Hon PAUL SWAIN (Minister of Labour) : I move, That the Holidays Amendment Bill be now read a first time. At the appropriate time I intend to move that the Holidays Amendment Bill be referred to the Transport and Industrial Relations Committee, that the committee report the bill by 4 October 2004, and that the committee have the authority to meet at any time while the House is sitting, except during oral questions and during an evening on a day on which there has been a sitting of the House, and on a Friday in a week in which there has been a sitting of the House, despite Standing Orders 191 and 194(1)(b) and (c).

The Holidays Amendment Bill sets out a number of proposed amendments to the Holidays Act. The policy behind the 2003 Act was to ensure that employees who had penal rates stripped away during the 1990s would be guaranteed an additional payment for working on a public holiday. Most New Zealanders think that is fair. The Government also wanted to introduce 4-weeks’ annual leave from April 2007 to bring us into line with our key trading partners, notably Australia. Australia, of course, has had 4 weeks’ annual leave for about 30 years.

The Holidays Amendment Bill is, in part, a response to a review of the operation of the Holidays Act by a working-group that I convened in July 2004. The working-group was made up of representatives of public and private sector employer groups and unions, and was asked to consider whether the implementation of the 2003 Act had caused any unintended consequences. The group was also asked to make suggestions on how any such unintended consequences might be addressed. I commend the working-group for its work and for the constructive approach taken by all the participants, despite their varied interests. I also acknowledge the efforts of employers and unions who made submissions to the working-group.

Following the working-group’s report, it was clear that some parts of the Act were producing unintended consequences, and that those needed to be addressed. It is important that the interaction between the minimum entitlements in the Act and the provisions in employment agreements do not produce double-dipping. We need to avoid situations whereby the Act’s minimum entitlements are applied on top of entitlements that are already better than those in the Act. Accordingly, when an employee works on a public holiday, the bill provides for the employee to be paid the greater of the employee’s relevant daily pay, less any penal rates for working on the particular day, plus half that amount again, or the employee’s relevant daily pay. This formula will ensure that employees are fairly remunerated, with a minimum entitlement of time and a half, while preventing a windfall for employees who already enjoy a superior entitlement under their employment agreement. For example, if an employee who is entitled to double time for working on a Sunday works on a public holiday that falls on a Sunday, then he or she should not receive both the time and a half provided for by the Act and the double time provided for by the employment agreement. The proposed amendment will prevent any such double-dipping.

The bill also addresses situations where an employer has, in the past, incorporated public holiday penal rates into an employee’s regular or composite pay rate. The Act currently provides for a transitional period whereby that can continue until 1 April 2005. In practice, that period has proven to be insufficient to give the parties to a collective agreement time to decide on how to separate the public holiday penal rate out from the regular or composite pay rate during normal collective bargaining. The reason is that a collective agreement may well have a 3-year term and not be up for negotiation until 2006 or early 2007. The bill will extend the transitional period to enable the parties to deal with the matter during normal negotiations.

The bill also clarifies the position for employees who are sick or bereaved on a public holiday. The bill provides that the day will be treated as an unworked public holiday rather than as sick or bereavement leave, and the employee will not be entitled to payment of time and a half or to a paid day in lieu. That is an important clarification for both employers and employees.

The bill will enable employers to better manage the taking of sick leave. This proposed amendment has arisen out of employers’ reports of an increase in the incidence of sick leave, particularly on weekends and other days when penal rates apply. At present, an employer may seek proof of sickness or injury if an employee has been sick or injured for 3 consecutive calendar days. The bill will entitle the employer to seek proof of sickness within the 3-day period, when the employer has reasonable grounds to suspect that the sick leave is not genuine. The employer will bear the cost of the medical certificate or other proof of sickness.

To conclude, the bill retains the integrity of the 2003 Holidays Act and its emphasis on ensuring basic holiday, sick, and bereavement entitlements for employees. At the same time, the bill makes some changes to clarify several unintended consequences and to balance better some aspects of the Act. I commend the bill to the House.

Dr WAYNE MAPP (National—North Shore) : This bill represents a lost opportunity. How many chances do members think the Labour-Progressive coalition Government gets to fix the deep flaws in the Holidays Act? I tell the House that it will have one chance, and it will be this one. A comprehensive review of the Act was required. This bill fails that test. It provides for only minimal changes, and in some respects it actually makes the situation more difficult. Frankly, that is not good enough, and it is the reason National will vote against the bill.

The Government’s efforts are a failure. Proof of that comes from one of the Government’s own companies—one of the largest that it owns directly—Air New Zealand. Air New Zealand, in its 2004 annual report, states that the 2003 Holidays Act has cost it $17 million, with no increase in productivity. More recently, it has envisaged that the Holidays Act could add as much as 5 percent to its wage bill. None of that even takes into account the proposed 4 weeks’ annual leave. That is the cumulative effect of the changes brought about by this Government in the Holidays Act. I ask members to think about it. One of New Zealand’s largest companies thinks this issue is so important that it has to mention it in its annual report. It knows that, at the very least, it is likely to get a shake of the head from a Minister, but it feels it has to bring to the attention of the public how seriously flawed the Holidays Act is.

The problem is that the Holidays Act represents a past era, but I guess that is to be expected from a Government that is locked into the past. It is the sort of thing one would have expected to occur in the era when New Zealand closed down for the weekends and had compulsory unionism and compulsory arbitration—an era when everything was compulsory. The modern business world has moved on, but in some areas Labour, whenever it sees the opportunity, tries to slip in those old-fashioned approaches. It is doing so with the Employment Relations Law Reform Bill, as well. That is the kind of approach Labour has. We know that this bill is a pay-off to its union friends. All the entertainment businesses, travel and airline industries, rest homes, and hospitality industries work on a 24/7 cycle, and they negotiate agreements with their employees to take that into account. The Minister knows the reality of that, because he gets submissions on it on a regular basis.

All the problems the Holidays Act would bring were clearly brought to the attention of the Government last year, when it brought the legislation in. This bill attempts to deal with some of those problems, and some of those attempts represent a completely botched jobs. This legislation is, in essence, a backwards step. In the modern era, when businesses operate 24/7, it is inherent that people work on public holidays and take other days off. That is negotiated and reflected in the agreements. The second speaker for National, the Hon Maurice Williamson, knows the direct reality of that, because he worked in precisely one of those kinds of businesses. He knows the sorts of the agreements that were negotiated with his employer, whereby both parties received satisfaction.

It is worth recalling what the case was when the Government’s reforms were brought about. All that the Government said it would do was that it would modernise the Act—nothing more than that; just modernise the Act and bring it up to date. The huge changes that occurred in the Holidays Act in 2003 were not expected, and I note that the Government has said it is picking up the unintended consequences. I ask the Government about the intended consequences: why does it not fix up those, as well? Then Air New Zealand would not be saying that as much as 5 percent could be added to its wage bill. That would be a direct loss of profitability, a direct loss of competitive advantage, and the sort of thing that holds that company back from achieving its full potential. Members know that legislation is in trouble when companies like Air New Zealand make those kinds of submissions.

It is extraordinary, is it not, that this legislation alone could cause a potential 5 percent increase in costs before even taking into account the extra 1 weeks’ annual leave. I challenge Government members to do the mathematics. To have 4 weeks’ leave—one week extra—would add 2 percent to businesses’ wage bills. The legislation and all the provisions around sickness, public holidays, and the like could cost as much as 5 percent, and we know that when that happens, they have got it wrong.

Even with this bill there are serious problems. For instance, the whole issue is based on a concept known as “relevant daily pay”. In 24/7 - type businesses, that pay is calculated on the basis of including all relevant allowances: holiday pay, sickness allowances, and the like. They are averaged over the course of the entire year. So time and a half is then built on top of that. That is fundamentally wrong, because the agreement itself already takes that into account. The Minister says he is fixing it up, but, as I read the relevant clause, he is not fixing it, at all. What he envisages is the “relevant daily pay”, plus time and a half. He is saying that workers should not get a further time-and-a-half payment on top on that. The submissions will make it clear how erroneous that is.

More serious are the provisions relating to sickness leave. The Government has painted this bill as being some kind of great success. Employers can now ask for a sickness certificate to be provided after an employee has been absent for 1 day. I ask members to think of the thresholds. Firstly, one has to have reasonable cause to actually request a certificate. That is a pretty high burden. It is the sort of thing one knows straight away—that as soon as one uses the word “reasonable” it will end up in a court. The court will interpret it, and it will probably interpret it adversely. Second, the employer is required to pay for the certificate. I ask members to consider the likely cost. It will be something like $50 or $60, at least. That in itself is a huge deterrent, so really the Government knows that it is giving something in a mirage only. It is taking the reality away. It knows that employers will not be able to ask for the certificate. The same old rorts that already take place will continue to take place, and that is likely to affect smaller employers in particular.

I want to conclude on this point. The Government has said it will pass this bill by Labour weekend. It is doing that, of course, to stop the select committee process and to narrow the focus of submissions. I would like to ask the Minister and the chair of the select committee whether they will guarantee that there will be an open submissions process so that every person who is affected can make a submission to point out the deep flaws in this bill. This bill does not fix up the fundamental flaws in the Holidays Act. It does not deal with the intended and adverse consequences. Because of that fact, National will be voting against this bill. It is bad for industrial relations.

Hon MARK GOSCHE (Labour—Maungakiekie) : That was an interesting speech from the man who was demoted to the position of spokesperson on industrial relations and is obviously deeply disappointed about that—so disappointed, in fact, that he has not bothered to read the bill or the Act or to understand anything about industrial relations. He does not even know that for 9 long years under the National Government workers actually got a day in lieu when they worked on a public holiday. I did not notice the National Government passing a law against that, even though it passed a law against just about everything else that workers were entitled to. But we can live in the hope that one day Dr Wayne Mapp, who has a law degree—I think he was even a professor of law at the “Weet-Bix University”, where he got his degree—might understand a little bit about industrial law.

Dr Wayne Mapp is saying that the National Party is against this: a worker getting penal rates for public holidays on top of existing penal rates. He is saying that by removing that we are taking a backward step. Employers should pay it, presumably, and they should pay it on Labour Day, because he is opposed to the law being passed quickly. I would like that member to meet with the employers out there who have been in sensible discussion with the Minister of Labour and his officials when the question of whether this was intended was asked. No, the select committee did not intend that, even though we will get one lawyer saying it means one thing and another saying it means another. I have my own personal view on what the current law actually means. We are going to do a quick and proper job in the select committee to fix it up, to remove doubt—and the National Party is against that.

National members are saying to employers up and down the country that on Labour Day this year, if their employees get a penal rate for working on that day, that rate should have time and a half on top of it, and the National Party will vote against this bill to try to force employers into paying even more. Well, the Government will be interested to hear the logic behind that one when the matter comes before the select committee. But, let us be fair. Dr Wayne Mapp is brand new in his job. Probably, by the time the bill passes—before Labour Day—he will be in another job where he might have some little understanding. Of course, Simon Power has already said in the paper that he really wanted that job.

Hon Paul Swain: Really?

Hon MARK GOSCHE: Yes. His big interest is in fixing up industrial relations, but he was given the whip’s job instead. Wayne Mapp has the job of industrial relations spokesperson, but it is obvious he is not interested in it because there are no guns or excitement in it, which is what he got when he was defence spokesperson.

This is the other thing the National Party is against: there will be no public holiday rates if an employee does not work on that day. So the National Party is saying it will oppose a law that at the moment is grey and there is confusion over—a law that states that if people do not work on a public holiday, they should still get the time and a half. Dr Wayne Mapp, the new wonder boy of the National Party in industrial relations, does not agree with us clarifying the law, and doing it quickly. He also says that employers should not have the right to request a medical certificate if there is reasonable cause. Let us remember that under the law workers get a whole 5 days’ sick leave per annum, which means there are not a lot of days to play around with and abuse. Once a person has used 3 of those days, that leaves only 2. I point out for the benefit of Dr Wayne Mapp that three plus two equals five. We want to make sure that if there is any evidence of abuse, that situation is able to be dealt with by employers. The vast majority of employers and employees actually administer and use their sick leave provisions properly. The provision is just a small way of resolving that.

Of course, the other thing that the National Party is opposed to is the time limit for solving issues related to composite pay rates being extended to April 2007. What is that about? It is where people rolled penal rates into their contracts and got an overall payment. Some did that in 1991 and 1992 and are having difficulty accessing the paperwork to show that it was done. They have come along to the Minister, who has listened—as he does—and said that that is fair enough; that the Government will extend the time in the bill so that those people will have a bit more time to go through the paperwork and finally resolve the question of whether time and a half is being paid. The National Party is opposed to that.

The National Party is opposed to sensible Government and to sensible laws that can be understood by employers and workers. We are actually for that. That is what this bill is about, and that is why we will be putting it through the House and the select committee with due process and making sure that there is no unnecessary confusion when Labour Day comes around.

PETER BROWN (Deputy Leader—NZ First) : I find myself in much agreement with the honourable member who has just resumed his seat. I cannot work out Wayne Mapp—

Hon Annette King: Who can?

PETER BROWN: Who can? He is a complete mystery. The Holidays Bill of 2003 was a stuff-up. Let us be honest about it. It was a stuff-up. New Zealand First supported it, and we will not walk away from that fact, because we support the principle of low-paid people getting 4 weeks’ holiday a year. We support that quite firmly, and that is incorporated in the Holidays Act 2003, which, I think, comes into force in 2007. We thought it could come in a little bit earlier, but we support that concept. We also support the concept of low-paid people in particular getting time and a half for working on a statutory holiday.

New Zealand First supports this country coming into the modern world. That is what has happened in Australia, and, to put it simply, if it is good enough for the Australians, it is good enough for us. But there are so many anomalies in the Holidays Act, and we made reference to that in, I think, the third reading debate of the 2003 bill. We said the legislation would come back before this House in short order, and it has. It is absolutely ridiculous and absolutely outrageous that somebody can go sick and get time and a half on a statutory holiday, and that is what is currently happening in this country. I say to National Party members that this is the opportunity to fix that up, not to state that they are going to oppose it. There are also some concerns about the definition of the ordinary weekly pay and the relevant daily pay, which needs to be addressed. It amounts to—

Dr Wayne Mapp: This bill won’t rectify that.

PETER BROWN: I will address what Mr Mapp is saying. The current situation amounts to double-dipping. Wayne Mapp says that it is not in this bill and it will not rectify it. He may or may not be correct. I think the bill goes some way towards it, but I believe that at the select committee we will get down to the detail of it and be able to rectify it. It is absolutely outrageous that people should get penal rates, penalty rates—call it what one likes—at time and a half on top of their daily holiday entitlement. I am told, by some very senior business people in this country, that some of the wealthy, senior executives in New Zealand are currently capitalising on this sort of thing. This bill really was not meant for them, so New Zealand First welcomes the opportunity to rectify that position.

We also have concerns—and we registered this at the time, certainly in select committee—about sick leave without a medical certificate. We think that is wrong, and we welcome readdressing the issue that employers have an entitlement to a doctor’s note if someone goes off sick. Wayne Mapp says: “Oh, the employer has to pay for it.” As the bill is written, that is correct, but come the select committee that might well change. A number of things do change at select committee. But we welcome the opportunity of opening up and exploring the situation, and trying to get it right.

Dr Wayne Mapp: This bill won’t help it.

PETER BROWN: Mr Mapp can sling the insults, but I am telling him that he will live with the consequences.

Hon Maurice Williamson: Look who opened up with the insults about Wayne Mapp. So don’t you start on about insults.

PETER BROWN: I refrain from being personal as much as I can.

Hon Maurice Williamson: You insulted him in your first two sentences.

PETER BROWN: I refrained from being personal. I am saying to Mr Mapp, and I will say to Mr Williamson, that if they fail to support this bill, they are leaving employers in this country in a major quandary, and if that is a personal insult then I am sorry. That is a fact. If they do not support this bill, they are withholding the opportunity for employers—

Dr Wayne Mapp: We want a comprehensive review. A comprehensive review is what is required.

PETER BROWN: Mr Mapp can say that he wants a comprehensive review, but he is not going to get that by Labour Day in October. He knows that, I know that. We believe that this issue should have sufficient priority for it to be addressed as meaningfully as we can, at the select committee now.

A concern that I have—and this is shared by at least some of my New Zealand First colleagues, although we have not debated it in full so I do not want to give the impression that it is a New Zealand First commitment—is that the composite wage structure should continue to exist. I believe it is a reasonable way of paying employees. I know many employers prefer that. They calculate the average amount of statutory holidays at an individual workplace etc., and they come out with a composite wage rate. I believe, and I will certainly push for this at select committee, that that regime should continue. I know the Minister has extended it out to 2007—

Hon Paul Swain: Just to clarify it, that is all.

PETER BROWN: To clarify it. But I think it should be allowed to exist long term, as long as the employers and the employees can stipulate how it is calculated.

Hon Paul Swain: It will be.

PETER BROWN: It will be?

Hon Paul Swain: Oh, yes.

PETER BROWN: I am very pleased to hear that. I do not think that I can add a great deal to this, but I, and New Zealand First, welcome the opportunity to send this bill back to select committee. Let us tidy it up. The Holidays Act was well meaning, but let us tidy it up to get it neat and tidy before the October holiday. New Zealand First supports this bill going to select committee.

SUE BRADFORD (Green) : The Green Party is, with some reluctance, supporting the Holidays Amendment Bill being sent to the select committee, but we are certainly not promising the Government our vote for this bill after that. The only reason we are voting for this bill at all is that we realise there have been a couple of genuinely unintended consequences arising from the Holidays Act so recently passed by this House.

We agree with Labour that if an employment agreement already expressly makes provision for a worker to have a penal rate of time and a half or more for working on a public holiday or a weekend, for example, the employee should not then be entitled to another penal rate of a further time and a half or more on top of that. As someone who sat on the Transport and Industrial Relations Committee for its consideration of the original bill, I still do not quite understand how that latter interpretation has been made. But given that there is advice that that is so, the Green Party does accept there is a need to clear up the matter for the sake of all concerned—both employers and workers. We are also relaxed about accepting that there should be a longer period of exemption from the time and a half requirement for existing collective agreements. That will allow more time for employers and unions to come to an agreement on amending collective contracts, in order to separate out the public holiday penal rate. The Green Party also accepts the clarification the bill provides that someone who is sick or bereaved on a public holiday will have that leave treated as an unworked public holiday, rather than as sick or bereavement leave.

