Dr JACKIE BLUE (National) : I am pleased to speak to Part 9 of the Immigration Bill. This part is about detention and monitoring, and the purpose of it is to establish a tiered detention and monitoring system in order to ensure the integrity of the immigration system through providing for the management of persons who are liable for deportation. This part also ensures the safety and security of New Zealand when a person who is liable for deportation may constitute a threat or risk to national security.

Part 9 relates to quite a small minority of individuals. Most individuals who have gone through the refugee appeal process and failed will accept the decision and leave New Zealand in an appropriate and timely way through a deportation process. This part relates to those individuals who are obstructive and actively hinder their deportation from New Zealand. The initial period of detention can be up to 96 hours without a warrant. In that case, the individual would be in police custody. Following that, a warrant of commitment can be applied for in the District Court for up to 28 days. The warrant can be reapplied for on consecutive occasions.

Generally speaking, there is a 6-month limit on immigration detention except where a foreign national hinders his or her own departure. Those individuals who actively hinder their deportation from New Zealand compromise the integrity of the immigration system. There is the option that the individual can be released into the community, but that would have to be negotiated. There would be conditions of release into the community, and there may be reporting requirements, residential requirements, a requirement to present for interview, and so on.

The actions of foreign nationals who deliberately hinder their deportation sets a precedent to others. Such actions suggest, for example, that if someone refuses to sign travel documents for long enough, he or she will secure release into the community because the Government cannot deport him or her. Therefore, the Government is proposing to strengthen the detention provisions by way of an amendment whose effect is that such people cannot seek to be released from detention due to the length of time they have been detained. I commend this part to the House.

Hon PETE HODGSON (Labour—Dunedin North) : As the previous speaker, Jackie Blue, indicated, Part 9 of the Immigration Bill is about the detention and monitoring of those who have or may have broken the law in respect of immigration. It lists what the powers of the State are and are not. I want to spend a little time exploring the circumstances under which those powers may be used.

At the moment the New Zealand Police is conducting an inquiry into allegations against a member of this Committee that there was the possibility—so say the allegations—of a false or fake jobs for cash deals going on. That is against the law of the legislation we are passing, and the detention and monitoring powers in Part 9 are how we find out. In more recent days, it has become clear to me that this may not be the only case of its type involving a member of the Committee. Melissa Lee, who now is a member of Parliament, made a National Party video using her facilities at Asia Vision Ltd and hired a woman by the name of Miss Casalme.

Hon Tau Henare: The only one that’s in prison is a Labour Minister!

Hon PETE HODGSON: Attempts by the Opposition to shout me down will not work, because I have the microphone. I am led to believe that Miss Casalme worked voluntarily for Miss Lee in making the National Party video—so far, so good. There are issues around whether the video should have been authorised, but that is well outside the scope of this bill and I would not dare dwell on it. But the case is that a job was created for Miss Casalme. She desperately wanted to stay in New Zealand, she desperately wanted permanent residency, and she desperately needed the immigration points that one garners for this or that reason to get herself across the threshold. She did not have a job that was sufficiently senior, so Melissa Lee created one. She created a job that was sufficiently senior, and that did not exist before in her company. This was not a fake job for cash deal; it was a fake job for voluntary effort deal, because the same woman, Miss Casalme, worked on a National Party video voluntarily, and then the job was created. One assumes, though I do not know, that the woman then went on to put in her permanent residency application.

Part 9 of the bill deals with this sort of stuff; it deals with people who take our immigration law and try to bodge it. It deals with people who set out to—

Simon Bridges: Like Taito, the one Helen Clark said was guilty only of trying to work hard.

Hon PETE HODGSON: I ask members who is guilty of trying to work hard.

Simon Bridges: That is what Helen Clark said about Taito Phillip Field.

Hon PETE HODGSON: Taito Phillip Field is in jail because he did some things against the existing legislation that he ought not to have done. He got caught, got taken to court, and got put in jail. My question is: who is joining him? That is what I want to know. I want to know whether other members of this Committee—

Hon Tau Henare: Only Labour Ministers!

Hon PETE HODGSON: I am asking the question. If we know there is a police investigation into allegations of jobs for cash, I wonder whether there will be—

Jo Goodhew: I raise a point of order, Mr Chairperson. I ask for your guidance on whether this matter is relevant to the question under debate, under Standing Order 107(1).

The CHAIRPERSON (Hon Rick Barker): The member is quite correct to point out the Standing Order, but I say that it is generally accepted in this Chamber that members speaking can and are entitled to respond to interjections. A healthy stream of interjections has been coming from the National benches, to which the member speaking has responded. The interjections are quite off the matter in debate, so if National members want to keep to the narrow letter of the Standing Orders, and then hold the Opposition to account for that, then they should do so themselves.

Michael Woodhouse: I raise a point of order, Mr Chairperson. I seek your advice about whether the speaker’s comments are out of order in relation to Standing Order 116, which makes out of order offensive reference to a member’s private affairs, particularly those that are completely unsubstantiated.

The CHAIRPERSON (Hon Rick Barker): I say to the member that Standing Order 116 states: “A member may not make imputation of improper motives against a member, an offensive reference to a member’s private affairs, or a personal reflection against a member.” As I understand it, the member speaking has repeated issues that have been raised publicly and that are part of the public record—I may have got that incorrect, but that is how I understand it. If it is in the public domain and is being publicly debated, then I will not rule it out of order.

Michael Woodhouse: I raise a point of order, Mr Chairperson. I accept that point unequivocally, but I question whether the member’s implication that others may join a former member of this Committee in jail as a consequence remains outside of Standing Order 116.

The CHAIRPERSON (Hon Rick Barker): The member correctly—[Interruption]—I am ruling on this matter—identified the words: “others might join them”. I did not take that to mean necessarily other members of Parliament; it could include them, but also others. Had the member said: “other members of Parliament will join them”, then of course that is a reflection on the House and the member would be unwise to do that.

Simon Bridges: I think you should say some of this outside the Chamber, Pete.

Hon PETE HODGSON: Oh, so they have not stopped interjecting. You gave them the advice, Mr Chairperson, that if I was to stick to the knitting, they would have to keep their mouths shut. But as soon as I get to my feet, away they go! So away I go! It is easy: if members want me to stick to the knitting, then they need to keep their mouths shut. The Chairperson just told them that.

I have some advice for Melissa Lee: if she thinks I have said anything wrong, in part or in whole, she can either take offence, now or later, or take a call, as soon as I finish or later. She has plenty of options, and I urge her to exercise them as she sees fit. As I understand it, there is the case of a job being created for a woman who did voluntary work in the unpaid employ of Melissa Lee. I wonder whether the detention and monitoring provisions under Part 9 are relevant. Certainly it is only by monitoring that these things are brought to account. The new law that we are looking at passing has an ability to detain people for short, medium, or long periods for a variety of reasons, including questioning. So I would have thought that Part 9 is relevant to the issues that I raise.

Now that National members are silent, I say again—

Hon Tau Henare: You’re still a scumbag.

Hon PETE HODGSON: Oh!

Hon Clayton Cosgrove: I raise a point of order, Mr Chairperson. I think you can anticipate what my point of order may be.

The CHAIRPERSON (Hon Rick Barker): I am not anticipating anything.

Hon Clayton Cosgrove: Well, that is unparliamentary language. I think it is well know that under the Standing Orders one cannot use language like that in Parliament. The member should withdraw and apologise.

The CHAIRPERSON (Hon Rick Barker): Normally, it is the member who is speaking who would take offence. If the member is offended by it, which I have the indication from him that he is, then I ask the member to withdraw and apologise.

Hon Tau Henare: No.

The CHAIRPERSON (Hon Rick Barker): Well, I advise the member to withdraw and apologise—

Hon Tau Henare: I’ll just get my stuff together.

The CHAIRPERSON (Hon Rick Barker): No, that is not good enough. I say to the member that there are rules in this place. I have never asked any member to leave, and I want to get through this term without doing so. But if the member does not withdraw and apologise for that remark, which is offensive, then I will simply have to do so. Does the member refuse to withdraw and apologise?

Hon Tau Henare: Yes.

The CHAIRPERSON (Hon Rick Barker): The member will leave the Chamber for the rest of the day.

• Hon Tau Henare withdrew from the Chamber.

The CHAIRPERSON (Hon Rick Barker): I think in a way—and sometimes I reflect on this—the punishment should be forcing the member to stay here till 10 o’clock, and, if I could do so, making him read his own Hansard. But never mind, the standard thing is for the member to withdraw, to leave the Chamber until 10 o’clock.

Hon PETE HODGSON: So we have, in Part 9, the detention and monitoring provisions, and what I have done—though I have been interrupted throughout, which is why I needed to take a second call—is point out the possibility that two members of this Committee may find themselves having a careful interest in this part. It is good to see that at least one of them is here, and I hope we might get to see the other later, because it matters to manage our borders in a way that is legal and according to law. Jobs for cash allegations are serious, and jobs for voluntary assistance allegations are serious. Of course, they are much more easily made than proved, and we need to be careful about that. But those allegations are swirling around two members of this Committee. One of them is being investigated by the police, to what end we do not know. One of them is not being investigated by the police. That one is being asked only to pay back an amount a little short of 100,000 bucks for some accounting errors. But, you see, accounting errors are not part of immigration law, so I cannot dwell on that, either.

If this Parliament is to pass legislation, it would be good to know in advance that all 120-something of us think that the legislation is good, and that all 120-something of us are prepared to be bound by the legislation. Right at the moment I have my doubts.

Hon CLAYTON COSGROVE (Labour—Waimakariri) : Part 9, as my colleague Pete Hodgson said, deals with immigration detention and the hindering of deportation. I am a former Minister of Immigration, and when my colleagues and I addressed parts of this bill some days ago we reflected on our relative experiences as Ministers of Immigration. I see that Damien O’Connor, who is a former Associate Minister of Immigration, is here along with me and the Minister in the chair, the Hon Dr Jonathan Coleman.

I recall, for instance, the case of one Mr Yadegary, who delayed his own departure—and I have to be careful because my memory is slightly vague on this—through not signing, I believe, a travel document. I think he was either from Iran or Iraq; I cannot recall which. I know that in that case the courts took the view that the length of time he had been incarcerated was a determinant factor in his release. I recall that case—and others—and was quite disturbed by it, because in essence the courts took the view that even if immigrants were here illegally, had gone through the relevant appeal processes, and had been found wanting in those appeal processes, they should somehow, because they had hindered their own departures through, for instance, not signing a travel document, be let out. That was the court ruling because of the perhaps inhumane length of time they were incarcerated.

Part 9 attempts to deal with that, and we support that because it should not be the case that by the action of, for instance, refusing to sign a travel document a person can somehow just wait out the time before being allowed to remain in New Zealand. In the Yadegary case the court effectively set a precedent, or a benchmark, if you will, to say that if such people wait out X number of months, a court is likely to deem that they can be let out and remain in New Zealand.

There were people, in the case of Mr Yadegary, who protested that he should be allowed to stay for a variety of reasons. We have had cases, and I think I mentioned them some days ago, where those who were travelling from overseas converted to, I think, Catholicism—my own religion, not that I am the best Irish Catholic in the world—en route.

Grant Robertson: You confess a lot.

Hon CLAYTON COSGROVE: I do confess a lot; that is right, so my colleague says. But today is not the day; that will wait for another time, and I thank my loyal colleagues behind me. Some people converted by osmosis, in one case, I think, in the airport lounge in Seoul en route to New Zealand. They then gained such a profile that they believed that they could not return to their country of origin—in one case I think it was Iran. They had raised their profile so much that they were deemed to be in a position, having converted from the Muslim faith to the Catholic faith, that if they were to return home, something nefarious then might happen to them—they might well be imprisoned, or worse. That being the case, one could also argue that if they had kept a low profile, they may well have returned.

I recall that when I was Minister we used the UN guidelines—I cannot recall the technical term—from the United Nations High Commissioner for Refugees that determine whether returning a person to their country of origin is detrimental to their well-being or health. I think those international agencies, guided by our intelligence agencies, and officials from our departments with their labyrinth of global networks and tentacles, and the appeal agencies, are the agencies that should determine whether somebody can legitimately stay.

I agree with and support Part 9. Labour supports Part 9 as it attempts to tighten up on people who should be deported if they are hindering their own circumstances. It should not be the case that a person who refuses to sign a travel document is allowed to stay. I recall in one case we had to send officials to Canberra to try to get the embassy there—I think it was the Iraqi embassy—to provide travel documents. In the case of Iran, I think it would accept nationals back only if they went voluntarily and had signed a document. So the New Zealand taxpayer, either through the corrections system incarcerating the individual, or through other social services if the individual is let out is, in a bind where a person who is here illegally can, by hindering the departure for a length of time, and through the decision of a court, remain in New Zealand.

When those immigration decisions are made, it is appropriate, as this legislation provides, that appeal authorities make proper decisions with the guidance of officials and others, and, ultimately, the appeal authorities themselves. We have had high profile cases—and I mean no disrespect—where church leaders, church organisations, and other organisations have campaigned very heavily for individuals. I recall some people who said—I think it was about Mr Yadegary—that he was a nice bloke, therefore he could have stayed. I never met the chap, so I would not have known, and that may well be the case. But I do not believe that those sorts of arbitrary tests should set aside the appeal authority’s work and research in decisions, or the input from officials, from intelligence organisations, and from the United Nations High Commissioner for Refugees in terms of whether somebody should be returned to their country of origin, and we should then just put our finger in the air and say that somebody should stay if enough people jump up and down and make a fuss about it. I mean no disrespect to those people who through goodwill campaigned for individuals, but there has to be a test and it has to be authoritative. There are appeal provisions—that is why they are there—and learned men and women and independent appeal authorities are trusted with making decisions.

To conclude, I have said in a previous debate that New Zealanders will be convinced of the integrity of our border and of our immigration system and that we are indeed letting in the right people only if the counterfactual prevails and we are vigorous in preventing people of ill will or people who should not be here from getting into the country. To put it bluntly, we should, where appropriate—after relevant appeals, independent advice, and decisions—remove those folks who are here by illegal means or under false pretences. If we do not have integrity in our removal system and if we do not have integrity in securing our border—if we do not have integrity in those areas—then it is difficult, especially when we come to humanitarian cases; for instance, in the case of the previous Government when it came to the Tampa refugees. A Government of the day might say that we should be a humanitarian country, that we should do our bit, that we should take our refugee component as we do each year, and that perhaps we should make an exception and take more from time to time. I do not think the community would accept that if it did not have confidence that we were securing the border.

I support Part 9 and I support the amendments. I think they are sound and will deal with, and perhaps take away from or move some distance away from, court decisions that are simply based on the length of time in incarceration and not on the validity of one’s case as a legal migrant.

Dr KENNEDY GRAHAM (Green) : Allow me to address Part 9 of the Immigration Bill in the Committee stage, in the absence of my colleague Keith Locke. The amendments we have proposed as set out in Supplementary Order Paper 31 of 22 July are, first, to clauses 271A and 285(10). Those measures would result, in our view, in allowing asylum seekers who have not committed any crime in the community but who are to be deported, to remain in jail for the rest of their lives, perhaps, if they did not sign documentation necessary for their own deportation. The classic cases in the past forty-eighth Parliament were those of the Iranian Christian converts from Islam who were imprisoned for lengthy periods for not signing papers required by the Iranian Government for them to be deported from New Zealand to Iran. They refused to sign because they believed that they would be persecuted back in Iran and such conversion, or apostasy as they saw it, was a criminal offence there. The bill tries to eliminate any possibility that any such person might have a case for bail. It also eliminates the length of time in prison as a special case for release from prison. Our amendments try to stop this injustice happening and to stop New Zealand breaching the principles of habeas corpus.

Our amendments are also to clauses 273 and 275, and keep the initial maximum detention time of asylum seekers arriving at our border at its present 72 hours rather than be extended to 96 hours, as the bill proposes. There is no good case for such an exemption. Our amendment to clause 285 would reverse the proposal that “exceptional circumstances” would not include the period of time that a person has already been detained. Instead it would propose that such circumstances can indeed include such detention time.

Finally, our amendment to clause 289(2)(c) eliminates the phrase in the bill that “classified information must be treated as accurate.” What possible correlation can exist between secrecy and accuracy? Divine right to rule, and the infallibility of the prince, have gone out of fashion. It is information that must be tested like any other information.

