Dr JONATHAN COLEMAN (National—Northcote) : Just to recap on National’s opposition to the Injury Prevention, Rehabilitation, and Compensation Amendment Bill, the key point is that by merging the employers’ account and the self-employed work account the Government is defying the basic insurance principle of matching premiums or levies with risk. What will happen with the merger of the employers’ account, which is associated with lower accident rates and lower claims, with the self-employed work account, which is associated with higher accident rates and, of course, higher claims, is that the employers’ account will then be subsidising the self-employed work account. In fact, the self-employed have twice the rate of entitlement claims as employees.

This bill means that the concept of experience-rating will be completely ignored, and those with higher injury rates who take greater risks will pay the same premiums as those with lower injury rates who are risk-averse. I think it is just a matter of common sense that that is an unjust situation. In fact, this will be an actuarial nightmare that goes against all the established principles of premiums being determined by risk. The upshot of this arrangement is that it will establish a perverse incentive. It will not be worthwhile investing in safety for one’s business or one’s workers because it will not be reflected in the accident compensation premium. This bill effectively rewards those individuals who take high risks and incur a higher rate of accidents, because they will be cross-subsidised by the employers’ account.

The Government’s argument that the self-employed tend to cluster in high-risk jobs just shows how out of touch it is with the realities of work and business today. A huge proportion of New Zealand workers are now in the service industry, working behind desks, working in jobs such as information technology, and working as consultants. The Government cannot carp on about economic transformation and then pretend that the New Zealand workforce is now made up of chainsaw wielding, self-employed people. The reality is that most of the self-employed in this country work in relatively safe environments.

This bill will be yet another nail in the coffin of this Government’s relationship with New Zealand business. It is a significant mark of bad faith that after employers have paid into this account over many years, on the understanding that it would be fully funded, the surplus that has built up will now be used to subsidise the self-employed. If the Government really did care about business, and if it were really serious about encouraging people to provide employment, it would pay that surplus back to the employers. With this bill, there really is not going to be a heck of a lot of incentive to stay in this country and continue to run a business. It is just one more nail in the coffin of New Zealand business. But one also has to ask: why is this merger of the accounts being rushed through with such indecent haste, and why is the levy consultation period for 2007-08 being bypassed? It is the mark of the arrogance of this Government that it has cynically weighed up the situation. It has decided that there will not be enough electoral damage for it to justify adhering to the normal consultation process. After forcing through the election spending validation legislation last year the Government has grown blasé about the need to follow the established rules and precedents.

This bill will also undermine what has been to date an efficient and successful part of the accident compensation workplace injury industry—the Accredited Employers Programme. The bill will make this account very unattractive. Employers will, therefore, opt out of this scheme, which will add yet more cost to the new merged account and add even greater liabilities to the residual account. Perhaps this is what Minister Dyson wants—to undermine a successful private sector venture so that it fails, which she can then try to blame on the private sector itself instead of taking responsibility as a Government Minister.

One has to ask: why, exactly, after 7 long years in Government, is Labour so eager to rush this legislation through in the space of just a few short months without giving the New Zealand public the right to be heard on the matter? Is not the unpalatable answer that this legislation is all about preparing the Accident Compensation Corporation (ACC) for life under a National Government and setting up an environment whereby it will be a lot more difficult for private insurers to enter the market in 2008 and make it work? Is it not all about the Government positioning accident compensation for the potential competitive environment, once the electorate has finally rejected this tired, deceitful Government, rather than helping employers?

How exactly will this be achieved? Basically ACC will move as many claims as possible to the residual account, which the corporation can control now and into the future because it does not believe it will ever be put up for competition. It is going to reduce the number of claims under the employers’ account management framework, thereby taking claims away from the management of employers who are presently within the ACC partnership programme. Finally, it will reduce the rating structure by a number of means: moving claims to the residual account; discounting the rate now, and then progressively increasing it over the following years; and removing the rate stability levy. The corporation will be transferring the liability to the residual account, but not the collective premium. All this will result in fewer claims and a lower rate in the employers’ account, and therefore a reduced premium pool. The upshot of it all is that it will be a lot more difficult for private insurers to enter the new market and to make it work—and that is the Government’s aim.

Obviously, the issues around this bill show a very clear and distinct philosophical difference between the Government and centre-right parties. Our policy is centred on early rehabilitation, incentives, and a system that provides a choice of insurer. Our current monopolistic system is perfect for this Government, which runs screaming at any mention of choice and competition in accident compensation. However, such a system does not benefit New Zealanders; it benefits only the Government.

National’s changes to accident compensation in 1999—although in effect for only 9 months, before the change of Government—saw a decrease in the number of injuries, as well as a decrease in the levies that employers, the self-employed, and others paid. Interestingly, since Labour took office accident compensation claims have risen each year. This is despite its claims that a monopoly system is so great, so fair, and so efficient. Severe and moderate injuries have also risen, despite the Government continually pouring money into accident prevention.

I will finish by restating that what needs to happen for the workplace injury accident compensation industry to become efficient, fair, and successful is an opening up of accident compensation to competition. Competition will provide incentives for workplace safety, it will provide greater efficiency in the industry, and it will provide fairness for both the self-employed and the non - self-employed. A choice in accident compensation delivers better results for New Zealanders.

This bill is not about fairness, and it is not about choice. It is not about open consultation, and it is certainly not about the best interests of workers and business in New Zealand. It is about a Government that is so bogged down in ideology that it is now incapable of doing the right thing by working people. For a Labour Government, that is very sad indeed.

CHRISTOPHER FINLAYSON (National) : Congratulations, Mr Chairman, on your promotion. I think it befits you very well. I am just sorry that the Minister in the chair, Rick Barker, had to turn up, because Winnie Laban was far more attractive and far more pleasant. But there we go.

I will briefly address Part 1—and I place emphasis on the adverb “briefly”, because Part 1 simply deals with the machinery aspects of the bill. We do not yet know when the Act will come into force, but the purpose clause succinctly states exactly what this bill is all about. As I said in my speech the other night, in 1980 the retiring age for judges was reduced from 72 to 68. That reduction in the retirement age was consequent upon the Beattie commission on the courts, which reported in 1979. As I observed in my speech, there was no discussion of the rationale for reducing the age. That is why I think that the other night all speakers, from both sides of the House, tried to explain the rationale for at least increasing it. The bill brings the age of retirement for High Court judges and the other judges mentioned into line with other jurisdictions.

