. Without going into the details of that, we are being asked to approve or support—

Dianne Yates: Do you know what you’re talking about?

Hon TAU HENARE: Crikey, this is the former member for “Hamilton Somewhere”—east, west, north, or south. She does not even know where she represented. She would not know what time of day it was. She would not know the first thing about the Māori Purposes Bill.

Let me tell members what Labour wants to do. There was a judge, and one would have thought the judge had a licence to operate. But, lo and behold, he never had a licence to operate. In fact, he did not have a licence to operate so he could not have been a judge. All those people came into the courtroom thinking he was a judge, but he was not a judge. Do members know why? Because he did not have a warrant. He went through the process of hearing the defendants and hearing the other people, and actually made a determination. He made determinations not just in one case but in over 80 cases. But he was not a judge—he did not have a warrant to be a judge. I put it to the House that if that had happened in a murder trial or a criminal trial, there would have been a retrial at least—at the bare minimum.

Russell Fairbrother: No.

Hon TAU HENARE: Fairbrother says no. I know what he is going to say—that Labour would have validated that, as well. Why did Labour not sort itself out prior to hearing those poor people? Here is the rub: not one of those people who went before the judge has even been told that they are entitled to question the validity—

Hon Parekura Horomia: Rubbish!

Hon TAU HENARE: The Minister says that is rubbish. This is the Minister who did not even know how to move a bill to the Māori Affairs Committee, and we are expected to believe that he knows what he is doing now?

I ask you, Madam Speaker. And we are expected to believe that—

Hon Parekura Horomia: It happened in your time, Tau.

Hon TAU HENARE: No, it did not. I never dropped the ball when I was the Minister. In fact, lots of stuff that I did when I was the Minister is still going today. But I digress. Here is the last one. The Minister said in his speech that if the Māori Land Court needs more judges, it can have them by virtue of a change to the Te Ture Whenua Maori Act. He said that the maximum amount of judges allowed at the moment will move up. He said that this will happen if and when the court needs them. What the hell is the point of putting the Māori Affairs Committee through a process of looking at changes to a bill, only to have the Minister think: “Well, that’s if we need them.”? The Minister is saying: “We don’t really know whether we will need them, but let’s be on the safe side, just in case we get a whole lot of foreshore and seabed claims.”

That is what the bill is all about. It has nothing to do with bolstering the intellectual capacity of the Māori Land Court; this has everything to do with the Minister going: “Oh, crikey, we passed the foreshore and seabed legislation and now here comes the rush of people from NgātiPorou”—oh yes, that great tribe from the East Cape—“from Ngāpuhi, from NgāiTahu—from all over the country.”

Pita Paraone: Ngāti Hine!

Hon TAU HENARE: People will come from Ngāti Hine, and its foreshore, as well. That is what this legislation is all about. It is not to bolster the intellectual capacity of the Māori Land Court but to bolster the number of judges if, and when, we need them.

Russell Fairbrother: You concede it’s good legislation, then, don’t you? You concede that people have their rights and are exercising them?

Hon TAU HENARE: Oh no, I am not the one who sold out. The reason why it is all boisterous in the Chamber now is that I am not the one who sold out his people. I am not the one who brought in the foreshore and seabed legislation. I am not the one who said to Māori: “No, you can’t go to court like everybody else.” I am not the one who said: “You are a second-class citizen.” I am not the one who said: “You don’t own anything and you can’t have any rights to go to court to find out whether you own it.” But hey, the Minister of Māori Affairs is the one who sold out his people. He is the one.

Actually, the Labour Party members are responsible for the Māori Party coming to Parliament. It is pretty clear that Dianne Yates, Parekura Horomia, and their colleagues are all responsible for the birth of the Māori Party. I thank the Labour Party members very much, because we have in the Māori Party some good MPs who do the hard yards, who get around, who speak from their hearts, and who will never sell their people out.

Nō reira, we will support some of the bill. In the Committee stage we will move amendments to the two parts I have talked about—that is, if Dianne Yates can keep her eyes open. We will support other amendments to the bill in terms of the Māori Land Court that, hopefully, my friend, cousin, and colleague Pita Paraone will table.

Hon JIM ANDERTON (Leader—Progressive) : When the Maori Fisheries Act was passed in 2004 it was a major piece of legislation and a historic moment for this House. It was legislation that was roundly debated both here and throughout New Zealand. Part 3 of the Māori Purposes Bill 2006 is not of the same scale. It proposes technical amendments that are needed to fix three oversights or drafting errors. Fisheries legislation—I say from my 1 year’s experience—is extraordinarily complex, and this legislation is no exception. Tonight we have to repair the status of a species of red crab, we have to fix an anomaly that arose because preferential rights were allocated 20 years ago, we have to correct the omission of one step in the administrative procedures, and we have to validate decisions that were made before anyone knew that the anomalies existed. The amendments are not a new allocation model or an interference with the model; they give effect to the allocation model agreed to by iwi.

The first amendment fixes a problem that meant Te Ohu Kai Moana Trustee Ltd could not strictly comply with the legislation’s provisions about the way fisheries are allocated. This story goes back to 1986, when the quota management system was first introduced. At that time some quota owners had their rights reduced without compensation, because an effort was being made to reduce catches to sustainable levels. Although they lost their right to take some of the catch, they kept the right to get preferential quota if the total allowable catch was ever increased again. Section 23 of the Fisheries Act implements this preferential right. Then the Maori Fisheries Act was passed in 2004, which tied all decisions about allocation of fisheries to a number of quota shares held by Te Ohu Kai Moana Trustee Ltd at the time the Act was passed. These shares are listed in schedule 1 of the Act.

The problem is that the number of shares can change through preferential quota dating back to 1986, as I have described. This can effect the number of shares held by Te Ohu Kai Moana Trustee Ltd for distribution to iwi. When that happens, schedule 1 of the Maori Fisheries Act 2004 will no longer reflect Te Ohu Kai Moana Trustee Ltd’s true holdings. Te Ohu Kai Moana Trustee Ltd is unable to comply strictly with the allocation provisions of the legislation. The amendments contained in clause 22 of the bill will rectify that situation. The amendments in clause 22 are not retrospective, so clause 23(1) of the bill deals with seven fish stocks that were affected by the preferential allocation rights in October 2004, before this issue was recognised.

Section 25 of the Fisheries Act 1996 allows the Minister of Fisheries to recommend changes to quota management areas if this will improve fisheries management. This also would change the shareholdings of quota owners. Both the name of stocks and the number of quota shares held can be changed. If that happened, Te Ohu Kai Moana Trustee Ltd would be left with no guidance from the legislation on how to allocate the new quota shares. It would also have a technical obligation to allocate stock that no longer exists. It is a bit like how the Opposition would like to reallocate the technical parts of the fiscal surplus that do not exist.

The need for this amendment was raised in the select committee by Te Ohu Kai Moana Trustee Ltd and it has been added to the bill in clause 22A. The amendment provides instruction for Te Ohu Kai Moana Trustee Ltd to deal with these circumstances in a way that fully reflects the intention of the allocation model for fisheries settlements assets agreed among iwi. The Ministry of Fisheries is in agreement that this amendment is necessary and it has the full support of the Government. I congratulate Te Ohu Kai Moana Trustee Ltd and the committee members on achieving this addition to the bill.

The second issue in the Maori Fisheries Act 2004 addressed by this bill is an error in the classification of deep-water red crab species. Te Ohu Kai Moana Trustee Ltd classified stocks listed in schedule 1 to the Act as inshore or deep-water. Of the hundreds of stocks in the schedule, the stocks of red crab were classified wrongly as inshore rather than deep-water stocks. This is doubtless of significance to the crabs, who remain unaware of their circumstances. It was also, however, significant for the allocation of the settlement quota to iwi. Deep-water and inshore stocks are allocated differently. Inshore stocks are allocated primarily according to the relative coastline length of the iwi’s rohe. Deep-water quota is weighted heavily on the basis of iwi population. Therefore, it is important to the distribution of assets whether stocks are classed as deep-water or inshore. This reclassification is achieved through the amendment put forward in clause 23(2) of the bill.

The third issue dealt with in this bill corrects the omission in the drafting of the Maori Fisheries Act 2004. The allocation procedures in the Act are complex. In the preparation of the legislation a process step was omitted from schedule 6 of the Act. This step concerns the final calculation of allocations for, generally, small amounts of quota attributed to particular harbours around the coast. Clause 24 of the bill puts forward new clause 10A for inclusion in schedule 6 of the Maori Fisheries Act. It completes instructions for the administrative procedure that Te Ohu Kai Moana Trustee Ltd uses when it allocates this quota according to the model agreed by iwi.

Other provisions in the bill tidy up matters associated with these three issues. For example, clause 24(4) inserts new clause 11A into schedule 6 of the Act. It deals with a special case of inshore quota already allocated but not yet transferred to iwi. It reflects a similar provision to clause 21 of the bill, which does the same thing for deep-water allocations. Clause 25 then provides for the validation of some actions associated with technical problems in the Maori Fisheries Act. As I mentioned, the holdings of Te Ohu Kai Moana Trustee Ltd and seven stocks were affected by preferential allocation rights in October 2004. The stocks are listed in clause 23(1). Before this issue came to light, Te Ohu Kai Moana Trustee Ltd and the Chief Executive of the Ministry of Fisheries took statutory action to register a settlement of quota interest over all settlement quota shares. The numbers of shares listed in the paperwork for those actions reflected the schedule of the Act, not the true number of shares as modified by preferential allocation. Naturally, only the shares actually held by Te Ohu Kai Moana Trustee Ltd could have a settlement quota interest registered over them. Clause 25 validates these actions.