I recommend that the Committee revisit these five proposals for amendment in our Supplementary Order Paper. Thank you.

DARIEN FENTON (Labour) : I will make a brief contribution to Part 9. I will reflect on the work of the Transport and Industrial Relations Committee, of which I was a member during its consideration of this very large bill, which took a large amount of time. The committee was under the excellent chairmanship of Mark Gosche.

Paul Quinn: Who?

DARIEN FENTON: I tell the member not to be disrespectful.

This part of the bill caused some considerable angst for the committee. It is a highly sensitive issue, in a highly sensitive area. I mentioned in my second reading speech that getting our heads around this Immigration Bill was difficult, both for me and for other members who have any sense of humanity and do not like to see anybody detained, and detained for any length of time. However, as others have mentioned, during the last Parliament we had a couple of high-profile cases, and I came to understand that we need to have a system of trying to manage those non-citizens who have been through all the appeal processes and have not qualified as refugees. Therefore, they have no right to remain in New Zealand, but they deliberately hinder their departure by refusing to sign documents that would enable them to leave. As others have mentioned, there were court cases that created an incentive for those non-citizens to wait out time in detention, in order to secure their release into the New Zealand community.

From Labour’s point of view, we felt that this impacted negatively on the integrity of the immigration system. Therefore, the select committee, when weighing things up, looked hard at this issue. It heard many submissions, but it also supported the amendments to the bill that create the presumption of exceptional circumstances—that a non-citizen who hinders his or her departure will be detained after the first 6-month period—and also exclude the length of detention from being an exceptional circumstance for the purposes of detention and monitoring.

As others have said also, Labour supports the Government’s Supplementary Order Paper 32. The intention of this Supplementary Order Paper builds on what we were intending to do, as reported back from the select committee, but I understand that Crown Law advice is that it should be amended to ensure that Part 9 should work as it was intended to. We support that amendment. As I said, it is a very, very difficult area, as is the whole area of immigration. It is extremely fraught. We are dealing with human beings and with families, and we do have to act humanely and fairly, but on balance I support Part 9.

• The question was put that the amendments set out on Supplementary Order Paper 32 in the name of the Hon Dr Jonathan Coleman to Part 9 be agreed to.

• Amendments agreed to.
• The question was put that the amendment set out on Supplementary Order Paper 31 in the name of Keith Locke to clause 271A be agreed to.

Hon PETE HODGSON (Labour—Dunedin North) : Well, there are no speakers from the Government, so I am happy to stand and speak in favour of this legislation, and to remind the Committee that Part 10 deals with offences, penalties, and proceedings. Clause 305, which is at the very beginning of Part 10, deals with the provision of false or misleading information. I have a couple of stories to tell.

One of the features of clause 305 is that it is carried forward from the current legislation. In other words, the existing law states that one may not provide false or misleading information. That is why, presumably, when New Zealand Immigration Service officials were investigating the case of Mr Bakshi and they sought from him financial information concerning his businesses in order to ascertain whether they were small, medium, large, or, indeed, very small or miniscule, he gave them the wrong business information, not in a misleading way but simply by way of signalling that he would not give them the correct information. In other words, being aware of the danger of providing false information, he decided to provide none at all.

Regrettably, not all of Mr Bakshi’s friends were as savvy as he was. One of them, Bhavdeep Dhillon, has claimed, not to the police or to immigration officials but to the media, so legally it does not count, that he never took part in any heavying of folk in India, of the original complainant against Mr Bakshi, or, for that matter, of the Indian police officials who became involved in the case at higher and higher levels. Regrettably, one such person in India has his phone number recorded, and that can only be because he received a telephone call. That person has said in an affidavit, which the police do have, that the purpose of that call was to raise merry hell and cause the original complainant to fall silent. That is why, in December of last year, when the original complainant was contacted by immigration officials who asked whether they could have a chat with him, he said he had nothing to say and was completely happy. He said there was nothing to answer, there were no problems, and his complaint of only 2 months previously was not one that he wished to pursue. The complainant had been leaned on hard, and he had been leaned on by the Indian police as well as by phone calls from New Zealand. That is an interesting example of what may be false or misleading information, but, for it to be so, Bhavdeep Dhillon would need to repeat the remarks that he made to the press to immigration officials and, presumably, also to the police.

Then there is the situation where information does not come forward at all. Of course, the original complainant is the classic case of that, but so too is the Indian gentleman from Tauranga who put the original complaint in front of Television New Zealand just before the election. He did not have anything to say to immigration officials either. He was terrified, and the only reason those people are saying anything now is that they have come to believe that things cannot go bad for them because New Zealand’s processes are somewhat more trustworthy than the processes they are used to back home. They have developed the confidence to make their various remarks and to give their various interviews—video interviews included—to New Zealand Immigration Service officials, and those have been passed on to the police.

With those remarks about offences, penalties, proceedings, and the importance of not providing false or misleading information, I say that I think Part 10 should proceed, but I am aware that my colleague Darien Fenton will, when the time arises, wish to make her remarks.

MICHAEL WOODHOUSE (National) : In a departure from the previous member’s offering, I will talk about Part 10. Although it may have been ruled to be within the Standing Orders, I personally do not feel that his contribution had any relevance to Part 10, and neither was his offering prior to the last speech relevant to Part 9. I am sure that is a debating point that members may wish to take up with me.

I want to talk about the three areas of Part 10 that deal with compliance with the obligations and the offences for not doing so.

Grant Robertson: Stand up.

MICHAEL WOODHOUSE: That is a cheap shot. In particular, I wish to talk about that provision where it relates to employers. As we know, the 1987 legislation placed similar obligations on the employer to not knowingly employ a non-citizen who was not entitled to work in New Zealand. The nuances of the obligation have been changed. The things that are deemed to be reasonable excuses, and therefore defences to an offence under Part 10, have changed, taking out the issue of whether the IR330 tax code declaration form constitutes a reasonable excuse for employers to be able to say the employee gave them an IR330 and therefore as employers they did all they needed to do to establish whether the person was legitimately entitled to work in this country, and therefore they are OK.

When submitting on the bill at the select committee, employers expressed some disquiet about whether that would impose some extra burden on them. I think the committee has very reasonably reassured employers that that will not be the case, and that the requirements that employers need to meet in order to establish a defence are not necessarily onerous. As a former employer, one who from time to time employed people who were not New Zealand passport holders but who were otherwise entitled to both live and work in New Zealand, I can add that there really is no reason for employers to be worried about this part. There are some quite simple things that can be done in order to establish whether a person can be entitled to work here.

I am also interested in the Department of Labour and in the enabling provisions that I think in the future will enable the department to develop an online system so that employers can go online and find out whether a foreign national is legitimately entitled to work in New Zealand. That is a really good example of the technologies that can be used to streamline the process around immigration. We have heard of a few examples in earlier debates on other parts; this is another one, and I support it.

We also talked in earlier debates in the Committee stage about the obligation on airlines to establish whether a person is legitimately entitled to travel to New Zealand. Of course, this part imposes some fines on the carrier for a failure to do that. I think there are some very good provisions in here that employers do not need to be worried about, and I certainly support this part.

DARIEN FENTON (Labour) : I will address Part 10, and particularly the provisions on offences by employers. I acknowledge what my colleague across the Chamber has said, because he is right about the fact that we spent a lot of time on this proposal in the Transport and Industrial Relations Committee. We looked at whether there were alternative means by which employers could get the information through the Inland Revenue Department. As Michael Woodhouse has pointed out, we went to some lengths in our report to reassure employers about this provision. The whole integrity of our immigration system is affected by how we treat workers whom we bring to New Zealand to work for us and whom we need to fill the skills gaps during the good times. It is also affected by how we treat them when we do not need them.

I talked about this issue in my second reading speech on this bill. I mentioned a particular circumstance that is occurring at the moment and said I hoped that the Minister was keeping a watching brief on the workers who were brought here to work in the telecommunications industry. They were brought here under work permits, promised jobs, and told that this was a great place to come. They gave up good employment in the Philippines, where they had rights that they do not have here. I will get to that issue in a minute. They have been caught up in an industrial dispute whereby Telecom, through its contractor Visionstream, has decided that those workers should no longer be employed as employees and should become owner-operators. Migrant workers who are on work permits are unable to take that offer up, because they would have to go on to business migrant permits, and they are not able to do that. People cannot transfer from one type of permit to another. What is going on with regard to those people at the moment is an absolute tragedy.

Three Filipino telecommunications workers in Nelson were in that situation this week. It is just a tragic story. Again, I say those people were encouraged to come and work in New Zealand by Transfield Services, which is an Australian operator, and to migrate to Nelson to fill a skills shortage that we had here. Of course, they have been made redundant by Transfield Services, which, as I have said, is an Australian company. They have been made redundant with just 4 weeks’ pay, even though it is an Australian company and if they were in Australia they would have had minimum redundancy protection—they would have received minimum redundancy pay. From the 4 weeks’ pay, those workers have had to buy their tickets home. Because they have been laid off, they are not entitled to anything, so they are sitting in a house in Blenheim, unsure about how they will feed themselves for the next 4 weeks while they wait to go back to the Philippines.

One of those workers, a guy called Librado Andales, said he had left a good job in the Philippines that he had held for 14 years in order to come to New Zealand 2 years ago. It was his first time abroad, and he was encouraged to believe that this was a good place to bring his children and raise them. He said it was far from his imagination that New Zealand would bring someone to do a skilled migrant’s job and then have that person face this awful situation.

Transfield Services brought in 300 to 400 skilled migrants.

Simon Bridges: Give us some hand movements!

DARIEN FENTON: It is not funny, actually. It is a real tragedy for those people.

Simon Bridges: Oh, come on!

DARIEN FENTON: I will report the member’s sympathy back to them. It is a really, really awful situation. I have been spending some time with the migrant action group in Auckland, as has Jackie Blue. She assured them at the last meeting that I was at that she would be asking the Minister to be more flexible when it comes to workers on work permits who are being laid off, but I have not seen any evidence of that. I think members will find that the migrant action group has quite a lot to say in coming months about what we need to do regarding this issue. It is fine to bring migrant workers here when we need them: when we have a lack of skilled workers. It is fine to have, in Part 10 of the bill, provisions around exploitation. But it is not fine to send those workers back with nothing, and to leave them sitting in a house for 4 weeks while they cannot feed themselves and cannot feed their families, because we have nothing that looks after those workers.

Obviously, we support Part 10 of the bill. The exploitation provisions are very, very important, and immigrants deserve to have the minimum requirements that we have in New Zealand under the Holidays Act, the minimum wage, and the other things that we believe are absolutely fundamental. But, as I said, I think we really need to think seriously in this House, and the Minister in the chair, the Hon Dr Jonathan Coleman, needs to think—I would welcome his contribution on this—about the people that we have invited here to do jobs that we cannot find New Zealanders to do. We put those workers on the scrap heap and send them home with nothing. I think that is very bad not only for the workers and their families, including their children who have been going to school here, but also for New Zealand’s reputation. I would encourage the Minister to respond to that. Thank you.

MICHAEL WOODHOUSE (National) : It really behoves me to comment on the offering of the previous member who spoke, Darien Fenton. In fact, it was a case of very nearly taking a point of order on whether that was relevant.

Hon Darren Hughes: You’re so good at those!

MICHAEL WOODHOUSE: Well, members know I am a bit new and fresh, a bit wet behind the ears, a shrinking violet, and not very confident when it comes to these things. Despite that, and I am sure the senior whip for the Opposition would be able to endorse this, that speech was so far outside Standing Order 107, which is about relevancy, that I was waiting for him to stand up and take a point of order on it. Every single one of the examples that the member talked about was of people who are legitimately entitled to be here under their work permits. How on earth people who were legitimately entitled to be here are somehow subject to the provisions of Part 10 absolutely defies logic. But Darien Fenton has defied logic before, and I am sure she will do it again. We are getting pretty used to it. We get a tired mantra around workers’ rights, and somehow the member continues to be able to spin absolutely anything that she has to say around that subject.

Part 10, in particular clauses 314 and 315, talks specifically about the rights of workers even though they might not be legitimately entitled to work in New Zealand. I thought that if that member wanted to say anything about this issue, it would have been around the fact that if workers are not legitimately entitled to work—even if employers have taken reasonable steps to ascertain whether the workers are entitled or if they have committed an offence under Part 10 of this bill—employers are still required to, and responsible for, treating their employees fairly, and required to apply the provisions of the Holidays Act and the Minimum Wage Act. Really, that speech was something of an irrelevant diatribe, and I think we should stick to our knitting when it comes to Part 10.

SIMON BRIDGES (National—Tauranga) : It is a great privilege to take a call in this debate on the Immigration Bill.

Hon Darren Hughes: For us!

SIMON BRIDGES: For all of the Committee. I say to Darien Fenton that I thought she made a worthy—not exactly statesmanlike, but worthy—contribution to the debate. It did not have the touches of brilliance that Cam Calder’s earlier speech had, I have to say. For that she would have needed to use a little more hand movement, some alliteration, and some onomatopoeia. But it was pretty good.

I will come at the bill from first principles and say this. I enjoyed greatly taking immigration law at the Auckland University law school—

Hon Darren Hughes: You went to polytech!

SIMON BRIDGES: We did not have a polytech where one could study law back then. If we had, I probably would have done that. It was a great experience. I learnt that immigration law is a complex area of law. I want to say this bill does a very good job of simplifying the law, making it stronger, more flexible, and giving us an enduring framework going forward. Thank you.

• The question was put that the amendments set out on Supplementary Order Paper 32 in the name of the Hon Dr Jonathan Coleman to Part 10 be agreed to.

• Amendments agreed to.

Hon PETE HODGSON (Labour—Dunedin North) : Believe it or not, I have a serious question to put to the Minister in the chair, Jonathan Coleman, and it is a real-life case. There is a child currently in Scotland—at least, I think the child is currently in Scotland; I am not sure whether it has been resolved yet—and that child wants to return to New Zealand. When I say: “return to New Zealand”, actually, the child was born in Scotland. But the child was born in Scotland to two New Zealand citizens. Regrettably, each of those citizens was themselves born offshore. Let me try and explain. The child’s four grandparents were all born and raised in New Zealand.

Hon Dr Jonathan Coleman: Is this a riddle?

Hon PETE HODGSON: No, it is not a riddle; it is a real-life problem. What I am trying to work out is whether we have it fixed, and I simply cannot get it. All four of the child’s grandparents were born in New Zealand, and the child’s two parents were both raised in New Zealand. All four grandparents were born in New Zealand, and each pair of grandparents then travelled offshore for postgraduate study—one pair to Australia, and one to Canada. In Australia and Canada each of the child’s parents was born. [Interruption] Well, it may end up on Mr Woodhouse’s desk; I will send over the details. As a result of that, although the parents were born to New Zealand citizens, they assumed Australian and Canadian citizenship respectively, and their citizenship in New Zealand, which was subsequently granted, is of a different status to that which would be the case if they were born here. I appreciate that the member says this is not citizenship legislation but is immigration legislation, but it is now an immigration problem because now that the two parents of the child have grown up and finished their first degree, they are offshore too, doing post-graduate study themselves—in this case in Scotland—and this child has come along.

The New Zealand citizenship processes will not allow this child to be granted New Zealand citizenship. Attempts to give the child Canadian citizenship are possible—the child can be given Canadian citizenship because one of his parents was born in Canada, even though the family lived there for only 3 years—and the Australian Government has apparently said that Australian citizenship for this child is not appropriate. The child cannot travel, because he cannot be put on to a passport. This family is due to come back to New Zealand. It is not an urgent problem; these people are not due to come back for a time, although they wonder what will happen if they have to rush back to New Zealand in a hurry for some reason. It is just an interesting issue that I think the very first part of Part 11 might help address, but I do not know whether it addresses it.

I am sorry that I have given the officials a bit of a pickle, but I wonder whether they would be able to help, if we have a few minutes. If they are not able to help, then that is fair enough; the legislation can proceed anyway. But if the officials would be good enough to look at the first part of Part 11 and tell me whether I am right in my thinking that maybe a fix for circumstances of that sort is applicable with regard to the most favourable citizenship proposition—the idea that we would accord a person the citizenship most favourable to the person’s status. I wonder whether the clauses in the Immigration Bill, even though it is not dealing primarily with citizenship, would allow this child, who is currently in Scotland, to come to New Zealand, which is where his natural home will be. I could just keep talking if officials would like to take the time to confer with the Minister in the chair. They are conferring now; that is slightly helpful.