However, when it comes to the question of making amendments in the area of proof of sickness or injury, we are completely in disagreement with what Labour is doing in this bill. The Green Party is extremely apprehensive that what is before us today is, in fact, the thin end of the wedge, in terms of retreating from one of the original intentions of the Act. This bill, if passed as it stands, appears to give employers the right to require a sickness certificate from an employee even if a worker has had only 1 day or part of a day off for illness or injury. One of the main reasons the Green Party was so enthusiastic about the Act was that finally we had a law that meant employers did not have an automatic right to require proof of sickness or injury until a staff member had been absent from work for 3 or more consecutive calendar days.

Now the Government is proposing that such proof can be demanded at any time, if the employer has what is called reasonable grounds to suspect that the sick leave being taken is not genuine, if the employer informs the employee right away of that suspicion, and if the employer agrees to meet the employee’s costs of obtaining such proof. That is a really major backtrack on the Act, and it flies in the face of the many submissions we received from workers and unions, supporting the intentions of the holidays legislation. This new amendment plays right into the hands of the many business submitters who evidently distrust their staff to such an extent that they believe that employers should have the right to demand proof of sickness or injury as soon as employees take any time off work, at all. The Green Party totally opposes this attempt by employers and the Government to return New Zealand to a system that requires employees to get a doctor’s certificate at the employer’s behest, even if the worker is taking just 1 day or even less than 1 day off.

While Labour has moderated its original proposal—thank goodness—by stating that seeing a medical professional must be at the employer’s expense, there is still nothing here in this bill to state whether the employee has the choice of going to his or her own doctor, or whether the employee will be required to attend a company general practitioner. In the light of what happens with regard to many accident compensation claimants, who are required to be assessed by health professionals who are contracted to the Accident Compensation Corporation, I can see similar problems arising under this legislation if employees are forced to get their proof of injury or sickness from a company doctor. I am afraid that there are times and situations in which doctors who are under contract to the stakeholder with the most power tend, unfortunately, to come down with decisions that favour that stakeholder, despite the general requirements of medical ethics.

Further to that, if the Government insists on going ahead with this amendment at all, the bill will need to clarify whether this provision is to be a reimbursement system. If there is to be a reimbursement system there will be real problems, as often people do not have the cash on hand, or credit, that will allow them to pay high doctors’ fees upfront. For people on low and uncertain wages, as so many New Zealand workers are, the cost of seeing a doctor can be prohibitive, and even if they can get back from their employer later the $50 to $70 that they pay the doctor, it is money they can ill afford to do without in the meantime. Often those people simply will not have the money at all if they fall sick or are injured at the wrong end of the week. Before the Government responds loudly to that by talking about the benefits the primary health organisations have brought, in terms of lowering the cost of going to the doctor, I note that in all too many cases it appears the cost has actually risen, especially for A3 patients, in which category many paid workers fit, even those on pretty low incomes.

On top of all that, it would appear that the requirement to provide a doctor’s certificate at the employer’s whim may also affect people who take domestic leave—that is, staff who take time off because a child or other dependant is sick or injured. Will the employer pay for the child’s visit to the doctor? Who has the pleasure of assessing how genuine a child’s sickness is, and then penalising or not penalising an employee because of that judgment? Overall, what are the consequences for an employee if adequate proof of sickness or injury on the part of his or her family member is not supplied? Do those people lose a day’s pay? Are they subject to other forms of discipline?

At the heart of all this also lies the question of what kind of proof, if any, employers will have to use to meet the requirement that they must have reasonable grounds to suspect that the sick leave being taken is not genuine. Given that this new obligation on workers will apply to only the first 5 days of sick leave in each year, what grounds will employers have within that time frame of 5 days for thinking that workers may be abusing the sick-leave provisions? How low or high will the bar for reasonable suspicion be set? This provision is bad enough for workers who have a union to help them to negotiate the reality of how it may be applied, but for the 80 percent of the workforce that is not in unions the situation will be a nightmare. When exactly do employers have to ask for proof? The bill as drafted refers to leave being taken, thereby implying that employers must ask for proof on that day, and not after the sick-leave period is completed. No matter how sick or hurt workers are, will employers have the right to force them out of bed during the day to go forth and seek a medical certificate? Will employers be happy to foot the cost of the staff member receiving a home visit from the doctor? I doubt it.

That takes us back to many arguments that were already canvassed during the early select committee process on the previous bill, which I naively thought had been resolved. For example, many people do not go to the doctor on the first day of their illness, because they are not sure of the severity of what is wrong with them. Most people have a sensible tendency of waiting to see whether they get better or worse before making a doctor’s appointment, both because of the cost and because if people are not feeling well it is often better to stay in bed at home. They have a better chance of recovering if they do that. If it turns out that the illness is quite mild and the person is better the next day, then it is a waste of both money and time for him or her to visit the doctor, simply in order to satisfy the obligations stemming from an employer’s mistrust.

The Green Party believes that the amendment requiring proof of sickness or injury after 1 day or less than 1 day is a strange capitulation by Labour to the hyperbole of employer submitters on the previous bill, who spend a lot of time bemoaning the supposedly huge number of workers who take days off when they are not really sick. Given that the statutory entitlement to sick leave is only 5 days a year, there is a limit to the abuse that can be made of that provision, anyway. I had hoped that New Zealand employers would be a little more mature and trustful of their workers than seems to be the case. I call on the Government to reject this measure outright, and to go back to the original intention of the Act. It is all very well to put forward an amending bill to simply amend any unintended consequences of that Act, but to actually use that as a Trojan Horse to give in to unreasonable employer demands that negate one of the original intentions of the Act is a wholly different story. Unless Part 2 of the bill is radically changed or eliminated altogether, I can assure the Government that this will be the last occasion on which it can expect Green Party support for this particular bill.

Hon RICHARD PREBBLE (ACT) : I rise on behalf the ACT party to speak to the Holidays Amendment Bill, a bill that the ACT party will oppose. According to the explanatory note, this bill “implements Government policy by … correcting unintended consequences that have arisen or may arise in applying the Holidays Act …” that was enacted just last year. Apparently, it will ensure fairness between employers and employees is maintained when paying employees time and a half for public holidays and requesting proof of sickness or injury in relation to sick leave. I will also move that this bill be sent to the Commerce Committee, and not to the Transport and Industrial Relations Committee.

I will now explain why we oppose the bill. Firstly, in relation to the statement by the Government, I say there should be a requirement as to the accuracy of explanatory notes. The explanatory note of this bill states that there were “unintended consequences”. Members can look at the Hansard of last year; they can go into the corridor and get a volume. If they look at volume 614, they will see that the date of the second reading of the Holidays Bill was 4 December. The Minister in charge of the bill, the Hon John Tamihere, said on behalf of the Minister of Labour that there were 4,000 submissions on the bill. Many, many submitters predicted all the consequences that have happened under that legislation. But it is not just that. Last year the ACT party went to the trouble—I do not know why we bother—of putting in a minority report on that bill. In that minority report our committee member Deborah Coddington predicted that those matters would happen. Those changes were not unintended consequences. The Transport and Industrial Relations Committee changed the Government’s proposals, in order to make the bill more radical.

Why did the committee do that? If members would like to know why I am suggesting changing the committee to which this bill should be sent so that it is relevant, it is because the Transport and Industrial Relations Committee is made up on the Government side purely of former trade union officials. Mr Gosche was a member of the hotel workers union, and Lianne Dalziel, I think, was also a member of the same union. Helen Duncan was an office holder of the teachers union, Lynne Pillay was a former trade union official of the Engineers Union, and from the Green Party we have a person who was an official of the unemployed workers union—whatever that could be. I do not know how she can claim to know about sickness and everything else, because she has never worked. The serious point I am making is that I have sat on that committee and I have watched those members, who have never employed anyone in their lives and not only have no sympathy for employers but are ideologically opposed to them. They put up those absurd amendments, even though—and members can see this in Hansard—the predicted consequences of those amendments were there.

Quite seriously, I say to this House that we should not send any industrial relations bill to the Transport and Industrial Relations Committee. That committee is ideological, and is not capable of looking at evidence in a dispassionate fashion. I suggest this bill be referred to the Commerce Committee because, although it is chaired by a former trade union official, Mr Mark Peck, I have more respect for his chances of listening to officials than I do in the case of the Transport and Industrial Relations Committee. Mr Mark Peck, the Hon Damien O’Connor, and Ross Robertson are far more likely to listen to submissions, rather than to take the ideological, blinkered approach of that committee. If members do not believe that, then they should look at the Employment Relations Amendment Bill when it comes back to the House—but I cannot anticipate an order of the day.

Sue Bradford: I raise a point of order, Madam Speaker. About half a minute ago I believe the member made a personal reflection against me, by saying that I have never worked. That is simply not true.

Hon RICHARD PREBBLE: That is not a point of order; it is a debating point.

Sue Bradford: It is not a debating point. Do I need to seek leave to make a personal explanation? My understanding was that one had to raise a point of order on things like that, right away.

Madam DEPUTY SPEAKER: I thought that was a debating point, but the member can seek leave to make a personal explanation.

Hon RICHARD PREBBLE: I raise a point of order, Madam Speaker. You could have pointed out to the member that it is highly unparliamentary to interrupt a speech in order to make a personal explanation that is a debating point. She is inviting me to object to leave being given to her for that.

Madam DEPUTY SPEAKER: The member is right. Rather than interrupting a speech like that, the member should wait until the member has finished his speech if she wants to make an explanation.

Hon RICHARD PREBBLE: No doubt the member worked very hard on behalf of the unemployed, but I still say that from her work history that member is not qualified to look at this matter, and is certainly not sympathetic to the interests of small business. The ACT party predicted these consequences on the debate of the Holidays Bill last year. If members read Deborah Coddington’s speech, they will find that all these matters were raised.

Again, on behalf of the ACT party I point out to the House that this bill is still very defective. One reason for that is it does not fix the problem of relevant daily pay. What is relevant daily pay? That was a new concept introduced by the select committee, and not by the Minister. That ideological select committee decided to introduce a new concept for working out holiday pay. Well, what is relevant daily pay? With effect from 1 April, it means we no longer calculate holiday pay as we have done for 50 years in this country, on the result of one’s ordinary pay—that is, the base rate of pay without such things as overtime, productivity incentives, attendance incentives, conditions, allowances, and other such payments. I put this to the House: why should someone who is not working because he or she is on holiday be entitled to a productivity incentive? Why should someone be entitled to an attendance bonus, when that person is not attending? That is how absurd the situation is. Members may ask whether it involves very much money. Yes, it does. As the National Party member pointed out, Air New Zealand has indicated that the effect of the Holidays Act, even before we get to the 4 weeks’ annual leave provision, is an additional $17 million on its payroll. The effect on small business has been absolutely devastating.

We in this party, who make no apology for representing the interests of small business, cannot support a Holidays Amendment Bill that is not prepared to look at the revolutionary concept that the relevant daily pay that should be used for working out the payment for one’s days off—of course it should be; it has been for 50 years—is one’s ordinary rate of pay. That is an extremely important point, and one of the reasons for that is this: it is actually quite easy to calculate holiday pay when one calculates it off one’s ordinary rate of pay. We all—employers and employees—know what our base rate of pay is. But once we decide to include all overtime worked, all penal time that may have been collected, and all unusual payments—for instance there are some people who still get dirt money, and the like—the paperwork now required to keep someone’s record, so his or her holiday pay can be worked out, is enormous.

Government members get up—and I heard the Minister for Small Business today—and boast that they will try to reduce red tape for small business. Well, I tell Mr Tamihere that if he wants to reduce red tape for small business, one simple way of doing that is to go back to a formula of using someone’s ordinary base rate to calculate the payment for holiday time. That would save an enormous amount of administration, and it is also just. It would also avoid the enormous arguments that are now happening in every firm around New Zealand. People are saying to their employer that the employer has forgotten about the fact that they received a special “rain” allowance in the last 12 months, or that the employer is forgetting about the fact that he or she was generous enough to give them a bonus because they managed to get some goods shipped by Easter. They argue that they are now entitled to be paid that bonus at Christmas, not because they have done anything then but because 12 months ago they did something.

The House can see the absurdity of that. The Commerce Committee, I believe, would see the absurdity of that. I assure the House that the trade union members that the Labour Government has put on the Transport and Industrial Relations Committee have never had to pay a fellow New Zealander out of their own money. No one has ever had to worry about paying the wage bill each week. Not a single employer from the Government side of the House is on that committee; none of those people are on that committee. That committee is so ideological that even though the ACT party—and the National Party, to be fair to it—pointed out all the so-called unintended consequences that were raised in about half the 4,000 submissions that the committee heard on the Holidays Bill, it took no notice of them and put the bill through. That committee should not be given another chance to attempt to do that. I ask the committee to support my amendment to refer this bill to the Commerce Committee.

SUE BRADFORD (Green) : I wish to make a personal explanation in response to something Mr Prebble said during his speech. He said in one statement that I have never worked. I take offence at that statement as I have worked for all my adult life, both in paid and in unpaid work. If the member is referring to paid work, I say I worked for 12 consecutive years in paid employment prior to coming to Parliament, and I also consider that since being in Parliament I have been in paid employment.

BERNIE OGILVY (United Future) : I rise on behalf of United Future to support this bill going to the Transport and Industrial Relations Committee. Unlike the National Party, whose members are now trying to say that they are holding the umbrella for the business community, this amendment bill helps the business community; it does not hinder it. That is why we are in favour of this going to the select committee to be looked at. One or two things beyond what is in this amendment bill need to be looked at, and I will allude to those as I go along.

I cannot understand how the National Party would not want to help employers and businesses with this bill. Just for the record, United Future voted against the Holidays Bill when it was passed last year. The main reason for that is still hanging in our minds, and we will stick with that. We think that the provisions, such as time and a half on a public holiday, should be the result of negotiations between employers and employees, rather than by Government fiat. My colleague Paul Adams, I think, was arguing along that line. If there is such a thing as the much-vaunted good-faith bargaining, then we believe that it must occur in a context where both sides are relatively free, or are free, to trade, accepting some minimal levels of statutory protection in that. But today we are not so dogmatic that we fail to recognise that this bill, while maintaining time and a half for those who do work on public holidays, at least swings the pendulum back a little bit the other way towards the employers. For that we are in favour of seeing this bill go to the select committee.

The Act, as amended last year, theoretically allowed workers to claim time and a half, we know, on their normal pay, plus any penal rates that they already possessed for working on such days. Those penal rates, of course, are a product of good-faith negotiations between the employer and the employee that I mentioned before. There is a danger that this good faith would have been undermined by legislation that delivers workers a potential windfall. This bill, then, ensures that there is also a kind of maximum amount that must be paid to those working on a public holiday, and we are happy about that.

The bill also deals with another unintended consequence, as indicated in it, of last year’s legislation—that is, the problem of people taking sick leave on a public holiday and then claiming time and a half. So United Future has sensed that this leaves the potential for less scrupulous employees to call in sick on a public holiday so that they can have a long weekend and get paid time and a half on top.

It is perverse that the very legislation designed to compensate employees who do work on a public holiday could actually give them a better reason for not working. Under this bill, as we have it before us, an employee who is sick on a public holiday will have that day treated as an unworked public holiday and not sick leave.

We in United Future have a lingering concern—and others have alluded to this—that the new bill focuses on a thing called relevant daily pay, which includes extras such as incentives, overtime, and other payments. Relevant daily pay, as I see it here, means that an employer cannot pay an employee more for working than for not working, thereby creating a financial incentive for employees to throw a sickie on days when their pay is highest. I would like the select committee to look at that issue. It should definitely look into whether the replacement of ordinary pay with relevant pay, under the holidays legislation, can be continued, or even justified to be continued. United Future members on that committee will ensure that that issue will be focused on.

There is also the contentious issue of when the employer can ask for proof of illness if a worker calls in sick. The present 2003 Act initially sought to establish a minimum period of 5 days of sick leave before an employer could request a medical certificate, until the select committee later reduced that to 3 days. This legislation makes a further amendment that we believe is in the right direction, to allow employers to request that an employee produce proof of sickness or injury before 3 days are up. Contrary to one other speaker here, we think that that is a step in the right direction. When the select committee does look at this legislation I would like it to take a closer look at those clauses. I am concerned that if employers are forced into a situation where they have to inform the employee of their suspicions, then a culture of open mistrust in the workplace is inevitable.

I end with the comment that we think it is a sign of maturity that this Government has at least admitted it has stuffed up. At this stage United Future is getting used to helping to pull the Government out of a hole into which it has dug itself. We do not mind if it results in better outcomes for New Zealand. We are pleased to see that the new Minister is taking a much more realistic approach to those matters than his predecessor. We are ever hopeful that that realism will find its way into other Labour legislation such as introducing a probationary personal grievance - free period into employment relations law reform legislation, which I know the Minister’s colleague John Tamihere does support. On that note I make it known that we in United Future do support this legislation to a select committee for further investigation and improvement.

DAVID PARKER (Labour—Otago) : I rise in support of this legislation. We have been criticised for admitting an error, or an unintended consequence in the prior legislation, but this Government is a modest Government. It is not an arrogant Government. When things have gone wrong, it listens, and changes them. Something did go wrong with the holidays legislation. Employers were getting ramped up, having agreed to pay penal rates on holidays. Those penal rates were being doubled up on as a consequence of the Holidays Act. That was not fair. We are remedying that with this amendment bill. We are remedying it in time for Labour Day. That is important to employers in my electorate. I am pleased to support the legislation. I am also pleased to support the concept of relevant daily pay, rather than basic pay, otherwise the lowest-paid workers who are paid on the basis of piece rates do not get fair recompense in terms of public holidays. I will say no more, because I think that the legislation is simple and sensible, and I support it.

Hon MAURICE WILLIAMSON (National—Pakuranga) : There can never be any legislation in this Parliament that shows the differences more between the left and the right members of this House than industrial legislation. This legislation has to be another one of those examples, and the Hon Richard Prebble was absolutely right when he referred to the Transport and Industrial Relations Committee. Because sitting across on the Government side would be the absolute straight-out mouthpiece of the trade unions in the form of all the Government members. Not one of them has ever put a dollar of his or her own money at risk. They sit there and go on and on in some way-back distant past sort of “capital versus labour struggle” type of rhetoric that one hears over and over again.

I want members of this House to just focus on the fact that the past is actually a foreign country. It used to be in New Zealand that businesses were closed on weekends, so that workers did not normally go to work at all. It used to be that workers worked Monday to Friday from 9 until 5, and that was it. That is not the case for just about anybody now. Weekend work, night work, overtime, and special rates apply to so many people and the varied circumstances that a number of people choose to work under.