Perhaps I should observe that every judge of the High Court, Court of Appeal, and Supreme Court is sworn in as a High Court judge, even though certain of them—nine in the Court of Appeal, and five in the Supreme Court—sit as appellate court judges. So when we see the term “judges” in relation to High Court judges, we know that it also includes Court of Appeal judges and Supreme Court judges.

I think that other speakers apart from myself also mentioned the fact that in many states of the United States the retirement age is around 70. In the United Kingdom, Australia, and Canada the retirement age is about 70. Some jurisdictions have no retirement age. Indeed, that issue was touched on by my friend Dr Worth in his speech when he sought to explain the rationale for why there is a retirement age. If there is no retirement age, there is the risk that judges can stay on for far too long and can, in fact, become an impediment to justice. I can think of a number of foreign judges who come into that category. They simply sat on the United States Supreme Court or the English Court of Appeal for too long. I recall very clearly the case of Lord Denning, a former Master of the Rolls. He was an outstanding judge—probably one of the greatest judges in Anglo - New Zealand - Australian history—but he left his high office in a very tragic way. He had stayed on too long and made some silly remark about a jury, which hastened his pretty well immediate retirement. I think that when he retired he was about 88.

So there are very good reasons for having a retirement age, but there are extremely good reasons for the age of retirement to be increased from 68 to 70 years. This reflects increasing longevity on the part of all of us and the fact that judging is an art that requires much reflection. It is a job that is naturally suited to people in their 60s and into their early 70s—I say into their early 70s because, on occasion, judges will be asked to come back as temporary judges. In the case of judges of the Supreme Court, after their retirement they can come back and sit until the age of 75. From time to time in the High Court there are judges who come back and sit after their retirement in order to assist with workloads and so on. That principle applies not only to judges of the superior courts and the appellate court but also to associate judges of the High Court and, quite sensibly, to coroners and community magistrates.

As I said a few days ago, National supports this legislation. It is a sensible provision that we are dealing with here. I do not think I need to detain the Committee any longer.

Dr RICHARD WORTH (National) : As the previous speaker, Chris Finlayson, said, this important legislation—the Judicial Retirement Age Bill, which National supports—raises the statutory retirement age for all judges, associate judges of the High Court, coroners, and community magistrates in New Zealand, from the age of 68 to the more magic age of 70.

But it is not in this part of the debate that I want to focus on clause 3—that all-important purpose clause. Instead, I want to take a moment to deal with the commencement provision, which is contained in clause 2. It is simply stated: “This Act comes into force on the day after the date on which it receives the Royal Assent.” As those who follow the parliamentary process know only too well, a bill must set out precisely when it is proposed to come into force. This rule reflects the legal rule that an Act comes into force on the date stated or provided for in the Act. That rule is contained in the Interpretation Act 1999.

In principle, the commencement provision should fix a precise date, but the commencement of legislation can be deferred for it to be brought into force by Order in Council, where there are considered to be good reasons for doing so. In this case, of course, the Act will come into force on the day after the date on which it receives the Royal assent. But if that were not so, in the circumstances that I have spoken about that relate to Acts coming into force by Order in Council, the reasons for deferring the commencement of the legislation to an unspecified date are set out in the bill’s explanatory note. As the Regulations Review Committee commented in an earlier Parliament, any use of the power to defer the commencement of a bill’s provision, other than for reasons given in the explanatory note, is very likely to attract criticism.

I note that until 1999 the commencement of a bill was invariably dealt with in the first clause, along with the title. But that is not so in the case of this bill. Here we find the title in clause 1, and the commencement date in clause 2, which reflects the requirement that the commencement provision must now be in a distinct clause devoted solely to that matter. I see that the Minister in charge of the bill, Rick Barker, is watching me in a rapt way and doubtless learning much that he has never known of before.

So that is the second clause of the bill. That clause forms, along with the title clause, a bill’s preliminary clause, which precedes the first distinct part of the bill—if the bill is drafted in parts. There may, of course, be different provisions in the bill that come into force at different times. As the Minister will know, this must be indicated in the commencement clause, with cross-references to those other clauses where the precise commencement details are set out. I need to refer in that regard only to Standing Order 257(2). That said, I think National is pleased that in this particular case the Act comes into force on the nominated date in clause 2. Certainly, we do not have any misgivings about that planned course of action. So I commend those who, with care, have drafted clause 2 in the neat and precise way they have.

KATE WILKINSON (National) : I stand to take a call on Part 1 of the Judicial Retirement Age Bill. My colleagues have already commented that only two clauses are provided in Part 1: one is the commencement clause and the other is the purpose clause. Just to reiterate the purpose, I say that the bill is a fairly straightforward bill to increase the statutory retiring age of judges, associate judges of the High Court, coroners, and community magistrates, from 68 years of age to 70 years of age.

I would like to mention in this part of the call perhaps not what Part 1 provides for, but what it does not provide for—that is, justices of the peace. There is no mention in the Judicial Retirement Age Bill of the Justices of the Peace Act. There is absolute silence as to that Act, and there is no mention of the retirement age of justices of the peace. Justices of the Peace are appointed as justices. They hold judicial office and, at the moment, the retirement age for JPs is 72 years of age. So that situation is incongruous with the proposed retirement age of 70 years in the Judicial Retirement Age Bill. We are aware, of course, that the Justices of the Peace Amendment Bill is currently before a select committee. I just remind the Committee that we need to ensure that the retirement age of JPs is consistent with the proposed retirement age of 70 years in the Judicial Retirement Age Bill. If we do not, we could have the incongruous situation of one class of judicial officer having a completely different compulsory retirement age from another class. JPs would retire at 72 and judges would retire at 70.

Perhaps in this vein I will refer to the comments of my colleague Dr Worth in relation to the commencement date of this bill. It may be conceivable that the commencement date of this Act could occur prior to any amendment to the Justices of the Peace Act. So there may be an interval of time—assuming that the justices of the peace legislation will make those age limits consistent—when we have inconsistencies and differences in retirement age. It seems that it is certainly preferable to have the retirement age of both justices of the peace and judges—indeed, of judicial officers—consistent and at 70 years.