If the view of the officials is that I am on the wrong track, then that is fine. I am very happy to be corrected. But I just wonder whether the very first part of Part 11, which is miscellaneous provisions, has any relevance to the real-life problem that I am addressing. By the way, this child was born after 1 January 2006. This child is not a New Zealand citizen, because this child was born in Scotland to New Zealand parents who were themselves born overseas to New Zealanders. So that is me just trying to nut through a bit more time here. If the officials would like to shake their heads and indicate that I am on the wrong track, then I will gladly resume my seat. But if they would like to offer advice to their Minister, then that would be good too. If they would like me to go through the story again, then they could indicate that, and I will happily try to tell it without hesitation on the second time around. I am just not sure whether the officials want to rise to the occasion. I do not mean to put them on the spot. As I say, if it will not work—

Hon Dr Jonathan Coleman: Can’t do it off-line, I think.

Hon PETE HODGSON: It is off-line and it will not work. Nevertheless, it was worth a go. I thank the Committee for its indulgence.

• The question was put that the amendment set out on Supplementary Order Paper 31 in the name of Keith Locke to clause 350 be agreed to.

The CHAIRPERSON (Lindsay Tisch): The debate on Part 12 includes schedules 3, 4, and 5.

Hon PETE HODGSON (Labour—Dunedin North) : I do not know what my whip thinks, but I am getting the sense that we might finish the Committee stage of the Immigration Bill at, or a minute or two before, 6 o’clock, so I do not really want to spend a lot of time on this part. But I will say that one of the features of Part 12 is that it has been completely rewritten, and most of Part 12 of the bill as introduced has been struck out. I suppose, therefore, it is a good time for me to say once more that this legislation, which was reported back from the Transport and Industrial Relations Committee 15 months ago, was subject to the most extraordinary examination by the select committee members. I was not one of them. I was not doing select committee work back then—

Paul Quinn: Higher elevation.

Hon PETE HODGSON: Yes. But the chair, the Hon Mark Gosche—a pretty experienced politician who is no longer with us, unfortunately—and the members of the select committee put in the hours. I think it is time to reflect on the hours that were put in. The result is legislation that has bipartisan support, despite the fact that the select committee members argued and grizzled about all sorts of things, and despite the fact that the Minister of Immigration has subsequently come up with a particularly large Supplementary Order Paper. We have had the opportunity to go through that Supplementary Order Paper with the Minister’s officials whilst in Opposition, and I again thank the Minister, the Hon Dr Jonathan Coleman, for that courtesy. It has meant that this huge piece of legislation has been able to make its way through the Committee stage reasonably quickly. I say “huge” because it is more than 500 pages.

I will sit down in 30 seconds, but I record for the Committee once more that this Immigration Bill went through a fine select committee process and was chaired by a fine former member of this House.

• The question was put that the amendments set out on Supplementary Order Paper 32 in the name of the Hon Dr Jonathan Coleman to Part 12 be agreed to.

• Amendments agreed to.

Hon PETE HODGSON (Labour—Dunedin North) : I am struggling to work out where new Part 13 begins and ends, but I wonder whether the Minister in the chair, the Hon Dr Jonathan Coleman, might take a very short call to speak on Supplementary Order Paper 68, as it affects the amendments that have been occasioned by the Sentencing (Offender Levy) Amendment Bill. If he has got his head around it—I do not say that sarcastically—I ask him whether he would like to give us any comment on what has happened to the amendment to the District Courts Act 1947, which pertains to the number of District Court judges. I think that the bill acknowledged that the number of District Court judges was going to increase, but this amendment takes that increase away. That does not seem quite right.

The Minister may not wish to take a call. We cannot force the Minister. We could make a great hue and cry about it. In fact, we could do so for some hours. I wonder whether we should take this legislation through until 10 o’clock. The Minister does not mind? The Minister has had a terrible day. We were trying to be easy on the gentleman. There is only a certain amount of abuse and hardship an individual piece of physiology can take. An ordinary piece of vaguely humanoid protoplasm does have its limits! I thought the Minister has had a tough day and he would be quite happy to finish at 6 o’clock.

Hon Darren Hughes: He wasn’t allowed a question time.

Hon PETE HODGSON: That is true. He had a late start. That is true. If the Minister is going to ignore me, then we can always respond to that. In fact, we can respond seriously. What do we think, team?

I am trying to work out what has happened to the number of District Court judges. I thought it had gone up. As I read Supplementary Order Paper 68, it takes the number down again, and that does not seem right. The explanatory note states: “The amendment relating to the District Courts Act 1947 (which altered the maximum number of District Court Judges from 140 to 141) will be addressed in a separate Ministry of Justice bill amending that Act.” I think that the Minister is saying that we do not need the amendment now, because the amendment will be made later. I can see the whips conferring. Maybe they are working out how many District Court judges we need in this country. The Minister is showing no signs of flexing his flaccid musculature.

Hon Member: Offensive reference.

Hon PETE HODGSON: Is flaccid not the right word? I meant “flac-cid”. I mispronounced it. I apologise.

Hon Darren Hughes: We would like a response.

Hon PETE HODGSON: We would like a response from the Minister, but we will not get one. I will resume my seat.

• The question was put that the amendment set out on Supplementary Order Paper 68 in the name of the Hon Dr Jonathan Coleman to the proposed amendment set out on Supplementary Order Paper 32 in his name to add new Part 13 be agreed to.

Hon PETE HODGSON (Labour—Dunedin North) : The interesting thing about clause 1 is that it reads as follows: “This Act is the Immigration Act 2007.” “Hark”, I say to myself, “what year are we in now?”. I wonder what took us so long. I can further advise the House that no amendment to clause 1 is upon us. So we may be about to pass legislation that is wrongly labelled the Immigration Act 2007, when it is to be passed some time late in 2009. But perhaps help is at hand, because the parliamentary counsel folk at the drafting office may have taken upon themselves certain extra parliamentary freedoms to make little changes here and there—their little bid for minor amounts of power. It may be that they are fully entitled by the weird and wonderful sorts of practices that we have around this House to make the Immigration Act 2007 become the Immigration Act 2009. I am not sure whether the Minister is worried about that. At that point, I sort of give up and think “God, I hope the system works”, because we have had this legislation in front of us now for 2 years. Two years have clicked by and one hopes that when we print this thing we can get the year right.

The more important question I would like to ask the Minister—I am not sure whether the Minister is in a talkative mood—is in respect of clause 430, which is the “what the hell happens next” clause. I want to ask the Minister what happens next. Clause 430 comes into effect immediately, and it is the clause by which the Minister can get on and promulgate regulations, put people on boards, and do all of the things that may be said to be part of the implementation of the legislation. The Minister, one assumes, has a game plan for that. One assumes it will be driven somewhat by officials. I am not suggesting it should not be. But I want to know when this legislation will come into effect, because we have waited long enough for it. Of course, only clauses 1 and 430 will come into effect on the day after the royal assent. The others will come into effect precisely when the Government wants them to. So we could—and I am not being silly here—pass this legislation and have nothing happen.

I wonder whether the Minister would like to tell us how he is positioned: whether he has the budget he needs to get the implementation of the legislation done, and whether he has the officials doing the work plan. I am sure that he has, so when does he think we will see the new authorities up and running? Will it be later this year? Might it be early next year? Will there be any problem around the development of such regulations as are needed under this legislation? Sometimes officials say that regulations take years to put in place. In other words, having sweated this legislation through, I ask the Minister to jump to his feet and tell us very briefly what he thinks the implementation plan looks like and when we might see this legislation fully fledged and in full force. That concludes my contribution.

Hon PETE HODGSON (Labour—Dunedin North) : I think clause 2 is a mighty fine clause.

• The question was put that the amendment set out on Supplementary Order Paper 68 in the name of the Hon Dr Jonathan Coleman to the proposed amendment set out on Supplementary Order Paper 32 in his name to clause 2(3) be agreed to.

• Amendment to the amendment agreed to.
• The question was put that the amendments set out on Supplementary Order Paper 32 in the name of the Hon Dr Jonathan Coleman to clause 2 as amended be agreed to.

• Amendments as amended agreed to.

Hon SIMON POWER (Minister of Justice) : I move, That the Sentencing (Offender Levy) Amendment Bill be now read a second time. This bill is another step towards the fulfilment of another election commitment from the National-led Government. I thank the Justice and Electoral Committee for its consideration of the bill and note the continued fine chairmanship of the member Chester Borrows, who has worked under considerable pressure for a lengthy period of time on matters arising from the National-led Government’s first 100 days in office. My thanks also go to the other members of that committee, from all parties, as I am conscious that a fair amount of work was referred to the committee during 2008-09.

After receiving 13 submissions and hearing seven submissions in person, I am advised, the committee has recommended that the bill be passed with amendments to clarify its intent and improve its consistency with the broader legislative framework for reparation and fines. As we know, the bill provides for a $50 levy to be imposed on all convicted offenders who are sentenced in a District Court or High Court for one or more criminal convictions. The purpose of the bill is to ensure that offenders, in a general sense, contribute towards addressing the harm that criminal behaviour causes victims. Revenue generated from the offender levy—an estimated $13.6 million over the first 4 years—will be used to fund additional entitlements and services for victims of serious crime.

The offender levy establishment costs of approximately $2.3 million in 2009-10 have been appropriated as part of Budget 2009-10. Collection costs from 2010-11 onwards will, I am pleased to advise the House, be largely covered by funding that was previously allocated to the disestablished Sentencing Council. This additional funding will also allow for new entitlements and services for victims of serious crime to begin in 2009, before collection of the levy commences. In the very near future I will be announcing more detail regarding those new entitlements and services for victims of serious crime.

One issue raised by submitters to the select committee was that of fairness. They pointed out that those who committed serious crimes would incur the same $50 levy as those who committed minor offences. I reiterate that the offender levy is not a sentence. The seriousness of an offence is reflected in the actual sentence imposed on the offender. The committee recommended a sensible amendment to the bill regarding the provision of services to victims. New section 105J, inserted by clause 7, is amended to require organisations approved under the bill to provide “services” to victims rather than “support”. The word “services” more accurately reflects the intention that approved agencies provide specific entitlements and services for victims of crime, rather than the more nebulous concept of support. I have read the concerns of Labour members that “the levy could detrimentally affect reparation payments”. They do not understand the bill. I reassure victims of crime that the offender levy will not affect the payment of reparation to victims because the levy is to be paid after any order of reparation is collected.

In addition, the bill amends the Sentencing Act 2002 so that the court, when it considers the final circumstances of an offender when awarding reparation to victims or imposing fines, must not take into account the payment of the levy. Therefore, the legislation is clear that the payment of reparation and fines is not to be affected by the levy.

The bill specifies that existing enforcement processes under the Summary Proceedings Act 1957 be utilised to collect the levy when the offender also owes fines or reparations. Where only the levy is outstanding, the bill provides for a modified enforcement process to be used to ensure cost-effectiveness. The committee has recommended amending the bill to allow for the sale proceeds of offenders’ confiscated vehicles to be used to pay outstanding levies in addition to fines and reparations. The bill also amends the definition of a fine in the Social Security Act 1964 to include the offender levy. This will allow Work and Income to disclose information—for example, addresses and telephone numbers—to the courts to enable the location of any beneficiary who is in default of the payment of the offender levy.

The Justice and Electoral Committee has also recommended amending the definition of a fine in the Tax Administration Act 1994, the Customs and Excise Act 1996, and the Immigration Act 1997. These amendments will allow those people who owe levies to be matched as part of the authorised information-matching programmes run by the Ministry of Justice, and is a welcome addition to the bill. It will be a cost-effective way of finding a person who owes a levy and who is otherwise not in contact with the court. We support the amendments.

Labour members have also expressed concern at the high administration costs of the offender levy. I consider that the cost of collecting the levy—approximately $1.3 million per annum—is a small figure compared with the estimated $13.6 million that the levy will generate after only 4 years. We must remember that this is money that victims of crime would never have otherwise received. As I said earlier, the cost will also be offset by funding that had been set aside for the Sentencing Council.

This Government has made the commitment to rebalance the criminal justice system—to shift the focus away from offenders and towards victims of crime. The offender levy, which will provide ongoing funding to improve the welfare and well-being of victims of serious crime, is an important first step in this process, but I want to make it absolutely clear that it is by no means the end of our work in this area. I commend the bill to the House.

LYNNE PILLAY (Labour) : I am very pleased to talk about Labour’s support for the bill. Labour is supporting the bill but doing so with some reservations. I know that Chester Borrows will be thinking that Lynne Pillay is going to bring up the Sentencing Council again—and, yes, I will. My colleague Charles Chauvel will also probably take a call and mention that.

But I start by acknowledging the Law Commission. A year ago, to the day, it released a very comprehensive report on compensation for crime victims. The commission, while acknowledging the role of the Accident Compensation Corporation (ACC), considered a variety of ways to make compensation and made some comments on the remedy we are talking about today. Labour is not opposing this bill but we do believe that it does very little—

Simon Bridges: You’re quibbling.

LYNNE PILLAY: I am not quibbling.

Simon Bridges: You’re supporting it but also speaking against it.

LYNNE PILLAY: That is pretty rich coming from that side of the House, but we will not go there. Labour is supporting this bill, and I will tell members why. We had an open mind and supported the bill going to the Justice and Electoral Committee. Submitters to that committee were in support of the bill, and indeed many shared our view about it. I think it was the National Council of Women that agreed with the bill in principle—and I do not think that anyone in this House would oppose any form of compensation for victims—but the council raised a concern, very similar to ours, about the cost of administering the levy and the bureaucracy associated with its collection. That issue was very much a concern of the National Council of Women, and a number of other submitters also raised that, but we could not oppose the principle about enhanced support for victims of crime. We intend to monitor very closely how this legislation will work in effect. We are confident that the bill will be passed, not because it is the best remedy—we know that that is not the case—but because it provides support for victims of crime.

I acknowledge that Simon Power talked about the advantages of this bill, but what I and Labour do not want to happen is to have unrealistic expectations raised. We note that the levy will be further down the pecking order, if I can use that term, after reparation. But the concern we raised—and we talked quite a bit about it in the select committee with submitters—is whether the levy will still have some effect if we are dealing with an offender and there is limited resource, and even whilst reparation will be taken into account first. The levy will be non-negotiable and will be applied to all offenders. If we look at it quite realistically, and considering that the more serious the crime, the longer the sentence, we know therefore that it will be longer before the levy is required to be paid. Ironically, the worse the criminals’ records are for making payments, the less likely it is that they will have to pay them. I think those concerns were raised by the Law Commission in its review. I note that the commission did not see that this levy was the best way forward, mainly because of the cost.

I will just talk a little bit about the cost. The claim was that the scheme would raise about $5 million a year for victims, and then the Government was forced to scale back that prediction to $13.6 million over the first 4 years. That is a substantial scale back. Then other things are subtracted, and that is the area of concern that we had. It is to do with subtracting the costs to set up the levy and to run the scheme, which almost halves that amount for victims. We believe that probably if we were more realistic then it would have been more effective, rather than having all this bureaucracy, to give the money directly to that wonderful organisation Victim Support, which has led the way in terms of support for victims of crime. But that was not to be. The purpose of the levy is enveloped in bureaucracy.

Hon Simon Power: Watch this space, Lynne!

LYNNE PILLAY: We will see. We will be looking at how much of the $50 levy actually goes towards support for victims of crime.

It would be remiss of me if I did not talk about ACC. In this House during question time earlier this afternoon we voiced our considerable concerns about ACC. One would have to say that it seems completely—

Paul Quinn: Lynne! Lynne!

LYNNE PILLAY: I tell that member to stop that; this is quite relevant to this bill, thank you very much. It seems completely contradictory for the Government to pretend that this levy is about victims of crime, whereas on the other side we have victims of very serious crime being dealt with under ACC. We have seen that, through the sensitive claims unit of ACC. Probably the most compelling and heart-wrenching stories we could ever hear, whether in this House or in our communities, are about victims of crime and of sexual assault from their childhood, yet we see those people being forced to jump through more hoops. There are much higher criteria and the goalposts are being raised for them to receive the support they so much deserve. It seems very, very sad that this levy is being imposed with a very high cost of administration, yet effective counselling through ACC really does help people and it is something they contribute to themselves when they are going through counselling. They receive a part payment from ACC, but that payment is at risk. People’s rights to that are being cut, and I see that as being very much at odds with what this bill is about. As I said, we will be watching this scheme very carefully as it goes through.