A constituent of mine and his wife work at a retail outlet and they asked the boss whether they could work weekends and have 2 days off in the middle of the week so that they could head off to their beach place where nobody was around and they could have a lovely quiet time. They would still work normal pay rates on Saturdays and Sundays, because for them, without children, the weekend was a better time to work at their paid employment, and they could have their time off sometime in the middle of the week.

But oh no, what we have here is a typical example of the left-wing trade union movement of the Government saying that it knows what is best for workers—not the employers, because they are dreadful, evil people—and they will impose from the centre a regime. I might even be able to live with that to an extent if they could only get it right. But now we come to the process that they follow, and again the Hon Richard Prebble was quite clear. He said that could not be labelled unintended consequences, because unintended consequences are things one did not know would happen, until after the event. One did not realise that that could be the case; one did not know that that would be the impact of that.

But as the Hon Richard Prebble made very clear in his speech, not only was it brought up in Hansard at the time during the debate on the Holidays Bill—and Mark Peck should read , Volume 614, for 4 December, or at least get someone to read it to him; he should realise that those issues were raised in the Parliament then—it was raised in the minority report of ACT that quite clearly they would be the consequences if the Government boxed on. So this legislation is not some sort of “Holidays Amendment Act”, it is a “Botch-up Revisited Act”. That is what this legislation is, and the reason the National Party will oppose it is that it does not go anywhere near enough to fix the fundamental flaws of the Holidays Act. That is the reason. We think it is good that the Government is trying to fix up some of the botch-up, but a 50 percent botch-up of a 50 percent botch-up does not make it 100 percent correct. It makes it about a 200 percent mess still, and that is what this legislation does.

I shall take members through some examples in the legislation. First, it would be worthwhile revisiting how we came about this. When the Holidays Bill was introduced in February 2003 it talked only about ordinary pay. How come? Ordinary pay was fine back then when the first bill was introduced in February 2003.

Dr Wayne Mapp: It was an understood concept.

Hon MAURICE WILLIAMSON: Ordinary pay was an understood concept. Members on the other side of the House do not remember. When I was driving for Refrigerated Freight Lines and Wattie’s during my university days as a truck driver, we got wet money and cover allowance money if the freight on the back had to have a cover. We were paid an extra amount for the cover being on the freight, but if the freight was palletised or containerised, we did not get that allowance. We are now saying that a percentage of that should be added on for one’s holidays! It has nothing to do with one’s holidays. It has nothing to do with what one is compensated for, because those rates were negotiated as a direct payment to the workers for the things they did just that day, or depending on whether they got wet while they were unloading their trucks. There are heaps and heaps of what I think are some of the most despicable little clauses to compensate somebody. That is why holiday pay was always based on one’s ordinary-time rate, what one’s hourly rate was for working at the job. One was not at work while one was on holiday. One did not have to worry about wet money, a cover allowance, or anything else, because one was on holiday. They were things that were specific to one’s employment. Now we see the left-wing Government saying no, it will aggregate all the bits and pieces that people get for specific services along the way and bang them into one big thing called “relevant daily pay”—whatever that means—and then it will make the employer fork that out to people, no matter what.

The best examples I can give, for members’ information, are a couple that came out of Simpson Grierson’s submission. I think Simpson Grierson did a fantastic job of analysis. The submission states that the bill solves some of the more perverse consequences of the Holidays Act, but that unfortunately a number of other deficiencies have not been addressed; employees are still meant to be paid their relevant daily pay when they take a public holiday, a day in lieu, or a day of sick leave. I have covered all that. Let me take a couple of Simpson Grierson’s examples, because I think they are quite relevant: “Joe works a standard 8-hour day—a 40-hour week—plus a late night every Friday. He is paid double time for the Friday night, plus a meal allowance.” That sounds fine. “If Joe is sick on a Friday, his relevant daily pay will be his standard 8 hours, as well as his double time and his meal allowance.”

Hon Richard Prebble: And his meal allowance?

Hon MAURICE WILLIAMSON: And his meal allowance! So he is not there and is not working, but he has a meal allowance. That is the first of Simpson Grierson’s examples. I want to know whether the Minister thinks that is right, because I can see the “Holidays Amendment Bill (No 2)” coming in, the week after Labour weekend. We should put a slot aside. I reserve a slot for the Minister’s introduction of the next amendment bill to deal with the unintended consequences of the unintended consequences fix-up!

There is another example. Members should listen to it, because it is a classic: “Mary works every Saturday and is paid double time and a laundry allowance. If Anzac Day falls on a Saturday and she works, Mary will be paid the greater of time and a half on her flat rate and time and a half on her allowance, or her normal Saturday pay, being double time plus her allowance. Of course, Mary will also qualify for a day in lieu, which, if she takes it on a Saturday, will have to be paid at double time plus her allowance.” I have to read that again. I want the House to hear it, because it is just too good to be true: “Mary works every Saturday and is paid double time and a laundry allowance. If Anzac Day falls on a Saturday and she works, Mary will be paid the greater of time and a half on her flat rate and time and a half on her allowance, or her normal Saturday pay, being double time plus her allowance. Of course, Mary will also qualify for a day in lieu, which, if she takes it on a Saturday, will have to be paid at double time plus her allowance.”

David Parker: He’s got it wrong.

Hon MAURICE WILLIAMSON: Oh, the legal expert, Mr David Parker, that eminent professor of law, says Simpson Grierson, which has a team of people with more letters after their names than the Russian alphabet and who know employment law better than anybody in this country, has got it wrong. I ask Mr Parker why he did not tell Simpson Grierson’s lawyers that they got it wrong when they first came before the select committee and tried to stop the first bill, because if he had listened to them then, we would not be here making a fix-up to the botch-up that occurred. I say to Mr Parker that he should shut up and listen to some people who know about employment law and who say quite clearly that this fix-up does not do it. For that reason alone, the National Party will be voting totally against the bill. We say to the Minister that he should go away and do some work for a change.

Dr Wayne Mapp: Do your homework!

Hon MAURICE WILLIAMSON: He should do his homework and come back to the House with a bill that does address the problem. The National Party would then support him.

MARK PECK (Labour—Invercargill) : One of the things I will miss about the House is following that member’s speeches. He is always good copy. Let me tell him a little bit about laundry allowances. I think he was the Minister whose plane dropped 20,000 feet and he had to do something about some underwear. On that occasion he probably felt like having a laundry allowance. He was also the man who was going to save coastal shipping. He saved it—there is none left. I will miss him.

Hon Maurice Williamson: Your guys were going to repeal it as your first move.

MARK PECK: Well, we have other things to do, like fixing the Holidays Act. This is good legislation. It does tidy up some unintended consequences. I want to congratulate the Minister on listening and getting it right. I say to the member who quoted eminent lawyers in his speech that one of the things about the legal profession is that sometimes one is on the prosecuting side and at other times one is on the defending side, and, by definition, one is wrong half the time. So we can leave it up to members of Parliament to get this legislation right.

There are two things I want to say. Can members on the Government side of the House tell me how long the Australians have had 4 weeks’ annual leave?

Hon Paul Swain: Thirty years.

MARK PECK: It has existed in Australia for 30 years. We have not had it in New Zealand, and National would take it away. That is OK. But it is not only that. National would take Christmas Day away, as well. It has never repealed Max Bradford’s policy that workers should not have their Christmas Day. So that is OK. Those characters on the front bench on the other side of the House are going to take them all away and let workers work all the time. I suppose they call that “flexibility”.

I think the select committee has a lot to work through in this legislation. I say to the member who moved the resolution to send it to the Commerce Committee that I noted one member wanted to save rail and one wanted to save coastal shipping, so I think we should send it to the Transport and Industrial Relations Committee and let it deal with it. It is a good bill and I recommend it to the House.

LINDSAY TISCH (National—Piako) : It is always great to hear a member admit that we are debating a muck-up that the Government made. That is what the member said. We are here to fix up a bill that the Government put into place in 2003—the Holidays Act.

Hon Maurice Williamson: Fix up the muck-up.

LINDSAY TISCH: That is right—it has to fix up the muck-up it made. It is flip-flopping. Of course, this is an anti-business Government. Its members have never invested a dollar, and would not have a clue what it takes to run a business. Now they are coming up with some changes to legislation that parties on this side of the House argued against throughout the debate on it. We made the point then that it was anti-business and would not work—that it would increase compliance costs for businesses. Do members know when it came into effect?

Dr Wayne Mapp: When?

LINDSAY TISCH: It came into effect on 1 April 2004. What is 1 April? April Fool’s Day. That is when it came into effect.

Hon Maurice Williamson: It should have been May Day.

LINDSAY TISCH: It could have been 1 May, but it came in on April Fool’s Day. Here the Government is attempting to make the changes that we identified then as being major constraints to businesses, and as being the major compliance costs.

We will not support this bill, because, as we said at the time and as we are saying now, the legislation needs a complete rewrite. It is absolutely nonsensical that we are just doing it piecemeal. The Government is coming through now with legislation to try to get itself out of a mess, in order to accommodate Labour Day, which is coming up very shortly.

The bill does absolutely nothing about looking at the other compliance cost regime—the bereavement leave provisions. How is it that one can have unlimited bereavement leave—3 days—for a close relative? It is open-ended. It is not just 3 days per year. It is actually open-ended—3 days for a close relative and, on top of that, 1 day for a close associate. One has to do the numbers on that, when one is trying to run a business—and we are a nation of small businesses. Given that 90 percent of businesses in New Zealand employ fewer than 5 people, we are a nation of small businesses.

In fact, there was a damning report done by the Ministry of Economic Development, which has responsibility for businesses in the small to medium sector. At the time, the ministry said that the profit income of small to medium enterprise businesses that employ from one to five employees is alarming in terms of the amount of money they are making. The report, by the Government’s own ministry, states that the average income in that sector is $31,000 or, looked at another way, less than the average wage. Those small businesses make up the hub of New Zealand, and of provincial New Zealand. The people running them are key people in the area that I represent. An income of $31,000 a year works out at only $17.22 per hour. If we take out non-productive time, it is $15.37.

We are opposed to these changes to the legislation because they do not rectify the position. If we look at the question of the extra costs that have been imposed by the Holidays Act, it is very clear that they are getting out of hand. Here are some statistics that I think the House should be aware of. It has come to our attention that the extra costs that have gone into the meat industry, for example, total $16 million to $32 million a year. The district health boards, which are strapped for money today, will face extra costs in the millions. In fact, it is estimated that the costs of the Waikato District Health Board will be $4.5 million. The Canterbury District Health Board’s costs will be in the region of up to $10 million. Those are bottom-line costs that organisations have to be able to account for, yet what does this bill try to remedy? It does absolutely nothing to make those organisations more efficient at providing services that are crucial to our communities.

What about the question of law and order? Crime has always been a very high priority for our communities. This is what the police force, in a memo that has been tabled, states: “Only staff who are required to work on public holidays should do so. Staff should not necessarily be required to stand by on public holidays as these will incur an alternative day off and potentially additional payments for the hours worked. The changes have the potential for significant impact on personnel and leave costs for the organisation if not carefully managed.” The cost to the police of the law changes would be between $4 million and $5 million. This memo says that, under these provisions, we cannot guarantee that we will have police coverage in the areas where we would expect to have it. The report states: “It has the potential to put a big dent in the budget of our cash-strapped Police services. For instance, it’s half of the extra money Labour is spending on fighting the P epidemic this year.” The Government should be explaining why our services like health, law and order, and the police will have to suffer because of the Holidays Act.

The Government has made the point that it is softening up the law, in that if an employee wants to take sick leave, he or she has to provide a doctor’s certificate after 1 day’s leave. That is fine, but who pays for it? It is not the employee who has to justify that he or she is sick; it is the employer who has to pay the doctor’s fee. So if an employee is sick on Friday, and the employer asks on Monday for a medical certificate to show that the person was genuinely sick, the employer is sent the $50 bill. At the end of the day, who in his or her right mind would accept that? Why should the employer have to pay for a medical certificate? If the employee is away sick, it is up to the employee to justify the fact that he or she has taken a day off. But the bill states that the employee will choose the doctor, and the employer will pay the fee. If I am paying the fee, I should be the one to choose where the person goes. But under this amendment, which is just a cop-out, the employer has to carry the can.

A lot has been said about the ordinary pay, the relevant daily pay. A provision says that employers will pay time and a half—and that will include all the allowances that go with that—and also provide a day off in lieu. The actual compliance costs associated with that will be horrendous. We heard Dr Wayne Mapp talk about Air New Zealand, which will face extra costs of $17 million. Over the whole year, this provision will add an extra 5 percent to the actual costs of running Air New Zealand. Who will pay? Those costs will have to be spread out because a company cannot carry that sort of burden. We will find that it will be reflected in the cost of tickets. We see already that some firms that operate on weekends, like restaurants and cafes, are putting a surcharge in place to cover the extra costs. The Restaurant Association said at the time we were debating the original legislation that about 30 percent of restaurants and cafes, which normally would have opened on Good Friday or Easter Monday, would stay closed, and that approximately 20 percent intended to stay open but to operate with fewer staff. Who misses out if a business opens with reduced staff? The employees. At the end of the day, a business can carry only so many costs.

This bill, which the Government says will tidy up and rectify some of these issues by Labour Day, will not work at all. This is a flip-flopping Government. We will be back, as Maurice Williamson said. We will be back to make future changes.

Hon JUDITH TIZARD (Minister of Consumer Affairs) : It is always fascinating to listen to National Party members talk about workers. The thing that came to me, as somebody who has run businesses over many years, is that they have this strange—[Interruption] I ran restaurants.

Brian Connell: Have they gone out of business?

Hon JUDITH TIZARD: Of course they have. I am in Parliament. What I find fascinating is the walls that National members have in their little heads. They have this idea that all employers are just employers. What I find in my electorate, in my family, and in my community is that most employers have wives and husbands who are employees. They have children who have part-time jobs or full-time jobs. They are people who live in mixed communities. I am really interested that those members say that the cost of holidays will fall on employers; well, the cost of not having holidays falls on employees and employers. The cost of not having holidays falls on the families of employees and employers. Could those members opposite think for one moment about the fact that most New Zealanders have families? Spookily enough, many of us spend our holidays with our families, and if we do not, our families suffer. Members opposite talk about how much they care about law and order, but do they care whether the police and their families get holidays together? No, they do not give a damn.

So it is all right for National Party people to have 4 weeks’ holiday, and it was all right for the current leader of the National Party, when he was at the Reserve Bank, to have 4 weeks’ holiday, but it is not good enough for the police to have that. It is all right for National Party members to have 4 weeks’ holiday—in fact, most of them have about 52 weeks’ holiday a year—but it is not OK for health workers to have that. Four weeks’ holiday is not OK for the nurses and doctors who sweat their guts out to make sure that the health system of this country manages, but it is all right for National Party members. It is not all right for those wonderful emergency workers to have 4 weeks’ holiday. No! They and their families should pay the cost. But it is all right for National Party members and their families to have 4 weeks’ holiday, because somehow or other they are better people. Apparently, it is better to be a National Party member. It is a case of “Do what I say; do not do what I do.” They punish the families of workers—it does not matter whether the workers are police officers, emergency workers, health workers, or those people who are out there caring for the community. But it is all right for National Party people to have 4 weeks’ holiday.

The National Party disgusts me, it disgusts New Zealand, and it shows in the polls. We looked at the last election and at the one before it, and we looked at what New Zealanders were saying about the difference between employers and employees. They said they thought all New Zealanders should have a fair go. I think this legislation is giving New Zealanders a fair go. [Interruption] Listen to those members baying like the stuck pigs they are!

Lindsay Tisch: I raise a point of order, Madam Speaker. The term that member used is unparliamentary. It is unparliamentary to call Opposition members “stuck pigs”. It was completely out of order.

Madam DEPUTY SPEAKER: I ask the member to withdraw that remark. I ask her to withdraw and apologise.

Hon JUDITH TIZARD: I withdraw and apologise.

Hon PAUL SWAIN (Minister of Labour) : I move, That the Holidays Amendment Bill be referred to the Transport and Industrial Relations Committee for consideration,referred to Transport and Industrial Relations Committee

Madam DEPUTY SPEAKER: Before I put that motion, I have an amendment in the name of the Hon Richard Prebble to refer the bill to the Commerce Committee, instead of the Transport and Industrial Relations Committee.

Hon MARIAN HOBBS (Minister for the Environment) : I move, That it be an instruction to the Committee of the whole House on the Maori Fisheries Bill that it take the bill part by part.

SHANE ARDERN (National—Taranaki-King Country) : Just before the rising of the House last Thursday evening, the last Labour speaker was the Hon Jim Sutton, the member for Aoraki, which is the area where this particular legislation is to take effect. I could not believe my ears when the Hon Jim Sutton, who also happens to be the Minister of Agriculture, informed the House that he thought hydroelectricity and the generation thereof were in a much higher sphere than agriculture in terms of the national good. Let me just say this on the side: one can always tell when Labour members are on the way out and about to resign or retire, because they do not care how much damage they leave behind for Labour candidates coming in. Members should just pause for a moment and think about what the honourable member said—this is the Minister of Agriculture, a Minister in this current Government. He said that, in relation to the national good, the generation of hydroelectricity was of far greater importance than agriculture. That defies belief, and it is certainly manna from heaven for the incoming National candidate, who will clearly win that seat.

Let us have a look at the detail of what that Minister was proposing. He said that it is far more important that as little as 2 percent—

Brian Connell: 1.7 percent.

SHANE ARDERN: —1.7 percent of the flow of that river—the amount promised by an Order in Council in 1969 to the farming group at the top of that catchment area—is spilt over a hydro dam than it is used for irrigating that area. In keeping with that sentiment, he then voted down the very good amendment of my colleague Nick Smith that would have meant that the agreement entered into in 1969 was honoured. That is a disgrace! Members on the other side of the Chamber should take a call and explain to this Committee what the Labour Party Government and the Minister of Agriculture mean by that, and why the Minister thinks that is a sustainable policy for that area.

Further, when we have a look at what happens in Part 4 and the regulation around the panel of commissioners that is to be set up—a water board—to allocate the water from the upper Waitaki, we see it will be so bound up in regulation that it will not be able to make a decision anyway. So in this part the Labour Party Government sets up a Labour-appointed quango because it does not trust the local authorities to allocate water on a sensible basis, which somehow or other, in terms of the national interest, takes preference to agriculture—that is the bit we cannot understand—then binds that panel up in so much regulation and Wellington-dictate that it cannot make a decision as to what might or might not happen, anyway. So the question out of that for those of us on this side of the Chamber who have not been close to the issue—some of my colleagues have been—is why this process is necessary. Why is this bill necessary? In the first place, why is this panel necessary, and why are all the clauses under Part 4 necessary in terms of controlling what that panel may or may not do?