Te Ohu Kai Moana Trustee Ltd has gone ahead and allocated quota to iwi in order to get assets to them as quickly as possible. In doing so, that organisation also allocated the seven stocks in accordance with the shares actually held rather than the numbers currently listed in the schedule. So the second validation is of allocations made by Te Ohu Kai Moana Trustee Ltd until now for the same seven stocks affected in October 2004 by preferential allocation rights. This is the only sensible approach to take in the circumstances. This validation just confirms those facts. It ensures that the decisions made are legally robust.

The final matter in the bill that I will speak to is in respect of Part 4. It concerns the amendment of section 20 of the Maori Commercial Aquaculture Claims Settlement Act 2004. That Act settles contemporary Māori claims to coastal space for aquaculture development from September 1992 into the future. Section 20 of the Act is an interpretation section and contains a definition of pre-commencement space. These amendments tidy up matters from the development of two landmark pieces of legislation passed in close succession by the House in 2004. The provisions carried forward in the Māori Purposes Bill 2006 will assist in the allocation of fisheries assets and in the management of fisheries under the Maori Fisheries Act.

PITA PARAONE (NZ First) : Ā, tēnāanō koe e te Kaiwhakawā. E tikaana ki te whakakōkuhutiaahautēneiwāiriro ki a au me tōkurōpūmōtēneipire, mōānawāhangatuaruaimuai te Whare neii roto iwātātou reo rangatira nā te mea, he piremōngā take Māori.

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

[Greetings to you Madam Speaker. It is apt that I begin my contribution and that of my party in our chiefly language for this bill in its second reading before the House, because it is a Māori Purposes Bill.]

As has been mentioned by previous speakers, the Māori Purposes Bill is an omnibus bill that has been duly considered by the Māori Affairs Committee. The bill proposes a number of amendments to the Treaty of Waitangi Act 1975, the Maori Fisheries Act 2004, Te Ture Whenua Maori Act 1993, and the Maori Commercial Aquaculture Claims Settlement Act 2004. I commend the Minister, Parekura Horomia, for at least having a Māori Purposes Bill this year. This might be the second bill of this nature to come before the House in the short time that I have been in it. I am somewhat surprised about that fact, given the number of social issues—not least economic issues—confronting Māori. Of course, legislation is required to assist Māori in their development in these areas.

In terms of the amendment to the Treaty of Waitangi Act as proposed by this bill, I say that a number of submissions were made by members of the public, many of whom expressed their opposition to the amendment to the Treaty of Waitangi Act 1975, which sets a closing date for the lodgment or submission of historical Treaty claims to the Waitangi Tribunal. Of course, some submitters expressed concern that there had not been an opportunity for consultation with iwi and hapū about this matter, and others submitted that there be no closing date. The setting of a time frame by which claims should be lodged is something that we in New Zealand First support; in fact, it is a policy of our party. It is important for those wishing to make claims that this proposed amendment is about the lodgment of claims only, not about when claims will be settled or about the fact that applications need to be fully researched before their lodgment. I suggest that a number of the submitters who were concerned about this closure expressed that concern in the belief that they needed to have their application and research completed in order to have their claim considered.

But we also need to make reference to what a historical claim is. This bill defines a historical claim as something that relates to events that have occurred prior to 21 September 1992—the date on which the then Government decided what principles would be used for the settling of historical claims. That is not to say that claimants cannot amend their applications; it does give them the opportunity to do so should they find, as a consequence of further research, that they need to include that in their original claim.

As the previous speaker, Jim Anderton, has outlined, the proposed amendments to the Maori Fisheries Act address a number of issues. We in New Zealand First have no problem with that, because it gives effect to the true intent of that particular Act, but it highlights for some of us—particularly those in New Zealand First—the haste in which the original Act was put together. We accept that the amendment would allow Te Ohu Kai Moana Trustee Ltd, when allocating quota to iwi, to take into account changes to the quota shares it holds resulting from alterations to quota management areas under section 25 of the Fisheries Act 1996. It also allows for the reclassification of red crab stocks, and clause 23 of the bill will provide that. The bill also allows for the validation of allocation by Te Ohu Kai Moana Trustee Ltd, and that is covered in clause 25. There was, without exception, support from submitters in relation to this particular amendment, and the report from the Māori Affairs Committee, which dealt with the bill, recognises that.

The Minister made reference to other amendments, particularly Te Ture Whenua Maori Act, to clarify that a judge may determine an application relating to a dispute under the Maori Commercial Aquaculture Claims Settlement Act. We in New Zealand First have no difficulty with that; in fact, it highlights the need for a further amendment in relation to the ability of the Minister to increase the number of Māori Land Court judges, if required. This reflects the added work that the Māori Land Court will need to consider when claims to the seabed, foreshore, and other issues arising from successful Treaty settlement claims arise. It does also allow for the fact that this legislation provides a close-off date for Treaty claims, and gives some credence to the need, therefore, to have the necessary personnel in place to consider the work that will come out of this.

The other point I want to refer to is the issue relating to the validation of decisions made by the then Deputy Chief Judge of the Māori Land Court, Judge Norman Smith. We do not question the integrity of that particular judge, but rather the fact that the House is being asked to validate the decisions he made during, I think, the month of November 2002, and to ensure that the orders made by his court are indeed orders of the court. I point out that, in considering this application, some of us had concerns about the introduction of retrospective legislation to validate these orders. Our concerns really were about whether those families and hapū—and, in fact, iwi—affected by this issue were aware of it. The speaker from National did indicate some concern about whether those who were affected by the orders made by the court at that time knew of their ability to appeal the decisions, or to express some concern, or whether they had even been notified about this legislation. I am assured by the officials that although this may have caused some logistical problems, they did not perceive there being any difficulty with passing legislation that would validate those orders.

I signal that in relation to the increase in the number of Māori Land Court judges, I propose to have my member’s bill, which has been drawn from the ballot, considered as a Supplementary Order Paper in the Committee stage. Without further ado, I again confirm that New Zealand First will support this bill.

METIRIA TUREI (Green) : I want to tell a story about how the Treaty settlement deadline in this bill came to such prominence. The story starts with a speech at Ōrewa. In early 2004 Don Brash, the then leader of the National Party, made a speech that came to be known as Ōrewa I. In it he advocated the old integrationist policies of the past and specifically attacked Māori as having special privileges over other New Zealanders. This speech was purposefully written to push the buttons of the prejudiced and incite fear in the general population about Māori. It was an explicit attempt to incite race hate in our country. Thinking people said, at the time, that National was playing the race card in order to attract the votes of the prejudiced and the gullible. The full extent of this manipulative racism has only come to light through the leaked emails discussed—

Simon Power: I raise a point of order, Madam Speaker. Although, on the whole, I often agree with the member’s speeches to the House, it is not appropriate under the Standing Order to refer to a member of this House as racist or anything that a member has said as being racist. I ask you to bring the member to order.

METIRIA TUREI: Speaking to the point of order, Madam Assistant Speaker, I point out that the rule is that no member of this House may describe another member, or what a member has said, specifically as racist. It does not prevent a member from describing policies, ideas, or issues as racist, where that is appropriate.

The ASSISTANT SPEAKER (Ann Hartley): The member is quite correct, and I refer the House to the Speaker’s ruling made by the Hon Doug Kidd, which makes that very clear.

METIRIA TUREI: It was an explicit attempt to incite race hate in our country. National was playing the race card in order to attract the votes of the prejudiced and the gullible. The full extent of this manipulative racism has only just come to light through the leaked emails discussed in Hager’s book The Hollow Men. Clearly, this was not a speech based on policy. National’s policy was not framed in that way, and its spokesperson Georgina Te Heuheu never advocated such ideas. The speech was not even written by Dr Brash. It was written by a small extremist cabal within Brash’s office, who wanted to reverse the poll slump that their man was leading. It was a position based on lies. The examples that National used were extremes: facts were misrepresented and history reinterpreted to give the impression of Māori as a privileged group in society—a bizarre position to take, given the facts. But the facts did not matter. The speech included paternalistic comments about Māori in order to pass a “political hygiene” test. So along with descriptions of Māori as having mischievous minds, having power of veto over development, and using stand-over tactics—

Anne Tolley: I raise a point of order, Madam Speaker. I ask about the relevance of the speaker’s line of debate in relation to the bill before us tonight.

The ASSISTANT SPEAKER (Ann Hartley): A Māori Purposes Bill is a broad bill. The member is speaking to the bill.

METIRIA TUREI: It was a bizarre position to take, given the facts. But the facts did not matter. The speech—

Anne Tolley: I raise a point of order, Madam Speaker. I am just looking at the bill before us tonight and I cannot see anything about Ōrewa speeches; I cannot see anything about emails; I cannot see anything that would in the least bit relate to the member’s speech.

The ASSISTANT SPEAKER (Ann Hartley): The member has been addressing the issue of Treaty settlements in its context.

METIRIA TUREI: The speech included paternalistic comments about Māori in order to pass the “political hygiene” test, so along with those descriptions about Māoris having mischievous minds, there were also very patronising comments about Māoris having a “special” place in New Zealand. When challenged by the media to identify the specifics of that policy, all of those involved in the preparation of the speech refused to answer, because the examples simply did not exist. Even Dr Brash’s own media team said there were no major race-based funding examples to be found.

At the time that speech was delivered, there were some rumours of concern from National Party politicians; most notably from the spokesperson on Māori Affairs, who soon lost her role as a result. But the vast majority of the National Party members and caucus sat by and watched, knowing that they would directly benefit from the hate, heat, and division that that speech would cause in the community. And benefit they did! Poll ratings soared for National. The race-hate rhetoric continued from that speech to the election campaign where the “iwi versus Kiwi” billboards specifically set out to isolate Māori from the rest of the community. It was divide and rule—the oldest tactic in the book. No facts, no evidence, no principles—the National Party election campaign.