As I said before, this scheme was at the cost of the Sentencing Council. That council would have done a lot to give some real—

David Garrett: Shorter sentences—that’s what would have happened.

LYNNE PILLAY: Yes, certainly from the peanut gallery we always have that chant about shorter sentences, do we not? Those people think we will solve all the problems in our country if we put people away longer, but we know that is not the case. The Sentencing Council would have brought about consistency of sentencing, and a common sense approach to sentencing. The council was something that the Law Commission had put a lot of time, energy, and sensible advice into, and it is very sad that it did not go ahead. I think that that consistency of sentencing would have delivered a lot to victims. Indeed, when we had our inquiry into victims’ rights, many submitters—and I can see Chester Borrows nodding his head in agreement—came and spoke to us about fairness and consistency in, and understanding of, the system. So that is a loss.

In terms of this levy, I hope that it will build on a number of progressions that happened under the Labour Government, such as the Victims’ Rights Act 2002, the Sentencing Act 2002, and the campaign we launched in 2003 to trace those who owed money and to deal with the money raised by that—a considerable amount of money.

I can see that the Assistant Speaker is saying it is time to let others have a say. We are very inclusive in this Chamber, so I am happy to finish my speech now. Thank you.

CHESTER BORROWS (National—Whanganui) : I am pleased to stand here as chair of the Justice and Electoral Committee and acknowledge the work of the other committee members and their good faith, especially Lynne Pillay with her frequent use of terms such as Sentencing Council during the course of the debate around the Sentencing (Offender Levy) Amendment Bill. I acknowledge the goodwill with which members from across the House debated this bill, and it is also good to be part of a Government that is delivering on the promises we all made on that campaign trail. Of course, law and order was a very big factor in the last campaign. There was an expectation on behalf of the public that the new Government would deliver, and, what do you know, we have.

The thrust of this bill is assisting victims and it is certainly moving towards that at a great rate of knots. People before the select committee roundly endorsed the purpose of the bill. They had some reservations and those reservations have been articulated by previous speakers. But it is also interesting to note two different approaches in relation to this bill between National and Labour. There has been a lot of mention of the Sentencing Council, but we have to remember that that council was, in effect, a district health board introduced by the Labour Government to be put into the criminal justice system to put the responsibility of court outcomes at arm’s length from the Government. The fact is that when we get elected to this House we are charged with the job, in respect of law and order and in respect of justice, to set penalties and to give the courts a clear indication of where we want them to go. If they do not do that, then there are mechanisms to be able to do that, and there was no need for a Sentencing Council, which was going to take $5 million of hard-earned taxpayers’ money, just as some sort of posterior-covering manoeuvre on behalf of a Government that was not prepared to take responsibility for court outcomes.

Another sad fact to note, from listening to one speaker who spoke before me and to others who will follow, is that it must be a long time since they have sat in a District Court and listened to the process of sentencing and imposing fines and court costs on people who appear before the court for fairly low-level offending—those who will be paying the vast majority of offender levies under this scheme. The fact is that most people who appear before the District Court receive a fine or an order for reparation of some kind, and the vast majority of them pay it. There is an administration cost in recovering that. There is an administration cost in recovering just about anything that we impose on society at large, and we have to expect that. The fact is that this legislation will generate a vast amount of money that was not in the system and was not available to victims currently, and it will be as a result only of this piece of legislation.

I will finish off by remarking on the cost of being a victim in this country. In relation to crimes against property, for instance theft and damage, people can get their heads around it very quickly; it is the cost of recovery or reinstating that property that was damaged or stolen. But when it is a crime against a person, it is a totally different kettle of fish. There are so many costs that go hand in hand with being a victim of a crime against a person that are not currently covered within our accident compensation system, our victim support system, or our justice system. This legislation will allow those costs to be met.

I ask members to consider, for instance, the example of the mother of Michael Choy, the man killed by six young people about 8 years ago. From about 2005 those six young people were coming up for parole every year, and the family of that victim had to keep going, out of a sense of duty, a sense of need, and a sense of worth, back and back and back, to six parole hearings a year. The cost of attending was not necessarily covered by the taxpayer, but the vast majority of taxpayers believe that it should be. Under this legislation there is the ability to cover some of those costs. It could maybe cover increased counselling or supervision costs, the costs of travel, and the cost of assistance. I believe wholeheartedly that the vast majority of the New Zealand population, and thankfully the vast majority of this House, agree with National on this point, no matter what little quibbling points they may have.

JACINDA ARDERN (Labour) : I am pleased to take a call on the Sentencing (Offender Levy) Amendment Bill, and to follow on from my colleague Chester Borrows. He was a very good chair of the Justice and Electoral Committee through the process of considering this bill, although I would counter the assertion that what we on this side of the House are raising today is mere quibbling. I disagree with that point, and hope to do so by expanding on a few points in my speech.

But first I go back to the Sentencing Council, but only very briefly because there are more substantive matters that this bill raises. It was the funding from the Sentencing Council that was used to set up the administrative arm of this bill, because it will have a hefty cost to administer. I disagree with the select committee chair’s view that the Sentencing Council was in any way trying to circumvent or take away what is ultimately a power of Parliament in guiding, or at least in setting the bounds of, sentencing. We have already seen some of the areas in which the Sentencing Council could have had a useful role. More recently that was through the Crimes (Provocation Repeal) Amendment Bill, which was considered by the same select committee.

All of the committee members heard from organisations, in particular from organisations like Women’s Refuge, and their concerns that the removal of provocation would impact on some of the people they deal with on a day-to-day basis. There was a view expressed that relying on self-defence did not take into account some of the intricacies or some of the details around battered woman’s syndrome, and that self-defence sometimes implies an immediacy that is not often the case when a battered wife is responding to a violent situation in her own home. They themselves acknowledged that it was something that needed greater thought. It was an area that perhaps even a Sentencing Council could have assisted with, in giving guidance around those mitigating factors when laying charges and when responding with sentences.

Paul Quinn: Whose submission was that?

JACINDA ARDERN: I think that is a worthy point to raise in the context of this bill. I would be happy to pull out the transcripts for my colleague Mr Quinn, who seems unable to recall that. It was the National Collective of Independent Women’s Refuges, I believe, that raised that particular point.

But in going back to the bill itself, I wish to restate for the benefit of members on the other side of the House, as I did in the first reading, that no one disagrees that it would be hugely beneficial to give greater support to victims in our justice system. That is not a premise with which we would disagree. The question then comes down to the policy mechanisms we use to do that. Although we are supporting this bill because we support the principle, we have grave reservations over whether it is the most effective way to achieve that goal. The Justice and Electoral Committee did its best to deal with what it was given, but at the very core of this bill there are some large flaws that were just not within the scope of the select committee to change. I will cover some of those.

Under the current sentencing regime, the Sentencing Act 2002, there is a requirement already under the court to impose a sentence of reparation unless the court is satisfied that such a sentence would result in undue hardship. There is a really important reason why that has been made explicit within the legislation. There are two factors. The first is that it does not unnecessarily raise expectations for a victim, as would a judge awarding large reparations that would obviously be unable to be paid by that particular person. The other important point about reparation is that it is direct. It is a direct payment to the victim involved in that crime from the perpetrator of that crime. But that is something this offender levy does not achieve; it is in no way direct. So I dispute with anyone who tries to claim that this is somehow creating greater accountability from an offender to a victim.

One point I would like to raise is that I see reparation as what our primary focus should be, yet the offender levy in many ways could overtake reparation. I will refer to the Law Commission’s point on this, because I think the commission articulates it best when it states: “Whatever the range of offences to which it is applied, the financial circumstances of many offenders already impact on the making, amount and payment of sentences of reparation as well as fine collection, and introducing a levy would exacerbate this. It would be possible to set the amount of the levy at such a low rate that it would not make any, or would only make a small discernible, difference to the offender’s financial situation. However, that could clearly reduce the amount of revenue that could be raised.”

The report goes on to state: “There would also be issues about whether the levy should have priority over reparation and fines or vice versa.” The Government has made the decision that reparation will come first. But judges are taking into account the ability to pay reparation; on the levy they are not. On the levy there is no discretion for a judge to make a decision as to whether someone is able to pay. So where does that leave us? In a sense, if the judge did want to take into account the ability to pay, has already told offenders they must pay $50, he or she could feasibly start discounting that from the amount he or she will award in reparation; or there might not be any reparation at all awarded, because in some offenders’ circumstances the judge will think it unlikely they would pay, in any case. So I think we have not prioritised accurately between reparation and levies, particularly given that reparation is much more direct for the victim and is much more accountable. I think that it should take priority over any of those other payments. The evidence bears this out, and the direction of the select committee discussion bears all of these points out, as well.

The select committee spent a lot of time talking about the administration cost of this scheme, and for good reason. If the ultimate aim is to put more money into the coffers of victim support, I think it is important that we try to reduce the amount of money we spend chasing the $50 from individual offenders. I have read reports that state it would take 30,000 offenders to pay the levy in order to break even in this scheme, which to me is quite significant. We have also seen calculations that say that half of the amount collected will go to administration costs. Going back to the Sentencing Act, one of the reasons a judge currently takes into account an offender’s ability to pay is to try to mitigate against that fact—to try to reduce the number of times someone is being chased who absolutely does not demonstrate the ability to pay that particular fee.

Let us reflect back. I am sure my colleagues will spend a lot more time talking about the administration cost side of things. I want to spend a little bit of time reflecting on the changes that the select committee made, because I have not heard them discussed in any great length. One of the issues the select committee discussed was whether the levy should be imposed for each offence—because some offenders will be coming forward with a whole range of offences—or whether it should be just for a single sentencing event. The select committee’s decision was that in order to reduce the chances of non-payment, which would then undermine the scheme, it would be best to award the levy only per sentencing event. Again, there is an acknowledgment here in that decision that chasing around fees that will not be paid would undermine the scheme. That is one of the points we have made clearly the whole way through.

The second issue we looked at was whether young offenders should be picked up by the scheme. The young offenders are those who originally would go through the Youth Court, but who may, due to the nature of their crime or their offending, be referred to the District Court. That amounts to about 270 young people per annum. Again, the decision was made that that would only increase an already exceptionally high administration cost for the scheme, and, therefore, the decision was made not to exclude those young people. I would be very interested to see whether we can get a breakdown of the success of payment across that group of people, as well.

The third issue we discussed in select committee was the size of the levy. As the Law Commission has already pointed out, shifting the size of the levy again might have impacted on whether it was paid at all, so we left it at the charge of $50. Finally, we looked at the sale of confiscated vehicles and made the decision that if a confiscated vehicle was sold, then the proceeds could go to pay off fines reparation and the levy. All of that discussion at select committee, from both sides of the House, demonstrates where all the concern in this debate lies: the heavy amount of emphasis on the cost of administration and the fact that accountability is removed from, what I think is, a well-functioning reparation scheme for victims. We need to do more, but I seriously question whether this bill is the answer.

SIMON BRIDGES (National—Tauranga) : It is good to take a call on the worthy Sentencing (Offender Levy) Amendment Bill, which is a plank in the Government’s justice programme. I start by agreeing with something that one of the Labour members said: we have to be careful not to raise unrealistic expectations around this bill. I quite agree; we should not say, and I do not think anyone would say, that this bill is going to save the world. But, in my view, it is certainly a good practical step towards rebalancing the justice system, putting victims back closer to the centre of that system, and helping in real and practical ways with the financial and emotional costs of crime.

Crime is very expensive for victims; I will me give members a real example. The Tauranga District Court is the jury court for the Western and much of the Eastern Bay of Plenty. People have to come from as far afield as Whakatāne, Ōpōtiki, and Te Kaha for sentencing and the like following a conviction at a jury trial. They are coming a long way. People from Te Kaha are coming a good 2½ hours, maybe slightly more, so that is a 5 to 6-hour round trip. And they are not coming in a Lexus or a European car, as some might who travel that distance; as victims of crime, they are, unfortunately, more often than not from the bottom rather than the top of society. On top of having to worry about the effects of the crime, the sentencing coming up, perhaps a disputed facts hearing, and the issues that they will have to confront at that hearing, they are also worrying about the petrol costs and how they will pay to get there. This bill, as I say, is a practical step that gets around that. It will make sure that although victims will still have to worry about some things—human things that we will never be able to do away with—they will have help with their petrol costs and perhaps, after sentencing, with their counselling costs and so on. That is a very good thing, indeed.

Finally, to put a human face on this, I refer to one submission. I will not name the submitter, but it was someone who came to the Justice and Electoral Committee and gave a heartfelt submission in relation to a family member who had been killed by the act of a career criminal, a P addict on parole and on the witness protection programme. As I say, her submission was heartfelt. She had experienced a system, she said, that favoured the offender, and one that, in her view, had little regard for victims’ rights. Nothing could compensate for the death of her family member. Her loss was indescribable, and although the wounds might heal eventually, she said that the scars would run deep and would always be felt. She was in favour of this bill. In her conclusion she said she had a vision that one day victims of crime would be truly recognised and that, regardless of their assets or income, they would not be left financially disadvantaged by a crime that was forced upon them. She saw the $50 offender levy as a positive first step in achieving that vision. I respectfully agree entirely with her; I think this bill is a practical step to rebalancing the justice system and giving victims a better place in our society.

SUE MORONEY (Labour) : It is my pleasure to rise to speak to the second reading of the Sentencing (Offender Levy) Amendment Bill. Labour is supporting this bill, but it is not wholehearted support because we think the bill will make a real difference. We support it because it is not really worth our while opposing. Members have already heard from my colleagues that if we felt this bill would make a real difference, there would be full, wholehearted support from members on this side of the House. But clearly there is not a lot in this bill that will support victims, unlike what Labour did when it was in Government, and I will come back to that point. In fact, I will spend much of my 10 minutes talking about the number and range of very real things that Labour did when in Government to support in a very practical sense victims and their rights.

Before I spend most of my speech reminding people about Labour’s very fine record, I say again that this bill is all for show but has no useful effect. It is like the car-crusher legislation that Parliament is also considering at the moment. That legislation will affect 10 cars a year. The offender levy of $50 will, in many instances, cost more than $50 to gather. I think that Simon Bridges is right, unfortunately, that we should not raise unrealistic expectations about the impact of this bill. He is quite right: his Government has put a bill before this House that will not have a huge impact on victims and their involvement with the justice system, but it does have a feel-good factor about it. That is what the National Government is all about, after all.

The Government will be judged on this issue. In about 2 years’ time, National will be judged on whether it has fulfilled its commitment and the impression that it gave the electorate before the last election that it would fix crime. I sincerely hope that this makes a difference to the victims of crime, because National certainly gave the impression that it would do that while in Government. National will be judged in 2 years’ time on whether it has made things better for the victims of crime, and the electorate will be quite right to judge it on that factor.

The bill is all for show and will have no useful effect, but it is not worth opposing, so we will support it. I am sure that victims of crime would rather—

Hon Simon Power: Ha, ha!

SUE MORONEY: —Simon Power might agree with this—

Hon Simon Power: It’s not worth opposing, so you’ll support it.

SUE MORONEY: Well, there is nothing in the bill. Nothing will happen as a result of it, but it is really not worth our while opposing it.

I am sure that the victims of crime would prefer to have a better response time to the crimes that they are facing while the crimes are occurring. We have heard just this week that those statistics are getting worse under this Government. Victims of crime are not having their serious crimes responded to on the same priority basis as they were responded to when Labour was in Government. Those are the factors that victims of crime will judge this Government on, and so they should. Crimes are being carried out, but the response time has gone down already under this Government. [Interruption] Phil Heatley may think that is something to be excited about, but if one is a victim of a crime and the offender is still on the premises, the victim wants a very urgent response from the police. In fact, what has been happening, I say to Mr Heatley, is that that response time has been increasing under the National Government. Mr Heatley will be judged in Whangarei on those sorts of statistics, come the next election, and so he should be.

