CHESTER BORROWS (National—Whanganui) : I speak to Part 3 of this bill by saying that National restates its support for it. A number of matters will come before the Committee of the whole House that the police have sought to have addressed for some long time in order to bring the current policing regime into the modern era. There was wide consultation across the community and across the sector at the time that the legislation was proposed. In further parts of the bill—around Part 5—matters will be addressed, probably this afternoon, about which there will be some contention. But as far as Part 3 goes, I say the National Party will be supporting it.

• The question was put that the amendments set out on Supplementary Order Paper 227 in the name of the Hon Annette King to Part 3 be agreed to.

• Amendments agreed to.

• Part 3 as amended agreed to.

The CHAIRPERSON (H V Ross Robertson): This debate also includes schedule 2.

Hon ANNETTE KING (Minister of Police) : Part 4 deals with modernising the New Zealand police force and putting in place modern employment arrangements. Part 4 supports the commissioner’s ability to employ a workforce with a range of skills, powers, and protections needed to meet current and future policing demands.

In the main, provisions in this part introduce modern human resource management processes to align the police human resources arrangements with the mainstream employment environment and shift internal disciplinary arrangements to a newly created code of conduct environment, rather than carry over the old disciplinary inquiry system from the 1958 Act; and use language and provisions establishing police medical, physical, and psychological health standards and superannuation arrangements.

Two of the most important parts of this part deal with the code of conduct and the old disciplinary inquiry system that was in place for disciplining police officers. Two strong recommendations from the commission of inquiry were to establish a code of conduct for our police and to change the old industrial relation regime in which our police service has worked for so many years, to bring those in line with the mainstream employment environment that we have for the rest of the workers in New Zealand. These are very important changes. One of the complaints against the New Zealand Police has been the slowness in which it has been able to address disciplinary matters. Sometimes those matters have dragged on for years and have often left the public and the police frustrated by the mechanisms used under the old Act. This bill, as I said, modernises the workforce, modernises employment relation arrangements, and brings the New Zealand Police into the 21st century.

KATE WILKINSON (National) : It is a pleasure to have a brief call in relation to Part 4 of the Policing Bill, which, as the Minister in charge of the bill, Annette King, quite rightly says, reflects the realities of modern policing. I have to say there was not much contention within the Law and Order Committee in relation to Part 4.

I would like to relate a story that really demonstrates modern policing in today’s world. The story occurred in Christchurch, and I think it is delightful because it reflects the diversity and the dynamics of the police force today. It concerns a young girl who was a truant from school. Her mother had to get up every morning and leave for work at 6 a.m. The young girl, therefore, had to get to school all by herself, but she did not do so. She did not have that discipline instilled in her as to the importance and benefits of going to school and getting an education. The mother was duly prosecuted for the truancy incidents. But following that, because the mother just had to go to work at that time in the morning and was trying her best, a young policeman in Christchurch took it upon himself to pick up the young truant in the mornings and take her to school.

I think that that reflects a wonderful attitude on the part of that policeperson. In Christchurch we have what is called the “bouquets and brickbats for the week” on the radio, and it was not a difficult decision to make to give a bouquet to the young policeman who had taken it upon himself to pick up the truant, the young girl, and take her to school. He would chat away to her on the way to school, and she suddenly started to think that she actually liked school—that she liked school, liked the discipline, and liked learning. The policeman was not going to do that on every day of her schooling life, but it was enough to break that pattern of behaviour and get her into the discipline of actually going to school. I think that is a wonderful tribute to the modern police force that we have.

Part 4 relates to the employment of police employees, and bearing in mind that the Police Act dates back to 1958, I think that the applicable employment legislation back in those days—and I stand to be corrected—was possibly the Industrial Relations Act, which of course has been superseded a couple of times so that we now have the Employment Relations Act. So this legislation does bring the Policing Bill and its provisions in line with the Employment Relations Act 2000, which of course, except as specifically excluded, does apply in relation to the employment of police. One of the exclusions in relation to the police force is contained in clause 68 of the bill, which make it unlawful for a constable to strike or be locked out, and, under subclause (2), “Where a strike occurs or is threatened, the Commissioner may apply to the Employment Court for an injunction to prevent the strike or for an order for the resumption of full work.” Obviously, one of the duties of the police concerns the security of New Zealand’s citizens, so it is important to maintain that balance so that citizens are protected notwithstanding any potential employment dispute.

There are also provisions for the suspension or removal of police employees, with or without pay, from their employment, on the conditions contained in this part. Similarly, under this bill it is up to the commissioner to prescribe certain health standards, to form the basis, if you like, for police to leave the police force, whether voluntarily or by compulsion, due to incapacity. If a police employee or police constable is not fit to perform competently the duties, or any other duties, that may be reasonably required of him or her from time to time, then that person can leave voluntarily, or can compulsorily be made to leave, the police force.

CHESTER BORROWS (National—Whanganui) : I rise to speak in respect of Part 4, which contains the provisions relating mainly to police as employees. We have to accept that over time the police service has moved to alter the way in which it has responded to sworn police officers as employees. At the time of the writing of the Police Act in 1958, and as the Act currently is, the police service was seen very much as a paramilitary organisation, very much run along the lines of the other services. So police officers were required to move at the drop of a hat to other stations to take up transfers as ordered and, as I said, the police service was run very much along the lines of a military organisation. But over time those rigid provisions have been rolled back, and now, more and more, police officers are treated as any other employees.