In earlier speeches I referred to the arbitrary nature of age—whether it was the arbitrary nature of a young age-limit, as in the age-limits for holding a firearm or purchasing a beer, or whether it was the age-limit at the other end of the scale, that of a compulsory age-limit. It is quite interesting to look at the age of our current judges, and if we look at the ones aged between 65 and 68, we see that 11 of them are currently sitting in New Zealand. Nine of them are District Court judges and two are High Court judges. To extend that retirement age would certainly help to retain that intellectual capital. In my speech on the second reading, I think I said that 68 years did not appear to be a particularly old age—neither does 70, for that matter—but the nearer one approaches that age, the younger the age seems.

I would like to take a call on Part 2 later on. National supports the bill. It is straightforward and merely increases the retirement age of judges and other justices to 70 years of age, which is consistent with many other jurisdictions such as those of the United Kingdom, Australia, and Ireland. It is an arbitrary age-limit. It is not an indication of a judge’s competence, or otherwise. It is merely a mandatory retirement age. It is important to have a mandatory retirement age for judicial officers for the security of tenure and also, as has previously been mentioned by the Minister, for judicial independence.

JOHN CARTER (National—Northland) : I feel compelled to take the opportunity to speak on this Judicial Retirement Age Bill. As previous speakers have said, the National Party is supporting the bill. We are supporting it for a number of very good legal reasons and for reasons that are important to this Parliament and the country. But one of the things that is most important for this country, which we need to recognise today in the House, is that we need to keep institutional knowledge in areas such as the judiciary or within any other capacity.

One of the sad things that has happened too often in this country is that people have been retired early and we have lost a whole lot of experience. The judiciary is no different from any other group in that regard. Those people are well skilled, they are well versed, and they have huge knowledge, but then often as they are reaching the stage when they can make a very good contribution to our society—

Ron Mark: Like MPs!

JOHN CARTER: —I will come to that in a minute—we suddenly say to them that it is time they sat down and retired.

I am pleased to say that the National Party values institutional knowledge. We respect it and we expect it of our members—although the same could not be said to apply to the Labour Party. It does not develop institutional knowledge. In fact, one of the things Helen Clark has said is that she is expecting early retirement. I think she is now looking to have people come into Parliament at the Young Labour stage and retire before they get out of Young Labour.

Christopher Finlayson: Like Darren Hughes.

JOHN CARTER: Darren is a classic example. It is important that we—

Ron Mark: Like Brian Neeson.

JOHN CARTER: There is another example of a guy who made a great contribution, and who stood aside for somebody who is now leading the National Party. We are pleased because that man will be the next Prime Minister. What is wrong with that? That is making way for people, and it is a good decision.

Today this bill is a very good decision. The institution of our judiciary is important. It is important that we retain the experience and the knowledge that these people have. I am pleased to make a contribution to support the bill, and to pay my respects to the judiciary and to the many people who serve our country in that capacity.

• The question was put that the amendment set out on Supplementary Order Paper 87 in the name of the Hon Rick Barker to Part 1 be agreed to.

• Amendment agreed to.

• Part 1 as amended agreed to.

CHRISTOPHER FINLAYSON (National) : I have just a couple of points to make about Part 2. The first is to address a question that the Law Society raised in a letter it sent to the Justice and Electoral Committee. The letter said there was quite a good argument for the retirement age to go back to 72—indeed, some people would say it should go up to 75. That is, perhaps, a question for the future, but in the meantime I think that the move to 70 is about right, and for the reasons I have already said—it is basically in line with what happens in other jurisdictions.

Admittedly, however, many fine people have retired from our bench, then gone on to serve in other courts for quite a number of years. I refer, for example, to the former President of the Court of Appeal, Sir Robin Cooke, as he then was. He retired as President of the Court of Appeal in 1996 and, uniquely for a New Zealander, he was appointed to the House of Lords, where he sat dealing with English appeals. He also sat on the Privy Council dealing with New Zealand appeals. He did that for another 5 or 6 years. So he continued to make a huge contribution there. He also continued to sit, even after he retired from the House of Lords, on the Court of Appeal of Samoa and a number of the other courts around the Pacific.

A more recent example is that of Sir Kenneth Keith, who, having served with distinction on the Court of Appeal and on the new Supreme Court, retired from the Supreme Court last year after his appointment as a judge of the International Court of Justice. He retired from the Supreme Court at the age of 68, and he will be able to sit on the International Court of Justice until the age of 78. The points made by the Law Society are not without merit, and I think the question will be revisited sometime in the future.

I have only one question of the Minister, which may entice him to get to his feet, and that concerns Subpart 5, which deals with amendments to the Coroners Act 1988. I am not quite sure—and I would be grateful if the Minister could elucidate—why exactly it is necessary to refer to the 1988 legislation when, of course, Subpart 6 refers to the Coroners Act 2006. As the Minister well knows, that legislation went through this House last year. If my memory serves me correctly, the Government has already appointed a new chief coroner, who is a former District Court judge from Christchurch, and is in the process of appointing the 14 or 15 coroners who will serve full-time, as is anticipated by the new regime. So perhaps the Minister could tell me why it is necessary to amend legislation that I know has not been repealed. I know there are some transitional provisions, but it would seem to be a bit of a waste of time, because the new regime will be in place very soon indeed.

The final point I make, and it is in the nature of a suggestion to the Minister for Courts, is that when one looks at the various legislation we are amending, like the District Courts Act 1947 and the Judicature Act 1908, one can see that those Acts are long overdue for comprehensive reform. I suggest to the Government that there would be much to commend it if we had a comprehensive Courts Act. For example, when one reads through the Judicature Act 1908, one sees that in the space of 99 years it has been amended on a huge number of occasions, and at least half of the sections that were originally in that Act have been repealed. When one looks at the various court statutes in this way, one sees that a very strong case can be made for a consolidated Courts Act. I suggest to the Minister that 2008, the 100th anniversary of the passage of the Judicature Act 1908, would be a very good time to do that. It should not be too much work; it would be a question of consolidating the various statutes. [Interruption] It is a complicated matter, but I believe that the Minister should take it on board, because it would be a very good piece of work, and I could assure him that the Justice and Electoral Committee, with its usual sedulous approach to the dispatch of business, would deal with it very carefully. But I would be very interested to know why we are amending legislation that is very soon to be totally repealed.