Mr Heatley and his colleagues made a promise to the electorate at the last election that they would fix this. They promised to get better at this, but they are getting worse. Those are the sorts of things that victims of crime want fixed up. They do not want this charade of a $50 levy that is to be collected, or not, and will cost perhaps more to be collected from people who have been successfully prosecuted, and then may or may not end up alleviating the situation for victims of crime. Those are not the charades that people were asking for. What they wanted was better response times.

People wanted the police to be well resourced. At the moment the police are being completely distracted by having to find cost-cutting measures that they can offer to the Minister of Police, just so that the National Government can pay for the tax cuts that it gave to the top 3 percent of wage earners in this country. That is what our police are distracted by. I am sure that is one of the reasons why the response times to serious crimes are increasing. The police are completely distracted by looking for these cost savings.

Before I go too much further on, as I promised at the beginning of my speech, I will remind the people who are listening of what it looks like when very serious attempts are being made to address victims’ rights. These are some of the things Labour did when in Government. Labour introduced and passed the Sentencing Act in 2002, which introduced a presumption in favour of reparation and resulted in that sentence being used more frequently. I say to Mr Bridges that that is a practical result for victims. It is not the idea that victims might somehow get the results of a $50 levy, which may or may not be collected and may or may not end up being something that is a useful resource for victims, but sentencing in favour of reparations being made. That Act was passed in 2002, under Labour.

In 2002 that same Sentencing Act also recognised the potential of restorative justice processes, to make offenders more accountable to victims. Very real progress has been made. This is good, practical stuff. It has enabled the courts to take into account both financial and non-financial offers of amends made by an offender.

Labour also introduced and passed the Victims’ Rights Act in 2002—in that very same year—which extended a number of rights to victims, such as the right to information and the ability to have input into sentencing decisions through victim impact statements. We have seen the impact that has had in some very recent high-profile court cases in this country. A law that was passed in 2002 continues to be put to good use, and so it should be. These are some of the actual, real, practical impacts on victims.

The problem with the bill we are presently addressing is that this $50 levy is a feel-good factor that may never ever get near the victims who really need that support. I agree with Simon Bridges on one fact, though. Well-researched evidence suggests that low-income people suffer more frequently as victims of crime than people at the higher end of our social spectrum. There is also plenty of evidence to suggest that women are more frequently victims of crime, as well. Of course we take these issues very seriously.

Again under Labour, in 2003, the Ministry of Justice launched a campaign to trace those who owed money. It spent $385,000 on advertising an 0800 number for people to call, and the establishment of new collection centres further bolstered the collection and disbursement of reparations, which had been put in place by the Sentencing Act 2002. An amount of $9 million was allocated in the 2003 Budget for this purpose. Labour also passed the Prisoners’ and Victims’ Claims Act in 2005, which ensured that the victims of inmates who had been awarded compensation could claim against that compensation.

These are very real examples of things that made a difference. The list goes on and on, and I am about only one-third of the way through it, but members can get the sense of the very real and practical things that Labour did when in Government that made a difference. Those things continue to make a very real difference.

I will be interested to see, in 2 years’ time, when the electorate gets to make its decision and cast its judgment on whether National has reduced crime, whether National has made life better for victims and whether these $50 levies come anywhere near any of the victims of crime who need this so much. It is a very important issue. I do not think that this bill goes anywhere near addressing the seriousness of it. It is an interesting attempt at window dressing, but it will not resolve the issue.

PAUL QUINN (National) : I was somewhat underwhelmed by the previous speaker, and sort of flabbergasted at the words that came out of her mouth. Clearly, during the deliberations on the Sentencing (Offender Levy) Amendment Bill in the Justice and Electoral Committee, she was obviously completely asleep. I will read to members—

Sue Moroney: Open your eyes at the select committee, Paul. Look at the other side.

PAUL QUINN: I cannot refer to the fact that the member was not on the select committee, but now that she has raised that, I will do so. So how does the member know what she was talking about? That is the very point I was trying to make, and you have just made it for me.

Carmel Sepuloni: I raise a point of order, Mr Speaker. The member is bringing the Speaker into the debate.

The ASSISTANT SPEAKER (Eric Roy): I think the member is correct. I ask the member—

PAUL QUINN: I offer my deepest apologies. Let me read something for the benefit of the member, because she said this whole bill is derisory. I challenge her to come with me to visit Judy Ashton in Richmond. Judy Ashton fronted up to the select committee, and in a heartfelt, gut-wrenching submission she gave her full support to the bill. Here is a woman who, on 6 December 2006, lost her only daughter in a car accident, and the member is making a joke of it. I do not know where the previous speaker was coming from.

I will now comment briefly on Jacinda Ardern’s contribution to the debate. Although she did share with us some of the issues that were canvassed, typically she put her own colourful twist on things. I look forward to debating those and other issues during the Committee stage. Of course, one of the other things I look forward to debating is the Sentencing Council.

With those few words, to which I just add that the present net value of the levy means the funding for victims will be self-sustaining, I have much pleasure in supporting the second reading of this bill. Thank you.

CHARLES CHAUVEL (Labour) : My colleagues on this side of the House have already set out Labour’s position on the Sentencing (Offender Levy) Amendment Bill. I think each one of them has also noted that the establishment of the apparatus to create the sentencing offender levy will come at the expense of the proposal to establish the Sentencing Council. I will devote some time to that issue.

I think it is a tragedy that we are losing the Sentencing Council. If lawyers in the House thought seriously about this issue, they would admit to themselves that one of the things that the common law cannot deliver is certainty of outcome. The reason is that the common law is a judge-made system. It is a system where judges decide cases before them on the basis of the facts, and the facts are never the same, so perfect consistency cannot be achieved across the system in the way that, for example, the European magistracy strives to achieve. In that system judges essentially follow a set of rules. In our system we preserve a judicial discretion. I am all for the judicial discretion. It is the way in which judges manage to differentiate between different cases and, hopefully, try to deliver justice on each individual occasion.

But it is worth remembering that most jurisdictions that we like to stack ourselves up against—the United Kingdom, Victoria, and New South Wales spring to mind—have brought into being councils to help standardise the practice of sentencing across their jurisdictions. I could never understand the opposition to the idea of a body that issued guidelines to judges to allow them to do just that in New Zealand. There is no danger to judicial independence in the proposal that was passed into law in the last Parliament. There would be a majority of judges on our Sentencing Council, and they would not be appointed by the executive. They would be appointed, effectively, on the nomination of the heads of bench, so we were preserving the principle of judicial independence.

We were trying to create the opportunity for some sort of central research body that the judges do not have at the moment, and that they could draw on, so that they could deliver a bit of consistency in the important work that they do, rather than relying on the ad hoc guidance that they have to rely on at the moment—some sort of arcane sentencing guideline handed down by the Court of Criminal Appeal in a case that might or might not be relevant to all the facts before them, and that might not be readily accessible to the District Court judge or the JP sitting in the court at Invercargill, Waitakere, or elsewhere. That was the aim of the Sentencing Council. It was a really good idea.

I listened to Chester Borrows, and it was obvious that he had never read the Law Commission’s report on the Sentencing Council. If someone steals a car in Hamilton, that person is more likely to go to jail than someone who steals a car in any other part of New Zealand. Members opposite, in particular, need to ask themselves how as parliamentarians we can expect our fellow citizens to have respect for the rule of law if we do not take steps to deliver equality before the law and uniform justice in this country. Why on earth should it depend on where citizens live in New Zealand as to what their fate should be when they suffer a penalty from our criminal justice system? That is what we abandon by walking away from the Sentencing Council, and that is one of the major reasons why a future Labour Government will bring it right back.

My colleague Jacinda Ardern pointed out another practical deficiency with the abolition of the Sentencing Council, and it is one demonstrated by a proposal from the Minister of Justice, who is currently in the House—that is, his very wise proposal to abolish the partial defence of provocation, prompted by the first reading of a member’s bill to that effect from my friend and colleague Lianne Dalziel. The Law Commission recommended doing exactly that—abolishing the partial defence—but it also said that it is undeniable that in many people’s minds there is a difference between a cold-blooded, calculated act of mass murder on the one hand, and a crime of passion in the moment on the other hand. The fact is that without a Sentencing Council, as many of the submissions to the Justice and Electoral Committee pointed out, there is no easy way to differentiate between those two scenarios. A sentencing guideline issued by the Sentencing Council for clarity in such cases would have done the trick. That is now not a facility that we can offer to the judiciary or, more important, to citizens who find themselves before our criminal justice system. Short of some sort of clumsy amendment to sentencing law that would in itself create all sorts of uncertainties, that is now beyond this Parliament, and that cannot be a good thing.

The final point I will make on the issue of the Sentencing Council is that I heard an unfortunate interjection from a member opposite to the effect that the Sentencing Council was simply a proposal by the previous Labour Government to give some sort of superannuation scheme to the president of the Law Commission. I do not think anyone ever hears that sort of invective from members on this side of the House about figures such as Jim Bolger or Jenny Shipley. The fact is that the Rt Hon Sir Geoffrey Palmer did more to restore respect for the rule of law in this country than any other Attorney-General, or any other person holding comparable office. More than that, after he left this place he pursued a very lucrative career in the private sector, and he could have kept doing that quite happily, but, instead, he agreed to a much less lucrative offer from the Government, to return to public service. He deserves better than the sort of heckling that we heard during one of the speeches from a member opposite who, clearly, has never been appointed to any position on merit in his life.

In summary, as Sue Moroney said, this bill is not in the league of the Sentencing Act 2002, the Victims’ Rights Act 2002, the Victims Charter, or the Pay or Stay initiative, all of which were initiatives of the previous Labour-led Government that were designed to make a difference to victims of crime. This bill is window dressing, and that is proved by the fact that the Minister of Justice has made conflicting claims about the amount of money it will gather in. There was one claim that it would bring in $5 million in the first year, and there was another claim that it would bring in something like $12 million over 4 years.

It would be much better to see the Government making reparation automatic, so that when an order was made by the court a victim did not have to go through the process of suing, of taking his or her own legal action to try to get the sort of compensation that the court ordered for the victim. It would be much better to see members opposite not running down the accident compensation system, so that the vital services provided to victims by that programme were not at risk. If this Government were serious about victims’ rights, we would see more of those sorts of measures, rather than this sort of pathetic gesture politics.

KANWALJIT SINGH BAKSHI (National) : I stand to support the Sentencing (Offender Levy) Amendment Bill. This Government has been in power for the past 11 months, and law and order has been one of its top priorities. This bill is part of the response to the law and order priority of this Government. Victims have been suffering from the anguish of crime. Those sufferings include emotional and financial torment. Victims, and also families, suffer from the trauma of serious crimes such as murder, sexual violence, and grievous assault.

This bill will amend the Sentencing Act 2002. It provides that all offenders who have been convicted of an offence must pay an offender levy of $50, which will be imposed at the point of sentencing. It is intended to help victims with expenses such as travel to and from the court, which are not covered by the accident compensation scheme or by any alternative State assistance. This levy will be in addition to any other penalty imposed by the court.

I remember that during the submission period a submitter, Judy Ashton from Nelson, was very emotional because she had lost her daughter. The offender, a drug addict, was on parole and did not have a driver’s licence, but he was still driving. In her words that mother said: “I can see there is something being done for the victims.” People understand that this bill may be a small step, but it is a step in the right direction.

It should be noted that the Government will also introduce measures to improve the services that victims receive and that enhance victims’ rights. In other words, this bill is part of a bigger package. Thank you.

• Bill read a second time.

Hon SIMON POWER (Minister of Justice) : I move, That the Criminal Investigations (Bodily Samples) Amendment Bill be now read a second time. This legislation forms part of the range of promises and undertakings made by National prior to the last election. I want to thank the Justice and Electoral Committee for its consideration of the bill. Its hard-working members, who have been working on many pieces of legislation since November 2008, no doubt consider themselves to have set the standard for carrying a large legislative workload. Their chairman, who, when it comes to these matters, is ever-patient and bipartisan, Chester Burrows, is to be congratulated for his work in this area, as well. I am advised that the Justice and Electoral Committee received 20 submissions from interested groups and individuals in respect of this bill, and heard from six submitters. The amendments recommended by the committee clarify the intent of the bill, and I acknowledge that they improve its consistency with the broader legislative framework such as the Children, Young Persons, and Their Families Act 1989. I thank the committee for its work in that regard.

The Criminal Investigations (Bodily Samples) Amendment Bill was introduced by the Government in its first 100 days in office. Its purpose is to expand the collection and use of DNA samples to assist the police in solving more crime. The bill will allow the police to collect DNA from a person whom they intend to charge with an offence, and then match that person’s DNA profile against DNA samples from other unsolved crime scenes. As I mentioned in this bill’s first reading some time ago, a DNA profile is the modern fingerprint. Forensic crime scene investigation has progressed to the point where even small amounts of trace evidence can now produce a usable DNA profile. The current DNA databank of 100,000 profiles was the second to be established in the world, and New Zealand scientists have been at the forefront of advances in extracting DNA profiles from crime scene trace evidence.

During the Justice and Electoral Committee’s consideration of the bill, the issue of judicial oversight prior to taking a sample was raised by submitters. That reflected the concerns raised by the Attorney-General in his report to this House under section 7 of the New Zealand Bill of Rights Act 1990. In response to those concerns, I note that there are a number of measures that will minimise the intrusiveness of the powers contained in the bill and will safeguard individuals’ rights, including existing remedies under the Evidence Act 2006 and the New Zealand Bill of Rights Act. Individuals can seek exclusion of evidence where the new power is used unreasonably. If the powers are used arbitrarily and breach an individual’s civil liberties, he or she can always seek compensation. In addition, operational guidelines have been developed by the police and the Ministry of Justice to assist the police in exercising their discretion to take a sample and to avoid the arbitrary application of this power. I am advised that the guidelines are designed to target the taking of samples. This means that those offenders who meet the criteria set out in the guidelines will be those who have a significantly higher chance of being responsible for unsolved crimes on the DNA profile database.

The Justice and Electoral Committee made a number of useful amendments to the bill, particularly around improving the process for taking a DNA sample from a young person, and I am grateful for that work. One of the changes is to limit the range of offences for which a sample can be taken from a young person to the more serious relevant offences specified in the Act. That will ensure that only the most serious young offenders are subject to this law. In addition, the criteria for taking a DNA sample from a young person have been significantly simplified. The committee concluded that the criteria for taking samples from young people repeated the protections that already exist in the Children, Young Persons, and Their Families Act, specifically in section 208. As such, the bill has been amended to provide that section 208 of the Children, Young Persons, and Their Families Act will apply and provide adequate protection for young people in custody.

The committee also amended the bill to prevent a DNA sample from being retained if a youth is discharged without conviction. This aligns with the process for the retention of DNA samples for adults. Another very important amendment was to protect a young person’s entitlement to have an adult present when a DNA sample is taken. This amendment aligns the process with the regime currently in place for young people being interviewed by the police.

The first priority of this Government in the justice portfolio has been to improve public safety. This bill contributes to that goal by giving the police the tools to resolve more crime and catch more offenders. It accompanies other important law enforcement initiatives, such as the Gangs and Organised Crime Bill, the Search and Surveillance Bill, the recently passed Criminal Proceeds (Recovery) Act 2009, and the hopefully soon-to-be-passed Anti-Money Laundering and Countering Financing of Terrorism Bill. This is one of the many steps this Government has swiftly taken following the election to fulfil its promises to the public of New Zealand. I commend the bill to the House.

JACINDA ARDERN (Labour) : I am pleased to take a call on the Criminal Investigations (Bodily Samples) Amendment Bill. The Minister of Justice, Simon Power, is right to point out that the Justice and Electoral Committee has been busy. The bill was quite technical when it came to its consideration by the select committee. I thank the officials who serviced the committee during its consideration of the bill. We required some guidance on some of the technical aspects, and we also received some very useful initial briefings from the Institute of Environmental Science and Research, which will be implicated directly with a heavy increase in its workload as a consequence of the changes this bill will make.

This bill makes considerable changes. I will reflect, though, on something that was discussed in the first reading debate of the bill, and, to a certain extent, during the select committee consideration. That issue is whether DNA is comparable to a fingerprint. Is it fair and right to call DNA the modern fingerprint? I think it is right that we insert a little bit of scientific reality into this discussion. The DNA collection that we are talking about, as opposed to fingerprint collection, is a much more intrusive and invasive procedure. Historically, it has been; the modernising of the process has reduced that somewhat. But because DNA links far beyond an individual fingerprint, and even has the ability to link into family and relatives, it is a broadening, in a sense. I know that my colleague Moana Mackey will have much to say on this particular matter from her scientific background.