Meanwhile the sitting MPs were returned to their seats, and many more National Party people became MPs. Their silence on such an unprincipled stance was deafening. But, of course, the negative impacts of the speech were not felt by the largely Pākehā membership of the National caucus. They were not the ones being accused of widespread abuses and of destroying the country. They were not being accused of corruption or nepotism. It was Māori who were being abused on the streets as a direct result of that speech. I have had reports of young Māori, virtually children, being taunted and abused by adults after Ōrewa. It was National that gave the ignorant and the bigoted the permission to behave in an openly racist manner.

Who did Māori look to, to combat the lies and divisiveness being perpetrated? They looked to the Government, which was in the middle of the largest confiscation of Māori land in the history of our country, and which was still the only viable power that had the resources and the facts to comprehensively combat those lies. But what did they get from a Labour - Progressive - United Future Government? Some Labour MPs were concerned, and there was some rhetoric about that. But the Labour Government turned on Māori like National had, and, like many in the community were doing, the Government lost its nerve and attacked not National, which was distorting the facts and manipulating fear, but Māori. Instead of defending the record of Māori development and the programmes to assist Māori to break through poverty cycles, Labour turned on Māori too.

Let us look at two of those examples. The first was Labour’s absolute acceptance that Māori were getting special privileges. Labour set Trevor Mallard to the task of finding targeted programmes for Māori and Pacific Islanders to have their funding cut in order to show that Labour was just as tough on the natives as National was purporting to be. National, with no plan, no policy, or intention of doing anything, had blown a dog whistle claiming special privileges for Māori, and like the obedient puppy, Labour came running with a mouthful of bone. In a broad, detailed State Services programme, Labour went through and cut funding to Māori and Pacific Island programmes. Who lost out? Manaaki tauira scholarships, special supplementary grants for the retention of Māori and Pacific students in tertiary education, the promotion of early childhood participation for Māori and Pacific children into early childhood education, and domestic violence programmes to protect Māori women and their children from violent abusers lost out.

But that was not the only thing that Labour did in response to National’s attacks at Ōrewa on the Treaty of Waitangi and the Waitangi Tribunal. Labour obediently decided that Māori should have imposed on them the deadline for the submission of historic Treaty claims to the tribunal set out in this bill. Brash’s nasty insinuation that Māori were using the Treaty—

Simon Power: I raise a point of order, Madam Speaker. The member needs to refer to another member of this House by either his or her full name or correct title.

The ASSISTANT SPEAKER (Ann Hartley): Yes, the member does need to refer to the member by his correct name.

METIRIA TUREI: Mr Brash’s nasty insinuation—

The ASSISTANT SPEAKER (Ann Hartley): Dr Brash.

METIRIA TUREI: Dr Brash’s nasty insinuation—I repeat that—his nasty insinuation that Māori were using the Treaty and the tribunal process to gain greater civil, political, or democratic rights than others was factually wrong. National knows that the tribunal process rightly and justly investigates crimes such as theft, murder, wrongful imprisonment, and rape. But the truth was not the point for either National or Labour. Rather than make this just a simple policy on which Labour could consider the issues, Labour turned it into one of its three major election promises, from which it now cannot back down. Labour, barking to National’s whistle, has explicitly agreed with National’s distortions and manipulations about Māori. This bill will force Māori with few resources to meet a deadline imposed to benefit the Government and to appease the ignorant, who now could not actually care less. We have, in this bill, the final stages of the implementation of National’s race-hate rhetoric and Labour Government law.

TE URUROA FLAVELL (Māori Party—Waiariki) : Madam Speaker, kia ora tātou katoa, itēneipo. The Māori Party is not about to buy into a culture of silence that appears to have strangled some members of the Government. We are about to speak out in this House about things that matter and we think Te Tiriti o Waitangi is a pretty good place to start. So what do we have here? For starters, we have a bill that amends the Treaty of Waitangi Act 1975. The bill before the House proposes the imposition of a closing date of 1 September 2008 for new historical Treaty claims to be submitted to the Waitangi Tribunal. That is it; end of story. No more claims can be submitted after that date.

The bill also provides a new definition of “historical Treaty claim” to take in claims relating to events occurring before 21 September 1992. For the first time in our history the bill is inserting into legislation a definition of “historical Treaty claim”. Up until this point there has not been a formal distinction between historical and contemporary claims. This bill makes the changes.

Twenty years ago, in 1986, Cabinet agreed in the area of policy development and legislation that Māori should be consulted on all significant matters affecting how the Treaty is applied. One year later in the ground-breaking case New Zealand Maori Council v Attorney-General—the lands case—the Court of Appeal characterised the Treaty relationship as a special partnership, which was reflected in four fundamental principles: firstly, fiduciary duty in that the Crown has a duty actively to protect Māori interests; secondly, a full spirit of cooperation, so where there are Treaty implications the responsibility for the Crown to make informed decisions will require consultation; thirdly, the honour of the Crown where the Treaty is a positive force in the life of the nation and thus the Government; and, lastly, fair and reasonable redress.

As a result of that case, Parliament took action to improve the statutory protection of Māori interests. And then here we are today. Let us be clear—18 of the 20 submissions received were to do with concerns about the imposition of a closing date. They urged the Government to consult adequately with Māori regarding the reasonableness and appropriateness of the cut-off date of 1 September 2008. The Dunedin Community Law Centre and the NgaiTahu Maori Law Centre argued that good government demands more than doing what is popular. It demands that action be taken to address the valid claims of hapū and iwi who were wronged by the Crown. This cannot be done without a fair and impartial process. The Human Rights Foundation argued that a process of dialogue should be initiated with the aim of securing broad Māori agreement with the provisions in the bill, particularly those relating to the deadline for lodging historical Treaty claims. The Treaty Tribes Coalition noted concerns that the bill will undermine the settlements process.

It seems to me that these groups know the Cabinet guidelines, court findings, and statutory responsibilities better than the Crown does. As at 30 April 2006, 1,315 claims had been lodged with the Waitangi Tribunal. By anyone’s estimates, that is a significant volume of claims. The downside is that we have no idea, really, about the number of claims that could possibly come through the door. Worse still, more grievance could be created by the whole process anyway where there are things like cross-claims, for example.

What is the evidence from consultation to justify that one side of the Treaty’s signatories—the Crown—can unilaterally impose a cut-off point, a deadline, a point of no return and say that it is fair. This sort of attitude reminds me of the settlement process we are currently suffering. One of the great ironies of this Government is the way in which Treaty claims are frequently described as contributing to the process of reconciliation. The Office of Treaty Settlement’s guides to Treaty claims and negotiations with the Crown is entitled Ka tika a muri, ka tika a mu: Healing the past, building a future. The Waitangi Tribunal website puts the case even more forcefully: “The Waitangi Tribunal inquiry process contributes to the resolution of Treaty claims and, in that way, to the reconciliation of outstanding issues between Māori and Pākehā.” Yet in this Māori Purposes Bill, issues of such national significance for all New Zealanders, issues that are central to the reconciliation and healing process as required in the relationship between Māori and Pākehā, are imposed contrary to all Treaty principles of partnership, participation, and informed decision-making through effective consultation.

On the upside, I suppose there are one or two positive aspects to the bill, which are there basically to spice up the lousy parts. The Māori Party supports the increase in the number of Māori Land Court judges from eight to 14. In the interests of efficiency, we also support the delegation by the Chief Judge to the Deputy Chief Judge in order to deal with an increase in expected future caseloads. But this does not change our fundamental concerns about the Crown’s imposed ultimatum, without the prior discussion and agreement with Māori parties to the Treaty. We remain extremely concerned about the failure of any funding to be allocated to enhance the process, as put forward by MetiriaTurei.

It is a matter of much significance that neither the Waitangi Tribunal nor claimant groups are being given the necessary support to assist in the process of helping claimants to formulate their claims before 1 September 2008. Te Rūnanga o Te Arawa in its submission reminded Parliament of the recommendation of the UN special rapporteur that the tribunal must be “allocated more resources to enable it to carry out its work more efficiently and complete its inquiries within a foreseeable time frame.”

The other group of concerns that are located in this bill are to do with the way in which the proposed changes will impact upon the Maori Fisheries Act and the aquacultural policy. The Maori Fisheries Act will be amended to enact revised numbers of quota shares in respect of seven different stocks. The Maori Commercial Aquaculture Claims Settlement Act will be amended, with the effect being that potentially the amount of aquaculture space allocated to iwi will decrease. The changes are given scarce detail and little explanation. In fact, the New Zealand Māori Council is so concerned about the impact of these changes that it submits that the bill “undermines the spirit and intentions of the 1992 fisheries claims settlement, and is another attempt at eroding Māori fisheries rights by making technical adjustments here and there.”

I read a paper by Bell Gully Senior Associate Mr Damian Stone, who described the Māori Purposes Bill as “the most significant legislation affecting Māori to be introduced into the House in the current parliamentary term.” Mr Stone went further to suggest that the changes inherent in this bill are arguably the most significant changes to the Treaty of Waitangi Act since the tribunal’s jurisdiction was extended in 1985 to provide it with the capacity to inquire into historical claims dating back to 1840. If Mr Stone is right—and we have every reason to believe so—then how can the Crown adopt all the finesse of a bulldozer in forcing through such momentous changes? The Māori Purposes Bill not only walks right over the interests of Māori but also serves to constrain and limit the rights of participation of future generations in the Treaty claims process.