I would be interested if the Minister in the chair, the Hon Marian Hobbs, took a call and explained that away, because I do not think it is possible to explain, first of all, why this group has to be set up, and also why the regional councils or the district councils cannot be trusted. They are currently going through a local body elections process whereby all of this could be sorted out in an open democracy, particularly under the power of general competence that was introduced by her Government. So why can they not sort it out?

Hon MARIAN HOBBS (Minister for the Environment) : I have some corrections. I actually have what my honourable colleague Jim Sutton said here the other day. When he quoted material about the benefits for the upper part of the catchment, he was not giving his opinion but quoting from a study. If the member looks at the study, he will see that.

The second thing is that I have just heard the last speaker show he is completely confused about Part 4. That part, in the original legislation, was about setting up a panel. There was a board to make the policy around the issue of water allocation, and a panel made up of people from the local community to hear the different applications. In Supplementary Order Paper 244, that panel is wiped—it is gone. In other words, what that member was talking about—the decisions going back before local bodies—is in the Supplementary Order Paper. In this legislation we are dealing with the setting up of a board but not of a panel. Part 4 is about dismantling the panel.

BRIAN CONNELL (National—Rakaia) : I would also like to address some of the issues under Part 4 that the Minister for the Environment has just discussed, but I cannot do that without putting into context some of the comments the Hon Jim Sutton made when he took a call on this part. Let us be very clear that Jim Sutton took a call last week and affirmed—whether or not it was his opinion—that one cumec of water was more valuable to the national good if it were used for electricity generation than if it were used for irrigation. That demonstrates the Minister’s ignorance, and it is why he should not be the Minister of Agriculture. All the studies I have seen and, I am sure, the Minister in the chair has seen show very clearly that one cumec of water, if used for irrigation, generates about five times the return achieved if it is used for electricity generation. That is a very clearly established fact.

The Minister for the Environment then spoke about my colleague Mr Ardern and his apparent lack of understanding of this part. That is not correct. If there is any confusion, it is because a very late Supplementary Order Paper was introduced. When Project Aqua was off the agenda, the Minister essentially lost interest in this bill. She found herself in a position where she may, in fact, have acted illegally by calling in all those consents, because there was no national good in her doing that. So what happened, in effect, was that Part 4 was completely gutted. The Minister essentially said that she had no interest in it any longer, and that she would put a line through all those components and put all the responsibility back on to the regional council, without the Government taking any responsibility at all.

The regional council has reacted to that. There is some argument, which I support, that if the regional council has not done its job, then a mechanism should be put in place to make sure that that does happen. I have to say, and it is no secret, that I think Environment Canterbury is the worst-performing regional council in the country, but I say to the Minister that we should fix the problem, not treat the symptom. Putting in place this type of legislation does not address that issue. If we have a look at clause 55, for example, which deals with the Official Information Act as amended, we see it now makes reference to a “Panel of Commissioners for the Waitaki Catchment”. Environment Canterbury wrote to all members of Parliament, I assume—because I have picked it up—“The commissioner panel appears to have the status of a local authority, but the bill”—and section 55 is referenced—“applies the Official Information Act to the panel rather than to the appropriate Local Government Official Information and Meetings Act. I think it raises a very good point.

Hon Marian Hobbs: It’s been deleted.

BRIAN CONNELL: I say to the Minister that I know it has been deleted now, but that was because the council drew it to her attention, not because she or her advisers thought it was a good idea. That type of thing really concerns me. Some of the other clauses that the Minister has been calling out will be deleted—and I agree with her—raise other questions. Clause 42, “Comparative consideration of applications”, will be deleted, as will clauses 46(1) and 46(5), which essentially deal with costs. The question now is how somebody, or who, will pay for the cost of any comparative analysis. I can tell members without fear of contradiction that the cost will be paid by not the Government but by the ratepayers of the Environment Canterbury region. That is the damage this bill will do now.

The Minister has lost interest in the bill. She will sit in the chair, shake her head, and say that this bill had nothing to do with fast-tracking Project Aqua, and that it was all about water allocation across the Waitaki region. If that is her answer, why, then, is the Minister not doing the same on the other main rivers across Canterbury, like the Rākaia, Waimakariri, or Rangitata rivers? Why is the Minister not intervening and putting in place some legislation around them?

Hon KEN SHIRLEY (ACT) : We have just heard the Minister for the Environment emphasise the fact that the panel of commissioners—which is the heading of Part 4—is to be expunged before it even gets off the ground. That is not a bad thing in itself. This entire bill is all about setting up a committee; that is all it has done from the outset. It has proposed setting up two committees, actually—the board and the panel. The setting up of an allocation committee is all that this bill is about. There has been all this brouhaha, noise, and huff and puffery from the Government just to set up a special committee.

ACT has said from the outset that this legislation is a nonsense and is just a fast track that the Government is setting up to try to accommodate the State-owned enterprise Meridian Energy’s Project Aqua. The Government’s line has been that the bill has nothing to do with Project Aqua, that Project Aqua is absolutely ancillary, and that this bill sets up a necessary allocation plan, in any event. Over a year ago, when the bill had top priority in the legislative programme, successive Government Ministers said that they had to ram it through, but the day that Project Aqua was mothballed and canned this bill was mothballed and put on the back-burner. It has bounced along the bottom of the Order Paper for nigh on a year, yet the Government has the temerity still to pretend that it has never been about Project Aqua. It would be too embarrassing for the Government now to totally withdraw the bill, which is what should happen.

Part 4 highlights the point: it is just about an allocation committee. After the Water and Soil Conservation Act 1967 was passed, we had a dedicated Waitaki catchment commission. It did water allocation plans. Like a lot of bureaucratic plans, they have all been shelved. Since the passing of the Resource Management Act in 1991 and the establishment of regional councils, Environment Canterbury has had the specific task—the specific legislative responsibility—of doing a water allocation plan. We do not need the committee that is proposed in Part 4. We have a statutory body there. The fact of the matter is that Environment Canterbury has chosen to abrogate its responsibilities. If a statutory body chooses to ignore and abrogate its responsibilities, one does not rush to Parliament and bring in a whole new statute to set up another body. That is just nutty.

We should address the basic problem of why the regional council that was charged with the responsibility did not do its job—that is point No. 1. Both the Minister for the Environment and the Minister of Local Government had some responsibility to address that, but, no, they did not choose to do it. Call-in powers and all manner of statutory powers are given to a Minister to use when local bodies abrogate their legislative responsibilities—and this is a classic case of where that is the point. I do not know whether the Minister in the chair, Marian Hobbs, has even written to Environment Canterbury to ask where its water allocation plan is. Did she think of perhaps writing to tell it to get on with the job, and to say that if it did not, she as Minister would give it a shake-up? She has the powers to do that. No, instead she came to Parliament with a whole new duplicate, replicate body of bureaucracy—with another governing body and another committee. Now she is so pleased with herself because she has turned those two new committees into one new committee. That is the essence—whoop-de-doody—of this Government’s activity in relation to the Waitaki catchment water allocation procedures.

The National Party member who spoke on this was quite right. What is special about the Waitaki? The Government has told us that the bill has nothing to do with Project Aqua. Why not apply this measure to the Waimakariri, Rangitata, or Rākaia rivers? Why does it apply just to Canterbury? I ask the Minister why we do not have these plans and special little allocation bodies all over the country. That would be consistent. This is a foolish bill and ACT will oppose it.

Hon Dr NICK SMITH (National—Nelson) : Everything that is flawed about the approach of the Minister in the chair, Marian Hobbs, to resource management law is typified in Part 4. I simply tell the Minister what a diabolical mess she has made of this issue and of resource management law. It is quite extraordinary that we have had the 9-page Supplementary Order Paper 244 from the Minister, and we have yet to hear any Government Minister give an explanation of it. I ask the Minister to look at the explanatory note of that Supplementary Order Paper. It is the most congested and the smallest explanatory note that I have ever seen for such an extensive Supplementary Order Paper. It could read: “I, Marian Hobbs, stuffed up.” That would be quite honest; that would be upfront. Instead, we have had to listen to a whole lot of weasel words from the Government about its approach on this issue.

I want to put some quite serious questions to the Minister about what has happened to Part 4. The Minister told us that this bill had nothing to do with Project Aqua. She said that this bill was all about the proper management of resources in the Waitaki River catchment area. So why did the bill have to include a panel of commissioners 10 months ago, and not now? Why, when the Local Government and Environment Committee went through a very extensive process on the submissions, did all the Government members say that we had to have a panel of commissioners? What has changed since then? Why did we suddenly receive Supplementary Order Paper 244 2 weeks ago, which stated that the panel of commissioners was no longer required? It is a gigantic and an expensive flip-flop, and that is just so typical of the problems that this Government has with regard to resource management law.

Next, I ask the Minister why on earth, given all the public concern about delays in the processing of resource consents—and I note that Part 4 will now be labelled “Processing of applications”—she and the Associate Minister, David Benson-Pope, are saying that we need to speed up the consent process and that there are too many delays. I say hear, hear to that. But what will this bill do in terms of reducing the delays and the bureaucracy of the Resource Management Act? It will make things a whole lot worse. Some of the poor old cow-cockies who have dealt with consents for very minimal amounts of water—as contained in schedule 2—lodged their applications in early 2003. They had to wait for the Minister’s call-in last year, and have now had to wait almost 12 months for this bill to be considered. They will then have to wait another 12 months while the board develops the plan, and only then will their consent applications be considered. I say to the Minister that if that is speeding the process up, I would hate her to slow it down! I say that members of Parliament and people all over the country will be concerned about that.

I come to the issues faced by the farmers of the Waitaki. What occurred during the Minister’s absence from the Chamber last week, when we had a debate on that matter, was quite disgraceful. I want the farmers in the upper Waitaki catchment area to know how flawed the Government’s position was. Its position was that it would not support my amendment to take into account the promises that were made to the farmers in 1969, because that would interfere with the court process. That is what the Government said. But the very provision of that amendment was to state that actually the court should have to take those promises into account. I would hope that the Minister will come to her feet as the Minister responsible for the bill, and respond to those concerns.

The last point I wish to make in respect of the processing of applications is that people who get resource consents need to have certainty. Those who have applied for resource consents in the Waitaki River have been put through hell by this Government’s policy and the expense that it has caused.

JILL PETTIS (Senior Whip—Labour) : I move, That the question be now put.

Hon Dr NICK SMITH (National—Nelson) : What we have here is a shonky, piecemeal approach to resource management law. The approach taken by the Minister, Marian Hobbs, is one that adds costs, uncertainty, and delays. I put it to this Parliament that Marian should be put on Helen Clark’s—

The CHAIRPERSON (H V Ross Robertson): The member will use the full name of the honourable Minister, or the name of her portfolio.

Hon Dr NICK SMITH: The Hon Marian Hobbs, the Minister for the Environment, should be put on Helen Clark’s ministerial death row alongside George Hawkins for the incompetent way in which she has managed resource management law. What we have here is quite dishonourable. The Minister came to the House with this bill and said it had nothing to do with Project Aqua. Then, the moment Meridian Energy pulled the plug on Project Aqua, the bill was completely rewritten. Now, I am not going to go so far as to say whether the Minister was telling a porky the first time or the second time, but she has not been consistent.

The CHAIRPERSON (H V Ross Robertson): The member will be seated. The member is a long-serving member of this House and has been for a number of years. He has held senior positions. He knows that he cannot use that word. The Speaker has ruled accordingly.

Hon Dr NICK SMITH: I am not sure whether the Minister for the Environment had it wrong the first time or the second time, but her positions have been so grossly inconsistent that she owes the people of North Otago and South Canterbury an explanation, because both things cannot be true.

I also have to say that it has been grossly unfair on Meridian Energy. It is a State-owned enterprise, but it is reasonable that people know what the rules are. What this Minister has been doing is continually changing the rules. One hundred million dollars has been put into Project Aqua, and because of this Minister’s shenanigans this has resulted in that money being lost to the public purse. She must bear the responsibility for that mess on her desk.

Then we come to the issue of the total lack of honour that this Government has shown to the community of the Mackenzie Basin. It was absolutely clear in the evidence heard by the select committee that commitments were given in good faith to the community at the time the upper Waitaki hydro development took place. It was absolutely clear that those commitments were given. This was an opportunity—the one honourable decent thing we could have done in this bill—to say to that small community: “Governments can be trusted.” Well, Labour Governments cannot. I am referring to the way in which Jim Sutton weasel-worded his way around his obligations to his constituents in respect of that 1969 Order in Council and the commitments that were made on an ongoing basis throughout that period.

I see in today’s newspaper that Rob Talbot has confirmed that he as a former local member remembers very well the commitments that were made to the community, and I want to know why it is that Labour administrations are not prepared to honour the word of previous Governments. Why are they not prepared to have put on to the statute book of New Zealand that when it comes to allocating the water from the Waitaki River, they should have to take into account commitments made by previous Ministers? What is it about Marian Hobbs and her colleagues that they want to disregard those sorts of commitments? I will tell members why. It is quite simply this: they are the shareholders of Meridian Energy. They have a complete conflict of interest. Marian Hobbs and her cronies are more interested in the balance sheet of Meridian Energy than they are in justice, or in any terms of honesty and integrity in dealings with the Mackenzie Country community. I say that her management of that issue will cost this Government the seat of Aoraki. [Interruption] “We will take it because of the honourable way in which we have taken that community.” says Mark Peck, who has walked away. He knows he is stuffed in Invercargill. He knows he is a goner. The seat of Aoraki will be like Invercargill and will come into National’s hands next year because of the Government’s mismanagement of this important issue.

JIM PETERS (NZ First) : Speaking to clause 1, I want first to go back to the issue that has been raised in this Chamber with regard to what is so special about the Waitaki. What is so special that in clause 1 it demands its own amendment bill? What is so special about its place in the Resource Management Act? The answer lies in the fact, for those members who were there in Oamaru and have spoken to people since then, that the farmers from the upper Mackenzie Country, from Mayor Stan Scorringe of the Mackenzie district to the people of Kurow and right down the river—all of those people—regard the Waitaki River as a very special place indeed. That is part of the reason why New Zealand First has given its support to the revised bill that is before the Committee at the present time. In the course of the earlier deliberations of the House and the select committee, firstly, we became aware of the tremendous knowledge of the Waitaki that Meridian Energy had garnered; secondly, alongside that, the work that was done by Environment Canterbury, belatedly perhaps, but it was there; and, thirdly, the work of the Ministry for the Environment.

We thought the opportunity should not be lost to address the issues that are paramount in regard to the Waitaki River and other rivers, and that is what really are, and what should be, the qualitative methods of water allocation for this day and into the future. In that regard, one needs just to speculate that if we go back to the Soil Conservation Act 1967, which talked about “promoting and controlling multiple uses of water”, and move to the 1991 Resource Management Act, which was concerned with “promoting the sustainable management of natural and physical resources”, one might pause, especially in view of the speeches already made in the House, and consider why Environment Canterbury or any other regional council may have delayed throughout the 1991-99 period.

Regional councils, along with district councils, were expecting more national guidance. Instead we know that we had one, the national coastal policy statement, and no other. Whilst we have heard an impassioned speech from the Hon Dr Nick Smith, his Government was in power throughout that time and there was only one national statement of guidance in regard to the coastal plan. That could be a very, very sound reason why Environment Canterbury has not until recent days picked up the ball and run with it, although it is doing so now in a very prominent manner. I say that because, as we have said in the House, we are now happy with its regional natural resources plan. It is a very, very extensive plan, and the Waitaki issue sits very well into that.

From the first we have preferred, and have stated throughout this whole debate, that the Canterbury Regional Council and the Otago Regional Council should be the groups that hear the matters relating to the Waitaki River. Therefore, we are very, very pleased indeed that we have come back to that situation today where their board is going to take up the matters that are before the Committee now.

That is particularly so because there are major matters of concern in regard to this river. The model that this board could develop for a modern water plan, not related to the 1980s or 1990s, could be one that looks ahead, particularly in view of the fact that it is acknowledged now that if the competing demands for the water in that river were to be satisfied, that would cause a quandary and a problem for years to come. To that degree we have been pleased to give support to this. We are pleased to support the work being done by the Canterbury Regional Council, and if members took the time to go into their website or talk to the council and see where it is in 2004, they could see why I have every confidence that it will come up with something that will be far faster under this process than one could envisage if it had waited until the end of the natural resources plan, which will probably be 2008-09, and then fitted the Waitaki catchment into that.

We are very pleased to support those people from Waitaki who have said to us over and over again: “Please do not let the matter go. Please make this a matter of concern, because we want a modern approach for this day and age to our water, our river, in which all users, but not least the instream values of the river, are acknowledged first and foremost.”

Hon KEN SHIRLEY (ACT) : In addressing the title, which as we all know is a very narrow and confined debate, I must first rebut the comments made by Mr Jim Peters of the New Zealand First Party. Mr Peters is a very fine and diligent man who worked very hard on the Local Government and Environment Committee, but the reasons he just gave to the Committee for why New Zealand First is supporting this bill are absolute hogwash. He said a reason was that up and down the Waitaki River, people regard it as a very special place. People feel like that about every river in the country. People up the Clutha feel like that. People up the Aorere, the Motueka, the Rangitīkei, the Rangitata—

Lindsay Tisch: Or the Waikato.

Hon KEN SHIRLEY: —or the Waikato feel like that. Rivers are wonderful things. I love rivers, and people who live up and down river valleys have huge respect for them. So to say that that is a reason why in the Waitaki they need special legislation is absolute hogwash.

The only other reason he gave was that it was because there is a tremendous depth of information on the Waitaki. That is true. We used to have the Ministry of Works doing all of the hydro design. It had 400 full-time people working in the water and soil division, gauging the rivers and measuring the flows. The New Zealand Electricity Department did a huge amount of work. All of that is true, but it is the same for the Waikato, which is also a controlled catchment, so just on that point the member’s argument is absolute hogwash and New Zealand First cannot explain away its position with those arguments.

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

Hon KEN SHIRLEY: I am pleased that in debating the title we no longer have that somewhat farcical situation where we used to be strictly confined to the words in the title and we used to get all sorts of reinventions of what the bill should be called. With the new Standing Orders the title debate is much more broadly based than it used to be, and that helps the debate.