That does not sit particularly well, I think, with the public, because the public, and especially older members of the community who have long memories, tend to think that the New Zealand Police can operate as a military organisation within our communities. We have seen through recent years that the police service is no longer, for instance, able to move a police officer from one station to another to fill a gap. The service is no longer able to order police to undertake certain duties because there is a need in a given area, and that has altered the whole way in which police have been recruited and employed to meet the need.

One of the biggest changes, probably, in the New Zealand Police over the last 25 years has concerned the way in which, when most young graduates left the police college, they went to a bigger area and learnt the trade. A lot of us went to Auckland straight from police college, and learnt through the volume of crime how to deal with it, how to record it, and how to investigate it. Then, later, we filtered down to smaller communities around the country in provincial areas. Now we have the reverse situation, in that the hard-to-fill stations are small stations scattered around provincial areas, and people are recruited into those areas and do their learning in smaller stations. That is a much harder role, and I have to say that the tenure seems to be much shorter among those who are prepared to work under those conditions.

We have also seen restrictions in the way police officers can be treated in respect of their training, and in the way they are dealt with as recruits at the Royal New Zealand Police College. The expectations in respect of physical capabilities, and the ability, for instance, of a grumpy old police training instructor to bark at some recruit to get his back-end regions up to the top of the hill in the shortest possible time, are no longer able to be put quite as bluntly and tersely as they used to be. People are asked, or requested, to take part in various parts of police training, and I do not believe for a moment that that is exactly what the public expect. Nevertheless, that is the way that employment laws are implemented and tend to impact on the way police officers maintain their employment within the New Zealand Police in the modern era.

This legislation confers on police officers a number of new conditions. Part 4 also concerns the application of the Privacy Act, in the way it impacts in relation to assessment and suitability for employment. In other areas of employment and engagement in this country, there is the ability of people to be able to stand apart from certain parts of their backgrounds that may not engender themselves towards employment in the New Zealand Police, so the police are exempt from this in their inquiries into the background of suitable officers. We have to query—possibly—the applicability of other parts of the Privacy Act as they relate to the actions of police, especially, for instance, in respect of the news over the weekend about a police officer who did a number of inquiries on the National Intelligence Application system, and then, through breaches of the Privacy Act, made a number of approaches to and harassments of callers calling into the Police Communications Centres Service Centre. Yet the police’s ability to be able to deal with those, apart from through the conditions and terms of employment, have ceased, now that he has resigned.

So maybe there is scope to look further at offences under the Policing Act—as this legislation will be when it is passed—as they impact upon current officers and their ability to access private information and use it for their own ends. We have the ridiculous situation, as exposed on the weekend, where as soon as somebody resigns from a position within the police, no further action can be taken, because as the officer was an employee the real offender turns out to be the police service itself for failing to maintain the security of the private information. So there is scope for huge change under this legislation; nevertheless, National will be supporting it.

Dr RICHARD WORTH (National) : Part 4 is clearly very much a key part of this bill. If there is any truth in the immortal Gilbert and Sullivan line “A policeman’s lot is not a happy one”, then certainly to be found in Part 4 is the start of a refreshingly new regime. I wish to make three points in connection with Part 4, but before doing so, I would like to pick up the comments of the previous speaker. Chester Borrows has a wealth of experience as a former police officer who provided, for so many years, distinguished service to the nation. He made a comment that, I suppose, I have a margin of disagreement with. I think that the public today, whether they are old or young, still see in the police force an element of the paramilitary. That is so for a number of reasons, and it is certainly to be seen in the concept of a military degree of discipline, which is almost demanded for the very difficult and dangerous work that the police carry out. I think we do well to remember that that paramilitary aspect, with a heightened emphasis on discipline, is no bad thing. When we come to the next part, Part 5, which has provisions relating to international policing, we will see again, it seems to me, a dimension of that military responsibility.

The matters I want to refer to just briefly, though, relate to three particular clauses, clauses 55, 57, and 58. First, clause 55 provides that the Employment Relations Act applies in relation to the police, except where there are specific exclusions. Second, the proposition contained in clause 57 that “the Commissioner must operate a personnel policy that complies with the principle of being a good employer” is a wholly appropriate statement in the context of policing. Third, there is what I regard as a rather unusual provision in the next clause—clause 58—that in making appointments, “the Commissioner must give preference to the person who is best suited to the position.” That clause is headed “Appointments on merit”, and I ask why it should ever be otherwise. It seems to me to be a rather strange statement to make in the context of primary legislation—that there should be anything other than appointments on merit.

The second issue that I will refer to briefly occurs in clause 77, “Restriction on resignation by constable”, which is a most unusual provision restricting resignation from the police. Clause 77 provides that the Governor-General may determine that special circumstances require that a person who has the status of a constable stays in the police. The Governor-General “may, by warrant under the Governor-General’s hand, declare that no constable may resign that person’s employment … except on conditions set out in the warrant.”