In concluding, I say that in a process of reconciliation, and of healing the past to build a future, surely past wrongs must be addressed alongside a commitment to ensure that no fresh grievances are created. The unilateral imposition of a time limit, and a consultation process that saw 20 submissions received but only eight heard, are not signs of a commitment to a mutually healthy future.

The Māori Party believes in the ideals espoused by the New Zealand Māori Council—that a framework for the resolution of Treaty claims will reflect integrity, honesty, durability, and good faith between the Crown and Māori. The Māori Party will oppose this bill. It is our view that, like all Treaty settlements to date, it is another example of the continuing breaches of the Treaty of Waitangi by the Crown.

RUSSELL FAIRBROTHER (Labour) : It is my pleasure to follow Pita Paraone in speaking to this Māori Purposes Bill, that member having been on the Fisheries and Other Sea-related Legislation Committee that considered the Maori Fisheries Bill. As members well know, that committee was consumed with pressure and careful deliberation, which allowed two further iwi to be adopted into the model—namely, Ngāti Hine, in which Pita Paraone has some interest, and Rongomaiwahine, which separated to that extent from Ngāti Kahungunu. As chair of that committee, I confirm that we focused on the model, and that the amending of detail by this bill simply follows sequentially from the fishing quota in the Fisheries Act, which the Maori Fisheries Act also coordinates.

I move to the second aspect of the Māori Purposes Bill, and that is the historic Treaty of Waitangi claims. I enjoyed listening to the previous speaker, Te Ururoa Flavell, and one cannot disagree with many of the lofty principles to which he referred. But that ignores one thing, which is that the Waitangi Tribunal sits as a court. It has judges, and it has a process and a procedure akin to a court—a court of inquiry. Every court in this country has time limits. Every court in this country is bound by limitations. There is the statute of limitations and there are common law limitations. In the Crimes Act, whether or not there are statutory limitations there is the limitation of the life of the offender. So when we look at the necessity to bring in a limitation on historical claims, we must look at it in the reality of legal practice.

I speak as someone with some limited experience of the Waitangi Tribunal, having been the solicitor who lodged Wai 55, one of the very early claims, in the mid-1980s. That was at a stage when solicitors acted pro bono for Treaty claims, because there were absolutely no resources to lodge claims, and working on them required love and dedication. In contrast, these days claimants generally are very well funded and are able to research their matters. The Wai 55 claim was eventually resolved some 12 years later, but not before the original statement of claim had been amended so many times such that it bore very little resemblance to the original statement of claim, because of the better resources of successive counsel and their widening knowledge of the Treaty process.

Clause 18 of the Māori Purposes Bill, which amends the Treaty of Waitangi Act, introduces new section 6AA, and subsection (2) states that the limit “does not prevent a historical Treaty claim submitted to the Tribunal on or before 1 September 2008 from being amended in any way after 1 September 2008.” That is a very wide provision. All it requires is for potential claimants to identify in a general way the area of their claim, and to give notice of that by lodging a pro forma claim before the tribunal. Thereafter they have all the time in the world to put their claim into an order that can make it be strongly and soundly argued. That is the history of many successful claims before the tribunal, and it will continue in that way.

It is common sense that there should be some time limit. All the kaumātua who originated the claim with which I was connected, Wai 55, died within a short period of its being lodged. Those who eventually argued the claim did so by retelling stories that had been retold by three, four, and perhaps five generations. It was only the ability to find some objective evidence—such as middens, which verified some of the oral recollection—that gave the claim the power it eventually had. It is not an unusual precept of law to have time limits, and this one is very generous in the extreme, because the claim can be amended in any way after the cut-off date.

I move now to the work of Judge Norman Smith, and the provision of the bill that validates the cases on which he sat. The previous spokesperson on Māori affairs for the National Party, Gerry Brownlee, in June of this year said that he wanted a damn good reason why this bill should be passed. Well, there are 85 good reasons, 83 of them being the cases that Judge Smith dealt with. Another good reason is that they are cases of some meaning to many people who have acted pursuant to those arrangements, and those people should not be required, because of a technicality, to revisit them, with the cost, the stress, and the difficulties accompanying them thereto.

But, picking up the 85th reason, I tell members that it relates to the point that Tau Henare tried to make previously, which was that Judge Smith was not a judge when he was sitting, because he did not have his ticket, due to a technical error. Tau Henare ignores the practice in the courts, and the Court of Appeal approval, of solicitors appearing in court who do not hold practising certificates. They frown upon it, they object to it, they comment strenuously about it being a bad practice, but the litigants unknowingly involved are not subject to a rehearing. The lawyer concerned is remonstrated with, but the litigants are not penalised for that oversight. To criticise this oversight is implicitly to criticise Judge Smith himself—a judge of extremely high standing, a man whose reputation is large. To say that he was acting improperly is to reflect adversely on his standing as a judge. It does not do the National Party—a party that claims to uphold the rule of law—any merit whatsoever to take these cheap sideswipes at a person with such a substantial reputation who acted in good faith as he himself was unaware that the technicalities as to his temporary appointment had not been adequately completed.

Before I conclude I want to make some comments on my good friend MetiriaTurei’s contribution. It is always a pleasure to hear her speak on matters taha Māori when she is at full steam. But I must say that her claim, in relation to the foreshore and seabed, conveniently forgets the work of Professor Paul McHugh, who allows that the foreshore and seabed legislation that went through in fact gives more rights to Māori than they could have received under aboriginal law. Those rights arise simply from the fact that there is no right of alienation or exclusivity to land held under aboriginal title, and the key concept of European freehold title is the ability to exclude or alienate. Both those factors are, at best, qualified in aboriginal law, but under the Foreshore and Seabed Act one has the right to obtain a better title than one could obtain under aboriginal law.

So it is an invalid argument. It is emotionally very strong, but it is invalid to wind oneself up by saying that the Foreshore and Seabed Act is a continuation of the deceitful Ōrewa I speech and the message behind it, and to run that at the Labour Government, which is endeavouring in good faith to address the issues arising from the Treaty of Waitangi, and to ensure that, as we bring into legislation the various rights relating to customary matters, that is done in a morally and legally sound way.

I commend the Māori Purposes Bill. The errors it endeavours to rectify are errors that should be properly addressed, and are addressed in this very good legislation.

DAVE HEREORA (Labour) : It is indeed a pleasure to follow the previous speaker, my colleague Russell Fairbrother. I acknowledge the wealth of experience he brings on issues relative to us as Māori. I also take this opportunity in the second reading of the Māori Purposes Bill to support the bill. As chair of the Māori Affairs Committee, this debate gives me the opportunity also to raise some of the issues we were faced with in our consideration of the bill.

Although not a large bill, the Māori Purposes Bill brings together a number of amendments to four different Acts. The issues it deals with are varied but they are all important to Māori. This was reflected in submissions on the bill, which included many passionate and thoughtful points of view. We were pleased to receive submissions from a range of groups and individuals. There were 20 in all and the committee gave all of them careful consideration.

It is important to Māori that the Māori Land Court has the ability to deal effectively and efficiently with applications that may arise under both its traditional jurisdiction and its extended jurisdiction under more recent legislation relating to fisheries and aquaculture. The bill contains a number of provisions that will assist with this, including the increase in the maximum number of permanent judges who can be appointed, as and when they are needed, from eight to 14.

In the lead-up to the last general election, the members of the Labour Party undertook that if we were to become the Government, we would introduce a closing date for the submission of historical Treaty claims. This has been done in this bill, which amends the Treaty of Waitangi Act 1975. Although a number of submissions opposed a closing date, it is important that Māori and New Zealand as a nation take stock of what historical claims remain to be settled, so that we all know what work needs to be completed in this area. We can also focus more clearly on the future and plan for the time when historical claims have been settled.

Settlement gives back to Māori not just land or other assets in compensation but also people. All the leadership, time, effort, and energy that go into identifying and resolving claims can be invested in an iwi’s future, in our young people, in our communities, and in enterprises that reflect the spirit of our people. As chair of the Māori Affairs Committee considering the various settlement bills that come before it, I hear firsthand what settlement means for iwi concerned. Time and time again we are impressed by witnessing the pragmatism, the skills, and the commitment of people who have contributed to the settlement process. It is inspiring to think that this resource will continue to be available to help our people progress in other ways following settlements.

Previous speakers have been concerned about the validation of decisions made by an acting judge in November 2000, when he sat beyond the term of his warrant for a short period. The committee considered this matter very carefully and thoroughly. In the end, for most of us it came down to what was due to the people who had applied to the Māori Land Court in good faith and who had had their cases determined by an experienced judge, who also acted in good faith in the short period concerned. In the years since 2000 these people, their whānau, and, in some cases, their successors have relied on those decisions. In many cases, subsequent transactions will have been undertaken involving people who would also have relied on those decisions. Statutory validation will give all those people certainty, and enable them to continue with their lives without the disruption and possible costs that could otherwise result from a situation of uncertainty.

Other changes in the bill deal with the allocation process under the Maori Fisheries Act 2004 and the Maori Commercial Aquaculture Claims Settlement Act 2004, which are also important to Māori. The bill has provided an opportunity to address a number of technical matters that needed to be addressed in the relationship between the Maori Fisheries Act 2004 and the earlier Fisheries Act 1996. Both are complex pieces of legislation. As the process of the allocation of fisheries assets is being worked through, some omissions and errors have come to light, and the bill seeks to address those.