Hon RICK BARKER (Minister for Courts) : I will reply just briefly. The reason we are amending the legislation is that the Coroners Act 1988 expires on 30 June 2007, and this legislation could well come into force before that legislation expires. It will be replaced by the Coroners Act 2006, which will come into effect on 1 July. It is necessary to mention both pieces of legislation.

Dr RICHARD WORTH (National) : National supports the speedy passage of the Judicial Retirement Age Bill. I would like to add to the comments made by the previous speaker, Chris Finlayson, by saying that in looking at the division of this bill into parts, there certainly is a case for the District Courts Act and the Judicature Act to be brought into closer alignment. It would be a very fitting end, I believe, to the career of the Minister in the chair, the Hon Rick Barker, if he were to commence upon such a task as that.

There is not a lot of substance in Part 2. The only point of substance is to increase the retirement age of judges in the way that is being described. But I would also like to pick up on a comment made earlier that it is appropriate to reflect on the contribution that the judges, at all levels of the system, make to the legal system. It is a man-made system; it suffers, of course, from imperfections. But one of its great strengths is the calibre and the intellectual capability of the judges.

It is often said that being a judge is a difficult task—not so difficult, perhaps, in terms of its intellectual dimension but in terms of the daily grind. The Minister will be very much aware of pressures emanating from the Auckland High Court district in connection with massive delays in the criminal jurisdiction, which have been substantially brought about by the refusal of the Government to transfer a substantial body of work to the lower court. I am speaking about the delays in bringing drug dealers to trial in respect of methamphetamine activity.

This is an issue that has been raised with the Minister in the chair on a number of occasions. It is very much a hot issue amongst the judges in Auckland, and it has a significant consequence, in the context of this Judicial Retirement Age Bill. The delays are of such a magnitude that there may be some cases that will see judicial lives flourish until the end of the extended term of 70 years of age without a number of these cases being resolved. I commend the Minister that he look at that particular issue without further delay.

In the course of the debate on this bill I have made three essential points. Those three points have been these. First, there is a clear case for extension of the retirement age. That could be done in a number of ways. It could be done by fixing an age, or it could be done by creating a term of years for judges to serve. In the particular instance here the Government has followed a traditional path in extending the retirement age to 70. It could have been 72. As I commented earlier, we have made provision in our Supreme Court for acting judges to serve up to the age of 75. So there is no necessary magic in what the age might be.

The second point, which I think is worth noting, is that judges are being given tenure akin to the tenure that is given to people like professors at universities. Associated with that there must always be the question that arises when a judge starts to flag, when perhaps his or her faculties begin to fail. In 2004 Parliament passed legislation that I think is particularly relevant and significant in that regard, and that was the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004. It was the case that a judge could behave in an errant fashion for many years and not be held accountable. It was seen as a hugely Draconian step for a judge to be removed for misconduct. In the history of New Zealand we came close to doing that only once, and it concerned the conduct of Mr Justice Edwards in about 1920. But now we have in place this legislation that deals with judicial conduct and sets up a Judicial Conduct Commissioner and Judicial Conduct Panel Act. So those who are aggrieved, who appear as litigants in the courts or as accused persons, have a mechanism, working parallel with this legislation—the Judicial Retirement Age Bill—to make complaints through the system if that is appropriate.

The third and final thing I would like to say is that I have expressed concern in the past that this legislation may be a pathway that excites some judges to look again at the prospect of being part-time judges. I hope that the Minister and the Attorney-General will set their hearts firmly against that course, because judging is a full-time occupation. It is not to be carried out in association with other trades and hobbies.

KATE WILKINSON (National) : In taking a call on Part 2, which has been more than adequately described by my colleagues, I point out that it increases the retirement age of the various District Court judges, Employment Court judges, High Court judges, Supreme Court judges, Māori Land Court judges, and coroners. The explanatory note is pretty helpful in explaining the rationale and the positive benefits of increasing the age of retirement of judges from 68 to 70. I shall quote from it for the record, because I think it is important: “The current retirement age of 68 years causes a loss of valuable knowledge and experience to the judiciary. The current age also presents a barrier to attracting senior practitioners or lawyers who have distinguished themselves in other fields … to judicial office. Experienced practitioners and academics can bring significant depth to the bench. … Raising the judicial retirement age will enable the retention of our most experienced and capable Judges and encourage recruitment of senior practitioners.” I think that intellectual capital—that experience—has already been well mentioned by my colleague Mr Carter.

Dr Worth mentioned briefly that there is a concern and an issue at the moment in relation to the delay in court hearings. It is hoped that this legislation might go some way to perhaps making those court delays a little less. Some of the figures—and, yes, I will be selective about the figures to illustrate the point—certainly paint a somewhat horrific picture. I appreciate that not all the delays are due to the lack of availability of a judge, but it is certainly hoped that if we increase the ages of judges, more may be available and the waiting times might be reduced. It is well known that justice delayed is certainly justice denied. As lawmakers it is important for us to legislate law that provides, as far as possible, that our citizens have adequate, speedy, efficient access to justice.

There is a case in the District Court in Auckland that has been waiting 1,179 days for a hearing date. That is unacceptable. As I said, it is not necessarily because of the unavailability of judges—it might be for a lot of reasons—but waiting 1,179 days for any case to come to a hearing is not an acceptable state of affairs. I will give two other indications. There is a case in the Christchurch District Court that has been waiting for a jury trial hearing for 742 days. Another case, in the Manukau District Court, has been waiting for 705 days. I think that in anyone’s language, 2 years to obtain a hearing date for a District Court trial is not speedy, efficient access to justice.

In relation even to civil cases there are also delays in many of the courts. For example, in the Auckland High Court the median waiting time for a High Court civil case to be heard is 264 days. That is nearly a year, and a lot can happen in that year. Whilst people are waiting for their legal problems to be resolved, they are caused a lot of uncertainty, angst, and worry. To have to wait 264 days for a civil High Court hearing in the Auckland High Court is certainly a worry, and not good enough. By comparison, in the capital the median waiting time for a High Court civil hearing is 231 days, which is slightly better than in Auckland but certainly nothing to write home about.