The ACT party is staunchly opposed to this bill. We say that it is unnecessary. We cannot understand why the Labour Government has brought it to this House. We know that it was all about Project Aqua, and now that that scheme has been put on the back-burner or abandoned, there is no need for this legislation, if, indeed, there ever was. I do not believe there ever was. The key thing is that this is an amendment to the Resource Management Act. The Resource Management Act has generic provisions that provided for regional councils to bring down water allocation plans. They were charged with that responsibility. The Resource Management Act was meant to be part of deregulation. It was meant to be part of empowering and enabling local communities. It was borne out of a rejection of the National Development Act and dictates from central government. But this bill that is before Parliament now, which this Labour Government is determined to ram through against better advice, is very akin to the former National Development Act and all the problems that that brought to our country.

There is no point for this bill whatsoever. The Minister in the chair, the Hon Marian Hobbs, has been totally unable to justify it to Parliament, but it seems that the Labour Government has just to churn on because it is in a particular mindset and feels it would lose too much face if it did the right thing and withdrew this bill even at this late stage.

The point has been made that there are any number of mechanisms for allocating water. Water allocation is important, and it will have a growing importance as the scarcity of that resource, which we have always taken for granted in this country, becomes more apparent. No one argues with that, but why the Waitaki catchment? Why not the Clutha River? Why not the Waikato River? The Waikato River is a managed catchment just like the Waitaki. Why not the other big rivers of the country? Or is that the Government’s intention? Will it systematically go round the country, one by one, and have the “Clutha River Empowering Water Allocation Bill” next month, and another one after that.

There is no justification for this. The ACT party will oppose it. We will vote against it, but I would like the Minister just to take one last call at this last stage and tell us how on earth it is required and why it is necessary, when all those other existing provisions are there in statute, and have been since 1967 with the Water and Soil Conservation Act that was subsumed into the Resource Management Act.

SANDRA GOUDIE (National—Coromandel) : The Minister said that the Resource Management Act did not need changing and that, indeed, it was beautifully written and beautifully balanced. But then what happened? It got absolutely sidestepped for a favoured project. The Minister put all the water applications on hold because—what did she have up her sleeve? She had Project Aqua for the Waitaki River up her sleeve, and so the farmers waited. All their applications were put on hold, even those for farmers who had been taking water consistently for many years—and still they wait. They are waiting to this day, and by all accounts will wait at least another year or more.

In setting up that water allocation model, at the time when we worked through this bill at the select committee, it became quite clear that the model could set parameters around different categories of water take, which meant that some things could happen automatically. In actual fact, if the water allocation model were structured correctly, any water take for a hydro project could almost have been a permitted activity within that allocation model. That was one of the things that became clear during the select committee process but, as we know, there are a whole lot of exemptions to the Resource Management Act. As I have said before, there were to have been exemptions from section 32, but at least that was changed.

So what happened with the Resource Management Act under this particular bill? It was sidestepped. We had ministerial interference, and that Act was sidestepped to introduce another bill to create another Act—which sidestepped the Resource Management Act that was so beautifully written and so wonderfully balanced.

What did we have then? We had the continued interference of the Minister within this bill. It has only partially been removed. It is certainly still there with the establishment of the board and with the Minister setting up the chair and deputy chair and picking the members. As we all know, the Minister was advertising for applications for the board during the select committee process—at the very time we were hearing submissions to the original bill.

We all know, as well, that the original bill has 55 clauses, so with about 29 deleted we are now down to about 26 clauses. We have to ask ourselves why we did not just can the bill. Perhaps the Minister could support Environment Canterbury to do the allocation model and get that up and running pretty quickly, so that we could help to look after those farmers who are still waiting for their applications for a water take.

I agree with my colleagues wholeheartedly about the deplorable lack of support for the upper Waitaki catchment farmers. That has been an absolute disgrace. We had the opportunity through the Supplementary Order Paper from the Hon Dr Nick Smith, but that was ignored by none other than Jim Sutton—

Brian Connell: Did Jim Sutton support it?

SANDRA GOUDIE: No, Jim Sutton did not support it. That is his area—the area he purports to represent—and he did not support protecting the interests of the upper Waitaki catchment farmers, and nor did United Future members. For all their grand phrases and time in the area spent talking to farmers, they did not support that Supplementary Order Paper, either. I believe that that is a disgrace.

Hon Ken Shirley: They didn’t walk the talk.

SANDRA GOUDIE: No, they did not walk the talk. I believe that that is an absolute disgrace, but I take my hat off to my colleague for putting such a supreme effort into making sure we all made an effort to support and protect the interests of the upper Waitaki catchment farmers.

The Minister has interfered throughout this whole exercise. Her Supplementary Order Paper is really quite extraordinary. When we look at Part 4, we see that it has been totally gutted. It has come from 27 clauses down to 10 clauses, so we have to wonder. Under clause 50, the “Panel” now becomes the “local authority”.

BRIAN CONNELL (National—Rakaia) : This bill has always been about Project Aqua, and no amount of measly weasel words from this Minister in the chair, the Hon Marian Hobbs, will change that fact. This Government, through this Minister, was prepared to pervert the processes of the Resource Management Act for its own narrow purposes, and nothing will change that central fact, either. Rather than fix the Resource Management Act, the Government decided to go down this path.

In doing so, this Minister and the Government have had a terrible conflict of interest, because Project Aqua was the brainchild of Meridian Energy, a wholly owned company of this Government, which was going to make sure that Project Aqua got up come hell or high water, and to hell with the other consent holders down on the Waitaki. I tell members that that is something the National Party and the people of South Canterbury and North Otago will not forget or forgive.

I have to tell Jim Peters from New Zealand First—a member for whom I have a deep respect—that on this issue I think he has simply got it wrong. He stood up in this Committee and created a perception that he has the imprimatur in working for the best interests of the farmers of the Waitaki Valley—that he alone has been there and got their support for this issue. Well, I want to read to that member two lines of a letter that I received: “We are writing to express our serious concern about the Resource Management (Waitaki Catchment) Amendment Bill, as reported back from the select committee. It is ad hoc and a retrograde step.” The letter is signed by none other than Tom Lambie, president of Federated Farmers. So Mr Peters should not continue to stand up in this Committee and say that he, and he alone, is across this issue and representing the views of Waitaki farmers, because Federated Farmers are saying that that is not essentially the issue.

What was happening was that some farmers—with farms situated below what was to be the site of the last dam, where the economic use of the water had been expended—were going to be seduced or blackmailed by Meridian Energy, which was going to play godfather with irrigation. I cannot blame the people living below that dam site. But on working up the river, Mr Peters would have found, as I did, that many a person said: “No, Meridian cannot and shall not get all of this water. We want some of it, as well.”

That brings me to the next point, which is about the Order in Council of 1969. My colleague the Hon Nick Smith put forward an amendment, and it was a very sad day for the people of South Canterbury when the Minister of Agriculture, the member for Aoraki, got up and talked against that amendment, which was essentially saying: “Please honour the Order in Council—the undertaking that the Crown made back in 1969.”

Let us put that into some perspective. We are talking about a river that has a mean annual flow of about 340 cumecs. Those farmers were simply asking for an agreement to be honoured that would have allowed them to have 15 cumecs, which is about 1.7 percent of all the available water. Meridian Energy said it would play ball below the site of the last dam, but above that site it wanted even the snowflakes. That was its attitude, and to hell with everybody else.

So I tell the Minister in the chair, Marian Hobbs, Jim Sutton, and the people of South Canterbury to remember who put the amendment forward to say we would honour that agreement, and to remember who talked against it. That is something that goes to the heart of this issue.

SHANE ARDERN (National—Taranaki-King Country) : It is a pleasure to follow on from my colleague, who does represent the farmers of that area and their views. Can I start by just running through a brief history of how we have got into this fiasco here tonight. I say, first of all, that the Resource Management Act was passed in 1991. It was described then around the world as being a fine piece of environmental legislation.

Jill Pettis: Who was the Government then?

SHANE ARDERN: The member over there from Whanganui interjects. What she forgets, of course, is that it was the work of Geoffrey Palmer.

Hon Ken Shirley: How many countries have copied it?

SHANE ARDERN: That is something I will have to wait for Mr Shirley to take a call on and answer, but it was described by world environmentalists as a fine piece of legislation. Then, of course, as time went on, it was discovered that perhaps it was not as pure as the driven snow and that amendments were needed. Owen McShane was employed by the then Government to carry out an extensive study of the Resource Management Act and the effects of it on both environmental management and the economy. He recommended 12 significant amendments to the Resource Management Act. That was sent to a select committee. The select committee came back. At that stage, unfortunately, there was an election and a change of Government. The then incoming Minister for the Environment, the Minister in the chair, the Hon Marian Hobbs, put a red pen through every single one of those recommendations.

Now, here we are tonight debating the Resource Management (Waitaki Catchment) Amendment Bill. Why was that introduced? Well, primarily because a State-owned energy producer, or power supply company, Meridian Energy, needed to do some expansion in its hydroelectricity development on the upper Waitaki scheme. So what happened then? The Labour Government, who had put the red pen through all Owen McShane’s recommendations and the recommendations of the previous National Government, introduced its own legislation that was very much like the Clyde Dam legislation—which the Labour members when in Opposition had entirely condemned up and down the country.

Then what happened? Project Aqua, the Meridian project, after $100 million worth of taxpayer funds, tipped over, could not go ahead, and would not proceed. So the Government had a look at its bill, which had by then been made redundant—because, make no mistake, that is entirely why this bill was introduced; there are no other reasons for it—and said: “Well, we don’t need this heavy-handed environmental amendment now, so we’ll put a red pen through it again.” That is where tonight’s debate becomes very interesting. My comments earlier during the debate on Part 4 were about Part 4. The Minister took a call afterwards—one of the only calls she has taken; and I invite her to take another call after I have finished my speech—and said I was wrong because the Government had a Supplementary Order Paper that guts Part 4. Well, Supplementary Order Paper 244 had not been voted on at that stage, so, clearly, the Minister was pre-empting what the Parliament was going to do in saying that the debate on Part 4 was out of order. I say to the Minister that while she has time she should have a look at Standing Order 176—and I know that the Chairperson will be very familiar with that Standing Order—and have a read up on it.

What happened then was an absolute abuse of the parliamentary process—if it had not been bad enough up to that stage. The Minister said I did not know what I was talking about and that Part 4 was not up for debate because there was a Supplementary Order Paper that effectively wiped out everything that was intended in Part 4, and every other part of the bill for that matter. All that this bill actually does is set up another Labour Party quango, which will have no teeth to achieve anything whatsoever, and it is only for the upper Waitaki River.

A substantial amendment was proposed to the Resource Management Act. The Minister kicked it out, and now we have this ad hoc legislation that will not achieve anything other than another Labour quango. It does not even honour a 1969 Order in Council that supported the farming folk of the upper Waitaki area in taking 1.7 percent of the water flow from that river for agricultural irrigation, and it gets worse.

STEVE CHADWICK (Labour—Rotorua) : I move, That the question be now put.

GERRARD ECKHOFF (ACT) : The legislation we are debating tonight will become known in the South Canterbury region not as the Resource Management (Waitaki Catchment) Amendment Act if and when it is finally passed, but as the “Act of Betrayal”. The people of that region had a legitimate expectation that the Government—whatever Government was in office—would ultimately honour the undertakings that were given, albeit 30-odd years ago. We stand in this Parliament with things like the Treaty of Waitangi and select committees that meet at all hours of the day and night, to honour promises supposedly given 160 years ago. Now we stand in this Chamber tonight debating whether—and this is the crux of the matter—the Government of the day, this Labour Government, should honour a guarantee or a promise. It was not a nod, nod, wink, wink type of promise; it was a promise given to the farming community in the region of South Canterbury. As a farmer myself who understands the value of water, I say there is no question that this legislation will be seen, as I said earlier, as an act of betrayal.

The Mackenzie Country farmers had their expectations raised to exalted levels by United Future. Mr Larry Baldock met with those people, and while I was not privy to that conversation, the clear inference was that he would ensure that an amendment went through. Dr Nick Smith had an amendment that even the Green Party accepted as being fair and reasonable. Even with some minor adjustments, Larry Baldock and the United Future party would not vote in favour of that amendment. Therefore, the cast iron opportunity to provide for water for irrigation in that region will now pass from the people there.

If anybody actually believes that the ministerially appointed committee will honour the agreement, or that promise, given all those years ago, he or she is dreaming. The Government will appoint its own people, just as Jim Sutton did with regard to his reference group on access. He knew exactly what the outcome would be when he appointed those people. The same thing will apply when the Minister appoints her people to ensure that her organisation—one would almost call it her subsidiary; it is, of course, Meridian Energy—gets whatever it wants in terms of a water right, and the private people in that region will have to apply for rights.

As I mentioned earlier, water is something that is of massive concern to all of us on the east of the Main Divide of the South Island. One of the reasons why security of water supply is so vital to those people is simply that without the water, the land in most cases is quite valueless. This Government is to turn the whole structure on its head in that region, by saying that it will reallocate water rights. It will rethink the whole process whereby the farms that Mr Brian Connell and so on come from have always had the security of a water right—until the Government came along, and said that it will turn that on its head.

Maybe I misheard this, but I am quite certain that I heard the member for that region, Mr Jim Sutton, talk about the people who came on the first four ships gaining the rights to water. He does not like the people who came on the first four ships, so he is to redistribute those rights to the people. I suggest that Minister Jim Sutton get out of it and bail out of the ship now, because he is history. The people of South Canterbury will not tolerate those water rights being redistributed to some johnny-come-lately who fancies being given that opportunity.

NANAIA MAHUTA (Labour—Tainui) : I move, That the question be now put.

PHIL HEATLEY (National—Whangarei) : I am delighted to stand to speak in the Committee stage of this legislation. The National Party will be putting forward some amendments to the bill. The Minister of Fisheries has presented some as well.

Obviously, the bill went through a quite extensive select committee process. We toured the country, and we made some substantial changes to the legislation during the consideration phase, based on the submissions that we had heard. Most of those submissions agreed on a whole lot of points. There were six major ones that were consistently brought up: recognition of up and running iwi; recognition that coastlines agreements are likely to hold up the allocation; restrictions on the sale of quota; the conflict of interest between Te Ohu Kai Moana Trustee Ltd and Aotearoa Fisheries Ltd where they compete with iwi; iwi not being recognised in their own right; and the accountability of Te Ohu Kai Moana Trustee Ltd and Aotearoa Fisheries Ltd. I note that one of the Minister’s Supplementary Order Papers—and I acknowledge him on this—has addressed a number of those issues more extensively than the committee did, and I commend him for that.

We have some other issues that we would like to put to the Committee. One of them is in relation to the commitment of coastline to particular iwi groups. We want to make sure that that is clear in the legislation—or, at least, that the disputes resolution process is clearer and more assertive, I guess, in terms of defining coastal agreements, particularly historical ones in other settlements. That will be the first one.

The second amendment will be in relation to the appointment of Aotearoa Fisheries Ltd directors. Members may not be aware, and we are concerned, that there are five layers between Māori beneficiaries—those whom the settlement is supposed to be directed to, each and every one of them, and, from here, through their children and their grandchildren—and the Aotearoa Fisheries Ltd directors, and we will be introducing a Supplementary Order Paper that removes one of those layers so that there is more direct accountability.

Lastly, as was signalled in the debate on the second reading, Dr Wayne Mapp also has a Supplementary Order Paper in relation to the issue of iwi who want to withdraw their interest in Aotearoa Fisheries Ltd—particularly the deep-shore quota. So we will be addressing those issues.

The preamble in the bill talks about the historical intent of the legislation and how we have come as far as this in the 12 years following the settlement in 1992—which the National Party Government took a great and sincere part in, and was delighted to sign off. We will be questioning whether the intent of that sign-off back in 1992 has been followed through in the negotiations, the toing and froing, and the court battles that have occurred in the last 12 years that have led to the introduction of this bill, the submissions process, and the bill we finally have now. We will be continually questioning, through our Supplementary Order Papers and amendments, whether the intent of the 1992 settlement, as talked about in the preamble, has been fairly and rightly reflected in the legislation. We think it has, generally—there is no doubt about that—and that is why we have agreed with the majority report, but there are key areas where we do not think the intent has been reflected. Members will see in the preamble more specifically what the intent of that 1992 settlement was. It certainly was about empowerment of Māori, and it certainly was intended that all Māori, for all time, would be beneficiaries of the settlement. We believe that there are clauses and substantial provisions of this bill that do not empower Māori but, in fact, disempower them and separate them from their asset, and we will be addressing that.

PITA PARAONE (NZ First) : Although my fellow caucus members have indicated support for the Maori Fisheries Bill, I stand to indicate that I intend to introduce a Supplementary Order Paper based around the issue of takiwā, and in particular the defined takiwā iwi—takiwā defining the deed of settlement and takiwā defining enactment. It is important to recognise those iwi who have already signed or entered into a deed of settlement with the Crown. This bill is all about an agreement that was made some 12 years ago between Māori and the Crown. I am sure that when those iwi signed their deeds of settlement with the Crown, they believed they were entering into an enduring settlement—something that would last for time immemorial. The bill, as it stands in relation to the defined takiwā iwi issue, suggests that those deeds of settlement do not apply to the contents of the bill, so New Zealand First will certainly be supporting the Supplementary Order Paper I will put up.

There are other issues with regard to the disaggregation of those groups who wish to be recognised as mandated iwi organisations separate from their iwi as listed in the schedules. We will certainly be commenting on the intention of those groups, particularly given that the Minister in the chair, David Benson-Pope, has provided a Supplementary Order Paper covering those issues. We do not have too much difficulty with the intent of the Supplementary Order Papers, but we will certainly comment on them.

Hon Dr NICK SMITH (National—Nelson) : In debating the preamble tonight, I begin by paying tribute to people like Doug Graham and Doug Kidd, former members of the House, who were visionary in seeing the opportunity to settle a treaty issue that for decades had been a huge drawback for New Zealand in terms of the management of its fisheries, and who, with the purchase of 50 percent of the interests in Sealord’s, were able to see their way forward and through to a ground-breaking solution to Treaty of Waitangi issues in respect of commercial fisheries.

I pay tribute both to the Māori negotiators and to my former colleagues, who were part of that agreement. But I also express some concern about where this bill will take Māori New Zealanders and members of the fishing industry. That industry is of vital importance to the New Zealand economy, and particularly to the community I represent in Nelson.