The main changes to the Māori Purposes Bill that have been recommended by the Māori Affairs Committee are additional amendments to the Maori Fisheries Act 2004. When the bill was introduced, it already included a number of technical amendments to the Maori Fisheries Act 2004. Submissions by Te Ohu Kai Moana Trustee Ltd in particular highlighted some additional technical changes that needed to be made. The committee has recommended that three further provisions be added to the bill. The first would amend schedule 1 of the Maori Fisheries Act 2004 to correct the classification of red crab stocks, which should be listed as deep-water stocks rather than inshore stocks. The second provision also amends that Act, to allow for changes to the quota shares held by Te Ohu Kai Moana Trustee Ltd as a result of alterations to quota management areas. If quota areas are amalgamated, for example, the original shares are withdrawn and shares for the new amalgamated quota area issued. As a result, the shares actually available to Te Ohu Kai Moana Trustee Ltd for allocation could differ from those specified in schedule 1 of the Maori Fisheries Act 2004. The last additional provision will validate the actions of Te Ohu Kai Moana Trustee Ltd in allocating quota shares on the basis of quota shares actually held rather than those listed in schedule 1 of the Maori Fisheries Act 2004. The committee supported those amendments as sensible changes to help ensure that the Maori Fisheries Act 2004 and the processes in that Act can operate effectively.

Finally, as chair of the committee I would like to thank the members of the Māori Affairs Committee for their thoughtful contributions and their input into the consideration of this bill. I also acknowledge the Minister of Māori Affairs, the Hon Parekura Horomia, for sponsoring the bill. I am pleased, therefore, to support this bill. Kia ora.

Hon PETE HODGSON (Minister of Health) : I move, That the Law Reform (Epidemic Preparedness) Bill be now read a second time. I thank the Government Administration Committee for its unanimous agreement on reporting this bill back to the House and for the work it put in. I acknowledge the chair and my own colleagues who sat on the committee. This major cross-party support is a reflection of the seriousness of the risk, and of the time and effort of the members of the committee.

This bill is part of New Zealand’s planning for any pandemic we may face, particularly from a mutated bird flu that affects humans. There are two main foci of the bill. The first is to ensure that legislation is sufficient to manage the health risks associated with the outbreak and spread of disease, and, in particular, infection control. The second main focus—for which New Zealand has shown leadership in the world—is planning for the disruptions to society that may occur from a pandemic. The Law Commission supported this focus and provided constructive suggestions to the committee, to ensure that the legislation could work well.

In relation to health management, medical officers of health will have clearer and more modern powers to deal with communicable disease at the border and in an emergency. The key to knowing whether people need to be isolated or quarantined is the ability to ask them questions, particularly at the border. The bill enhances that ability. Complementary to that is the clarification of the right to examine and test people in order to determine whether they are infected. The rights of people in our communities have to be weighed against individual rights. The bottom line is that people in our communities deserve a good degree of protection from being unnecessarily infected with a dangerous disease, so some of the measures in this bill will infringe on the personal liberties of some individuals in order to prevent them from unnecessarily infecting others. The select committee has agreed to that. The bill does not, however, require compulsory medical treatment. Most people with a dangerous disease will choose treatment; if not, the powers in the bill allow them to remain isolated while they remain infectious.

The key part of the bill is the epidemic notice issued by the Prime Minister when a disruptive pandemic threatens or has arrived. The Minister of Health must have agreed that it be issued and the Director-General of Health must have given a written recommendation. The notice has to be gazetted and tabled in the House. It lasts for 3 months at the most, but can then be extended. Parliament must meet within 7 days of the making of the notice, unless it would be too risky to parliamentarians’ health to do so. The select committee raised a concern that this bill does not deal with the situation of an epidemic possibly occurring during an election period. Addressing that concern involves amending the Electoral Act and Constitution Act. The Government expects to have legislation drafted for that purpose by the end of June 2007, at which stage we will need to debate or decide whether to introduce it.

The epidemic notice triggers some special powers, such as the emergency provisions of the Health Act. Those powers mean that people in our community can be isolated, quarantined, or medically tested when they need to be. Premises may be closed. Public gatherings may be prohibited. Land, buildings, vehicles, medicines, and other things may be requisitioned to help communities, with those affected by the requisitioning having rights to compensation.

The issuing of an epidemic notice will trigger the ability to make modification Orders in Council. Those notices must also be gazetted, tabled in the House, and kept under review. A modification Order in Council can adjust statute law so as to make laws more workable in the crisis that New Zealand faces. Two examples of such adjustments would be allowing health professionals to work across occupational boundaries in order to provide health care for sick people, and the ability to be flexible in relation to the payment of benefits under the Social Security Act.

Those modification orders can be made in advance, in which case they are called prospective modification orders, or they can be made during the period of an epidemic notice, in which case they are called immediate modification orders. Prospective modifications orders will allow advanced scrutiny of the orders by Parliament. Those orders must go no further than is reasonably necessary in the circumstances. The Ministry of Health is beginning the process, with other departments, of making prospective modification orders. Immediate modification orders are a last resort. They will receive enhanced parliamentary scrutiny, and there is a truncated disallowance process of 6 sitting days. We will amend the Standing Orders to make the disallowance motion debatable and for it to be given priority on the Order Paper.

Modification orders cannot amend the Bill of Rights 1688, the Constitution Act, the Electoral Act, the Judicature Amendment Act 1972, the New Zealand Bill of Rights Act, or the epidemic preparedness legislation itself. Our judiciary is given the power, when an epidemic notice is in force, to modify the rules of the courts in the interests of justice, taking into account the effects of the epidemic.

I am extremely pleased that we have this legislation before us, and I look forward to its continued passage through the House. I thank the very many people who have contributed to it.

SHANE ARDERN (National—Taranaki-King Country) : I thank the Minister for his comments with regard to the Government Administration Committee. This was a rare opportunity for Parliament to be involved in legislation that had no politics in it, at all. A completely multipartisan approach was taken to how we could get the best result, which is not something that we all engage in on a regular occasion. This Law Reform (Epidemic Preparedness) Bill was probably one of the most difficult bills that any select committee will ever have to deal with—that is, trying to strike the balance between the amount of executive power we must give to any Government in the event of a pandemic, and trying to keep a check and balance on that power with regard to parliamentary scrutiny. Certainly, in the initial draft, the executive would have had substantial powers. The Minister has spoken about that in his comments earlier.

The bill was referred to the select committee on 9 May 2006. The closing date for submissions was 6 June 2006. We received, considered, and heard 18 submissions from interested groups and individuals. We also received briefings from the Law Commission. We received advice from the Minister of Health, the Ministry of Health, the Department of the Prime Minister and Cabinet, the Ministry of Justice, the Minister for the Environment, the Minister for Social Development and Employment, the Department of Labour, the New Zealand Police, the Inland Revenue Department, the Department of Internal Affairs, and the New Zealand Parole Board. So members can see that the select committee did not rush to a conclusion without taking the necessary advice from a number of people. Even then, it was difficult to establish which Acts would need to be amended by this legislation. As the Minister said, the primary Act was the Health Act 1956, but there were many other Acts.

All sorts of problems fell out of the various discussions, such as what would happen if there was a pandemic during the period when Parliament had been prorogued and we were in an election cycle, or even if it occurred after an election when a new Government had been elected but had not been sworn in, and it was not possible to meet for safety reasons. So I am pleased that the Minister has said that further work will be done and further legislation will be brought forward to look at that situation. The other issue that the select committee considered for some time was the length of time required. It was decided that a 3-month period, once a pandemic had been gazetted, was a reasonable time for the necessary actions to be taken and, hopefully, was about the right time for the country to get through whatever ailment it might have had inflicted on it.

The bill is intended to ensure, of course, that the powers that are needed in those circumstances would be provided. A range of human rights issues and natural justice issues spill out of that aspect. The Law Commission, under Sir Geoffrey Palmer, advised us on a number of ways to try to bring about a balance between executive power and the powers necessary to react to the situation. We hope we will never need this legislation, but if we do need it and we have not got the balance right, many people will have an opinion on not only the work of the Ministry of Health and the advisory team but also the work of the select committee when the event takes place. The bill will ensure that should there be a human outbreak of avian influenza or a similar disease, capable responses will be put in place for that situation to be dealt with.

The bill seeks to address some of the gaps in the Crown’s statutory powers under the Health Act, as I said before. It also revokes certain provisions in the Health (Quarantine) Regulations. That was essential, because if one has notice from overseas that there is potential for a disease to be heading our way, then the necessary precautions have to be taken at the borders. The Minister said in his comments that people can be detained and questioned, and suchlike, but that they cannot be compulsorily treated. Obviously most people who had one of these highly contagious diseases would want themselves to be treated, but some may, on religious grounds or for whatever other reason—maybe they have no faith in the system—decline that treatment. Those people can be detained in quarantine, but they will not be treated by force. That seemed like a reasonable compromise in that regard.

Notification cannot come into force unless, first of all, it comes from the Prime Minister and the Minister of Health, both under the direction of the Director-General of Health, in writing. We think that is a reasonable compromise. One of the things that was suggested and teased out in the select committee was a wartime-like Cabinet—a multiparty Cabinet. I suspect, although it would be difficult to legislate for this, that in the event of a pandemic there would be multiparty or cross-party discussions, and the meeting of Parliament that is needed to ratify any such decision clearly enforces that to some extent anyway. The issue of Parliament meeting was a much-debated issue, including where that might take place. The Governor-General has the power to decide that Parliament can meet wherever it is deemed to be necessary or safe to do so. It does not necessarily have to be in Wellington. There are also many safeguards in regard to who the Prime Minister, the Minister of Health, or, in fact, the Director-General of Health may be, in the event that all those who hold those warrants are incapacitated as a result of some disease.