We can compare District Court jury waiting times—and, again, it is important that criminal matters are dealt with as soon as possible. There are people like the accused, defendants who have been accused of a crime, who are pleading their innocence and wanting the matter resolved as quickly as possible. I will just mention some of the waiting times for District Court jury trials, and I will mention only those that have run over 300 days. That is the median waiting time, but of course 300 days is nearly 1 year. The Auckland District Court has a median waiting time for District Court trials of 321 days, whereas in the Blenheim District Court—the worst in the country—it is actually 372 days. I will mention one other figure, which is the High Court jury waiting time. In Napier, for example, the median waiting time is 346 days. Again, that is approximately 1 year and far too long for anybody to have access to justice, or for the system to be called access to justice—efficient and speedy access to justice. We certainly hope that by increasing the retirement age of judges to 70 there may be more intellectual capital available, and we may be able to utilise the skill and experience of our judicial bench.

• Part 2 agreed to.

Hon NANAIA MAHUTA (Minister of Customs) : I move, That the Customs and Excise Amendment Bill (No 2) be now read a second time. The purpose of this bill is to strengthen New Zealand’s border security measures and to provide for more effective and integrated border management, in recognition of the fact that New Zealand’s trade and travel landscape is continuing to change, and that we must move to keep pace with that. Increasing threats to our communities through terrorism, international organised crime, drugs, identity fraud, and other issues mean that we need strong, effective legislation to integrate our border management in order to deal with these risks at the front line. This bill helps us to achieve that. This important legislation is also carefully drafted in order to recognise both the Government’s and the community’s interest in effective border management, and the rights of people to travel and conduct legitimate trade across our border.

A key principle of the bill is to reinforce the Government’s commitment to protecting our communities and our country from threats, such as drugs and transnational crime. The Customs Service is the first point of contact at the border for people, goods, and craft, so the service needs to have the clear legislative ability to refer people and goods that are of interest to other agencies such as the police and the Ministry of Agriculture and Forestry. Other key principles are to address current limitations and border powers, to provide more effective integration and stronger links between agencies working at the border, and to ensure that people or goods that pose a threat do not slip through the gaps.

This bill also consolidates border security - related amendments made in 2004 to the 1996 Customs and Excise Act through the Border Security Bill, which was designed to counter continuing and increasing border-related threats.

I would like to acknowledge the work of the Foreign Affairs, Defence and Trade Committee, and the committee clerks and officials, in their consideration of the bill, and thank them for their efforts to get this bill back to the House. It should be noted that the committee has unanimously agreed to a series of amendments to the bill. They include two substantive changes relating to clauses 8 and 9A, plus a handful of minor amendments. The widespread support of select committee members is a positive recognition of the service conducted by the New Zealand Customs Service.

In relation to the changes to clause 8, it is recommended that an amendment be made so that once the Secretary of Foreign Affairs and Trade has made a determination that goods are kept—all goods—notice of that determination should be given to relevant parties in writing. Corresponding changes are also recommended to the current section 285 of the Customs and Excise Act, to set out the rules as to when a notice is deemed to have been received. In this regard the select committee also recommends an amendment to clause 19 to insert new section 209(4A), which provides a defence if the exporter can prove that through no fault of his or her own, the notice was not received. These amendments were proposed by the New Zealand Law Society and reflect its submission that the exporter should have notice of the ban before an offence is considered to have been committed. The determination is still the legally active mechanism to ban the export of the goods, but the offence provision is contingent on notification, not on the determination.

In relation to changes to clause 9A, the select committee recommended that section 79 of the Act be amended to change the date of inflation indexation for alcohol to 1 July in any year, and for tobacco to 1 January in any year. The current date for the indexation of inflation on alcohol is 1 June, and the date for the indexation of inflation on tobacco is 1 December. This presents issues for both sectors. Firstly, the fact that the Alcohol Advisory Council will increase its levy annually on 1 July means that alcohol retailers must make two adjustments in consecutive months. The proposed amendments will mean that the two adjustments will occur on the same date and that will certainly lead to an administrative improvement for the industry.

The second reason supporting the change is that because of time constraints, officials have to seek a waiver of the 28-day rule, which is the required public notice period for any adjustments to be made. These changes will enable officials to meet the 28-day rule, while also reducing compliance costs for alcohol retailers by avoiding duplication of process and enabling better forward planning by the industry.

The select committee also unanimously recommended some minor drafting improvements to clauses 4, 6, and 19 of the bill. The change to clause 4 corrects a drafting error made in 2002 relating to the definition of New Zealand’s nautical mile limit. The change to clause 6 involves relocating a subclause of the bill relating to the definition of electronic communication devices, to provide consistency with other provisions. The change to clause 19 results from recommended changes to clause 8, in that it provides for a penalty to be imposed on exporters if they fail to notify the Secretary of Foreign Affairs and Trade that goods are, or may be, catch-all goods. The Government supports these amendments and thanks the select committee for its efforts in bringing these matters back to the House.

A large number of individuals, agencies, and Government departments have been consulted during the development of this bill. I acknowledge all of those who have made submissions and provided their input. I thank them for their contributions. I also note that the bill complies with the rights and freedoms contained in the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993, as well as with relevant international standards and obligations.

In conclusion, the Customs and Excise Amendment Bill (No 2) is important legislation that supports a whole-of-Government approach to better enable border management, and it should proceed. The bill affirms this Government’s commitment to a vibrant economy, to strong and safe communities, and to the protection of our national identity and way of life. Thank you.

SHANE ARDERN (National—Taranaki-King Country) : That was a very good call from Nanaia Mahuta. I rise on behalf of the National Party in support of the Customs and Excise Amendment Bill (No 2). Can I say at the outset that a bill like this makes the role of an Opposition spokesman quite difficult, in the sense that we are supporting it and of course the Opposition’s role is to oppose, expose, and then propose. The Queen’s honourable Opposition will endeavour to do that in the course of this debate.

The legislation was referred to the Foreign Affairs, Defence and Trade Committee on 1 August last year. It was a very good select committee, with very good National members on it: my good friend Tim Groser sitting next to me, Dr Wayne Mapp, John Hayes, and, of course, the Hon Murray McCully. So I know the work of that select committee would have been robust—I can say that with a high degree of certainty. Can I say also that this is good legislation because it harmonises and modernises customs control at our borders with that of our international friends and neighbours around the world. It brings it into line with issues exposed after the 9/11 terrorism attack and the growing problem of terrorism around the world.