I note that the preamble states: “The enactment of this legislation will complete the implementation of the agreements in the Deed of Settlement ...”. I say to the Committee that I will bet whatever any member in this Chamber would like to bet that we will be back to amend the bill’s almost 290 pages of quite detailed law within a year, or at most two, and that we will be back many times over the next decade. The Minister in the chair, David Benson-Pope, should not kid himself that the bill will in any way be a complete implementation of the agreements of the deed of settlement. In fact, in a number of key areas the bill contradicts elements of that deed of settlement, and I join with the very competent fisheries spokesperson for National, Phil Heatley, in signalling concern about the convoluted governance structure that this Government will impose on Māoridom.

I have never quite been able to work out the Labour Party’s relationship with Māori. It paternalistically tries to do the right thing but, fundamentally, Labour does not trust Māori. It imposes paternalistic structures on Māori that will not let them exhibit their ownership rights over assets that Parliament should agree with Māori are theirs. I would love to hear a contribution from the Minister explaining how a five-stage, convoluted governance structure will serve the interests of Māoridom.

What is it that Labour believes about Māori that means they cannot own their own assets? Why is it that the Government has to tie them up in this sort of convoluted mess? My Nelson iwi will have a role in appointing some directors to a college, which will then appoint some members to a trust. The trust will then appoint directors to a company, and that company will finally have control of the substantive quota interests. What a bizarre set-up! If it were being imposed on any Pākehā or non-Māori property owner, we would all be standing up in Parliament and saying that it was an outrage and a mess. So why is it that this Labour Government wants to impose on Māori all those restrictions on what they can do with their assets?

Phil Heatley: They don’t trust them.

Hon Dr NICK SMITH: I take the point. It is true that if Māori are trusted with their assets, then like anybody else they will sometimes mismanage and lose them. We have already seen that happen with treaty settlements. Some groups have been extremely competent, have built up their assets, and have grown them. Others have been less competent. It is no different for Māori than it is for anybody else, but it is a fundamental right of ownership to be able to take control and do one’s own thing.

I say that this preamble is wrong in saying that it completes the implementation of those agreements in the deed of settlement. It was never envisaged in 1992 that we would have this sort of convoluted mess.

The CHAIRPERSON (H V Ross Robertson): I call the honourable member, Dr Wayne—

Jill Pettis: Don’t trust him. He would sell your grandmother’s false teeth.

Dr WAYNE MAPP (National—North Shore) : I raise a point of order, Mr Chairperson. What do you think of those comments?

Hon Dr NICK SMITH (National—Nelson) : I raise a point of order, Mr Chairperson. I notice that the senior Government whip made some rude comments about my grandmothers, who are deceased. What is more, the member was interjecting while away from her chair. I ask for some order in the House.

The CHAIRPERSON (H V Ross Robertson): I thank the honourable member for his contribution. I was not aware that the member was referring to anyone in this Chamber, and for that reason I let it lie.

SIMON POWER (Senior Whip—National) : I raise a point of order, Mr Chairperson. That explanation addresses the first part of the Hon Dr Nick Smith’s point of order, which related to the specificity of the comments made. It does not address the second point of my colleague’s point of order. It is, I believe, a breach of the Standing Orders for members to make a comment in the nature of a debating comment whilst they are moving about rather than being in a seat in the Chamber. I would ask for you to rule on that matter, as well.

The CHAIRPERSON (H V Ross Robertson): The members are perfectly right on that particular issue: Speaker’s ruling 56/6 states that there shall be no interjections while a member is walking around.

JILL PETTIS (Senior Whip—Labour) : I raise a point of order, Mr Chairperson. I will speak extremely briefly. Speaking sotto voce and making a comment to oneself is, I believe, quite usual in this Chamber. But if I offended the member, I am happy to withdraw and see an end to the matter.

JIM PETERS (NZ First) : I raise a point of order, Mr Chairperson.

The CHAIRPERSON (H V Ross Robertson): That point of order has been dealt with. Is this a new point of order? [Interruption] Order!

JIM PETERS: Yes, it is, Mr Chairperson, and that is the very issue I wish to address. Is it not unusual that as you are deliberating upon the point of order, a member of the Committee is indulging in persistent conversation across the Chamber? If that is so, I suggest strongly that she be brought to order.

The CHAIRPERSON (H V Ross Robertson): I thank the honourable member and refer the member on my right to Speaker’s rulings 19/6 and Standing Order 84(3).

Dr WAYNE MAPP (National—North Shore) : This legislation, including the preamble, reflects a long period of litigation, negotiation, discussion, and dialogue involving the courts, various iwi, lawyers—some motivated, it seems to me, by gain rather than serious intent—and the Government. I know many of the people who have involved themselves in all of this, and I recognise that they have come to what they think is the best possible compromise. I guess the problem with all compromises is that they do not always reflect the best set of options but, in many ways, what people might argue is the least worst. National’s difficulty with this whole proposal is that it has departed too much from principle. In this regard, we are not primarily talking about the allocation formula—I understand why the Māori Fisheries Commission came to the view of, essentially, splitting the inshore quota on the basis of coastline of particular iwi, and theoffshore quota essentially on a population formula.

Our major concern is twofold. Firstly, the excessively paternalistic approach in essence does not trust people to manage their own assets. The case put by the commission, of course, is that the assets have to be protected on a generational basis. But I cannot see how that case can be properly made out because surely iwi have exactly the same interest and are in fact, I would suggest, probably even more powerfully motivated than a commission—now, of course, Te Ohu Kai Moana Trustee Ltd—and Aotearoa Fisheries Ltd to keep the assets within the iwi rather than an entity somewhat removed from direct control. That is our first major objection. It seems to me that there has been far too much regard held to protecting particular commercial interests that have motivated the way that the offshore quota is managed, so that it is removed from iwi and controlled by Aotearoa Fisheries Ltd, which, really, is all about protecting the viability of Sealord’s. That is the first objection, and National will be putting up a Supplementary Order Paper that deals directly with that on a principle basis so that only those iwi with a proven commercial record would get direct control.

The second issue, which will be raised particularly by Mr Heatley, is the whole issue of the layers of control—the multiple entities that cumulatively serve to remove direct iwi control of the entities involved in the fishing. In this instance we are not even talking about iwi ownership. The problem is that the owners do not even have the sort of control that one would expect a shareholder to have. Surely the proposal presented by the Government—because ultimately the Government had to endorse that of the Māori Fisheries Commission—should have provided the normal form of shareholder control, even if that meant some additional level of protection owing to the generational factors. It has failed at that level.

Finally, I would also like to note—because a Supplementary Order Paper is being tabled on this issue—that scant regard is paid to the issue of prior settlements. Why would we set up a whole new potential for iwi boundary disputes—coastline allocation issues—to be once again channelled through the courts—because that will be the effect of the proposals—for that to be finally determined?

GERRY BROWNLEE (Deputy Leader—National) : I am very pleased to speak to the Maori Fisheries Bill. I hope that in the preceding speeches colleagues of mine have mentioned some of our reservations about this bill. These reservations will become clear as we progress through the many hours of the Committee stage that we expect the Chamber will take in its consideration of this bill.

During the debate on the preamble to the bill, I want to speak particularly about clause (8A), which is new and was inserted by majority. It is worth noting, firstly, that this bill is supposed to be a bill that sets up the regime for fisheries allocation to Māori from this point onwards.

Everyone knows it has been a very long road to get to this point. Clause (8A)—a new clause inserted by majority—in the preamble to the bill states: “The enactment of this legislation will complete implementation of the agreements in the Deed of Settlement between the Crown and Maori in respect of Maori claims to commercial fisheries, as outlined in the Preamble to that Deed and in the Preamble of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992.”

What worries us is that this, which is supposed to be an end point and at the same time a commercial beginning, could well be just another step along the way in this very long discussion so far. One of the alarming things that we have heard at the Fisheries and Other Sea-related Legislation Committee in recent days is the repeated comment from various iwi groups that whatever settlement is reached in this generation is just for this generation. We have heard over and over again that many Māori view these matters as interim settlements, and it concerns us that the Government, it seems, with this bill, is in a position of not having strapped down that this is full and final.

If members want a further example of how things get pushed out and how new opportunities are created, the foreshore and seabed issue itself appears to do that. We have heard Māori talking about the confiscation of the sea from them and the economic opportunity that that provides. One submitter yesterday—only one, but a very significant submitter—suggested that the sea space that his particular iwi would lay claim to in a single chain—not a chain in measurement but a chain, if one likes, of marine licences along that coastline—would be worth some $40 billion to the tribe over a very short period of time, if it were able to be commercialised by them. I have to say that while those sorts of wild claims are out there, there can be no certainty at all that the legislation this House is being asked to pass will stick.

The trouble is that over the past 15 or maybe 20 years, we in this country have made genuine efforts to try to sort out all these issues, only to find that the ground shifts over and over and over again. No one will dispute that there are genuine grievances between the Crown and Māori that should be sorted out, but what worries me increasingly is the number of Māori leaders who are prepared to tell their people that they are not part of the Crown. They tell them that in New Zealand in 2004, they are not part of the Crown. Under our current arrangements, the Crown in this country is simply the people. We cannot have a Government trying to pass legislation in an environment where some people believe that they are owed a greater due by the rest of the people. In the ancestral sense, if one likes, in the grievance sense, yes, there are duties that have to be met, and they will be.

PHIL HEATLEY (National—Whangarei) : I would like to take up the issue regarding the historical setting that we see ourselves in with the Treaty of Waitangi (Fisheries Claims) Settlement Act in 1992, and also to pick up on Gerry Brownlee’s point, particularly his earlier point about precedent-setting. We in the National Party know that, although this Maori Fisheries Bill states in some clauses that it is restricted to the matters that it deals with and cannot cast any precedent on future Acts and legislation or past Acts and legislation, the structure set up under it will be the structure utilised in other settlements. In the case of aquaculture, we know that the give-away by the Labour Government of 20 percent of aquaculture space to Māori will utilise the same governance structures, allocation structures, and iwi business models that this bill uses. As the Government talks about seabed and foreshore being entrusted in the Crown, we know that it is going about negotiations with three different Māori groups throughout New Zealand on their own private settlements to do with the seabed and foreshore—unbeknown to all other iwi groups in the country. We know that those settlements will use a similar structure to what is outlined in this bill.

We talk about the patronising nature of this bill, about the distance between the Māori beneficiaries who are supposed to receive the settlement—the power, the monetary value, and the mana of the settlement—and a sum of the settlement assets, particularly those in Aotearoa Fisheries Ltd. I have talked about five layers. There are the Te Ohu Kai Moana Trustee Ltd board of directors, who select the Aotearoa Fisheries Ltd board of directors, with the Te Ohu Kai Moana Trustee Ltd directors having already been selected by the trustees of Te Kawai Taumata—that is three layers—who are selected by iwi representatives, and, of course, those iwi representatives are selected by the people. That structure is highly bureaucratic, and it will be utilised not just in this Maori Fisheries Bill but in the 20 percent aquaculture space give-away, as well. So any bureaucracy that Māori unnecessarily face through this legislation, or any patronising approach that Māori have to face through this legislation, they will also have to face when it comes to the aquaculture settlement or to any seabed or foreshore deal.

That is why this bill is so significant to the National Party. We want to see the bureaucracy and the unnecessarily patronising approach in this legislation removed, because all that they will do is give lots of lawyers lots of work amongst Māori, who will see their financial benefit disappear in the courts as they argue about 250 pages of legislation. Māori unfortunately will be forced into the position where they argue about clause upon clause—over 169 clauses. There are lots of subclauses, lots of layers, and lots of accountability. In fact, the accountability goes far above that of any normal mainstream organisation that Māori would have to appease.

NANAIA MAHUTA (Labour—Tainui) : I move, That the question be now put.

PITA PARAONE (NZ First) : I just want to make a point with regard to the part of the preamble that refers to the Māori Land Court. One of the concerns I have is related to an issue that has been in the media and has attracted a lot of attention in this Parliament in terms of the Māori Land Court.

First, I refer to the responsibility that the Māori Land Court will have under this bill, particularly in the area of certain disputes that are to be referred to the court. My concern is that nothing in the bill makes reference to the allocation of resources in order for the Māori Land Court to be able to do that work. Already, under its present workload, the Māori Land Court is running behind. That certainly gives credence to its often-said description: “Taihoa the Māori Land Court!”. I want to make that point.

Secondly, I refer to the attention the Māori Land Court has been given by this Parliament, and I note the issue of disputes resolution. If the court is to deal with those issues, then what comes into question is who the judge is who sits on the bench to determine them. Given that there are a number of Māori judges, the comments that have been made about the recent actions of a particular Māori Land Court judge suggest to me that those same people will have to remove themselves from those deliberations. Therefore, the issue of resourcing the Māori Land Court adequately to deal with this issue becomes a matter of concern.

So I rise just to raise those two issues. Kia ora.

JILL PETTIS (Senior Whip—Labour) : I move, That the question be now put.

GERRY BROWNLEE (Deputy Leader—National) : I raise a point of order, Mr Chairperson. I want to raise a matter of order in the Committee. A great deal of this place functions on the basis that we have loose agreements and understandings about where things are going and what is supposed to occur. Everyone knows that a date is being organised for the third reading of this bill that will suit the large number of people who wish to be here for that purpose. I want to let you know that although the Labour Party may not wish to debate this legislation, other parties do, and under the Standing Orders we are entitled to speak up to four times on each part. Mr Chairperson, I think it would be unwise, in these early stages, to look for early closures.

The CHAIRPERSON (H V Ross Robertson): I thank the honourable member for his contribution, and I will consider all things on an equal basis when I make such rulings. I thank him for drawing that to my attention. I call the honourable member Phil Heatley—

Gerry Brownlee: How does that work! We will have another think about that, Mr Chairperson.

The CHAIRPERSON (H V Ross Robertson): Well, is Mr Heatley seeking a point of order?

Phil Heatley: No, no, I was taking a call, as you well know.

SIMON POWER (Senior Whip—National) : I raise a point of order, Mr Chairperson. At the risk of offending my good colleague the member for Whangarei, I want to say that my understanding is that there is a loose convention that would have you at least allow the senior member of the Opposition present to take the first call on a part. Given that the deputy leader of the National Party is present in the Chamber and sought the call, I would think that perhaps, in those circumstances, and with no disrespect to my colleague Phil Heatley, Mr Brownlee should be—if I could be so bold—offered the call in the first instance.

The CHAIRPERSON (H V Ross Robertson): I thank the honourable member. I have made a mistake, because I have not actually put Part 1. Of course, under Speaker’s ruling 25/4, once I have called someone I cannot take the call away. But given that I did not put Part 1, because I took a point of order from Mr Brownlee, I will do so now.

The CHAIRPERSON (H V Ross Robertson): This includes debate on schedules 2, 3, 3A, 4, 5, and 6.

GERRY BROWNLEE (Deputy Leader—National) : Mr Chairperson, you can see how eager Opposition members are to make a contribution to this debate, and I refer you again to the points I made before. Part 1 is about the preliminary provisions, key concepts, and key iwi organisations. It is a very large part of the bill, and it should take the Committee quite some time to deal with it. As the Chairperson has already said, we are dealing with several schedules as we go through it.

What is very evident in this part is just what hopelessly patronising legislation this is. I wonder how many New Zealanders out there would be happy if they were told that they were being given some assets, but that they could never ever get their hands on them—if they were told the assets were theirs as of right, but that they would never get their hands on them or be given the opportunity to determine how they would be used and who was to have the say over them. That is the trouble with this legislation. I do not have too much of a concern about who might have been involved with this legislation before Mr Benson-Pope became the Minister. He is the Minister who will go down in history as the paternalistic old grandfather who treated Māori in the appalling way that they have been treated for so many generations in the past. I can see future generations of young Māori coming to the Crown again, and asking why that was done to them. Māori will ask why the Crown gave them assets but then did not let them get their hands on them—did not let them directly determine how the assets were to be used and what sort of return they would get off them but, rather, combined Māori into a very, very convoluted and bureaucratic structure that saw them take only what they were given.

The irony, of course, is that this legislation will hand over in a fairly substantial way control of all those assets to Māori—but to a very, very exclusive group of Māori. It will be interesting, will it not, in the time of future generations, when people come back to the Crown and say that it made a mistake and they want redress for that. I have no doubt that that will be the result of this legislation—and it may not be very long before people come back to the Crown, quite frankly. Then, we will see the extraordinary situation of the Crown having to sort out a mess for Māori, created by Māori. That is one of the concerns the National Party has about this legislation. The purpose clause states that the bill is to “provide for the development of the collective and individual interests of iwi in fisheries, fishing, and fisheries-related activities in a manner that is ultimately for the benefit of all Maori.” But Māori can never hold the assets. The assets will be locked up by a very elite group, which will be able to choose the directors for the various companies that may operate a good chunk of the quota that will go into those assets, and other Māori will simply have to take whatever they can get.

I remind people who may be interested that very recently the Māori fishing assets must have been under some peril, as Sealord’s itself was a company that for a moment or two seemed less than viable. Would it not be awful for the country if, in the future, Māori quota is somehow lost—or if the value of it is lost, which is probably the real point? The value of it could be stripped away through bad management, and the asset given to Māori could become worth very little. If one or two people had had their way with regard to the Sealord’s arrangement, about 55 percent of the country’s fishing assets would have ended up in one place. If one big company has 55 percent of the assets and a whole lot of small companies have various little bits, who sets the value? The big player does. I think that is the real tragedy in this bill. From my perspective, I am reluctant to support it. The rest of my concerns will become evident as we go further through the bill.

PHIL HEATLEY (National—Whangarei) : I would like to point out an issue that came to us in the Fisheries and Other Sea-related Legislation Committee that probably best typifies the absurdity of some of the bureaucracy and the patronising approach evident in the bill originally tabled by the Minister of Fisheries. Some iwi came to us—NgāiTahu and Tainui, in particular—and said that they had already been recognised in other Crown settlements as having structures in place to deal with settlements, as having a mandate on behalf of their people to negotiate or work through a settlement, and as having systems in place whereby they are accountable to their shareholders. Those iwi asked why they could not just pick up their assets and put them to work for their people almost immediately. They asked why they had to go back to the Crown and prove that they had some mandate, that they had some sort of trust or company set-up that could handle the assets, and that they could be accountable for their actions.