I will go on to the substantive parts of the bill. For the Labour members of the committee, the most significant issue in the bill was the broadening of the definition of when DNA collection can be made. As it stands, the criteria for DNA collection depend on the severity of the offence, and collection applies at the point that a charge has been laid against a potential offender. This bill changes that considerably. It will allow DNA collection by the police without judicial approval at the point that they intend to charge, and it broadens the range of offences for which DNA collection can take place.

In the commentary on the bill, the Government has given the reason for judicial oversight not being included, and it is a matter of convenience. That is something that ultimately has to be weighed against the other consideration in this House, and that is the balance of someone’s individual freedoms and rights. Of course, DNA collection is a crime-fighting tool. Taken to the extreme, on one end of the scale we could take everyone’s DNA sample at birth. It could be recorded and documented, and then at any point when someone committed a crime, we could cross-check against that database. That is the extreme.

Simon Bridges: I like that. I like that.

JACINDA ARDERN: Simon Bridges seems quite intrigued and seems to like that. Perhaps only a limitation of resources is stopping the Government from going down that track. But I think—I would hope—that we accept in this House that doing that would counter the personal freedoms that individuals have. At the other extreme of the scale, people have the right to protect themselves from any kind of invasive search or seizure, or any intrusion of that kind from the State. We need to find the balance between those two extremes.

At the moment I am concerned that the bill as it currently stands does not have the checks and balances that could improve it considerably. I point out that as is stated in the commentary on the bill: “New Zealand Labour members of the committee, having carefully considered the Attorney-General’s report to the House on the inconsistency with the New Zealand Bill of Rights Act 1990, felt strongly”—and continue to feel strongly—“that there should be an amendment. The amendment should provide for some form of judicial oversight when Police take a DNA sample. We do not think that there would be problems with the availability of Justices of the Peace after hours as predicted by officials. For example there does not appear to be a problem in gaining after-hours search warrants. [Therefore,] Labour members intend to table an amendment to this effect in the committee stage of the bill.” I do not think this will come as a surprise to Government members, particularly given that when this bill was introduced, the Attorney-General pointed out that this was also an issue from his perspective. We intend to table that Supplementary Order Paper in the name of Charles Chauvel.

I will reflect on some of the other issues that the select committee discussed at great length. The Minister quite rightly pointed out that the committee gave great consideration to the taking of bodily samples from young offenders. Again, I acknowledge the role that the chair played in navigating us through that discussion so well. There was discussion over what kinds of checks and balances should be in place for young people from whom bodily samples are required—and when I say “young”, that includes people under the age of 17—because they will be captured by the intention-to-charge extension that I discussed earlier. The select committee decided that the most robust way to ensure not only that a sample taken from a young person falls within the criteria but also that protections would be provided for that young person would be to mirror the provisions contained under the care and protection legislation that we already have. That sets out the criteria for a young person to choose an advocate to sit in while a sample is taken. The committee did not want young people to be unnecessarily incarcerated for longer than was required if, for instance, they named a person who was unable to be contacted by the police, with the explicit intention of evading a sample being taken. In the end, I think the select committee collectively came up with a solution to ensure that that balance was struck and there is consistency—which I am a big fan of—with the existing legislation.

Another point that I will quickly reflect on is the issue of holding samples. In the version of the bill that we were first presented with, there was a staggered range of time periods for which a sample could be kept in a databank for cross-checking at the time that another crime is committed. Ultimately the aim of this bill is to ensure not only that a current crime is cleared but also that crimes committed in the past that still stay on the police books can have a chance of clearance as well. One concern that I raised in the first reading of the bill, and that I continue to have, is about the staggering of various years that have been apportioned to when samples can be kept and when samples can be disposed of. It will be quite a technical and potentially bureaucratic process. I think it is important, though, that we continue to maintain oversight to ensure that the time at which a sample is meant to be disposed of—and it ranges, under different criteria, from 7 to 10 years—is abided by, particularly because these samples are cross-checked again. If people have not offended within a particular period of time and have not come back through the criminal justice system, then a clean slate provision applies to their sample. We must ensure, despite the fact that it will be quite a technical and difficult thing for the Institute of Environmental and Scientific Research to manage, that that continues to happen, and we should keep oversight of that.

There is much more in this bill that I am very interested in debating later on. I look forward to having a greater opportunity to delve into the detail of many more technical provisions—in particular, those that refer to young people—as this bill proceeds through the House.

PAUL QUINN (National) : I say that this Criminal Investigations (Bodily Samples) Amendment Bill is about nothing more than the modern-day fingerprint. It drags our identification systems into the 21st century so that we can go forward with confidence. I look forward to debating vigorously with my colleagues from the other side of the House, who, I must say, contributed strongly during the Justice and Electoral Committee’s deliberations, under the superb chairmanship of my friend and colleague Chester Borrows, and with outstanding contributions from Mr Bakshi and Simon Bridges. We look forward to having a vigorous debate during the Committee stage. With those few comments, I recommend this bill back to the House.

CARMEL SEPULONI (Labour) : I say from the outset that Labour will be supporting the Criminal Investigations (Bodily Samples) Bill, but this support does not come without a number of concerns. I guess that at this stage our approach towards much of the National Government’s legislation is: “Oh well, it doesn’t help, but it doesn’t seem to harm too much, either. So I guess we can support it.”

Our No. 1 concern at this stage would be that all of this Government’s justice and law and order legislation shows a very narrow-minded approach towards law and order. This Government chooses to put the focus entirely on the ambulance at the bottom of the cliff, rather than on an attempt in any way to build a gate at the top of the cliff. That is our concern, and it is the concern that many members of the public and the many people working in justice and law and order areas have, as well. They are concerned that all we are going to do is deal with the people who are committing crime, rather than do anything about preventing those crimes from occurring. That is probably the No. 1 concern of members on this side of the House.

Before discussing the contents of the bill before us, it is important that it is put into context with regard to the legislative amendments made by the previous Labour Government to significantly extend DNA testing. All too often in matters pertaining to law and order, this Government has attempted to create the perception that it is starting from scratch, when this is simply not the case. Labour has undertaken the groundwork. Therefore, to contextualise the proposed amendments, we need to look at the base that this Government is starting from.

In 2003 Labour passed legislation to amend the Criminal Investigations (Bodily Samples) Act, which significantly increased the scope for the DNA testing of suspects. Under that Act, burglary suspects can be compelled to provide a DNA sample, including in circumstances where a crime scene sample is matched with a known offender’s DNA profile held on the police databank. Prior to that legislation, crime scene samples could not be used in evidence unless a fresh DNA sample was taken, and an alleged offender could refuse to give that sample. Under the 2003 legislation, which was, I say again, passed by the previous Labour Government, the offences for which someone may be compelled to give a sample have been significantly extended to cover crimes punishable by at least 7 years’ jail—such as motor vehicle conversion and some offences of receiving stolen goods, or any attempt or conspiracy to commit such a crime.

Under that same legislation, DNA samples can be obtained by compulsion from prison inmates who were convicted of serious offences prior to the commencement of the Criminal Investigations (Bodily Samples) Act 1995. The police no longer need a court order to obtain a sample from a convicted person. However, a judicial hearing can be requested by people who believe that they are not liable to provide such a sample. Buccal, or mouth swabs, which are cheaper, less invasive, and just as accurate as blood samples, can now be given as an alternative.

Another significant part of Labour’s Criminal Investigations (Bodily Samples) Act of 2003 is the ability to obtain DNA samples from inmates currently in prison, who were convicted prior to 12 August 1996, when DNA testing was first introduced. Adding those inmates’ DNA profiles to the databank was intended to help police solve some historic cases. Prior to these amendments, the legislation gave authorisation to seek a compulsion order only, to obtain DNA samples for the police database from a person already convicted of burglary. This led to the ridiculous situation that when police found DNA material at the burglary scene and matched it to a profile on the databank, they were prohibited from using that match in criminal proceedings against the suspect. Now that we have contextualised the legislation that is before us, let us move on to the stated purpose of this bill.

The bill before us, the Criminal Investigations (Bodily Samples) Amendment Bill, will generally allow DNA to be collected by police without prior judicial approval at the point when they intend to charge a person for a wider range of offences, and to allow the DNA profile to be matched against other unsolved crime scene samples prior to the person’s conviction or acquittal. The bill aims to recognise DNA as the modern-day fingerprint to assist the police to solve more crime by having more identified DNA profiles to match against the increasing number of DNA samples obtained from unsolved crime scenes. The stated purpose might seem reasonable, but a number of concerns have been raised by submitters, by us, and by members of the public.

Labour agrees that DNA profiling is an essential investigative tool in mainstream policing. That is why Labour has already amended legislation to significantly extend DNA testing. Labour is not opposed to a further extension of DNA testing, but is unclear whether this legislation will have a significant impact on serious crime, considering the changes Labour already made when in Government. Labour members are concerned that National is proposing to test all those arrested, not just those charged, with the reality being that a large proportion of the people who are arrested are not charged. This means that under National’s proposed system many tests would be thrown out, resulting in a poor use of money and police resources. Considering the rigmaroles this country has been put through by this National Government in respect of cuts to what Labour deems essential services, projects, programmes, initiatives, and incentives, we find it difficult to comprehend that the Government would be willing to waste money on something such as this. When I talk about cuts, I am talking about things like cuts to adult and community education, the Gifted Kids Programme, the training incentive allowance, police vehicles and resourcing, overseas development assistance, Māori and Pacific scholarships—the list goes on and on. Yet National will implement this legislation in the knowledge that a number of the samples taken will be a waste of time and will be thrown away, which results in a poor use of policing resources and funding.

The Attorney-General has reported inconsistencies with the New Zealand Bill of Rights Act. Christopher Finlayson said the DNA plan appears to be inconsistent with the rights against unreasonable search and seizure under the Bill of Rights, because it would give police the power to take DNA from those whom they intend to charge with an imprisonable offence without the safeguard of judicial or other independent approval. Mr Finlayson said such safeguards were required in jurisdictions that used a comparable DNA scheme, including New South Wales, Victoria, Canada, the United States, Germany, Japan, and the Netherlands. He said he could not see any special circumstances in New Zealand to justify not having statutory safeguards.

The Human Rights Commission has expressed concerns that the proposed changes go too far. The criminal bill allows police to take DNA from anyone charged with an imprisonable offence, whereas the current law has a much higher threshold for serious offences punishable by more than 7 years in prison. The Human Rights Commission says that the bill infringes the right to freedom from unreasonable search and seizure. It also increases the possibility of discrimination on the grounds of race and family status, and impacts disproportionately on youth.

That was from the Human Rights Commission, and we have heard from the Attorney-General. The Privacy Commissioner has now expressed concerns that the changes proposed jeopardise the value of the existing criminal DNA databank in detective and preventive crime by undermining public trust in the police and the Government. The commissioner says that if police were able to take DNA from a wider range of people, there should be oversights through an independent committee of additional audit powers, and she wants the bill’s recommendation for samples for all imprisonable offences dropped, as well as the bid to retain samples for longer than 2 years after a suspect has been cleared.

Treasury has stated that it views the regulatory impact statement for this legislation as being inadequate for a number of reasons, including a lack of clarity around the nature of the problems with the current DNA testing regime, along with anecdotal and empirical evidence to support these reasons. The next reason Treasury gives for the legislation being inadequate is the limited analysis of the impacts of the option. The analysis of costs is partial; for example, only aggregate first-year costs are estimated, and capital costs are excluded. There is no assessment of risk, such as risks related to implementation, and how these might be mitigated. We do not know the costs involved or the risks.

It seems very negligent that a Government that has spoken so often on the fact that we are in the middle of a recession, or that we need some fiscal restraint, would go into something that it has not fully costed out. But that is exactly what this Government has done. I have expressed Labour members’ concerns. We will support this bill, but we will be making recommendations in respect of the submissions made and the advice received from various people across the different advisory groups, including the Human Rights Commission.

SIMON BRIDGES (National—Tauranga) : DNA is potentially a very powerful tool in the toolbox for police and the justice sector. To pick up on something that some of the other members speaking on this have said, DNA is an extraordinarily powerful fact of life and piece of technology that has developed hugely over the years. In going back not so long ago, it would take a large blob of blood, semen, spit, or some other bodily fluid—at least a good 50c piece—before DNA could be traceable. Today, with the advances in technology, trace DNA can be picked up invisible to the human eye, and so small that it cannot be detected in any form. From that, human DNA can be used in court. The power of this technology is amazing.

At a broad-brush level, the Criminal Investigations (Bodily Samples) Amendment Bill is very simple. I accept that there is detail about the point at which people’s DNA may be taken kicks in. A morass of detail is needed in legislation like this, but, at its base, we have here an expansion of a database to suitable persons’ DNA so that more crime will be solved, and that is a very good thing.

In reference to the last bill dealt with in this House, where victims’ rights were put more centre stage in the criminal justice system, here we have a bill that will result in more crime being solved, which means more victims vindicated, able to move on with their lives, and ultimately, in fact, fewer victims as more crime is solved.

But I take seriously the point that Jacinda Ardern has made, in that there is a balance here to be struck. There is a spectrum. At one end, we could simply test every newborn child; no one would reasonably advocate that. There needs to be a way to whittle it down to suitable persons, and we have done that in this bill. Have we struck the right balance in this bill? I think we absolutely have. Philosophically and practically, what could the concerns possibly be? Theoretically, I suppose, there is a privacy concern. There is a certain intrusiveness. But the means by which DNA can be taken are much less intrusive than they have been. It is a mere minor inconvenience with a swab. I think that is very light, indeed. It is a minor inconvenience. I accept, of course, there is then the keeping of the DNA profile. But let us be very clear about that. It is only in the cases where people have been convicted, ultimately for long-term use. There are strict, specific provisions in the bill in relation to the use and storage of the DNA.

Another concern that could be thrown up is a slight—and I say this is a theoretical concern, because I think it simply is that—increase in wrongful convictions, which is theoretically possible. In fact, I think that is quite far-fetched. More accused who would otherwise have been in the frame for crime will, in fact, be excluded through this technology. They will be excluded and there will be more rightful convictions. We have high-profile examples of the ultimate exclusion following wrongful convictions of people through the powerful use of DNA. One example is David Dougherty in New Zealand. I was young, even younger than I am today, at the time, but if my memory serves me correctly he was convicted for serious crimes and served time in jail. It was only through advances in DNA that he was freed. Every member of this House will be aware of the very large number of cases of, basically, only men—I think a small number of women, but a lot of men—on death row in the United States who have had convictions overturned through the use of technology and DNA, as we have caught up.

So it may sound a bit glib, but I do think there is a sense with this bill that if one is innocent, one has nothing to fear. There may be some minor inconvenience but this is a very strong tool in the toolbox that we are giving police and our justice system for all the right reasons. I commend this bill to the House.

MOANA MACKEY (Labour) : I am very pleased to be able to take a call on the Criminal Investigations (Bodily Samples) Amendment Bill. I do this from the perspective of someone who has done DNA analysis. With the greatest of respect to the speaker who has just resumed his seat, Simon Bridges, some of the concerns that I have and that I hope can be sorted out were ones he highlighted absolutely for me.

Simon Bridges: So you’re not voting for it?

MOANA MACKEY: No, we are voting for the bill, but in this Parliament we are allowed to talk about the bits we are concerned about. We do have a Committee stage where, theoretically, we can make changes and where a democratic vote is taken.

Simon Bridges: But on balance you think it’s pretty good?

MOANA MACKEY: If Mr Bridges would listen, I will tell him what my concerns are, as someone who has done DNA analysis and knows the shortcomings.

The fact is that we need to remember that DNA profiling should never ever be confused with full genome sequencing. A lot of people have talked about the genetic fingerprint, and that is absolutely accurate. But the fact is we test about 0.001 percent of the DNA profile when we do this. We do that for many reasons. One reason is that it would be impractical and expensive to test the whole genome, and, also, we can get very, very good and accurate results from the testing we do. But it is not foolproof, and we need to understand that. When members talk about a genetic fingerprint, they need to understand that when we take a fingerprint we take the whole fingerprint. When we do a DNA profile we test a very small number of loci; we do not test the entire genome.