The third point relates to clause 68, which contains provisions relating to strikes and lockouts involving constables. It is most unusual ever to see in a non-military context a statement such as the one in clause 68(1): “A strike by, or lockout of, any number of constables is unlawful.”

National, of course, supports Part 4. It contains useful and appropriate provisions. I finish as I started, by expressing the hope that it will improve the lot of those officers who give so determinedly of their time.

• The question was put that the amendments set out on Supplementary Order Paper 227 in the name of the Hon Annette King to Part 4 be agreed to.

• Amendments agreed to.

• Part 4 as amended agreed to.

The CHAIRPERSON (H V Ross Robertson): The debate on Part 5 includes debate on schedules 3 through to 6.

Hon ANNETTE KING (Minister of Police) : The final part of the Policing Bill addresses a range of administrative and miscellaneous issues and splits the bill into three subparts. Subpart 1, which deals with biometric information—clauses 78 to 83—establishes a process to gather and manage staff biometric data for use in pre-employment vetting and as elimination data from non-intentional contamination with crime scene samples. Subpart 2 deals with international policing and it consolidates laws relating to international and United Nations policing. Subpart 3 deals with the improved identification of police employees and authority for exercising police powers.

Part 5 is really the miscellaneous parts of this bill. There is also Supplementary Order Paper 222 in my name, with five amendments sought in this part. The first, an amendment to clause 94, alters the language of how certain information on the enhanced police ID card is described. This is a technical change that will ensure that the new ID card must state certain prescribed information and bear certain prescribed things, but it can be in any form that the commissioner thinks appropriate. This provides a sensible flexibility for any technological changes that might affect the form of ID cards in the future. Clause 100 is also amended so that the related regulation-making power to prescribe matters relating to the new ID cards aligns with the amendments sought in clause 94.

Thirdly, there is a minor textual change to clause 106C(1) in order to clarify the commencement date of the regulations made under the new Act. Fourthly, a new clause 120(1A) is to be inserted, which will substitute a reference to “constable” for a reference to “member of the police” in the Burial and Cremation Act 1964.

Finally, there is a companion Supplementary Order Paper—Supplementary Order Paper 226—containing a new clause 106G, and I wish to talk a little about this clause this evening. The new clause 106G deals with sworn officers serving as councillors on territorial and local regional authorities while also serving as active police officers. When the 1958 Act was passed there was a prohibition on sworn officers also serving as local government councillors. The prohibition was to be triggered by the passing of legislation. Fifty years have passed and the regulations were never passed. In fact, the prohibition was never put in place. So for decades sworn officers have been able to be elected as local body councillors. At present five of the 8,400 sworn staff are in such a position. When I introduced the Policing Bill in my name I raised this as an issue that was worthy of debate. The bill as introduced retained the status quo, but I did set out that it was an issue on which we would like some debate and some comment in terms of submissions. My understanding is that the Law and Order Committee heard a number of submissions—in fact, there was quite a large number of submissions—on this part. In terms of where we should sit in relation to this matter, it was the Labour caucus view that the status quo would remain. However, on looking further at the issue and on taking consideration of the advice of the Legislation Advisory Committee, which was asked by the invitation of the select committee to present to the select committee on this issue, the caucus was considerably swayed by its view that we ought not to muddy the waters of political neutrality in our police service by allowing serving officers to also be able to hold political positions in local government.

After listening to the arguments surrounding this issue, it is the Labour caucus view that we should not allow police officers to serve as local government councillors, but that we should enable them to continue to be community councillors. Community boards around New Zealand, as members here know, are able to provide very valuable advice to local government while not, in fact, being part of local government that makes decisions, sets by-laws, and introduces laws, which police officers would go out and police. We have also said there are five officers who in good faith have been elected to local government in New Zealand, and that those five officers should be able to have their positions grandparented as long as they are elected to them.

This has been a hard issue for the caucus to decide on, and I know that other parties in this Chamber have looked hard and long at it. I believe that we have come to an arrangement whereby police officers can continue to serve their community on community boards but are not put into that position where their neutrality as police officers is questioned because they make a by-law, for example, on liquor laws and then go out that evening and police those laws. There was quite a lot of concern that that, in fact, puts the police in a very difficult position and opens them to criticism if they make the laws as local councillors on one hand, and then on the other hand they police them. So what we have attempted to do is get a balance between their rights to serve their community—and, of course, the police serve the community in many different ways indeed. They serve the community by being on all sorts of trusts, on non-government bodies that work within the community, and they will be able to continue to serve their community as community representatives in local government. But in terms of them serving as elected local councillors, Supplementary Order Paper 226 brings into place the prohibition that was expected in 1958.

CHESTER BORROWS (National—Whanganui) : Although Part 5 of the Policing Bill covers a number of points, I would like to speak mainly to the “cops as councillors” provision, which is clause 97. Clause 97, when it was first introduced, read: “Police involvement in elections (1) No constable, authorised officer, or supervisor may take part in an election as—(a) an electoral official within the meaning of section 5 of the Local Electoral Act 2001; or (b) an electoral official within the meaning of section 3 of the Electoral Act 1993. (2) Nothing in this section limits sections 52 and 53 of the Electoral Act 1993.” That pretty much reflected the position of the 1958 Police Act, which, of course, the Policing Bill replaces.