That seemed sensible to the select committee, so we went back and made amendments to clause 14 so that such iwi organisations can, if they want it, be given automatic recognition as iwi groups. I find it quite absurd that we in Parliament are deciding for Māori that they are iwi. Māori know they are iwi, and their ancestors knew they were an iwi group. They know about their whānau and hapū, and where they came from. The future generations will know about their whānau, hapū, and iwi group, and where they came from. Why is Parliament doing this? Anyway, the select committee decided it would make amendments to that clause so that iwi organisations such as NgāiTahu and Tainui can, if they want, have automatic recognition. All that they have to do is demonstrate that they are formally structured and are accountable to their members, which they are; that they have already established an asset-holding company that can take those fisheries assets on board and put them into action straight away, which they have; and that they have already been accepted by the Crown as having a mandate for Treaty of Waitangi settlement purposes, which they have.

New Zealanders know about the NgāiTahu settlement and the Tainui settlement. Those Māori groups have already been through all the hoops that a Government bureaucracy can throw at them. They have been through all the paperwork and all the court cases. They have answered all the patronising questions. They have dealt with all the accountability that the white man would throw at them—plus some, for some reason, just because they are Māori. They have been through all of that, and this Government wanted them to go through it all again in order to get these fisheries assets—which, incidentally, have already belonged to them for 12 years now, anyway.

National is delighted to support the changes to clause 14 to make sure that iwi groups such as NgāiTahu and Tainui that are proven in those areas—that are formally structured and accountable, have already established an asset-holding company, and have already been accepted by the Crown as having a mandate for treaty negotiations—can just pick up a large bulk of their settlement assets and get on with the job of running a fishing business. Sadly, that is only to do with the inshore quota. National wants to see that extended, to a degree—Wayne Mapp will address it in his amendments—to offshore quota.

Hon Dr NICK SMITH (National—Nelson) : We see in the Chamber this evening a level of arrogance and a patronising attitude from this Government that are truly extraordinary. We have a bill of 281 pages and a Supplementary Order Paper of 30 pages, and not one Government member has taken a call—not one.

Hon Rick Barker: Who believes this member?

Hon Dr NICK SMITH: I want to know from Rick Barker why not a single Māori Labour member is participating in this debate. I say to Mr Barker that it is no wonder the last opinion poll showed that Labour will lose every single one of the Māori seats. It is no wonder at all, because those Māori members are not prepared to participate in this debate, which is of vital importance to Māori and to all New Zealanders. Why have they not been down in the Chamber to debate this bill, so that we can have a proper debate?

Mr Barker is propping it up, as is the Minister in the chair, David Benson-Pope. Neither of them is prepared to take a call, but both chip in. The Minister in the chair said we should support this bill because Māori support it. I say to the Minister that Māori are no more homogenous, in terms of having a single point of view, than any other group. They have a range of views.

What is paternalistic about this bill is that it is Parliament telling Māori how they are to manage their assets. That is what we are doing with this bill. If the responsibility is passed over to Māori, and they want these structures—[Interruption] We would not complain about that, but that is not what the bill says. The bill says Māori must do it this way, and do it this way forever. That is a nonsense. I challenge Mr Barker to tell me where in the 1992 settlement it says the fishing resource will be managed centrally. Clause 3 states that the Māori quota is to be managed centrally. I have to say that in 1992—and I participated in the debate at the time of that settlement—that was never part of the agenda. [] Mr Barker and Mr Benson-Pope want to get personal and raise irrelevancies because they do not have the substance to be able to argue the points in as simple a form as this. I ask Mr Barker where in the Māori fisheries settlement it supports the contention that the assets are to be managed centrally. Where? The silence is deafening. I will ask Mr Chris Carter; he might be able to answer the important question. Where in the Māori fisheries settlement does it say the fisheries assets will be managed centrally?

Those members do not know. They have no idea. Here we are talking about $800 million worth of assets—a key issue for Parliament—and Ministers in the Chamber have no damn idea of what their bill even does, and no idea whether it will serve the interest of Māori and other New Zealanders. And it will not. I want to know from the next speaker on the Government side—but I have to note that we have not heard a single speaker from that side of the Chamber. [Interruption] It is all very well for Chris Carter to make personal attacks, but will he have the courage to get to his feet—

The CHAIRPERSON (H V Ross Robertson): I am sorry to interrupt the honourable member. Challenging someone’s courage is a personal reflection and is out of order.

Gerry Brownlee: I raise a point of order, Mr Chairperson. Let us make it very clear: if your ears are closed to what we who sitting further away from that man than you are can hear, and if you do not deal with it, we will. If there is a question to be raised about someone’s courage, then those people over there making those comments are putting their hands up for the allegation to be laid at their doorstep.

The CHAIRPERSON (H V Ross Robertson): I thank Mr Brownlee for that contribution. I call the Hon Dr Nick Smith.

Hon Dr NICK SMITH: I raise a point of order, Mr Chairperson. I want to know what your ruling is. You get all upset when I say that Chris Carter does not have the courage—

The CHAIRPERSON (H V Ross Robertson): The member will please be seated; I am on my feet. The member is a longstanding member. He has been in this House for a long time, and he knows that to challenge someone’s courage is to make a personal reflection. It has been ruled out of order by a number of Speakers in the past. I recognise that there have been interjections from the other side. The member is making a hard-hitting speech and some interjections can be expected. When the interjecting is to the extent that the member cannot be heard, then it is out of order, and I will take note of that and rule accordingly.

Simon Power: I raise a point of order, Mr Chairperson. I would draw your attention to this fact. I point out, with the greatest of respect, that the fact that interjections and vigorous debate are occurring is not the point; the point is the nature of the interjections that are coming from the Government benches. You know, as members on this side of the Chamber definitely know, that if interjections such as those are allowed to continue, you are inviting disorder from members on this side. I ask you to think very carefully before dismissing the matters that have been raised by the deputy leader of the National Party and the Hon Nick Smith, and I invite you, with the greatest of respect, to rule accordingly if those interjections continue to occur.

The CHAIRPERSON (H V Ross Robertson): I thank the honourable member. Under Speaker’s ruling 50/7 I have to take into account the context in which words are used in the House. If the member is insinuating that there was a personal reflection—I refer to Standing Order 116—and if offence has been taken, I would ask the member concerned on my right to withdraw.

Jill Pettis: Yes.

Hon Dr NICK SMITH: The Labour Party members are not prepared to play the ball, so they play the man. The reason they will not play the ball is that their policies are patronising and arrogant towards Māori and deserve to be challenged. I ask the Labour Party again why a ministerial salary is being paid to not just a Minister of Māori Affairs but three Associate Ministers, none of whom is prepared to get to his feet and defend this important part of the bill.

METIRIA TUREI (Green) : The Green Party was a very strong advocate of the withdrawal provisions in Part 1, particularly clauses 14B to 14F, but we are putting forward an amendment to clause 14E. Our amendment would delete clause 14E(2) from the bill in its entirety.

In terms of the withdrawal provisions, there are two conglomerate iwi structures in the bill: Hauraki and Te Arawa. The negotiations that occurred around the establishment of those conglomerations were significant. The Greens do not want to undermine completely those negotiations, and we understand the history behind them. However, the issue remains one of whether the independence and status of iwi are entitled to be equally recognised and provided for in the legislation. We heard from iwi from both those groupings who did not necessarily want to be forced to remain included in those conglomerates if their choice at some point in the future was to exercise their right to manage their assets of their own accord. The officials, the Minister of Fisheries, and Te Ohu Kai Moana all agree that the groupings listed in the notes in schedule 3 are in fact iwi in their own right. They are entitled to assets, and they are entitled to be identified as populations and treated exactly the same, but negotiations in the past have meant they are now included in a large grouping. But they are entitled to be properly recognised, to have their entitlement made plain in the bill, and to have the choice in the future as to whether they want to remain in the conglomerate.

In our view, the legislation—any legislation—should treat like with like, if that is the right way to put it. Those who are the same should be treated the same, and there should not be discrimination in the bill. Iwi should not be given first-class, second-class, or third-class status, which is what the provisions in Part 1 do by effectively identifying three separate kinds of iwi: those listed in schedule 3; those listed in the notes in schedule 3 as being part of the conglomerates; and Rongomaiwahine and Ngāti Hine, who are given third-level status of not quite being iwi except they may be later, sometime in the future, under some other provisions. So the Greens are proposing that clause 14E(2) be deleted. That clause provides that any iwi that does withdraw from their conglomerate, whether it is Rongomaiwahine, Ngāti Hine, or any of those from Hauraki or Te Arawa, will be entitled to all of the same rights and voting rights as other iwi, except that they will not be able to vote for a member of Te Kawai Taumata, which is the board that enables full voting on other structures, and which would enable them to have some control over Aotearoa Fisheries Ltd.

Clause 14E(2) was put there specifically as a disincentive to those iwi withdrawing. The vote for members of Te Kawai Taumata is the only way that iwi have any control over Te Ohu Kai Moana Trustee Ltd and, therefore, Aotearoa Fisheries Ltd, the company that will actually control 50 percent of the assets that are supposed to be being allocated to iwi in the first place. The vote for members of Te Kawai Taumata might seem like a small thing, but it is in the end the only access that any iwi has to voting for the structures that control the majority of its assets. It is not appropriate, it is not fair, and it is not right that some iwi are entitled to that vote and some iwi are not because of past negotiations, when in fact those iwi are recognised by the Government, recognised by Te Ohu Kai Moana, and recognised by everyone as being the same as those other iwi who do have that vote.

The Greens sincerely hope that other members of this Committee will support the amendment to delete clause 14E(2), because it is unfair. It is discriminatory. It treats those iwi as second-class iwi, and it is completely unjustified. There is no reason why they should not have exactly the same rights once they withdraw. They have mandated iwi organisations. They have to have the same constitutional structures as every other iwi. They have to have an asset-holding company, like all other iwi. They have all the other rights and obligations of all other iwi except in this single instance. The Greens are sincerely hoping that other members of this House do support that amendment. It is right that we ensure that any legislation passed in this House treats people and iwi equally.

Hon KEN SHIRLEY (ACT) : I say at the outset that I found the argument we just heard a very convincing one. I support it as a matter of principle because we are talking about property rights here, and I think it was very well put that the conglomerate iwi structures are very paternalistic. They are imposed by the State, but I believe that maximum choice should be left with the various iwi—and with hapū, for that matter—to exercise what is their property right. That is what the treaty settlement, pursuant to article 2 of the Treaty of Waitangi, was all about with regard to fishing.

I was also greatly heartened by the speeches we heard from National members. I know they supported the first reading of this bill and its referral to the Fisheries and Other Sea-related Legislation Committee. The ACT party did not, but the speeches I am hearing from National members now are consistent with the arguments the ACT party has been making right from the outset. I gather that National members will now be opposing this legislation because it is paternalistic, as they say. It is imposing on Māori unnecessary layers of bureaucratic constraints that could become the biggest impediment in the defeat of the very objectives of the bill: getting Māori engaged in active participation and as full participants in the business of fishing.

NgāiTahu is perhaps the most advanced of the iwi groupings. It has a very successful business, and I think we all acknowledge that. Its submission is very pertinent. It does not want any of those bureaucratic structures; it has done it for itself. It just wants good commercial practices, and it says that existing commercial law is all it needs. The people of NgāiTahu do not want the Government telling them how they have to handle everything, and all those crazy, regulated impositions from the Government.

NgāiTahu actually goes a step further. They are saying that it is their asset, their property right, and they should be able to manage it, operate it, and indeed dispose of it at their will and as they see fit. The ACT party certainly supports that, because a key part of property rights is transferability. By the Government imposing restrictions on transferability, value is diminished. If one looks ahead, it could well be that in the not too distant future, some fish species may well become seriously depleted, and economically almost extinct. That is quite possible. Why force people to hang on to the bitter end to a diminishing asset that will have nil value after the expiry date if, perhaps, they want to liquidate it and decide they want to invest in aquaculture?

That would be a good, sensible thing to do—that is normal commerce—but, oh no, this bill is so paternalistic. It is really the Crown—represented by this executive Government bringing this bill to Parliament—using the numbers of the executive to impose paternalistic, restrictive, bureaucratic inconveniences and encumbrances that could well defeat the successful commercial enterprise of Māori in fishing.

We have had some wonderful success stories. NgāiTahu is one; there are others. We should not be surprised. Māori have proven to be very good business people over the decades, and certainly fishing is very dear to most Māori hearts. I think the whole intent was to get Māori engaged in fishing, but why does the Crown have to prescribe that? Why not give Māori the freedom, the choice, and the opportunities that anyone else would have to go about their business, with their property rights?

That is the basic reason why the ACT party is opposing this legislation—because it is an absolute nonsense! What we have with this Maori Fisheries Bill is part of a trifecta. We cannot ignore the interaction of this Māori fisheries settlement bill with the aquaculture bill and with the foreshore and seabed legislation. They are all interconnected—much more so than many people realise—but instead of it being a winning trifecta, it is actually a losing one. This Government will find that with the way it has gone about those three bills, it will be lose, lose, lose on each account, because it is not giving a proper property right. The Government is giving on the one hand, but then in a very paternalistic way, it is prescribing how that property right can be exercised and used. So the ACT party is opposing the three legs of that trifecta, mainly because of the issue of property rights and the lack of recognition for them in this bill.

Dr WAYNE MAPP (National—North Shore) : Yes, National does have grave reservations about this bill. Its direction is excessively paternalistic. We believe that it is too complex and, as a consequence, we have amendments that we ask the Government to support in order to ameliorate the worst effects of the bill.

Hon Ken Shirley: And if the Government turns down your amendments, will you still support the bill?

Dr WAYNE MAPP: That is a serious question that has to be addressed, because in the second reading we voted for it and for the preamble. We did so reluctantly, but the problem is that we have now had a decade of litigation, negotiation, and discussion. The Government presented this inadequate bill but unfortunately it is the only bill out there that represents a compromise—a compromise that is very much the lowest common denominator.

It is our intent to improve this bill and to give iwi who are empowered—who have a proven commercial track record—the ability to manage their assets directly. After all, what the bill proposes is for the commission to have control of the offshore quota, which is at least half of all the assets it will manage. I simply cannot understand why the Government does not see the logic in our intent—that is, to provide a reasonable and fair proposal to enable iwi to do that. Our proposals will not fundamentally destroy the system proposed here, but they will provide an evolutionary pathway out.

That is our major objection to the bill. It takes us some way—it does get the assets to the iwi, at least in relation to the onshore assets. It enables a certain level of continuing commercial viability for the offshore assets, but then it stops.

This bill is, as Mr Brownlee said, intending to provide a forever situation, but we know from past experience that that is wrong. We know that almost certainly we will have to come back to this whole issue and provide a new pathway for dealing with the offshore assets so there is an effective way of getting those assets to iwi. Right at the moment they are locked into Aotearoa Fisheries Ltd, and at best there is a review. Well, frankly, that is inadequate. Sure, it is better than the current situation. One would not deny that. It is at least a move along the path, and it is for that reason that National is voting for it.

But it is an interim measure at best. The Government portrays this bill as a finality, but in reality we all know, and Māori up and down the country know, that at best it is an interim measure. Māori really want control of their offshore assets. The only way they can see a pathway to ever getting that is to support this measure so that the next step can then be embarked upon.

It is disappointing that Government members have not got up to speak tonight. Where is the contribution from Māori members to this debate? It is of vital interest to Māori up and down the country, and it is at times like these that we expect the Māori members to contribute.

This Government says that the Māori seats are necessary. It should prove it by having its members debate an issue that is fundamentally affecting Māori. If there were ever a case for the Government to prove the relevance of the Māori seats, this would be it. Yet what do we have? We have silence. That, of itself, shows us why the National Party position of abolishing the Māori seats is so cogent, because on the really big issues we have a deafening silence from the Māori members.

I see Nanaia Mahuta sitting opposite. It looks as if she wants to take a call. Well, where are her colleagues?

GERRY BROWNLEE (Deputy Leader—National) : I want to pick up on the concern that we have about the paternalistic nature of this bill. Some of the points that Mr Shirley of the ACT party made earlier are quite right. Essentially, what is happening is that Māori have been told: “Here is an asset.”, but other Māori have negotiated with the Government so that there is a series of hurdles between the asset owner, the operation of that asset, and the opportunity to ensure that that asset produces good results for the owners.

I want to know who in their right mind would accept some of the provisions that are imposed in this bill. I refer to clause 14A, “Functions and powers of asset-holding companies”. Let us be clear first. The assets, apparently, are going to be allocated to mandated iwi. There is an enormously complex formula in here for how an iwi becomes mandated. I do not know why we are doing that in the year 2004. If iwi were not established, operational, and effective prior to 1840, then how on earth do they get under way now? What is the point of having to put it in law when Māori themselves should know exactly who is iwi and who is not.

As I said before, clause 14A deals with the functions and powers of asset-holding companies. So the iwi groups will have to go out and form a company to hold the assets. That company has a duty to wholly own those assets in perpetuity. They have to have all the appropriate documentation for a company, and they are going to be a company that holds fishing assets—but guess what? They are not allowed to fish. They are not allowed to go out and acquire other fishing assets. They will just be a group of people who sit around and decide what they will do with the flow of income that might come from those other companies that are actually working their assets. So we will get viable organisations like, for example, NgāiTahu Fisheries, as an iwi, having to set up another company to hold the assets that are going to come through this settlement, never mind the fact that they are already successfully fishing about 5 percent of the country’s quota acquired commercially. They will have to keep that group completely separate from the other and pretend that they have nothing to do with fishing.

Then, when it comes down to determining who actually gets their hands on the asset, they will have to negotiate with a group of other iwi to get one person to go on to an electoral college, who will then be able to cast a vote for seven, as I understand it, who go on to this outfit called Te Ohu Kai Moana. Then Te Ohu Kai Moana will get together and decide who their directors will be on the company that will actually put the boats out to sea. Who in their right mind will sign up for that? The problem that we have, as a party, is that Māori up and down the country think we hate them. They kick us all the time and they say that we never give them a fair go. But what is in front of us is what Māori have served up. We have to ask: “Well, why don’t we just vote for it, and let’s see what sort of a mess it turns out.”

National has a number of Supplementary Order Papers that we will put forward during the course of the Committee stage. I say to the Government that if all those Supplementary Order Papers are rejected, then we will reject the bill. We have as much stake in making this work for the future as any other party in this Parliament. It is not appropriate that only the Minister and his officials—whom, quite frankly, one would think, after looking at this, must be completely loopy—have a say in how the bill will be altered. Here we have a Supplementary Order Paper in the name of the Minister that is pages long. It contains 20 pages of changes to the bill and it has never been before the select committee. So the committee has done its work, and our members certainly did a lot of work. They scratched their heads and got this huge bill together. The officials quickly raced through it and found 20 pages of changes. It is a mess.