On balance, after lengthy consideration, and also after consulting with the Regulations Review Committee on a number of occasions and bringing in legal advice from the Parliamentary Counsel Office, the select committee has decided that this is about as good a shot as we could get at the legislation, notwithstanding the issues the Minister has addressed that are still outstanding. We think that the Parliament should support this legislation going forward and make sure that New Zealand is well prepared in the event of a pandemic.

DARIEN FENTON (Labour) : I am pleased to speak in support of the Law Reform (Epidemic Preparedness) Bill, and want to echo my colleague’s comments about the constructive approach of the Government Administration Committee in working together on this bill.

The bill is a critical part of New Zealand’s strategy to manage the effects of any pandemic that threatens New Zealand. The bill is forward-looking in that it not only establishes arrangements to manage the health effects of a pandemic but also enables other laws to be modified to manage other significant disruptions to Government or business activities that may arise from a pandemic.

The widening spread of the H5N1 strain of avian flu means there is now a significant risk of another human influenza pandemic. Although we hope that will never be something we have to face, history tells us something different. Last century, New Zealand had three widespread influenza epidemics—in 1918-19, 1957, and 1968. Like many in this House, I grew up with stories about a family member who died in that early flu. My grandmother used to talk about her young Uncle Dan who went off and fought in the First World War, made it home safely, and then died in the great flu, as she called it. Right up until my grandma died, she mourned the loss of Dan. I never knew him, but I witnessed the lasting grief that a pandemic can cause one family, let alone the thousands who suffered during that dreadful flu.

Although H5N1 may not be the one that eventually causes the next pandemic, one will eventually arise. That is why this Government has introduced a whole-of-Government work programme to ensure that if a pandemic reaches our shores, we are ready to deal with what could be some of the most serious social and economic challenges we have faced in recent times.

The select committee was very conscious of its responsibility and also that a bill of this nature—that can use wide powers in emergencies—must have checks and balances. We were grateful for the advice of the Law Commission and Sir Geoffrey Palmer, who assisted the committee with these issues. The bill now includes a number of measures to ensure that necessary emergency powers are established to deal with any future pandemic, while at the same time including suitable checks and balances to ensure that those emergency powers are used appropriately. I commend the work of the Government Administration Committee and the Law Commission for their advice.

My colleagues the Minister of Health and Shane Ardern have already described the checks and balances, in the course of discussing this bill but it is worth spending some time focusing on these safeguards. The checks and balances provide that the Prime Minister can issue an epidemic notice only with the agreement of the Minister of Health, and with the written recommendation of the Director-General of Health. An epidemic notice must be presented to the House of Representatives. If Parliament is not sitting when an epidemic notice is issued, Parliament must be called together within 7 days of the notice being issued. An epidemic notice will remain in force for only as long as is necessary. The Prime Minister and the Minister of Health, on the advice of the Director-General of Health, must continue to be satisfied that the effects of an outbreak of a stated infectious disease are likely to disrupt significantly central government and business activity in New Zealand, or the stated parts of New Zealand.

The Prime Minister may issue an epidemic management notice to modify other laws, only with the agreement of the Minister responsible for the administration of those laws. Where possible Orders in Council to modify laws when an epidemic notice is made should be prepared in advance. These advance orders can then be tabled in Parliament and referred by the relevant Minister to the Regulations Review Committee, before being sent to Cabinet in accordance with current practice. Where orders to modify laws have not been made in advance of an epidemic notice, and it is found to be necessary to modify certain laws, immediate modification Orders in Council can be made.

The bill establishes an amended scrutiny and disallowance process for Parliament to review immediate modification orders made after the epidemic notice. A modification order made under the bill may not modify the Bill of Rights 1688, the Constitution Act 1986, the Electoral Act 1993, the Judicature Amendment Act 1972, or the New Zealand Bill of Rights 1990. These laws govern fundamental rights and freedoms that can be amended only by primary legislation. The Prime Minister is required to declare by notice in the Gazette which parts of an epidemic notice are no longer needed.

The bill offers a measure of reassurance in the face of a threat posed by potential pandemics that we have this legislation enabling us to respond as effectively as can be planned, and in doing that to know we have struck a responsible balance between the powers needed and the rights and freedoms of our society. We all have a responsibility in New Zealand to New Zealand families to do everything we can to prepare for this possibility. The select committee took this responsibility seriously and worked in a very constructive way to improve the bill.

The unanimous report shows that MPs from all parties on the committee were committed to ensuring that New Zealand has sound measures in place to mitigate and manage the effects of any pandemic, while, at the same time, ensuring that the wide powers that could be assumed under the bill are subject to parliamentary examination.

The architecture of the bill has been simplified: it has greater clarity as to what will happen when an epidemic occurs; it ensures parliamentary scrutiny remains; and the ambit of the powers and restrictions are clearly stated.

I congratulate the members of the select committee on the manner in which the consideration of this important bill was conducted, and have great pleasure in supporting it.

BARBARA STEWART (NZ First) : On behalf of New Zealand First, I rise to support the second reading of the Law Reform (Epidemic Preparedness) Bill. This is a very important bill that hopefully never ever has to be implemented, but it is one of those measures that New Zealand must have in place. In order to implement this legislation, there must be a pandemic facing New Zealand, whether it be bird flu, another fatal influenza, or some other serious disease outbreak. It is a serious situation, and one that New Zealand is definitely not immune from.

In the event of any pandemic, all of the people in New Zealand will be looking to the Government for a speedy response and leadership through this crisis situation. It is absolutely essential that the Government has the law and the power to respond in a timely manner. The last thing that is needed is a disorganised response by the Government or health officials. We must be organised for any crisis of this magnitude. We also need to manage the health effects on New Zealanders and the impacts on essential services and businesses, and various Acts did need to be amended to ensure that the response would be prompt. As previous speakers have said, it is a balancing act between individual rights and the greater rights of all people here in New Zealand.

This legislation is timely. It is far better to have a plan that can be implemented prior to any event such as this, rather than have something hastily put together when an epidemic is upon us or right on our doorstep. As we have heard from previous speakers, we know that any flu can speed rapidly throughout New Zealand with devastating consequences.

We must commend the Government for planning ahead to help communities, and the Government Administration Committee for the bill that has been returned, following select committee consideration. We note that substantial changes have been made to the bill by the select committee, and we understand that some of these changes were made with the assistance of Sir Geoffrey Palmer. We must applaud the select committee for the fact that this is one bill that has no minority views recorded in the commentary. I think that shows us that the pandemic threat, such as bird flu, is far too important for petty party politics to come into play and it needs measures such as all of these that are outlined in this legislation.

We were interested to see that a problem situation regarding the sitting of Parliament had been identified—from memory I do not think it was in the first bill or discussed prior to this bill coming back from the select committee—and that action is now being taken to decide on the process and the procedure for dealing with such outstanding and essential matters. This is the time that this type of matter needs to be identified—not when an epidemic is upon us.

I was very interested to see that there has been very little media interest in the bill since it has returned to the House for its second reading. Prior to the first reading there was a lot of media attention, but this has now totally abated. Obviously, everyone is quite happy with the outcome.

Over the winter months New Zealand First was very pleased to see all of the information and the material issued by the Ministry of Health, advising the public about the necessity for family preparedness. Over the winter months I know that very many people right throughout New Zealand did prepare themselves, with food and any other items that would be necessary. I even heard of one family that had a whole range of seeds that it wanted to plant in the spring, in case there was an epidemic over the winter months and seeds would have been in short supply. No doubt everyone will need reminding again next winter about the need to stockpile, because I know for a fact that many people are now working their way through the cans of food and the items that they had stockpiled prior to the winter. We always must be aware too that some families on fixed incomes will be really challenged to stockpile food and other items, so we must make sure that this aspect is covered in the legislation.

New Zealand First looks forward to discussing the Committee stage of this bill. We believe that the bill appears to cover all of the situations that could arise if such a pandemic did occur. The bill covers many Acts and amendments to those Acts that would be affected. New Zealand First supports this bill. As a country we have no option but to be totally prepared. It is not something that we can just think about it. We must be prepared. As a member of the Health Committee, I am looking forward to receiving further updates next year on what preparations have been made by the Ministry of Health.

Recently I was interested to read that a mutation of bird flu identified overseas will not respond to the specific drug that has been stockpiled in many medical cabinets and by many district health boards. This means that a plan will need to be continually updated as developments occur. We believe that this is a very important bill, and we are very pleased to support it.

KEITH LOCKE (Green) : The Green Party is supporting this bill. I sat on the Government Administration Committee for most of the critical discussions of the bill. It was a very good committee. I do not think I have ever seen a bill that has had such a substantial change, and a change in a very good direction, as a result of the discussions at the select committee and as a result of the departmental advice changing week by week, and people taking into account the submitters and also the very useful advice by the Law Commission in the person of Sir Geoffrey Palmer, which all pushed the bill in a very good direction.

If we look at the bill and look at the bits that have been struck out and the bits that have been added, I think we will hardly find another bill that has passed through this Parliament that has gone through such changes. For example, turning to the critical sections of the bill, in terms of the orders giving powers and potentially restricting different pieces of legislation and freedom of movement, four pages—clauses 4 to 9—have been struck out and 12½ pages have been added. The 12½ pages that have been added have a lot of important qualifications—important for civil liberties and good order being maintained through the period of the pandemic.

For a start, one good change was to restrict the orbit of the bill to quarantinable diseases, which covers just four diseases—cholera, plague, yellow fever, and, added to that, avian flu. The powers granted under this legislation cannot be used more generally, and that is an explicit contrast to the approach in some other jurisdictions like the United Kingdom, where they use generalised emergency laws. As those laws are so generalised, they can be used in a wide range of situations and can be abused, whereas here there was a care that when we grant such powers they should be very restrictive in terms of what they are applied to.