The reason there is a bit of conflict between what the Minister calls the status quo now, and what she was calling the status quo a couple of months ago, is this. The status quo currently is that serving police officers can stand for election to local authorities, because the provisions of the Electoral Act talk only about central government elections. That is why we have the situation where five serving officers are currently serving as elected officials on our local authorities. It was interesting, then, to note that the main barrier to leaving the situation as it is actually came from New Zealand First. That appeared very clearly to be because of some conflict that the list member Ron Mark has with someone whom he has run up against in the past, because he was the one who was pushing the issue. That is why, when the commentary was put together, the National Party made it clear that it had concerns around the passing of this bill in the form it came back to the House in, with the current version of clause 97 preventing officers from being able to stand for election to local authorities.

Not long ago, of course, the Minister came before the Law and Order Committee and was questioned on this particular point. My colleague Ms Wilkinson said to the Minister: “Is it Government policy, then, that cops can be councillors?”. The Minister said: “The Labour caucus has agreed that, in fact, the status quo should remain.” So Ms Wilkinson said: “So cops can be councillors?”, and Ms King said: “Indeed, that’s the Labour caucus’s view.” I will just repeat that. Ms Wilkinson said: “So cops can be councillors?”, and the Minister said: “Indeed, that’s the Labour caucus’s view.” Other questions then went on. Ms Wilkinson said: “Obviously there are many councillors who do a fine job if there are potential conflicts of interest. They can deal with those with their own procedures, and at the end of the day it is up to the public to decide whether they can do both jobs.”, and the Minister agreed with that.

That seemed a bit unusual to us, because we thought that we had heard that Labour was not happy with this provision—in fact, it was the Government’s bill. So the National Party member on the Law and Order Committee put the issue to the Minister again, and said: “Can I just ask a quick supplementary, Minister? If National introduced an SOP to revert to the status quo”—the status quo being that police officers can stand for local councils—“would Labour vote for it?”. The Minister said: “We support the status quo, and I don’t know whether you would need to introduce an SOP.” Now, to any one else, that would mean that Labour and National would vote against the clause as it is at the moment and the status quo would remain.

So one has to ask the question, well, what has happened since then? What has been given up by the Government, or what has been obtained by New Zealand First, to change the view of the Labour Government on this particular point? It seems very, very strange to me that all of a sudden there has been what some people might call a flip-flop from the Government on this particular point. It was critical, it was something that we discussed at length, and the Minister agreed that police officers should be able to stand as councillors. She said: “Indeed, that’s the Labour caucus’s view.” There was a question from Ms Wilkinson: “So can cops be councillors?”, and the response from the Minister was “Indeed, that’s the Labour caucus’s view.” Yet today the Government presents to us a Supplementary Order Paper, on the day that we are debating the bill, grandfathering the positions of those honourable police officers who are currently serving their communities well. The Minister also said in her speech, of course, that they are doing a fantastic job and that it is just one of the ways that police officers do go on and serve their communities in their own time—that they are doing a wonderful job in those positions.

I would agree with the Minister on that, because police officers bring to the role of local councillor a real eye view of how communities operate. Members will know that often we find people who hold some standing within the community are put into elected positions as councillors. But how much they really grasp what happens at street level I do not know; in my experience, a lot of them do not grasp that. They may be community leaders in various fields, but for an understanding of how the vulnerable in their community actually react or behave, how those who offend within a community behave, or how search and rescue, emergency services, and civil defence act within the area, one can get a real eye view only from someone who is on the ground at the time, and those people tend not to be elected to district and regional councils. So the ability of a police officer to be able to stand for election to a local authority, gain a seat on his or her local council, and be able to express that view and draw the attention of other elected representatives to it is critically important.

The National Party has put up Supplementary Order Paper 213 in my name, to allow officers of the police to be able to continue to stand for local government. The Labour Party appears now to have changed its position. It says no, only those who are there at the moment can serve as councillors, and they can stand again, but nobody else who wishes to serve their community in that way will be able to do so ever again. The Government has done some kind of deal with New Zealand First. We look forward to hearing from Ron Mark when he gets up to speak to this part of this bill, or to hearing from the Minister, exactly why the deal was done in that way, or why the Labour Party caucus has had a road to Damascus experience whereby in one month it was totally in favour of police officers being able to stand for local councils and represent their communities, and the next month it is not.

Hon ANNETTE KING (Minister of Police) : I believe that Chester Borrows’ contribution is worthy of a response. I need to say to the member that any caucus of any political party is able to further consider any view and any policy, and to make its own decisions on those views and policies. Labour has a very democratic caucus. The members of our caucus considered the issue further, and, like every other party in Parliament, they spoke to people in their own local communities. They spoke to serving police officers who do not agree that other police officers should be allowed to be councillors. They spoke to members of their communities. At the end of the day we run a democratic caucus, and our caucus decided not to support that view. I think it was very uncharitable of the member to insinuate that a deal had been done with New Zealand First. That insinuation is totally untrue. No deal has been done with New Zealand First. Every party in this Parliament will make up its own mind on any issue, and to say that a deal was done is incorrect. In fact, the Labour caucus came to this view after a lot of consideration.