It is very hard to read through a bill like this and find the wrongdoings, as it were, of a socialist Government. I thank the officials for their obvious guidance and the work they did in helping the Minister to prepare her speech so that we had an accurate ministerial statement, and in helping the select committee with their advice. But there are some socialist misdoings in it—let me tell members—and I have to expose them. First of all, the poor old hard-working railway worker who is living in Taumarunui, the seat of the Minister of Justice—the old engine driver who has retired there and is trying to enjoy in his twilight years a quiet durry on the side, while sitting in front of the old railway station—is to have his taxes increased incrementally on that durry every June, I understand, without any reference back to Parliament. They will be consumer price indexed—up they will go, and never mind whether there is justification. It will be the same if he decides to go down to the RSA for a wee dram. The taxes will automatically rise on that at a set time every year.

I agree with the fact that the Government has harmonised them; there was an issue about that, which needed to be addressed, in that the excise tax went up at a different time from the consumer price index in terms of inflation. So that is sensible. I understand that that is probably due to some of the good work of the Foreign Affairs, Defence and Trade Committee, and I congratulate it on that. But the question still remains of why a Government with a $12 billion surplus—or some such figure—needs to have another crack at that poor old former railway engine driver who is living in Taumarunui, by banging another automatic tax increase on to him for his wee dram down at the RSA and for his little smoke while he sits on his seat in front of the railway station.

It is typical of socialist Governments that they always attack those who support them. What this Government does not and cannot understand is that if we look at the voting records from polling booths in Taumarunui, which used to be in the Taranaki - King Country electorate, we see that over the years those voters overwhelmingly have voted Labour. Let us remember that this seat is described as a true-blue, hard-core National seat, but if we look at the voting records from Taumarunui polling booths we will find that overwhelmingly the voters have voted Labour. There have been only two exceptions—when the town was in the Taranaki - King Country electorate, and yours truly was the local member. On those occasions voters voted for the other side; they voted for the member for Taranaki - King Country, in three booths out of five. I welcome the fact that the poor folk of Taumarunui were inflicted with Mr Mark Burton, the Minister of Justice, as their member, because here he is sticking it to them again with more taxes that are totally unnecessary.

On a more serious note, the fact that the Customs and Excise Amendment Bill does harmonise with the international community, as I said, is a good thing. But here is the other issue—members should listen up. This is the proposed part. Here is the other area where socialist Governments always fail and always miss opportunities when they are given to them. Here was a golden opportunity to increase the synergy between the Customs Service and those doing border control biosecurity, Biosecurity New Zealand. Here was a massive opportunity, which is obvious to anyone who has looked at the issue, for an increase in cross-pollination and cooperation between those two organisations that work at our border. It would give a whole of border protection, if you like. Here was an opportunity, and the socialists overlooked it.

The Government has been offered opportunities on many occasions, I have been informed, to import sophisticated X-ray machinery that would not only detect the increasing amount of drugs that are flowing across our borders—and overwhelming that is the case; I have press releases as recent as today that would back that up, and the technology exists—but also help to detect biosecurity incursions, of which we have had 229 in the last 5 years. Overwhelmingly, that could have happened. But what does this Government do? It says: “No, no, we don’t want to look at that. Those are two separate Government departments and they have to stay separate.” There are people involved in those departments who obviously support this Government. Government Ministers and their officials have not taken this opportunity to realise that synergy, and that is a tragedy, because there was a huge opportunity there.

So I say to the officials that they should look at this legislation next time it comes up for amendment—which it will, because the 1996 Act has already been amended, and this is another amending bill, so I imagine that it is fast-moving legislation, as it were, because of technology. Next time the officials have an opportunity to look at this legislation—it certainly will not be under this Government; it will be under a National Government—they should look very closely at, in particular, some of the sophisticated American equipment that has been designed post-9/11 to detect biosecurity and customs risk items, and bring the two together at our borders. We have here a lost opportunity. Section 175C, “Seizure and detention of goods suspected to be certain risk goods or evidence of commission of certain offences”, substituted by clause 15, is where that provision could have been inserted. I notice that there is a reference to risks with biosecurity goods. The Government has gone part-way; it could have gone a lot further. The question is why it did not take that opportunity. It is the failing of every socialist Government around the world, and we have no exception here.

So I say in closing that, overwhelmingly, the National Party supports the direction this bill takes. Overwhelmingly, we congratulate those on the select committee on bringing back the bill in a form we can support through the House. The officials have done a very good job. Why does the Government have to, whenever it can, bang in an extra tax even when it is not needed? Why does it not always maximise the opportunities presented to it when it has the chance to do so? That is the problem with socialist Governments. That is the reason why this Government has expired. That is the reason why there will be a change of Government at the next election.

DIANNE YATES (Labour) : It is sad that the previous speaker, Shane Ardern, was not on the Foreign Affairs, Defence and Trade Committee, because he has some misunderstandings about the Customs and Excise Amendment Bill (No 2). But I thank him for his support for the bill, and I thank the Opposition members of the committee, who played a very good part in progressing it. I point out to Shane Ardern that there is no new tax—what was changed was the date around a tax. I point that out as a matter of clarification. It would help if the member opposite had read a little more carefully and engaged his eyes before he spoke about something that was not in the bill.

I thank in general those who are involved in the New Zealand Customs Service. I thank the Minister of Customs, Nanaia Mahuta, and the chief executive officer and staff of the Customs Service for the tremendous work they have been doing, apart from this bill, in apprehending all sorts of irregularities in relation to customs. We have seen some tremendous work around drugs and around people trying to get illegal material into this country—everything from false exam qualifications to drugs and to weapons. Recently, we heard that stamps are coming into New Zealand. So I thank the Customs Service for the tremendous work it does—it often goes unnoticed and unheralded. The Minister, who is a very good Minister, understands that she has a very good ministry working for her. As the member has pointed out, this bill is not about party politics; this is about “New Zealand Ltd”, and this is about keeping our borders secure.

I will read the introduction to our select committee report to remind people what the bill is about: “The purpose of the bill is to strengthen New Zealand’s border security by clarifying Customs’ border management role and improving the Customs Service’s ability to work cooperatively with other agencies at the border.” I point out to Mr Ardern the last part of that sentence, which relates to working with other agencies at the border. “The bill amends the Customs and Excise Act 1996 … to ensure that individuals and items arriving or departing New Zealand are unable to slip through border processes without proper scrutiny. A particular area we examined in our consideration of the bill was that of controls over prohibited exports on the New Zealand Strategic Goods List.”