One of the functions, particularly as a result of Sir Geoffrey Palmer’s intervention, and the theme that ran through the way the bill unfolded, was to restrain executive power or put parliamentary controls over executive power, including the concept of recalling Parliament within 7 days to be able to judge regulations that were brought in, to be able to go through a regulations disallowance process, and for any member of the House explicitly to be able to stand up and move a motion to turn back a regulation, if he or she saw it to be exceeding the powers necessary.

All that was added to the bill, and it is very good, as was the concept of having advance regulations made out, so that if bird flu broke out we would already have a whole lot of regulations that had been tested in the regulations review process, before anything happened, and only limited additional regulations would have to be added at the time of the outbreak of bird flu. Leeway was given to add regulations at that point, because it is very hard to judge exactly which laws need to be modified a bit. Bird flu, by its very nature, affects so much in society, particularly freedom of movement, both at the border and of course to stop infection from spreading.

I think one of the themes that came through from the medical advice was that the population is affected less if people can be kept away from the infection, be kept at home, and have less interaction with society during the peak of an outbreak. The power of a virus declines over time, and if people can be kept away from it, a lot of lives can be saved in the meantime. If that level of restriction on freedom of movement is to be imposed, and if people are to be encouraged not to go to work and, where possible, not to mix in large crowds, that slows up the whole legal process in society. So a whole lot of regulations will be affected, particularly those that have times by which documents are supposed to be submitted, etc. That runs through the whole legal system.

There are very strong qualifications in clause 9 about which regulations would be brought in at the time of an outbreak. It would have to be proven that it was impossible or impractical to comply with the normal course of events—say, the deadlines in particular laws—and that the regulations were reasonably necessary in the situation. So that is quite a strong qualification. Also, the concept in terms of the advance regulations is that there would be a stepped process. As bird flu arrived, and as the outbreak grew—if it did grow—then the regulations could be tightened up in a stepladder manner, then, as there was a decline in the outbreak, the impact of those regulations would be reduced step by step. That phasing in and phasing out of regulations is a good approach.

There is also a recognition that the fundamental human rights of our society—from the Bill of Rights 1688 through to the New Zealand Bill of Rights Act made in this Parliament in 1990 and the Habeas Corpus Act 2001—cannot be breached. Some petitioners were worried about other Acts being explicitly overridden in the bill. A number of these Acts, such as the Holidays Act 2003, the Resource Management Act, and tax Acts, were specifically chopped out of the bill. That is good, because some submissions—from unionists, for example—thought that there was a bit of a bias and that their particular legal entitlements were being overridden in this bill. Obviously, in an outbreak there would have to be flexibility about when people took holidays, and things like that, but there should not be, at the beginning of things, a bias against workers’ entitlements. I think the union movement will be very happy that those particular provisions have been taken out of the bill.

Often I and other members of the Green Party stand up in this House and criticise a bill as being a breach of human rights, but I think that in this case, while we are dealing with a situation whereby various restraints have to be put into the way the Government and the law operate, the bill has gone through an extremely thorough process. I commend the members of the Government Administration Committee, the advisers from the Ministry of Health and the Ministry of Justice, the human rights people, Sir Geoffrey Palmer, the Law Commission, and the submitters to the select committee for working so well together to turn this bill upside down and to come out with a very good product.

HONE HARAWIRA (Māori Party—Te Tai Tokerau) : Kia ora, Mr Speaker, kia ora tātou te Whare. Three weeks ago the warning bells rang when Professor Paul Zimmet said that, left unchecked, diabetes could make all Polynesian races extinct before the end of the century. In the uproar that followed I was reminded of the message from an early colonial administrator here in good old New Zealand, who said that his role was to “smooth the pillow of a dying Māori race”, because there can be no denying the fact that the ferocious epidemic of diabetes raging through our communities right now may indeed decimate our Pacific way of life. So in turning to this bill we raise the urgent need to ensure that in preparing for an epidemic, Māori are targeted and included in the response, and I turn here to the history and demographics of influenza in this land to give us a clear reason why this is so very important.

About 100 citizens of Aotearoa have died every year of influenza—every year, that is, except 1918, the year that the so-called plague of the Spanish lady overran our country and killed more than 8,000 people. Of those, Māori died from flu at a rate more than seven times higher than that of non-Māori. Indeed, Sir Peter Buck said that in 3 months, influenza killed more Māori in Aotearoa than were killed in all of the military campaigns of Gallipoli, France, and Belgium in World War I. Every Māori community bears the scars of lives lost to the black plague. I refer to black not as in “black is beautiful” but as in the black colour of the skin of victims dying from a lack of oxygen.

The stories are truly gruesome. People queued to be sprayed with zinc sulphate—they called it fumigation, but it did not stop the flu. Cinemas, churches, halls, schools, whare hui, whare kai, and all the places where people gathered were closed. Families were left isolated for weeks, and people stopped visiting for fear of catching the disease. The Ellerslie racecourse was turned into an emergency hospital, Victoria Park was turned into a massive morgue, and special trains were enlisted to haul bodies out to Waikumete Cemetery for burial. One of my tupuna in Whakapara was delegated to live alone in a cemetery to bury his relations. One of Rangitāne’s main hapū lost 75 percent of its population to the epidemic. Ōtorohanga’s two hotels were turned into hospitals, one for Europeans and one for Māori, and Princess Te Pūea herself was called in to carry coffins up the river for burial.

I have taken the time to remind the House of the 1918 flu epidemic, because in many respects it was Aotearoa’s forgotten disaster during the world’s worst-ever recorded pandemic of influenza. Such a pandemic could just as easily happen again, in a world where low standards of health, overcrowding, poor diet, and bad housing mean that a disproportionately high Māori death rate in any pandemic is guaranteed.

So I acknowledge the enduring patience and commitment of people like Kathrine Clarke of Hapai Te Hauora Tapui, NgaireWhata of Te Korowai Aroha, and Dr Lorna Dyall from the division of Māori health at the University of Auckland, for highlighting the desperate need for full and frank communication with Māori communities. Our people have many, many questions, and nobody is giving them any decent answers. Will our marae be closed? Who will care for our kaumātua and kuia? What will happen to our tangi, which Te Arawa Māori Trust Board’s ĀnaruRangiheuea has described as being our most important cultural practice? Will we even get our loved ones back? Will coffins be sealed? Can we meet to grieve? Can we hongi?

We cannot allow our future to be driven by fear, ignorance, and a lack of information. We will not allow our pillow to be smoothed out by this epidemic. There are steps that we can and must take, and crucial to our survival must be Māori participation at all levels of emergency planning. A good place to start might be simply putting the word “Māori” into the bill. The bill talks about anxiety around parliamentary sitting days, the question of whether to recall Parliament during an emergency, and the need for flexibility in legal proceedings, but for some strange reason it does not even mention the race of people that is most likely to be decimated by a flu pandemic.

Māori have been calling for a body that can directly access Māori leadership, make immediate use of Māori infrastructure, and recruit Māori health workers to engage with iwi and with Māori communities. In fact, developing a plan to respond to an epidemic with Māori interests at its very core is a matter of urgency that Māori must be actively involved in if we are even to have a future. We must use our history and our expertise to plan wisely, and we must mobilise all of our resources and creative talents to protect Māori interests and Māori well-being. This is essential not just for the future of Māori but also for the proper development of our whole nation, for if Māori are to commit to the growth of Aotearoa, then Māori must also be an integral part of a strategy for its survival, as well.

A hundred years ago the Māori population was 40,000 and thought to be close to extinction. One hundred years later we are more than half a million, and in another 50 years fully 33 percent of all children in our great nation will be Māori. We have survived the threat of extinction in our past, and we owe much to the vision and impact of leaders such as TahupōtikiWīremuRātana, Te PūeaHērangi, and Sir Peter Buck, who responded to the savage impact of the Spanish flu, tuberculosis, malnutrition, pneumonia, goitre, diseases leading to child mortality, and a host of other infectious diseases, by fighting for the right of our people not just to survive but to thrive.

Parliament has a chance to demonstrate the kind of courage shown by Māori leaders of yesteryear by ensuring a proper education and information campaign to manage the possible effects of an outbreak of avian influenza, or of any infectious disease capable of becoming an epidemic. The Māori Party will support this bill in the hope that the Minister will listen, that Parliament will consider its solemn duty to care for all citizens, and that we politicians will display the courage needed to ensure that those who will suffer most are not bypassed in this legislation, or in the bureaucracy responsible for putting it into effect. Kia ora tātou.

• Bill read a second time.

Hon DAMIEN O'CONNOR (Acting Minister for Food Safety) : I move, That the Agricultural Compounds and Veterinary Medicines Amendment Bill be now read a first time. This bill provides for changes to the principal Act, the Agricultural Compounds and Veterinary Medicines Act 1997, to make it more effective and administratively efficient. It is well known that the agriculture and forestry sectors underpin New Zealand’s economy, providing exports to a total value of around $17 billion a year, over 60 percent of total merchandise exports, and 45 percent of our total foreign exchange earnings. In turn, agricultural compounds are a vital input into the primary production sector. In the year ended June 2006 the wholesale value of the New Zealand pesticides and veterinary medicines market was approximately $400 million. There are approximately 1,000 pesticides and 2,000 veterinary medicines registered for use in New Zealand. The range of agricultural compounds is extensive: plant and soil nutrients, pesticides, herbicides, fungicides, insecticides, stock food, pet food—basic feed and special supplements—and veterinary medicines themselves.