It is worth reading to the Committee the Legislation Advisory Committee’s view on the issue, which had a powerful impact on many Labour members’ points of view. The Legislation Advisory Committee is a very highly regarded committee that is consistently brought into the select committees and asked advice of, and in most circumstances its advice is taken. The majority of the members of the Legislation Advisory Committee said they believe that there are “especially strong reasons to have a disqualification provision that applies specifically to police officers. In New Zealand police officers have particular standing within the community and are frequently reported in the local media, where their statements carry considerable weight. If serving officers within the local community are also local councillors, therefore, they inevitably confront an ongoing conflict of interest. When they make public statements it will be difficult for the public to determine whether they are making those statements as police officers or as councillors. They are also likely to be able to use their position, or at least be seen to be using their position, to further their political interests. This is inherently undesirable and should be avoided.”

The Legislation Advisory Committee recommended that a provision be inserted into the bill that a police officer who is elected as a mayor or a member of a territorial local authority should be required to resign from the police. That was a very powerful piece of advice given to the select committee, and my colleagues, as they always do, listen carefully to advice, make up their own minds, and make their own decisions. The caucus has decided, on further consideration, that it could not support the status quo.

KATE WILKINSON (National) : I will also spend an amount of time in relation to clause 97 of the Policing Bill, which deals with cops serving as councillors. In particular, I will spend time on the flip-flops that we have just heard about. Right from the outset, as stated in the commentary on the bill, we remained unconvinced that it was desirable to restrict constables from involvement in elections—apart from the exclusion of police officers from being candidates in general elections—that is, we were not convinced that cops could not be councillors.

We realise, from a strictly jurisprudential point of view, there is the argument that the makers of by-laws should not be the enforcers of those by-laws, but in this situation I think a little common sense can prevail. The Minister talked about conflicts of interest as though a conflict of interest should preclude any position being taken up, but as we all know, even in our field, potential conflicts of interest are not uncommon. They are not uncommon in any field whatsoever. They are not unlawful. It really is up to the parties concerned to deal with conflicts of interest, to declare those conflicts of interest—or potential conflicts of interest—and to deal with them in the best way possible.

In the past police officers have also been elected as local authority councillors, and perhaps the Minister would take a call and tell us how many incidents or problems have occurred because of the potential conflict of interest arising from those police officers also being local authority councillors. At the end of the day it is up to the individual police officers and councillors to deal appropriately with any perceived conflicts of interest—and I think perceived conflicts of interest are as important as actual conflicts of interest. It is up to the individual police officers and councillors to deal appropriately with those perceived or arguable conflict of interest situations. It is also up to the public, when voting at local body elections, to elect the people they think are best for the job. As the Minister has said, five police officers throughout the country are also serving as local authority councillors. They have the confidence of their respective communities. They have been voted in despite the apparent, perceived, or arguable conflict of interest. Again I would ask the Minister—and I would be really interested in her answer—what the problem is. Has there been a problem with existing cops serving as councillors?

I refer to Supplementary Order Paper 226 in the name of the Hon Annette King, which she says represents the status quo, and I would have to say it is a bit of a slippery status quo at that. My colleague Mr Borrows has already relayed the actualHansard transcript of the Law and Order Committee hearing, where the Minister clearly said that cops could be councillors. That is what she was referring to as being status quo, and that is what she was referring to as being the view of the Labour caucus. I accept that the Minister can change her mind and make a flip-flop if that is what the Labour caucus decides, but it is indeed a flip-flop and a change from the assurance we were given at the Law and Order Committee that cops could indeed be councillors and that that was the status quo.

We now have a slippery sort of a status quo that applies only to sitting elected and appointed members. As long as those officers are not defeated at some future election, they can continue to campaign for re-election without having to go on a leave of absence, and they will not have to leave the police force if re-elected—grandparenting, as the Minister says. Supplementary Order Paper 226 in itself is somewhat deficient, because even if one accepts that that is the desirable position, there is no time limit. So it is arguable that a police officer who is a local councillor now could step down at the next election and not stand for re-election, but in 10 years’ time that person could stand again and may be covered by the provision in that Supplementary Order Paper.

Hon Annette King: No, they can’t do that.

KATE WILKINSON: If that is not the intention, that is fine, but I am just pointing out that there may be an argument to say that that is the case. Why should one police officer who happens to be a councillor and was the best person for the job when elected be permitted to be a councillor and to be re-elected ad infinitum, yet another officer who is not an existing councillor, but who may be a better person for the job and may be wanted by the public, not be permitted to stand as a councillor?

I repeat that at the end of the day the public are the judges, and they should be the judges in this matter. The public should be trusted not only to buy whatever light bulbs they want but to elect a councillor who they think is the best person for the job, whether or not that person is a policeperson. It is up to the policeperson who is in that situation to deal with those conflicts of interests appropriately. I urge the House to support my colleague Chester Borrows’ Supplementary Order Paper 113, which is supported by many of the public and by the police themselves. If one listens to talkback radio, one finds that the amendment should have fairly universal support. We appreciate there are potential conflicts or potential issues with regard to cops serving as councillors, but we say they can be dealt with within the existing law.