The Minister has pointed out the changes to clause 8 that the committee recommended. The changes, as has been pointed out, are largely technical, and I thank the Law Society for its recommendations. The amendments are designed to make the bill more workable and the law more enforceable. There are amendments around dates relating to inconsistencies with other legislation, and those amendments will ensure that the law is able to be enforced. One of the interesting things was the definition of “New Zealand”—as has been pointed out by the Minister—and the definition of nautical miles and how the Customs Service can enforce the patrol of New Zealand borders. So there was some discussion about definitions.

As has also been mentioned, we checked the New Zealand Bill of Rights Act as there were some issues about detaining. The members of the committee were asking whether, in some cases, the Customs Service had asked for sufficient time for its officials to respond to someone who had been detained, and they asked whether the officials were able to detain that person long enough to travel to the place where the person was detained. Officials assured us that the amount of time provided for in the bill was sufficient, and I think that the committee was quite vigilant in looking through those particular areas. Generally, the committee was in agreement, and I thank the members of the committee for their cooperation on this bill.

The bill is not about socialism and it is not about party politics; it is about our country and it is about New Zealand—and I think that Mr Ardern very well knows that. Once again, I thank all the committee members, the staff who assisted us, and those who made submissions. We look forward to the further progress of the bill.

TIM GROSER (National) : As members already know, National supports the Customs and Excise Amendment Bill (No 2), which basically does two or three different things. One is highly technical and, I suppose, not very large in the scheme of things, but the other is quite fundamental. When I was having lunch with somebody today and he asked me what I was doing in the House, I said that I was to speak on the Customs and Excise Amendment Bill (No 2), and he asked what on earth I would talk about in that context. I said that I would talk about two of the biggest issues facing this country: global terrorism and the issue of weapons of mass destruction, because those issues are actually the bigger purpose of this bill.

On the technical issue of the adjustment, I feel even more passionately than Mr Ardern does about the retired railway worker in Taumarunui having his non-inflationary dram. But having participated in the Foreign Affairs, Defence and Trade Committee, let me assure Mr Ardern that if we are to make an inflation adjustment, that is an issue for retailers. It is a compliance cost issue, and I think that the committee members have worked quite productively to find a fair and reasonable way of doing the adjustment in a way that minimises the compliance cost for the retailer. I would wish only that the Labour Government would show the same degree of common sense when it comes to rather more important compliance issues.

Before getting on to the bigger purpose of this bill, I will just say in public what I have said privately many times—that is, a huge thankyou to the women and the men who work in, and over the years have worked for, our Customs Service. I have had a lot to do with them professionally, usually on the policy side of the interface with trade issues. I have found officials’ advice on deeply technical administrative issues, such as rules of origin and customs classification issues, hugely helpful, and just vital to a “New Zealand Inc.” approach on that. I acknowledge the sterling work, in my opinion, that those people do across a broad set of issues and not just at the border, or at the coalface, as it were.

When we consider what this bill tries to do, which is to give customs officials the tools to do that job properly at the coalface, we have to reflect on the fact that they have quite a difficult job. They measure their success largely by how little we hear of them. Sometimes people notice things only in their absence, and it is the number of things that go wrong at the border that brings the Customs Service’s work to people’s attention. It is a difficult environment to work in, what with the number of narcotic drugs that escape the officials’ best efforts. So I think that it is very important for the legislator to give those people the tools that they need. By and large, I think that this bill does that. The one area that National is concerned about in terms of border management issues is, of course, biosecurity, where we do not think that the Government has given the officials the tools to do a job of absolutely crucial significance. But at least this bill, in dealing with other areas of border security enforcement, moves absolutely in the right direction. I want to commend the Customs Service for its work.

The issue of terrorism is right at the top of the Customs Service’s responsibilities—and it is an awesome responsibility—which it discharges on our behalf and on behalf of every New Zealander. We have learnt, with the spread of global terrorism, that a group of deeply dangerous people who rail against globalisation because they have a warped vision—we are more familiar with that vision from other contexts, too—of trying to return us to some myth of a golden past actually utilise the tools of globalisation in an extremely efficient way. It is a rich and troubling contradiction. We are involved in the struggle against the global menace of terrorism, which knows no frontiers. Personally, I prefer to use the words “struggle against terrorism”; I do not like the term “war”, partly because I think that it misses the central point.

I would put the central point as being this. Terrorism has been committed by every major religion that I can think of. We have had Sikh terrorists; I could give examples of them off the top of my head. We have had Hindu terrorists. We have had Jewish terrorists. And, of course, we have had many forms of different Christian terrorists, including some in recent times. I do not think that any of the people who belong to those major religions would want their entire religion to be categorised by the deranged behaviour of fanatics who, as they maim, torture, kill, and destroy, consider that they are doing so in the name of their interpretation of their belief system. I say that because I think, with respect to the modern problem of terrorism, it is a statement of fact that it is overwhelmingly an Islamic terrorist problem. It is committed by a certain warped version of a tiny proportion of some 2 billion Muslims around the world.

Now, when terrorism is practised against, as it sometime is, societies such as ours predominantly—not solely but predominantly Western societies—I defend our right to respond with lethal force. This bill, in part, is about giving the State—a small State, but we are in control of events here—the power to respond with lethal force and with the full coercive powers of the State, and I think that is appropriate. But I have always held the view that finally, although we have to do what we have to do in order to try to minimise the threat of Islamic terrorism, fundamentally the only long-term solution will come from Muslims and predominantly Muslim countries themselves. I do think that people need to reflect carefully on that reality.

Having lived in a Muslim country for a number of years I have talked about this issue with probably hundreds, I would think, of Muslims. All the people I have talked to—and this would be the experience, I am sure, of anyone else who has lived in a Muslim country— realise, of course, that the ultimate threat is directed against them. They hate those people and they are deeply frightened, as any rational person should be, by where the next bomb is going to go off in Jakarta. They are deeply frightened by that prospect, of course. But they are Muslims, and when people insult anyone’s core set of beliefs and values, which is what the debate in Western countries on terrorism sometimes veers into, that person naturally has difficulty in cooperating with them. That is just human nature. So I think we have to understand, basically, that we are going to depend finally, more than anything else, on predominantly Muslim people themselves, and their Governments and security forces, to get on top of the problem. Although I, like many other people, have become enormously frustrated at the indecisiveness of the Indonesian authorities—they are not the only people involved, of course—in their approaches to dealing with terrorism on occasions, I think we have to recognise that we are in a joint struggle with them against a common foe.