This concerns me, because there is a scientific aura that exists around DNA that it is foolproof and incontrovertible, and jurors hold that perception. I think that it needs to be explained to jurors that it is not foolproof and that there is error. We would not find a single DNA scientist who would say that it is 100 percent accurate. The problem is when we have a technology that has such a powerful reputation the possibility of miscarriages of justice is introduced. We have had them with this technology. They are small, but we have had them. I think there are things we can do to make sure that that does not become a huge problem, but they do need to be done. We are supporting this bill, but that needs to be absolutely understood if this bill is not to create problems that could be avoided.

The member also said that it is not intrusive. Well, the intrusiveness comes not just from having a finger prick or a mouth swab, but also from the fact that our DNA can say an awful lot about us. It is very private information that can reveal things about our potential health in the future, and some people might consider that intrusive. I think we need to look at it in that light, as well. It may be being used for only identification purposes, but it has a potential to be used for a lot more, particularly as the technology improves.

There is a potential for abuse. It is interesting to note that in the United States, because criminals know that the technology is so powerful and that DNA technology is likely to convict them if it is found at a crime scene, they are planting other people’s DNA. This is very easy to do. If I were to shake hands with the member who has just taken his seat and then touch a glass, his DNA would end up on that glass. Criminals are not unaware of this. They will go to whatever length they can to frame someone else. In America there are actual cases where they have found criminals planting DNA, and not just that. There was a very famous case of a doctor who, accused of raping a patient under sedation, put a false vein in his arm so that he gave a blood sample that was not his.

The other issue that concerns me is that DNA can be fabricated now. Any person with a basic biology degree can do this. It is not difficult. DNA can be fabricated, and when it is put into a body one cannot tell it from the host DNA. These technologies are out there.

These are not reasons to vote against this bill, but they are things we need to be aware of if we are to make sure that we can control the powers that are being given here. They are substantial. This is an enormous extension of what already exists in the DNA databank. If we are to make sure that we can cut off every area of abuse, we need to be aware that there are a lot of people out there who are finding ways to get around these DNA databanks and to get around DNA analysis. It is for that reason that I raise it.

We have only to look at the history of DNA analysis itself to see how fast the technology is moving. We need to ensure that this legislation remains relevant, regardless of where that technology goes. We have moved from what would be considered very time-consuming restriction fragment length polymorphism analysis, which then did Southern blots, which took a lot of time, to having polymerase chain reaction and short tandem repeat processes now, which are very, very quick. We can take very, very small samples of DNA, and use the DNA’s ability to replicate itself to create much larger amounts of it, which means that we are able to take smaller and smaller samples and get better and better results. Work is being done on Y chromosome analysis, which will go in a completely different direction, and there is mitochondrial DNA.

We need to make sure that this legislation is relevant to all those types of DNA analyses and anything in the future that may come of it. In fact, it has already been used in New Zealand. It is not admissible in court, but work has been done where a DNA sample taken from a relative, such as a woman’s Pap smear samples, is used to identify criminals within her family. It is not admissible in court, but I doubt it will be very long before technologies like that are able to be used. They are very powerful technologies, but, again, technologies that are not foolproof. We need to acknowledge that in this House today.

I quote from Professor Ian Shaw, who runs the forensic science unit at the University of Central Lancashire, who pointed out that the more samples we get, the greater the chance that we will find two samples that look the same but are not actually from the same person. That is a risk. The more samples we are taking, the more we are testing. It is a very, very small chance, but it does increase the likelihood that we will get a sample that could inaccurately finger someone for a crime that he or she did not commit. Again, that is something that we need to be aware of if we want to make sure that this bill does not end up with serious unintended consequences.

Then I come to the Institute of Environmental Science and Research, and my real, big concern is that the funding has to go with this piece of legislation. We are talking about an enormous increase in work for the Institute of Environmental Science and Research. It will be an enormous increase in DNA analyses, which is why the bill is being staggered to allow that to happen. The funding has to go in to make sure that the process is rigorous. It has to be more than just funding for extra DNA tests. It has to be more than just saying what the cost of doing a DNA test is, and then paying X thousand dollars more for that. There has to be extra money, in particular, for chain of custody control. If anything goes wrong in the chain of custody—the sample going from the police to the Institute of Environmental Science and Research, where it will be logged, then going to an analyst on the bench, the results being logged against that sample ID, and then that going back to the courts or the police for the conviction—the whole thing falls apart. I have worked in laboratories that have underfunded the administrative side of the process and the chain of custody. A laboratory might as well not be run if we cannot put every single sample accurately through the process and have confidence that there is no chance of a mix-up or contamination. Although I understand that money will be put into extra DNA analysis, my plea to the Minister of Justice is not to forget the very, very important administrative side, which is the chain of custody.

That brings me to the issue of judicial oversight. This is incredibly, incredibly important, because if we are going to use this technology more extensively, we need to ensure that the process of taking the sample and putting it through the laboratory can be tested in court. People who are facing a lifetime in prison for crimes they say they did not commit—they may believe that there was foul play, which is unlikely, or a stuff-up, which is more likely—must be able to challenge not just the results but the process of the storage and testing of samples. I quote the Hon Justice Michael Kirby, who, in a speech he gave in Australia, said it is crucial “That effective procedures are afforded to guarantee against contamination of DNA samples. The planting of evidence … has been a distinct problem for the criminal justice system in the past.”—and we are fooling ourselves if we think that it has not been—“Given the likely devastating power of DNA evidence, it becomes doubly important to ensure the integrity of collection of samples and their transmission, storage, testing, reportage and preservation for the scrutiny of independent experts and, ultimately if need be, by the courts.” I could not agree more.

I implore the Government to consider seriously the Supplementary Order Paper we will be putting up in the Committee stage. We cannot consider this kind of legislation if the people who are likely to be impacted by it are not given the right to challenge the process. As I said before, we are fooling ourselves if we think that miscarriages of justice do not happen. This is an incredibly powerful technology, but its powerfulness in the minds of the people—and, in particular, the minds of jurors—is far more than its actual power. We have to get this right, otherwise we will see miscarriages of justice.

KANWALJIT SINGH BAKSHI (National) : I stand to support the Criminal Investigations (Bodily Samples) Amendment Bill. Improving law and order in New Zealand is a critical priority for the National-led Government. Our actions over the past 11 months have reflected that priority. We share New Zealanders’ concerns about the growing levels of violent crime. We are determined to make our communities safer, to promote the security of law-abiding New Zealanders, to improve public safety, and to ensure that there are appropriate consequences for offenders.

In its first 100 days the National-led Government introduced legislation to expand DNA sampling of suspects and to match samples taken at crime scenes against profiles in order to help resolve hundreds of cases that might otherwise have gone cold. DNA is a 21st century fingerprint. DNA profiling is an invaluable tool for identifying and catching criminals. The Government believes that DNA samples should be taken in a wider range of circumstances. Our rationale for this is simple: if we use DNA profiling to catch and punish criminals earlier, we will prevent them from creating more victims. This bill is a key component of the Government’s law and order package. We are firmly focused on creating safer homes, streets, and neighbourhoods for all New Zealanders.

DNA carries a unique genetic code for individuals. Current technology allows bodily samples like blood, saliva, and semen to be processed and reassembled in the form of a barcode that can be matched with other samples taken from crime scenes. This procedure is an important investigative tool, resulting in virtually conclusive proof of identity. It may be used to pinpoint an offender as well as to clear an innocent suspect. The bill allows police to collect DNA from a person they intend to charge with an offence and, prior to that person’s conviction or acquittal, match the person’s DNA against profile samples from the scenes of other unsolved crimes.

In conclusion, the measures proposed in this bill will subsequently increase the size of the DNA profile databank. The increased size of the databank will aid criminal investigation by linking offenders in the databank both to the scenes of unsolved crimes and, potentially, to scenes of future crimes. DNA’s role in solving more crimes and identifying more offenders will, in turn, contribute to increased public safety and public confidence in the justice system. Thank you.

Hon CLAYTON COSGROVE (Labour—Waimakariri) : I will make a couple of brief comments in respect of the Criminal Investigations (Bodily Samples) Amendment Bill and correct something that Mr Bridges said. Any time members of the Opposition raise points of conjecture or points in this bill that we believe need to be examined, someone from the Government—and I do not include Mr Borrows in this, as I sat on the Justice and Electoral Committee as he chaired it through consideration of the bill and I think he did an admirable job—always pops his or her head up and says that we are not supporting the bill. Well, as my colleague Moana Mackey has said, we are supporting it, but we have an obligation, as Her Majesty’s loyal Opposition, to raise issues of concern. This is the debating chamber in which this legislation should be rigorously examined and, hopefully, with the contribution of many members, improved. It is our job as a Parliament to control the quality of this sort of legislation.

I, for one, have had the privilege of seeing the police use this technology on a number of occasions, and I support its use. Members who have said that this modern technology is another tool in the police’s tool box are right. It provides huge advantages. Before I rose to speak I was speaking with my colleague Moana Mackey about the David Dougherty case. As I understand it, that is in essence an example of technology freeing an innocent person. Had it not been for that technology, who knows what the consequences would have been in respect of Mr Dougherty’s life? Equally, looking at historical technologies we can recall the case of Arthur Allan Thomas, where evidence was planted using, shall we say, different technology from the contemporary one we are discussing now.

Although Labour members support the bill and think it is essential—it will aid policing and the uncovering of crime—my colleague and others have raised some concerns in respect of, for instance, judicial oversight. It is a basic principle that there need to be some substantial safeguards. My colleague has already referred to criminal elements that are technologically literate; we fool ourselves today if we do not believe they exist. With respect, it is a little bit like the accountancy profession, which is charged with finding new loopholes, and likewise the legal profession in legislation. They do that legally, of course. The criminal profession is adequately resourced to discover loopholes in legislation designed to prevent criminal activity—and by loophole, in this context, I mean illegality.

My colleague and others have said that there is some evidence to suggest that criminal elements are using and planting DNA evidence. That is a concern and a worry, and it raises the spectre that this technology has to be used with a high degree of quality and quality assurance. For that reason, we are proposing that there be substantial judicial oversight. I heard some arguments against that in terms of ability to obtain access and warrants—officials said that police could lack access to justices of the peace when trying to gain authorisation to do certain tasks permitted within this legislation. As one who had an oversight with justices of the peace and who administered their appointments, I know that we are flooded with them. I do not think I received complaints from the police or others that they could not access justices of the peace in the execution of after-hours search warrants. We simply put the case up that although we support this legislation, we feel that there need to be a couple of safeguards, and those safeguards need to be tightened up. People like Mr Bridges make glib comments every time this side raises some concerns in a genuine way; he tries to perpetuate some myth that we are not supporting it, because we have the audacity to raise some concerns. But far from that, we raise our concerns in a legitimate way and we will be putting forward proposals that we believe will strengthen the legislation.

I must say that when listening to some of the submitters, the counterfactual prevailed and a number of conspiracy theories were put forward to the committee. From a personal point of view, I was less than impressed with the Human Rights Commissioner’s submission. I was more impressed with the Privacy Commissioner’s submission. I think those of us who heard the Human Rights Commissioner’s submission on what potentially could happen and what had allegedly happened around the world found that, to put it bluntly, very little substantiated evidence was put to the committee about some of the conspiracy theories in those submissions. My colleague Moana Mackey made some very good points based on scientific knowledge and evidence rather than simply conjecture. I hope—if there is anyone from the Human Rights Commission listening—they might clean up their act a little bit in respect of that—

Hon David Carter: Listening? They’ve turned off by now

Hon CLAYTON COSGROVE: Possibly. They certainly will if that member rises to his feet and makes some sort of utterance.

We support this bill. I note Treasury’s input in terms of the regulatory impact statement. It said it was inadequate for a number of reasons, including “a lack of clarity around the nature of problems with the current DNA testing regime along with evidence (anecdotal and empirical) to support these;”. I also note that Treasury gave other reasons for the legislation being inadequate. There was “limited analysis of the impacts of the options. The analysis of costs is partial, e.g. only aggregate first year costs are estimated and capital costs are excluded; and there is no assessment of risks, such as risks related to implementation and how these will be mitigated;”. We do not know the costs involved, and in this legislation we do not have a real and viable assessment and analysis of the risks. I think that falls short of Mr Hide’s role as the regulatory slayer who would cut all the red tape, as the regulatory tsar of this Parliament who said he would examine with a fine-tooth comb and microscope every piece of legislation to ensure that it was up to scratch. Again a bill is going through this House where Mr Hide has been asleep at the wheel—he collects the Queen’s shilling but does not do the job—and another regulatory impact statement that is not up to the mark is sliding on through.

With those comments, and reinforcing the comments that Moana Mackey and others made from a technical and scientific point of view, I say that we will support this bill. I congratulate the chair of the select committee on his conduct, and members of the committee on putting this bill through. Certainly the debate and submissions that I listened to were generally very forthright and informative. I think that if amendments are accepted and looked at in a bipartisan way, we can tighten up this bill. We could provide some safety and alleviate some of the concerns that a number in our community have. They are not just people whom some Government members may characterise as hand-wringers or do-gooders; they have genuine, heartfelt concerns and want to see the bad guys apprehended. Where there is a miscarriage of justice, like with Mr Dougherty, this technology can be used to free people who are innocent. They are not hand-wringing do-gooders who are simply obsessed with the civil liberties argument; they have heartfelt concerns and want to see appropriate safeguards in this legislation so that it can be even more effective than the technology is today. With those thoughts, I commend the bill to the House.

CHESTER BORROWS (National—Whanganui) : It is a pleasure to stand in support of the Criminal Investigations (Bodily Samples) Amendment Bill. I commend the work of the Justice and Electoral Committee and the goodwill that was exchanged across the table. We all learnt a heck of a lot more about DNA than we realised there was for us to learn in such a short space of time. I also commend the way the matter was debated around the table. I think it is important to note that what lies behind this is safety. The reason why the National Party introduced into its policy that we would remove a sample of DNA from everybody arrested for an imprisonable offence was safety. Those offenders who go on to commit crimes, especially heinous crimes—the rapes, murders, home invasions, and the serious assaults—against the person generally started off their offending at low-level Summary Offences Act offences. If we were in a position to identify their DNA very early in the piece, by the time they got down the track to committing those more serious crimes, for instance, we would have them on DNA left at the scene of the crime.

I think we have to say, not to anyone in particular, that generally it is about the victims, stupid. So often these days we can get carried along on a wave that is looking at rights and freedoms without ever caring about, or paying any cognisance at all of, the responsibilities of living in a civilised society. Although we enjoy rights and freedoms in this society, we have to acknowledge that they come with a responsibility. The first responsibility of a Government is to protect the public. There has been strong, stringent judicial oversight of the DNA-securing process in the past. That is because the technology used in the past always required a blood sample to be taken. That is why it was seen as such an intrusion into somebody’s person and there needed to be a judicial warrant to do that.

Under this legislation, the DNA swab is taken by the alleged offender by taking a Q-tips cotton swab and putting it inside his or her cheek, taking it out, and handing it to the waiting police officer. No one has the sample taken by somebody else and no one is held down to have the sample taken by force. In actual fact, it is taken by the alleged offenders themselves with their own cheek swab—it is as intrusive as that. So there is no need for judicial oversight in respect of DNA swabs taken in that way as there has been before.

Another thing we need to bear in mind is that DNA exculpates as well as implicates. The previous speaker, the Hon Clayton Cosgrove, mentioned David Dougherty and how he was exculpated for a rape he had been convicted for. There are numerous other suspects who are removed from an inquiry with the use of DNA. We have to bear that in mind, and that is a very strong point.

I want to pick up on some of the points made by some of the other speakers. A previous speaker, Carmel Sepuloni, said that a large number of those arrested are not charged, but that is not true. I suggest that probably less than 1 percent of those who are arrested are never charged. They go in front of a court, charges may be withdrawn at a later time, and in that situation, if all the charges are withdrawn, the DNA sample would also be disposed of. That is true, but it would be disposed of before the identifying stage. It would not be taken and sent away, then identified, profiled, logged on a database, and then there is not a conviction or the charges are withdrawn. There is very little administrative cost in holding that sample until the conviction is entered.

Another point contained within the legislation is that the DNA sample is activated by charging. That means that the DNA sample of somebody who was arrested and taken before the court and later diverted, after a guilty plea for instance, would be retained. The sample is kept on charging, and that is a significant thing to remember. There is not a lot of administrative cost in doing what we are doing up until the point of conviction, in any event, because it is only after that that the DNA is profiled.