Accordingly, we urge that common sense prevail and we urge support for Mr Borrows’ Supplementary Order Paper in relation to this issue. We believe that common sense should prevail and that the public can be trusted to vote for the person who they think is best for the job, whatever the person’s occupation, and notwithstanding that the person may be a policeman or policewoman. As Mr Borrows has already stated, some of those community policemen, policepersons, are often in the best position to judge—

Hone Harawira: Police officer.

KATE WILKINSON: —police officer will do; actually they are called police employees. Those people are often in the best position to judge and be aware of the needs of the community. The community is in the best position to elect the best people for the job, and the law should enable that to happen. I urge the House to support the Supplementary Order Paper in the name of Chester Borrows.

Hon DAVID BENSON-POPE (Labour—Dunedin South) : I will take a brief call because, unlike the previous speaker, I think common sense has prevailed on the issue. In general, the discussion by the Law and Order Committee, and the public process, around this bill was a commendable process. I think that many select committees, and many agencies of the Government in the community, would be well advised to follow that process in terms of how this really substantial legislation was put together and consulted on in the community. Indeed, if people were to follow the same process used in this comparatively small but important matter, then that would also be the case.

I am interested to note there are two matters in respect of the clause under discussion, which the Opposition tellingly has not referred to. The first has been alluded to by the Minister but is in fact the argument made by legal professionals, including academics. The argument was very strongly made and was echoed by the Legislation Advisory Committee. They said it was most important that we make decisions on the basis of legal and constitutional principle, and they argued for the separation of powers between those who make laws and by-laws, and those who enforce them.

It is true to say that what has been alluded to by Opposition speakers is the fact that this issue has ebbed and flowed a little, and that is often the way it should be. The views of the select committee, as far as I could tell as a member of that committee, were not fixed during hearings, and that is also as that should be. I cannot say, on behalf of the National members on the committee, what their response was to the eminent academics who argued around this important constitutional principle, but I happen to take that point.

The other issue that is germane in this respect and has not been mentioned relates to the huge change that has taken place in local government in this country in the last 15 or 20 years, in particular. Local government now is not the creature that many people remember it was two decades ago. The powers, and breadth of activity and involvement, of local government—as, indeed, some of the members of Opposition are only too aware—have increased immensely, and, given that change, it is an entirely sensible and principled position to take the decision that is reflected in the Government’s position and the Minister’s Supplementary Order Paper.

Equally, like people in this House, or others in the community who previously have been involved as an elected member in local government, I welcome the involvement of all members of the community in the activity of local government. But if, as Mr Borrows would have it, it is a matter of people on the ground giving good advice to elected members or to councillors, then I say that that is available anyway. I had better not go into whether that advice was any good in respect of some of the recent policing decisions in Dunedin, but we could discuss that at another time! That advice and front-line experience is, of course, available on a contracted basis or otherwise at all times to local government.

I think the decision to encourage continued involvement at community board level—where there is a much less likelihood of conflict of any kind, or a much less likelihood it would be more difficult to avoid—and also the grandparenting of the involvement and services of those people who are currently involved in this way, is a fair decision. I am somewhat saddened that the National Party has taken no notice of or made no comment on the very powerful legal argument about the separation of powers that needs to happen, given the changing environment in this country—particularly, the changing environment in local government—in the context of such a substantial rewrite of policing law.

DAIL JONES (NZ First) : I have been following this debate with interest, and had a look at the notes from the Law and Order Committee, and it is my understanding that there is a view held by those outside that there have not been any submissions on clause 97 and that people are saying, and perhaps even making written statements, that no one wanted what the select committee did, and that there were no submissions on the clause. Well, clause 97—

Chester Borrows: No one said that.

DAIL JONES: Actually, people are saying that outside, and I hope Mr Borrows will be the first to tell them that they are wrong when they make those remarks. In the select committee’s report—Mr Borrows was a member and agreed with and was responsible for the report—it makes clear, and I quote: “The concern from submitters was that since local bodies have by-law making powers there was a constitutional anomaly that allows law enforcers to also be lawmakers.” The select committee also stated: “Clause 97 of the bill as introduced prohibits constables, authorised officers, and supervisors from being electoral officials. Some questioned why constables, authorised officers, and supervisors are not explicitly prohibited from being able to be elected members of local government in the same way they are prohibited from being members of Parliament while still constables, supervisors, and authorised officers.” That issue was put to the select committee, thoroughly discussed by the committee, and the committee actually amended the original legislation and came up with legislation, I think, prohibiting constables from being on councils. Mr Borrows was a member of the select committee, which agreed with that proposal. There is no minority report here—

Chester Borrows: Read the commentary.

DAIL JONES: I have the commentary here, and maybe somewhere—

Chester Borrows: Read it.

DAIL JONES: Sorry, I take his point. I apologise to the member. I was looking for a minority report, but it is not there. There are comments elsewhere that New Zealand National members remain unconvinced, so I take their point on that. However, I must congratulate the Minister because it establishes that the Minister has an open mind on this issue, and if the majority of the people of this country express their view, the Minister is prepared to accept it. New Zealand First takes the view, and I take—as a lawyer as I must, and I am disappointed that the lawyers in the National Party do not—the legal view, which was very clear, that there needs to be a separation of powers. Mr David Benson-Pope understands that viewpoint. As a schoolteacher he is able to pick up on that quite clearly and lucidly; it seems that the National Party members who have spoken who are lawyers cannot accept the doctrine of separation of powers, put forward at the highest possible level to the select committee. New Zealand First accepts that view wholeheartedly.