So this bill is partly about the interdiction of terrorism. It is also partly about the interdiction of prohibited exports that could be used for weapons of mass destruction. It does not take a great deal of imagination to see that finally, in some ghastly sense, those two issues could be linked. I think we have a very flexible system in place that gives the Government better tools to deal with those issues. Thank you.

HONE HARAWIRA (Māori Party—Te Tai Tokerau) : Kia ora, Mr Deputy Speaker, kia ora tātou te Whare. I will start by referring to the report of the Foreign Affairs, Defence and Trade Committee on this bill, and in particular to the bit where it recommends that the word “reasonable” be inserted before the words “cause to suspect.” “Reasonable” is a word I have come across a lot in my many court cases over the years—reasonable use of force, reasonable expectation, what a reasonable person would do, reasonable grounds to believe; the list goes on and on. So I have had a decent look at the word “reasonable” over the years. I was keen to see how the word was used in terms of border security.

I note also that the bill gets right into defining what a “dangerous item” is, such as ammunition, a firearm, an offensive weapon, an explosive device, and an injurious substance or device. The last item also adds the phrase, “of any kind whatsoever”. That includes, of course, cigarettes and tobacco, and a whole host of other things not listed in the bill.

I note that when it comes to defining something as subjective as the word “reasonable”, the gates are equally wide open. Indeed, on at least 16 different occasions, the test of reasonableness is proposed as the basis of judgment in this bill—such as: reasonable force may be used to detain someone, officers may seize anything they have reasonable cause to suspect may be evidence, or officers may detain a person if they have reasonable grounds to believe that the person poses a threat. Given that the bill does not define “reasonable”, I looked up the word and found a whole host of different definitions. I am hugely concerned that if the purpose of this bill is to provide more effective border management, then the definitions and instructions need to be clear and definite, and not left to the interpretation of individual staff and different agencies.

When this bill came before the House last year, I spoke about how Māori understood the issue of managing our borders to preserve and protect our world, and about the notion of kaitiakitanga—the preservation of our natural environment. I said it was our responsibility, as Māori and as a nation, to maintain a clean, safe, and healthy environment for ourselves and for future generations by promoting the protection, restoration, and enhancement of mauri within our natural world. So I cannot stress enough the importance of protecting our lands and our people from infectious diseases and biological or chemical threats. But that question of interpretation still remains. Who defines what is dangerous? Who determines what search criteria should be? What constitutes suspicious grounds? Those decisions can be very subjective, very prejudiced, and often racist.

I would like the House to consider the role that racism plays in how we deal with immigrants. I will mention four New Zealand citizens who have complained of racial discrimination by Auckland airport customs staff. The first, African-born New Zealand citizen BoubacarCoulibaly, treasurer of the African Community of Auckland Region, has been questioned and searched three times by customs staff, despite having no criminal history. The second, Auckland area manager for Housing New Zealand, Margritt de Man, who has dark skin despite her European origins, has also been questioned four times and has had her luggage searched, despite having had no goods to declare. Jamaican-born Auckland lawyer Colin Henry complained to the Race Relations Office that he was deeply offended by being singled out for attention, while a crowd of mainly European passengers went past unquestioned. When he expressed his annoyance a police officer threatened to arrest him. Finally, to add insult to injury, South African - born former New Zealand Race Relations Conciliator, Gregory Fortuin, has himself been detained by customs officials.

Auckland airport customs staff confirm that ethnicity is a basis for profiling. Ethnic profiling, if it is not managed effectively and intelligently, is a major concern, because it becomes the basis of stereotyping and racial discrimination.

Last month in the UK a Home Office report exploring the decision making of immigration officers confirmed what most darkies have long known to be true—that the practice of profiling on the basis of race, ethnicity, and religion is a fact. According to the report, British immigration officers say they base decisions on “intuition” about people who “look the part”. But who looks the part and who does not, as a result of society’s prejudices? So it comes as no surprise whatsoever that way more blacks and Asians get stopped for questioning than white folks. Coloured South Africans get stopped 10 times more often than their white counterparts. Coloured Canadians get stopped nine times more often than their white countrymen.

The report’s authors say that this has nothing to do with racism, though. They say that their decisions are based on socio-economic factors. Excuse me for sounding flippant, but yeah, right! Where have we heard that one before? That is the line this Government used for cancelling the closing the gaps policy. It is the line the Yanks used for overzealous policing of black districts, and—to no one’s surprise—the New Zealand Government also used that line in justifying using Tasers in Polynesian communities here. Socio-economic factors be damned; it is out and out bloody racism. We need to see it and condemn it for what it is, whether it is in London, New York, Paris, or Auckland.

In his article in the Guardian in January 2007, entitled “The west persists in using race to decide who can cross its borders”, Gary Younge wrote: “So long as there are nation states there will be borders and immigration laws to regulate them. The least we can do is drop the pretence that these laws are fair. They are not designed to discriminate between people, but against them.”

The Māori Party supports this bill at its second reading, because we support the need for tightening security and protecting our environment. But we take issue with assumptions of what qualifies as “reasonable”—the adoption of racial profiling and border management practices here in Aotearoa; the behind-closed-doors decision-making processes regarding the bringing in of genetically modified organisms; the demand that we accept World Trade Organization decisions, even when they work against our best interests; and free-trade agreements made without proper reference to Māori Treaty interests. We too want to keep Aotearoa free from threats, but we also want a proper say in exactly what constitutes a threat. Kia ora tātou.

Hon BRIAN DONNELLY (NZ First) : I have been asked to take just a very short call on the Customs and Excise Amendment Bill (No 2). We do not have a member on the Foreign Affairs, Defence and Trade Committee; however, our caucus has looked very carefully at the provisions of the bill and the report by the select committee back to the House. I can say we are very happy with the bill as reported back and we will be supporting it through this stage.

• Bill read a second time.

Hon CLAYTON COSGROVE (Minister for Building and Construction) on behalf of the Minister for Disability Issues: I move, That the Disabled Persons Employment Promotion (Repeal and Related Matters) Bill be now read a second time.

• Bill read a second time.