The previous speaker, Jacinda Ardern, said that DNA was not the modern fingerprint, because it has the ability to give a lot more information than, for instance, a fingerprint can; it does more than just identify the person, and that is correct. But I also pick up on the point that Moana Mackey made: although there are several hundred identifiers with any sample of DNA, under this profiling only about 16 points are identified, and they are not points that go to hereditary identifiers and those sorts of identifiers.

Moana Mackey: How do you know?

CHESTER BORROWS: Because that was the evidence that we heard before the select committee.

It is also important to note that, yes, as Moana Mackey said, DNA can be manufactured. However, in all likelihood, and I am sure she would agree, although it is something that could be done—and it is always something that we cannot discount, because a scientist would never discount anything—the chances of that happening are very unlikely. If DNA is going to be placed within a crime scene, it is probably going to be somebody else’s bodily sample; semen, blood, saliva, or some other DNA-carrying substance would be left at the scene rather than manufactured DNA.

It is a cliché to go on talking about tools and tool boxes. DNA, and recovering DNA at this level, means that there will be fewer victims created in the future. Offenders who would go on to commit serious offences in the future will be identified a lot earlier, because DNA will be held from the Summary Offences Act offences they commit at a very, very early stage in their criminal offending. Over this year the Government has very proudly brought before this Parliament a number of measures that impact severely on victims for the better. This legislation is one of them. It is going to save more victims than probably any other single piece of legislation that we have seen before this Parliament in a very long time.

Hon SIMON POWER (Minister of Commerce) : I move, That the Insolvency Amendment Bill be now read a third time. The Insolvency Amendment Bill aims to maintain the integrity of the personal insolvency processes to maximise returns to creditors. The bill amends the Insolvency Act 2006 in three major areas: firstly, in respect of the no-asset procedure, or NAP; secondly, in respect of the insolvent gift provisions; and, thirdly, in respect of the public register provisions in the Insolvency Act.

The no-asset procedure was introduced as an alternative to bankruptcy in December 2007 as part of the Insolvency Act 2006. Debtors have to meet stringent criteria before entry is granted to that process. The bill explicitly provides that all debts that have been obtained as a result of a fraudulent act or behaviour are not discharged under the no-asset procedure process. This mirrors the bankruptcy provisions in the Act, and ensures that debtors are granted relief from pecuniary liabilities arising contractually, not from liabilities that have their origin in fraud.

The bill also contains further provisions to strengthen the official assignee’s ability to investigate possible concealment of assets in relation to a no-asset procedure debtor. For example, the official assignee will be able to extend the period of discharge from the no-asset procedure by a maximum of 25 working days, to undertake a thorough investigation of any late information or objections that are received regarding a debtor’s entry to the no-asset procedure process.

With regard to the insolvent gift provisions, the bill restores the longstanding presumption that a debtor is technically insolvent for a period of time before he or she files an application for formal bankruptcy. Therefore, any gifts made in the 2-year period leading up to a person’s formal bankruptcy may be cancelled. The experience of the official assignee has shown that it is within this period that most debtors shift their assets to trusts, family members, and friends, to avoid paying the debts they are responsible for.

The bill provides a so-called brightline rule regarding the treatment of insolvent gifts, which will be easily understood, administered, and enforced by the official assignee for the benefit of the creditors of the bankrupt. For example, contingent liabilities such as guarantees will now be included in the assessment of the solvency status of a debtor at the time the debtor makes a gift to a third party, such as family members and friends. Any asset or money recovered will be added to the general pool of assets and funds, for distribution to all creditors according to their pre-insolvency entitlements.

Finally, the bill makes changes to the length of time that information on no-asset procedure debtors is retained on the public register. The public registers are administered by the official assignee and are searchable online for a limited time—currently 1 year for a no-asset procedure and 7 years for bankruptcy. The bill proposes that information on no-asset procedure debtors will remain on the public register for 4 more years—a total of 5 years. Also, the details of debtors who have been through multiple insolvency processes—for example, a no-asset procedure followed by one or more bankruptcies—will be permanently retained on the public register.

There will, of course, always be debate over whether extending the no-asset procedure time period from 1 year to 5 years strikes the right balance and, in particular, whether it undermines the rehabilitative objectives of that process. There is no international consensus in terms of how long information about a personal insolvency proceeding should be kept on the public register. Australia, for example, keeps a record of all personal insolvency proceedings on the public register indefinitely and it is searchable for a fee. The State grants individuals who are discharged from a no-asset procedure the privilege of becoming debt free after only 1 year. Creditors are entitled to get something valuable in return, which is reliable information about a debtor’s previous insolvencies over a reasonable period of time as a means of ascertaining creditworthiness. This is not achieved by deleting the no-asset procedure details after 1 year, particularly in the current economic climate where the flow of credit has been negatively impacted.

Further excessive limitations on the information on the public register create a cost to the economy, because they impede prudent lending practices and increase business risks. From a public interest perspective, it is appropriate that the information is made available on the no-asset procedure and bankruptcy public registers for a longer period of time. The need to assist creditors and financiers in making high-quality business decisions is particularly important in the current economic environment where, on the one hand, the number of personal insolvencies is increasing, and, on the other hand, the credit market is contracting.

I thank the Commerce Committee for its valuable contribution to the development of this bill and the Opposition for its constructive discussions of particular aspects of it. In addition, and in particular, I thank officials for the work that has gone into drafting this legislation and for overseeing its passage through its stages up until today. I commend the Insolvency Amendment Bill to the House.

Hon LIANNE DALZIEL (Labour—Christchurch East) : I rise to support the third reading of the Insolvency Amendment Bill. I do so with a sense of disappointment, because as usual the Minister of Justice made statements in the House that he did not quite back up by working with Opposition members, even when the suggestion was made to him that it would be a good idea to work more collaboratively on some of these matters, as we did with the then Opposition when we were in Government. In the area of commerce, where there is a need to rely on rules that are appropriate to the particular circumstances, I think it is better to work together to get the rules right rather than to work in a less constructive way. So I express some disappointment in the Minister for adopting a somewhat arrogant approach, which was not really the way he behaved when he was the Opposition spokesperson.

The Opposition will support the bill because we agree with the primary provisions within it, which are to amend the no-asset procedure to prevent the discharge of fraudulent debts under the no-asset procedure, and to allow the official assignee to extend the time a person is under the no-asset procedure when late information in relation to a debtor’s entry, including valid objections, is received just prior to a debtor’s expected date of discharge. The Opposition also agrees with the provision that better protects the interests of creditors by strengthening the ability of the official assignee to cancel gifts in appropriate circumstances. I agree very much with the Government that there is a risk of people shifting their assets before moving into a no-asset procedure. That is a risk that is identified in the law in respect of bankruptcy, and it is sensible that we amend the law in this way to resolve the same issue for the no-asset procedure.

What concerned the Opposition with regard to this bill was the proposal to change the period of time that people on the no-asset procedure would remain on the public register. The House needs to understand that a very deliberate decision was made to have a very different time frame for being on the public register for a no-asset procedure because it is much more rehabilitative in its nature than bankruptcy. So it was really important for people to be on the public register for the no-asset procedure for a much shorter period than the period to be on the bankruptcy register. This bill, changing the no-asset procedure from 1 year to 5 years, actually brings that time period far too close to the bankruptcy provision of 7 years. That is the point of difference between the Opposition and the Government on that particular matter.

It is really important for the House to understand that members of the Commerce Committee quite rightly asked submitters whether they could think of particular circumstances where people had got themselves into financial circumstances where they had up to $40,000 worth of debt, where they would be applying for the no-asset procedure, and where there was not a sense of fault applying to the individual. We were all quite taken aback with the submissions we received from the citizens advice bureaus, because they really did provide to us real-life examples of people who had done everything to protect themselves against the potential for harm, financial loss, and financial ruin—certainly, in the case of one of the women who was provided as an example. We were all touched by those examples, because they were not people who needed to be punished for doing the wrong thing. They had tried to protect themselves by taking out insurance, which was challenged. The individual ended up with significant financial problems, and on a benefit, at a time when she had to meet the costs of an operation as well. People do get themselves into those circumstances, and this no-asset procedure is designed to give them a helping hand to get over those circumstances and to then get on with their lives. That is why Labour, when in Government, designed the no-asset procedure—to give people this one-off chance to get their life back on track.

I do not think it is ruined by extending it to 5 years, but I would have preferred to see the Privacy Commissioner’s compromise position of 3 years. As she said, that would be more consistent with the purposes of the procedure, and more proportionate to the period for which individuals are publicly listed following bankruptcy. I think a compelling argument was put to us.

The problem was that this bill was not before us for very long and we did not get a lot of time to look at it. In fact, I think it is ironic that we are dealing with the bill now, in October, when we had to rush it through the select committee process in order to have it reported back to the House, so it could be dealt with very quickly. It is probably a little unfortunate that we did not have time to carve off the no-asset procedure issue. I think we could have come to a better result if we had been able to carve it off and deal with it separately, and I expressed that view in the second reading.

I am not sure whether I was here for the Committee stage, but, certainly, I now re-emphasise the view that sometimes it is better to look at the motive behind the different amendments and to see whether it is essential to deal with them in one moment. I can understand why the Minister included the no-asset procedure part in the bill. When one is a busy Minister and one has a passing train, one tends to throw on an extra carriage if possible. But that particular part of the bill did not come from the same place that the other parts came from. The other parts came from detailed recommendations that had come from officials, and that had been raised as serious issues that had arisen as a result of some unintended consequences of the no-asset procedure when it was brought in. We are happy to support those recommendations.

The change to the no-asset provision came from somebody reading an article in the newspaper and deciding that it probably was not right that people were not on the public register for very long, because the credit-rating agencies were not very happy about it. Well, I do not think that is a very good basis for policy change. I think we need a far more considered approach. It would have been quite easy to carve off this part of the bill and report it back separately from the select committee. That, to me, would have had a much better outcome, and would have been a much better process, as well. We would have had the time to deal with that particular issue. I accept that it would have had to be dealt with separately, because the Minister did make it very clear when he introduced the bill that the fraudulent debt write-off provisions would apply from the date that the bill was introduced, not from the date that it was passed. In effect, the passage of this bill will mean that those provisions are backdated, anyway.

There was not a need to be so quick on the no-asset procedure from a point of process, nor from the point of recognising that there are people who get themselves into financial trouble through no fault of their own. I think of all of the people at the moment who have lost their money through Blue Chip and through financial investments in finance companies that they thought were secure investments. We are going to insist on this change to the no-asset procedure, when basically they have to face up to the fact that they have got to that stage in their lives where they thought everything was secure, only to find that it is not.

With that expression of disappointment in the Government, the Labour Opposition will support the passage of the bill, and will hope that in future the Government will look to a better process for provisions like the one I have mentioned tonight.

PESETA SAM LOTU-IIGA (National—Maungakiekie) : I also rise to support the Insolvency Amendment Bill. I acknowledge the work that the Minister and the officials have put into formulating the bill. I also acknowledge my colleague the chair of the Commerce Committee, Lianne Dalziel, and the point that she made regarding the length of time spent on public insolvency registers. There was some debate in that area, and in the end I think the balance between the interests of debtors and creditors was weighed up.

I rise to support the bill because, basically, the procedure provides a one-off opportunity for those who are financially distressed to avoid the stigma of bankruptcy and rebuild their financial lives over time. As has already been stated in the first two readings of the bill, but which I will reiterate quickly, the key amendments are that it prevents fraudulent debts under the no-asset procedure from being cancelled when a person is discharged from that procedure. It is a pretty basic, fundamental principle of law, which has been established over centuries, that one should not profit from one’s fraudulent activities.

I am also happy to refer to the provisions of the Insolvency Act around the gifts made in the 5 years prior to a person becoming bankrupt. Again, the balance was to place the onus on creditors to prove that the debtor was solvent at the time the gift was made, rather than on the official assignee, so it is a very sound amendment to the Act.

As the previous speaker stated, the most controversial point was around extending the period of time that a debtor’s name would remain on the no-asset procedure and the bankruptcy public registry. In the end it really came down to balancing the interests of debtors, who, understandably, seek to move on with their lives, and those of creditors, who require reliable, accurate information about a debtor’s history as the basis on which to make informed business decisions. It was not easy to come to the decision regarding the 5-year period, but in the end I think it was the appropriate decision.

This bill, which amends an Act passed 3 years ago, is consistent with the overriding policy objectives of the personal insolvency legislation. It removes the potential for people to be rewarded for their dishonesty, and it implements amendments that reduce the workload of the official assignee. It is required to maintain the integrity of the personal insolvency processes. Hence I support this bill.

RAYMOND HUO (Labour) : The Insolvency Amendment Bill is generally a good bill. It aims to address four key issues that have arisen since the Insolvency Act 2006 was enacted. Firstly, the bill aims to close a potential legal loophole and prevent fraudulent debts from being written off. Secondly, it amends the public insolvency register to lengthen the time that information about a debtor remains on the public registers, from 1 year to 5 years in the case of a no-asset procedure, and from 7 years to indefinitely in the case of multiple insolvencies—that is to say, in the case of two or more bankruptcies, or of a no-asset procedure plus a bankruptcy. Thirdly, the bill will also restore the official assignee’s ability to recover gifts made prior to bankruptcy in order to avoid making payments to creditors, and will extend the period available to the official assignee in which to decide whether to terminate a no-asset procedure process. Therefore the amendment should make it easier for creditors to make better-informed lending decisions, particularly in tough economic times. That all sounds valid, and generally this bill is good, but I do have some concerns and observations, and wish to spend some time elaborating on them in this debate on the third reading of the bill.

Making laws in all areas, whether civil or criminal, is a central part of the work of Parliament, and the laws that are so made often have a catch-all effect. A statute is the express will of Parliament, which reflects the views and the will of our constituency across the board. So to put my contribution in that context, my first concern is that the difference between bankruptcy and the no-asset procedure may become diluted.

The no-asset procedure was first introduced by the Insolvency Act 2006 as a less punitive option than bankruptcy. There are two main purposes: to give individuals a fresh start, and to allow individuals to avoid the stigma of bankruptcy. To satisfy the Insolvency Act criteria for entering into the no-asset procedure, a debtor must have no realisable assets, must have a total debt of not less than $1,000 and no more than $40,000, and must have no means of being able to repay the debts. A no-asset procedure is currently discharged after 12 months, whereas a bankruptcy is discharged after 3 years. Bankruptcies are currently held on a person’s credit file for 7 years, making it difficult or virtually impossible to gain access to credit. Therefore, entering into the no-asset procedure is meant to provide a fresh start for such people and to help them become contributing members of the community again, without the stigma of bankruptcy.

I appreciate there may be two possible scenarios. One scenario is bona fide debtors who need help, and whom we should help to become contributing members of the community. The other scenario, on the other hand, which has been cited in the media, is people who may think a no-asset procedure is a quick way to sort out a debt that they cannot pay. They may regard it in the same way as what the media has described as the view of Generation X: it views credit as being something like free money, or as being a sort of substitute for parental generosity. At the Commerce Committee officials did a thorough analysis of that issue.

To some extent I understand the underlying reasons for us to tighten up on those debtors’ credit files. However, let us look at the two case studies put together by the Association of Citizens’ Advice Bureaux in its submission. Case study 1 was that of a single professional woman with an income of over $50,000 who had to go on an invalids benefit because an illness that had been controlled for 10 years flared up. She was in debt to her bank and to a finance company, but had insurance on both loans to cover that specific illness. The bank paid out on the insurance, but the finance company did not. Within 3 months of the change in her circumstances, her only solution was to apply for the no-asset procedure, with a $29,000 debt. The only creditor was the finance company. Just imagine, through no fault of her own she had no choice but to resort to the less punitive no-asset procedure, but her name will stay on her credit file, if this bill becomes law, not for 12 months, but for 5 years. I say that will have a huge impact on her ability to rehabilitate her financial life.

Case study 2 involves a young couple with three kids under 8 years old. They had credit contracts on cars, a TV, etc., and they rented their home. They were encouraged by the bank to consolidate their finances, which they did with a personal loan. They got into further debt, and the bank refinanced them by putting all of their debts on to a credit card. The couple separated subsequently. The credit card was in the male’s name only.

• Debate interrupted.