Of course, there is a problem in having a police officer as a councillor, and perhaps we should make clear the distinction in the clause, because this provision does not apply to the community board. Am I right, Minister? So a police constable can be a member of a community board. That is clear, is it not? So a constable can be a member of a community board, but we are talking about the council. I have listened to talkback radio, as well, and what I heard suggested that the police constables would pop into the council, while they were on their holiday leave, to do the work. Now, that is what I heard on talkback in Auckland when this issue cropped up. In actual fact the evidence appears to be that this role of a councillor involves 30 hours a week. How much holiday leave can a police officer get to be able to do 30 hours a week as a councillor? That is the key thing. It is not possible to do one’s job properly as a police constable and also to do 30 hours a week on a local authority.

One example we have is a police officer who is also a chairman of some waste refuse organisation as part of, and in addition to, his 30 hours a week. That is just incredible. It is no wonder there is a criticism in some quarters about the quality of the work done by the police force. We do not want any criticism of that kind whatsoever. So the doctrine of the separation of powers is clear. It is impossible for a police constable to be both a local authority councillor and a police officer and do the work properly.

Of course, he gets another $50,000 a year on top of his police salary, through being a councillor, and no doubt that is an incentive and is why he is doing it as well. If a police constable is interested in doing community work, he or she can be on the community board—it is as simple as that—and it will not take 30 hours a week. New Zealand First takes the view that if the constable wants to support the community, work for the community, and be on the community board, then that is wonderful.

Of course, the example in front of me shows a degree of disagreement between the people in the local community and the police constable in the Coromandel township. Those people in the Coromandel will know immediately what I am referring to. What happens when an area has only two police officers, and one of them spends 30 hours a week on the council as a councillor? If we want to ring that person we have to ring the council offices, or if we want to ring him or her as a resident we have to ring the police station, because both numbers are given. That is totally unsatisfactory. If there is a two-person police station, and one of the officers is a councillor who is doing 30 hours a week on the council, that surely must show that law and order breaks down. I ask Mr Worth and whoever will be speaking next, from any political party, to explain how we can offer a decent service to the community in those circumstances.

Again, if a police constable is on the Liquor Licensing Authority, on behalf of the council, and his or her superior officer appears as a member of the Thames police to oppose the granting of a licence, there we are: the police constable is the judicial officer, but his or her superior officer comes along and opposes the granting of the licence, so does that officer disagree or agree with his or her superior officer? In the case we have here, the local councillor, who was inferior to the superior officer making the application, agreed with the superior officer’s application. Does that seem fair? Is that above board? This is a case for a liquor licence that involves a person’s livelihood in many respects. The inferior officer was the judge, and the superior officer, who is the prosecuting person, asked for the licence application not to go ahead. That is a factual matter given to New Zealand First, and I am sure it must have been available to the other members of the House.

We are very concerned that there is this specific example of a conflict of interest that can arise that I can put to members. Even the National Party members who have been speaking on this matter indicate that there can be a conflict of interest. There should not be any doubt. A police officer should be like a judge—totally of the highest repute, without any possibility of disagreement as to his or her abilities and his or her impartiality. But here we are: we are allowing police officers to be in a position of partiality—exercising influence on the outcomes of people’s lives—and that is a very dangerous situation.

Once again, I repeat, if someone really wants to make a contribution to the community, he or she should go on the community board. [Interruption] That person will not get paid as much—that is a point. He or she might not get $50,000 a year. He or she might not get another $25,000 a year for being chairman of a refuse committee, adding about $75,000 to his or her police income, for a job that that person is not doing very well. But on the community board a person can, if he or she really wants, make a contribution to the community. New Zealand First welcomes police officers making a contribution to the community in that fashion.

KEITH LOCKE (Green) : The Green Party will not be supporting Chester Borrows’ amendment, We discussed in our caucus the pros and cons of the issue. There are two sides to it.

If we take the example of Alf Filipaina, who is a Manukau city councillor, a very committed person in both his council work and his police work, and highly respected in the community, we find that he is quite keen to continue in his dual role in that South Auckland community. We can argue that his work as a councillor better informs his work as a community constable, and vice versa. There is an interaction there. He says that he absents himself from decisions on by-laws that he would have to implement. So we can argue an individual case, and we can argue that there are some pluses in allowing the current situation to continue.

But there are also problems, and Dail Jones has just elucidated them a little. There can be a conflict of interest. The New Zealand Police is a disciplined organisation—and it has to be in the current context. Does a person obey police directives in a particular situation, or does that person operate as an elected representative, bringing to bear his or her own experience and own judgment on issues before the council? There can be conflict there. If we allow people to be councillors at the same time as they are police officers, then, obviously, they can be deputy mayors or mayors. We can imagine an extreme situation where the mayor, the deputy mayor, and a couple of councillors, who are all police officers, deal with an issue on which there is a clear conflict of interest.