In horticultural production—and the member my friend Mr Barker will be very interested in this—the use of pesticides is essential to securing market access for fresh export crops, worth more than $2 billion a year, by ensuring there are no unwanted pests in produce and preventing crop damage. Agricultural compounds are also used extensively in forestry and in pastoral sectors to manage pests and diseases and maintain plant health. Veterinary medicines are indispensable in maintaining the high quality and productivity of New Zealand’s commercial livestock population, as well as ensuring the health and welfare of the large numbers of domestic and companion animals that form an integral part of our society.

The use of pesticides and herbicides has increased only slightly in New Zealand over the past decade, despite greatly increased output from the primary sector. In some sectors, particularly horticulture, there has been a noticeable reduction in use in response to worldwide consumer demands. Equally significant, the types of substances used has changed to softer chemicals and biological insecticides, which are less harmful to the environment.

Although access to, and use of, agricultural compounds is vital to the New Zealand economy, there are also risks if those compounds are used inappropriately or unwisely—risks to human health, animal health, agricultural exports, and, indeed, our own biosecurity. The Agricultural Compounds and Veterinary Medicines Act is part of the regulatory framework for managing these risks, in conjunction with the Hazardous Substances and New Organisms Act, the Biosecurity Act, the Food Act, and the Health Act. The Agricultural Compounds and Veterinary Medicines Amendment Act was new legislation that came into force in July 2001 under this very good Government. The implementation of the Act has revealed a number of areas in which improvements could be made to the regulatory framework, or where clarification is required in order to achieve the original policy intent. In addition, changes to the organisational environment, with the formation of the Food Safety Authority in July 2002, needed to be reflected in the regulatory environment.

The overarching public policy objectives for the bill are to ensure, firstly, that risks arising from the use of agricultural compounds in New Zealand are managed efficiently and effectively under the Act; secondly, that regulatory controls are appropriate for the degree of risk; and, thirdly, that business compliance costs are minimised. The proposals in the Agricultural Compounds and Veterinary Medicines Amendment Bill were made available for public consultation with the release of two public discussion papers. These were distributed to a wide range of stakeholders, including manufacturers, importers, farming groups, other users, and, of course, Government departments. Eleven submissions were received in the 2002 consultation round, and 17 were received in 2004. Most of those submissions were from organisations representing the interests of large numbers of individual stakeholders. Meetings were also held with a number of these organisations. Submissions received were considered when policy for the bill was developed, and the proposed changes are generally supported.

The bill provides for the closure of gaps that have been identified in the coverage of the Act, in the areas of managing the public health effects of agricultural compounds and the regulation of all parts of the supply chain. This will be achieved by expanding the purpose of the Act to include managing risk to public health by specifying that the manufacture and import of agricultural compounds that do not comply with the Act are prohibited, and by providing that codes of practice can be required for the distribution, storage, and transportation of agricultural compounds. There are mechanisms to ensure that there is no duplication of regulatory requirements with other agencies or other legislation operating in this area.

The bill clarifies the statutory backing for arrangements in order to restrict the supply, sale, or use of certain products like prescription animal medicines or poisons such as 1080 or cyanide, which are both very important for the agriculture industry. The bill restricts or controls the sale or use of certain products to authorised persons, and the process for transfer of registration, and provides that pet foods and stock foods are covered under the Act.

The bill also proposes changes to improve the enforcement of the Act. It provides for the processes and powers relating to imports of agricultural compounds and veterinary medicine products to be aligned with those in the Biosecurity Act. The bill enables the director-general to recall non-compliant products or suspend product registration, and it provides for a more appropriate and effective range in types of penalties for offences. The bill also provides for changes to improve the flexibility and administration of the Act by providing an alternative approval process for the import, manufacture, or use of agricultural compounds, without registration, in special circumstances; allows for recognition of persons or agencies to carry out specified activities or functions for the purpose of the Act; provides for the issue of certificates of compliance to assist exporters; and, finally, updates cost recovery provisions.

The bill also provides for removing or amending regulatory requirements that are in excess of those necessary to manage the risks, or where the required degree of control can be achieved by non-regulatory or administrative measures. The bill also makes some minor technical changes. It removes provisions that have become redundant following changes in the operating environment, and it updates terminology. There will be minimal additional compliance costs associated with this bill. For the majority of stakeholders, the technical requirements will remain the same. This will mean very little change in costs. Indeed, some of the amendments should reduce costs.

While I have not spoken to each provision of this bill in any detail, although I would be prepared to if I had more time, I believe that I have indicated that the package of amendments represents a timely and necessary step forward in the effective and efficient administration of the regulatory regime for agricultural compounds, with benefits for all stakeholders. I commend this bill to the House and will be proposing that it be considered by the Primary Production Committee.

NATHAN GUY (National) : It is very difficult to follow on from that speech. The member from the West Coast, Damien O’Connor, was obviously a little bit confused near the end of the speech. It reminded me of a sort of bedtime speech written by the research unit, where he trundled on for 10 minutes and really did not address the Agricultural Compounds and Veterinary Medicines Amendment Bill very much, at all. He may have in the last couple of minutes, before he became confused. I was interested to hear him mention there would be no increase in compliance costs, and I heard the Minister of Finance interject: “Yeah, right! Heard that before.” So I guess it will be up to the select committee to determine that one. I also heard the member from the West Coast talk about the duplication of other Acts, and that is a real concern I have, having had a look through the bill.

In essence, the bill is a bit of a tidy-up. The Food Safety Authority was formed in 2002, following on from this Act in 2001. It will clarify the statutory backing for arrangements to restrict supply, sale, and use of certain trade names—in particular, 1080. It will also enable the transfer of registration. It will also define what an agriculture compound is.

Hon Rick Barker: Wow!

NATHAN GUY: Would the member like me to tell him what that is? That is essentially natural and processed animal feed, and substances used post-harvest. The bill also clarifies the benefits of registering a trade name product.

I have some particular concerns about this bill as it goes forward, and I will talk a little about them. It appears that there could be some duplication in terms of the Hazardous Substances and New Organisms Act, and I think it is very important to define that at the select committee. Reading through, I believe there is quite a bit of duplication around the bill and that Act. In particular, I alert the House to the part of this bill that deals with uncleared goods, because the biosecurity inspector has the powers to detect an exotic disease outbreak that could occur in New Zealand. I think it is very important to realise that the inspectors are extremely important to this country’s biosecurity.

It is quite appropriate, I guess, for me to mention that point right now, when we have just had 1.8 tonnes of corn come in from the States and planted in New Zealand, and I heard today the Minister of Agriculture mention that it was a human error. So we have had 1.8 tonnes of corn come into this country and I think that is a real concern for our little island nation. I was pleased to hear that he is going to have an inquiry into this. I hope it is not going to be like the Noel Ingram QC inquiry into the Taito Phillip Field allegations, which was pretty toothless. This has to be a very complex inquiry because human health is at stake here. Important issues to raise around this biosecurity breach are that the Minister was a little unclear whether these plants will be destroyed and whether there will be some compensation to those landowners who have already planted the seed that has managed to creep through our borders.

It brings to mind another issue that I should mention, the varroa bee mite in the Nelson region. The Minister was advised that there was an 80 percent chance of success in containing that and he did not choose to take it, so now the varroa bee mite is spread throughout the South Island. We have also seen didymo come in to the South Island. We had a scare recently in the Rangitīkei. Fortunately it has not reached the North Island yet, but, once again, the Minister had an opportunity to get stuck into that and try to contain it in the lakes and rivers of the deep south. So there are some real concerns around biosecurity in this country.

I also want to talk about the importation and manufacture of unrestricted compounds and, in particular, special circumstances, and that is in the explanatory note. I want to mention that the Director-General of Agriculture and Forestry has the power, under this bill, to approve one-off circumstances. If we had a rabies outbreak in this country, it would be vital that we got a vaccine in from abroad very, very quickly. That is a power that the director-general, under this bill, will have.

The other thing that is important is to have clear lines of communication and cooperation between two of the big authorities, the Environmental Risk Management Authority and the New Zealand Food Safety Authority—that is really paramount. The proposed changes will allow the director-general to recognise the person standards being met. In particular I refer to new section 33 where the sale and trade name can be restricted to the authorised person. That needs to apply to those recognised persons under the legislation.

I heard the member for West Coast - Tasman reading out that bedtime story before. He talked about the two discussion documents that had pretty wide stakeholder consultation in April 2002, and also in 2004 when there were some amendments that went back to those key stakeholders. That is detailed under “Stakeholder consultation” in the explanatory note on the bill. The important thing is that there has been some dialogue with the stakeholders, but I am still concerned that there may appear to be some duplication between the Hazardous Substances and New Organisms Act and this bill before us tonight.

It is extremely important that I allude to the cost recovery. The explanatory note talks about a levy and the real concern there is that this could be introduced carte blanche. That would be a real concern to a lot of those people who would bear the brunt of that cost. In particular, I am talking about the 18,000 Federated Farmers members, the 12,000 suppliers to Fonterra, the 7,000 vegetable growers in this country, the 500-odd winegrowers, and the 600 who are involved in the viticulture and horticulture industry. Those people would end up bearing the brunt of what I believe could be quite a costly business.

National will be supporting this bill but we do have some concerns around the cost, and it will be down to the Primary Production Committee to iron those out. In particular, I want to talk about those involved with the transport business because for them, with the necessary legislation around storage and having the right labelling on their vehicles etc., there will be an increasing cost in time and an increasing cost in personal consultation, there will be more paperwork and documentation to take through, and there will actually be more processes and procedures that will add to compliance costs. This bill talks about the $85 an hour that will be charged out.

• Debate interrupted.