METIRIA TUREI (Green) : The Green Party has two amendments on the floor for Part 1. The first is to delete clause 14E(2). As I explained earlier, clause 14E(2) prevents any mandated iwi organisations among withdrawing iwi from having a vote on Te Kāwai Taumata, but it also prevents them from having a vote on the committee of representatives. I want to alert the Committee to that.

The committee of representatives is the group that establishes the terms of reference for the 11th year review of the entities established in the bill. That is a critical operation and activity in the bill, because Te Ohu Kai Moana Trustee Ltd and the other entities established by the bill have 4-yearly audits, but they have only this single review at the end of an 11-year period. The committee of representatives is the organisation that establishes the terms of reference for the review, that appoints the reviewer, and that then receives and distributes the report at the end of that process.

Those iwi who withdraw from the conglomerates, who have mandated iwi organisations, who have asset-holding companies, and who are then out doing their own business—having recognition and being established as iwi in their own right to do what other iwi are doing—will not be able to vote for the members of the committee of representatives if clause 14E(2) is allowed to proceed.

The Greens also have an amendment to delete clause 15 in its entirety. Clause 15 enables Te Ohu Kai Moana Trustee Ltd to prescribe further criteria that the mandated iwi organisations will have to meet in relation to their constitutional documents. Clause 38 sets out exactly how that happens. It enables Te Ohu Kai Moana Trustee Ltd to make changes to the procedures for sale, to set out the criteria that constitutional documents must meet, and to govern access to the register. Effectively, that means that for Te Ohu Kai Moana Trustee Ltd—which in effect controls Aotearoa Fisheries Ltd, the company that maintains 50 percent of the assets—to change the constitutional documents of the iwi who are operating companies in direct competition to Aotearoa Fisheries Ltd, it has been given a huge competitive commercial advantage that is not justifiable.

Clause 15 not only allows the trustee to make changes to criteria, but gives no time limit on those changes. They can be made at any time from the enactment of the bill. They can be made after the mandated iwi organisations have been established and after the iwi have met the constitutional requirements at the time those have to be met. Those parameters can change in the future, and iwi will then have to meet those changes, as well. Te Ohu Kai Moana Trustee Ltd does not have any limitations on whether the criteria that have changed will affect only one iwi or mandated iwi organisation, all iwi or mandated iwi organisations, or a range or group of them.

Therefore, Te Ohu Kai Moana Trustee Ltd could change the criteria for those it does not like. That is not to suggest that the trust will necessarily do that, but the bill allows for it to happen and those changes can be made. The criteria that mandated iwi organisations will have to meet can be established at any time in the future, and can affect one, a number, or all of those mandated iwi organisations. They will have no opportunity to make the decision themselves. Te Ohu Kai Moana Trustee Ltd will have to tell them about those changes. The trustee will then have to ask them for their submissions on the changes and take the submissions into account, but in the end it will make the final decision.

That gives the trustee an extraordinary power, in a very sensitive and vulnerable commercial industry, that cannot be justified under any circumstances whatsoever. Neither the ministry nor the ministry officials could explain why that provision is necessary, except to say that the trust might need that power some time in the future for some unknown reason. If we are to enact legislation that gives one organisation, which already has a commercial advantage, extraordinary power to alter the constitutional arrangements of other organisations with which it is in direct competition, it is extremely bad law. It is not law that this Parliament should pass. I urge members to consider the issues around clause 15 and to support the Green Party amendment.

PITA PARAONE (NZ First) : I stand in support of the issues surrounding clause 5, and in particular the Supplementary Order Paper that I have tabled. I do so, in particular, on behalf of those iwi who have settled with the Crown. The Supplementary Order Paper seeks an amendment to give effect to those iwi who have already had their takiwā defined, in terms of their deed of settlement. I do so in order to maintain the integrity and finality of those iwi that have already entered into the deed of settlement in the belief that they had reached a binding and final settlement that would endure, not only when it was signed but also into the future.

A further compelling point I would like to make is that there is no doubt the clear intention of the parties to those settlements was that the boundary, or takiwā, was to be applied for all purposes. This has been evidenced in its practical applications by both Crown agencies and local authorities. Allowing the boundaries to be relitigated where they have been defined in an existing settlement sets an adverse precedent. It will result in each resource allocation process being subject to boundary disputes. It could give rise to different boundaries for different resources.

I want to say that, as an example, NgāiTahu have spent in excess of $13 million in litigation over this very issue. In all cases those competing iwi groups, hapū groups, or however members may want to describe them, have failed in their attempts. There are considerable commercial implications in permitting a situation where an iwi boundary must be revalidated before allocation of assets is to occur. Iwi have waited 15 years in the case of pre-settlement assets, and 12 years in the case of post-settlement assets, to get allocation. Further, they will impact on the ability of that iwi to develop tribal wealth and economic security. So therefore, I ask that support be given to the Supplementary Order Paper that I have tabled, particularly where we have asked for the insertion in clause 5 of definitions, so that there is a definition for defined takiwā iwi, a definition for takiwā defining deed of settlement, and finally a takiwā defining enactment. So I seek support from all parties in this Chamber for that particular Supplementary Order Paper.

PHIL HEATLEY (National—Whangarei) : I would like to reiterate what Gerry Brownlee said to this Committee regarding these amendments and Supplementary Order Papers that we are putting up, particularly in relation to this part. If the Government rejects these Supplementary Order Papers and amendments that will make this bill less patronising and bureaucratic, the National Party caucus will discuss its position on supporting the bill in the final analysis. I will repeat that and make that very clear to the Committee. We will discuss it in caucus in the final analysis and decide whether we will support the bill in the third reading.

I rise in defence of Pita Paraone’s amendment, because we in the National Party support it. I have to say that during the Fisheries and Other Sea-related Legislation Committee, when we talked about the coastline agreements between iwi, we pretty much sewed it up and had it solved. The problem was simply this. Assets, upon allocation, were unable to be transferred to iwi groups until iwi had decided amongst themselves what coastline related to them, because the allocation was based on coastline. The problem was this. If iwi were secure in 95 percent of their coastline—in other words everyone agreed that that particular coastline was theirs, and any allocation related to 95 percent of it was not in dispute—and if 5 percent of it was in dispute, then all of it was held up in allocation. In other words, one could not get on with the job utilising one’s assets for one’s people over the entire coastline, just because 5 percent of it—the last few kilometres—was unresolved.

So we brought about amendments in the select committee that incentivised agreement by allowing assets relating to the undisputed coastline to be transferred and allocated so the iwi could get on with the business, and assets relating to coastline that was in dispute to be set aside pending a coastline resolution, and further providing a clear disputes resolution process—an incentive to make sure that those disputes were actually addressed in a timely manner.

However, upon reflection it is our view that where there have been previous deeds of settlement, and a coastline boundary, such as in the case of NgāiTahu, has been set through a previous Crown settlement, has been legitimised through legislation, has been challenged in the courts exhaustively, and never once come up wanting, in fact that coastline should be the coastline that is used for allocation in this Māori fisheries legislation.

So we support the amendments to clause 5 to ensure that defined takiwā iwi, takiwā defining deed of settlement, and takiwā defining enactment, should be included in the definition of deep water quota. The takiwā relates to that coastline that is pertinent to that particular iwi. Now these particular amendments to the clause address it where it has been considered and recognised as legitimate without doubt through the court. So there has been a settlement. It has been legitimised through legislation. It has been challenged through the court, and it has withstood all that.

Now where that has happened, there is no reason why iwi should have to go through the whole process of the courts, paying lots and lots of lawyers lots and lots of money, only to prove it again and again. That is why we support this amendment. There is no reason whatsoever why iwi groups such as NgāiTahu should have to go through these hoops again.

Hon CHRIS CARTER (Minister of Conservation) : I move, That the question be now put.

Hon Dr NICK SMITH (National—Nelson) : When I reflect back on the debate in 1992 on this issue, there was a lot of talk about getting Māori out fishing. I want to cut to the chase and bring to the attention of the Committee just what is happening, because it very much exposes the concerns expressed by Opposition members about this bill. Only last week I was contacted by a young Māori man in my electorate who had trained as a fisherman, had been out on two substantive trips, and has just been laid off by Sealord’s, which is the company that owns the bulk of these assets that we are discussing. His job is being replaced by cheap Filipino labour. That is what is happening.

Members opposite have approved work permits so that young Māori in my electorate have been kicked off fishing-boats, they are losing their jobs, and they are being replaced by Filipinos. I shall tell members why. What is happening is that the commercial imperative is that it is cheaper to employ a Filipino than it is to employ a young, keen, Māori fisherman. It is an absolute indictment of this Labour Government that that is going on right now. If it occurred under a National Government, Labour members would be on their feet screaming blue murder. However, when the Government’s own Ministers are doing that, it is absolutely silent, and happy to simply see that taking place.

Gerry Brownlee: The Minister says that it’s not true.

Hon Dr NICK SMITH: I challenge the Minister. Three constituents have contacted my office in the last fortnight about being displaced and being told that they will no longer have jobs with Sealord’s on those fishing-boats. The Minister knows full well that permits for 20 Filipinos working for Sealord’s have been approved by the Minister of Immigration.

The reason I make the point is that I do not think that ordinary Māori in my constituency are happy with that. Indirectly, they own Sealord’s. However, this legislation creates so many barriers between the owners of the fishing resource and those who are managing assets like Sealord’s that they will not have a bolter’s hope under what is in this legislation to ever hold accountability. They will not have a bolter’s hope at all, because basically, Labour members do not trust Māori. I said earlier that that approach will cost Labour every Māori seat at the next election. Labour needs to reflect and to change.

I also challenge the Minister in the chair on a further point. National is proud of its heritage in terms of the 1992 fisheries settlement. We want to have an approach, as part of nation building in New Zealand, of the major parties being able to progress substantive settlements so that we can make progress as a country. But that requires a commitment from the Government to work with others. That is why Gerry Brownlee said in the Chamber this evening that if Labour would just bend a little, even just take on the very able amendments put forward by Wayne Mapp that will see at least some of the bureaucracy reduced, then we will be happy to compromise, and maintain our support for this bill, despite the fact that there are other provisions we are unhappy about.

That is a very reasonable offer from the deputy leader of the National Party—that is, give a little ground and we could keep this ship going forward. But while there is that absolute arrogance from the Government, not taking a single call on this significant bill, dumping on the House a 20-page Supplementary Order Paper without the Minister so much as even getting to his feet to explain it, that is a disgrace. This country deserves better, Māori deserve better, and certainly the fishing industry in New Zealand deserves better.

National has made a very reasonable offer. Yes, we can keep this on a bipartisan basis; yes, we want Māori fishing to be successful, and we think that it is more likely to be successful when there is a wider consensus of this Parliament. However, the current arrogance from that Minister and this Government will not do.

Hon RICK BARKER (Minister for Courts) : I move, That the question be now put.

DONNA AWATERE HUATA (Independent) : I raise a point of order, Mr Chairperson. Could I cast my vote?

The CHAIRPERSON (Hon Clem Simich): Yes, the vote has not closed.

LINDSAY TISCH (Junior Whip—National) : I raise a point of order, Mr Chairperson. The member was not in the House when the vote was called. I do not think that it is proper that a member then seeks leave to cast a vote after we have already cast our vote.

The CHAIRPERSON (Hon Clem Simich): I thank the member for that. I did look at it. The member was actually at the door when her name was called. She is the last one to be called. I accept it and I allow the member to vote.

• The question was put that the following amendment in the name of Pita Paraone to clause 5 be agreed to:

to insert, after the definition of subsidiary, the following definitions:

takiwa defining deed of settlement, in relation to an iwi,—

(a)means a deed signed by the Crown and the mandated representative of an iwi, that identifies an area as the takiwa of the iwi; and

(b)includes—

(i)the attachments and schedules to the deed (if any); and

(ii)any amendments from time to time to the deed or to the attachments or to the schedules.

takiwa defining enactment, in relation to an iwi, means an enactment that identifies an area as the takiwa of the iwi.

LINDSAY TISCH (Junior Whip—National) : I raise a point of order, Mr Chairperson. I want some clarification. Is it correct that we just voted on clause 14E?

The CHAIRPERSON (Hon Clem Simich): We voted on clause 14E, and we voted on that after clause 15.

LINDSAY TISCH: Can you explain why we voted on clause 14E after clause 15?

The CHAIRPERSON (Hon Clem Simich): It was an amendment to the Minister’s amendments set out on Supplementary Order Paper 255, which are just coming up.

LINDSAY TISCH: I understood that the Minister’s amendments are put first. It has always been the process that Ministers’ amendments go ahead of members’ amendments. So I would like clarification as to why we voted on a member’s amendment prior to the Minister’s amendment being put.

The CHAIRPERSON (Hon Clem Simich): I thank the member for raising that. It is the correct procedure. It is set out in Standing Order 301.

LINDSAY TISCH: If you are quoting from—

The CHAIRPERSON (Hon Clem Simich): I am just checking to see whether I have the right year for the Standing Orders.

LINDSAY TISCH: Standing Order 301(2)(a) states: “an amendment proposed by the member in the charge of the bill is taken ahead of an amendment proposed by another member,” so in fact those amendments were out of order.

The CHAIRPERSON (Hon Clem Simich): I am sorry. We are proceeding under Standing Order 301(3).

LINDSAY TISCH: Well, can you explain to me why Standing Order 301(2)(a) states that an amendment proposed by the member in charge of a bill is taken ahead of an amendment proposed by another member? It has always been my understanding, from debates over the years, that the Minister’s amendment are put first because if they are passed, they actually rule out members’ amendments that have been proposed.

The CHAIRPERSON (Hon Clem Simich): I thank Mr Tisch for that.

Hon KEN SHIRLEY (ACT) : I may be able to help. I notice that your ruling was in terms of Standing Order 301(3), but of course that refers to paragraph (1), and Standing Order 301(1) states: “The member in charge of a bill can require that any or all amendments in that member’s name to a provision be put as one question.” In other words, it would imply that it is discretionary and not mandatory. In other words, the member in charge of the bill—in this instance it would seem to be the Minister, as it is in his name—can require that if he so chooses. It is not mandatory.

The CHAIRPERSON (Hon Clem Simich): I thank the member for that. The Minister does require that they be taken as one amendment. In response to Mr Tisch’s query, I point out that these Standing Orders were changed not too long ago. Standing Order 301(2) is subject to paragraph (3) and that is why I mentioned that we are proceeding under paragraph (3). My advice is that that is the correct procedure, and the amendment to new clause 14E was correctly taken after clause 15 and before the Minister’s amendments.

• The question was put that the amendments set out on Supplementary Order Paper 255 in the name of the Hon David Benson-Pope to Part 1 be agreed to.

• Amendments agreed to.

The CHAIRPERSON (Hon Clem Simich): This includes debate on schedules 1 and 7. Members please note that there are six very large subparts.

GERRY BROWNLEE (Deputy Leader—National) : We see in this part exactly why the National Party has been so concerned about the extraordinary bureaucracy that is to be set up under this bill. The bill puts in place a huge range of hurdles between the owners of the asset and those who will actually fish the asset.

Firstly, we see in this part the establishment of an organisation called Te Ohu Kai Moana. Then we find that Te Ohu Kai Moana has to have one trustee. The one trustee is to be known as Te Ohu Kai Moana Trustee Ltd, a company. So first we are to have Te Ohu Kai Moana, the purpose of which, essentially, is to assist the Government in the distribution of the asset—to make sure it is enduring and everything else. That is a bit of bureaucracy. Then, to handle the work of the bureaucracy, there is the company itself. The company will have a board of directors, a chief executive, and a raft of staff. It will do a range of things that are about meddling in the affairs of various iwi and checking up on their registers. It is the compliance arm of this bill that is established especially for Māori. No other fisheries outfit will have to deal with this sort of stuff, but this company will. Then it has to establish another organisation called Te PūteaWhakatupu Trust. If anyone wonders what that trust will do, it has to establish another group, called Te Wai Māori Trust. So a chain of four organisations is to be set up for various purposes. One of the fascinating things is that when one starts to look through the bill and wonders what on earth those people do, one suddenly finds out that there is another group called Aotearoa Fisheries Ltd. That group will have its hands indirectly on the assets. Its function is stated in the bill, as well.

One gets a picture of a fishing asset that is given to Māori, who are then told: “Well, hang on. You people aren’t capable of looking after the stuff—let’s face it—so we will set up all these fascinating little organisations along the way to help you do it. And, by the way, this will all be paid for from the profits or dividends from the company, Sealord’s, which will go out there and fish your assets.” So as I understand it, the money will be paid from Sealord’s to Aotearoa Fisheries Ltd, and the board of directors of Aotearoa Fisheries Ltd will get together, and say: “We will advance some money to Te Ohu Kai Moana Trustee Ltd.” Te Ohu Kai Moana Trustee Ltd will say that it has to give money across to Te Pūtea Whakatupu for a period of years so it can engage in research, and it also has to put some money into Te Wai Māori Trust until the figure accumulates to about $20 million before it can start paying out any dividends to the iwi that actually owns the asset. All along, there will be this body over the top, running back to the iwi, and saying: “It’s going well. Your asset is doing a splendid job. We’ve been in it for 10 or 12 years now and you haven’t had a penny, but guess what? All the bureaucracies are strong, and we have lovely offices. We have a raft of people out there in jobs making sure that everything that belongs to you is being looked after well. It is completely useless to you, but we’re looking after it well. And by the way, thank you for forgoing income and paying for this extraordinary bureaucracy.” I just wonder who on earth thought this up. Who thought it up?

Hon Ken Shirley: The Minister.

GERRY BROWNLEE: The Minister is the man who should stand on his feet now and tell members why so many organisations have to stand between the owners of the asset and the fishers of the asset. In many cases, the owners of the asset will, in other entities, be out fishing anyway. They just will not be able to get the same value out of the asset that they have been given under this bill.

PHIL HEATLEY (National—Whangarei) : I thank the deputy leader of the National Party, Gerry Brownlee, for pointing out so eloquently to the Committee—and it would normally take much more than 5 minutes—all the layers of bureaucracy wrapped up in this bill. I have tabled a Supplementary Order Paper that would take out at least one layer of bureaucracy between Sealord’s or Aotearoa Fisheries Ltd and the Māori beneficiaries on the ground, who are supposed to own the asset, and I ask members to support that. It is simply this. As the member for Ilam pointed out to members, in selecting the directors of Aotearoa Fisheries Ltd, Māoridom currently has to go through five processes. Firstly, Māori registered with an iwi group have to choose iwi representation. That iwi representation then selects its representatives, who are just a few in number.

• Progress reported.