I think it is right, as others have mentioned, to have a separation of powers between those who make the laws, like members of Parliament, people on councils, and judges, and those who implement the law, such as the police force. So, on balance, the Greens have decided not to support Mr Borrows’ amendment. We accept that not allowing police officers to do both jobs infringes to a certain extent on their rights, but the greater good is served by a separation of powers. It is true that police officers can continue to be community board members. People serving in that capacity do not make by-laws, as I understand it, but they can be engaged with the community, and for people like Alf Filipaina there can be some cross-fertilisation of experience in that role rather than in a council role. I feel quite sad for people like Alf Filipaina. I understand that he can continue in his role under this law—that it would be grandparented. But in terms of the greater good, and particularly given the role, structure, and disciplined nature of the police force, I think it is important that there not be an overlap of roles. Thank you.

Dr RICHARD WORTH (National) : I know that Chester Borrows will come back in a few moments, after I have completed the comments I will make, to talk about this Supplementary Order Paper and its significance.

I would like to talk about three other matters that are contained in Part 5, “Biometric information, international policing, and other miscellaneous provisions”. It is an interesting circumstance that there is a definition of biometric information in the context of police employees being required to provide bodily samples and biometric information. Biometric information is defined as a DNA profile of a person or fingerprints or palm-prints taken from the person. I guess the philosophical proposition behind that requirement is that it is important that those who are taken into the police force are upright and without significant criminal convictions. I would have thought that should be the case for any employee who is taken into any position of trust. This particular provision in clause 79 is perhaps a signal to employees and employers as to a core element in the employment relationship. I do not doubt it is currently the case that those who seek to enter the police are subject to such a requirement. I simply say that such a requirement has a wider universality extending significantly beyond the police force.

The second issue that I would like to deal with, which is contained in Part 5, is the aspect of international policing. I can understand an argument to the effect that it is part of the range of activities of interest to police officers that they may be asked to undertake an international policing engagement. But I would express the hope, in the context of a critical shortage of police officers and rising crime rates—in particular in the area of violent crime—that the number of officers seconded for United Nations and other international policing duties is severely circumscribed.

The third matter I would like to deal with, which I find actually somewhat unusual, is that when we were dealing with Part 2 there was comment made in reference to clause 20 about the New Zealand Police code of conduct—a code of conduct that was designed to set out “the standards of behaviour expected from Police employees.” It is not a schedule to the legislation—it should be. I say it should be because those who drafted this legislation, and the Government that has advanced it, have for some reason decided that there is merit in putting a code as schedule 3 to this bill. But the code is not a code of conduct stating standards of behaviour. Instead it is a code of good faith for employment relationships. I offer the view to the Committee that it is substantially aspirational pap and not appropriately included in a bill of this type. It contains phrases—and I am referring to clause 4 of the third schedule, “General requirements”—such as: “(1) In all aspects of their employment relationship, the parties must—(a) engage constructively; and (b) participate fully and effectively. (2) In their employment relationship, the parties must—(a) behave openly and with courtesy and respect towards each other; and (b) create and maintain open, effective, and clear lines of communication,”. It goes on to say that they should “make time to meet as and when required” and that they “must use their best endeavours to resolve, in a constructive manner, any differences between them.” When it becomes an outcome that provisions like that must be inserted in primary legislation, then I think the executive would do well to pause, because schedules should contain substantive material, and not aspirational material that is implicit in any employment relationship. That said, National supports Part 5 of this legislation and is keen to see it progressed.

RON MARK (NZ First) : Firstly, I apologise if my speech is interrupted with coughing. I am meant to be at home. I did not want to bring all these germs and lurgies into the Chamber. But when one sits at home listening to the radio, and hears the amount of garbage coming out of the mouths of two people who hold themselves up as lawyers of credibility, it is totally beyond one to not come into the Chamber and say something.

I will give Kate Wilkinson, whom I have enormous respect for—she being a lady from the Waimakariri and someone I know through her having rendered me her professional services over time—that I noted a number of little coughs and “ahems” in her speech, which indicated to me that she did not believe what she was saying about clause 97, at all.

Mr Borrows has decided to play a political game of footsie, and he thinks it serves him well. But I have a message for Mr Borrows. We are hearing from out of the mouths of some of his MPs around the traps that National will govern alone. In particular, an MP up in Whangarei is telling everybody that National intends to and will govern alone. If that might come to pass, I would like to hear Mr Borrows say right now in this Chamber, on the record, that he intends to amend this legislation when he is in Government. Mr Borrows knows that what he is saying is constitutional claptrap. It is rubbish. It does not stand up to even the mildest scrutiny from any lawyer of any substance. As a member of the Law and Order Committee, he read the advice from the Legislation Advisory Committee, he heard the advice from esteemed professors of law from Auckland and Canterbury universities, and he heard the advice from the professor from Waimakariri, Wally Clark—another man who is well noted for his views on constitutional matters of law. Clause 97 now represents exactly what the Police Act of 1958 always intended. Section 31 of the Act always intended that police officers not be permitted to stand for council, in the same way that army officers cannot, and in the same way that judges cannot.

There are very, very clear reasons why that convention has always been adhered to. It revolves round the simple fact that in a democracy—not a Zimbabwe—in a free country where democracy is treasured and defended to the utmost, even to the extent of people laying down their lives for it, the one thing that fundamentally underpins democracy and gives it credence and credibility is a separation of powers between the lawmakers, the law enforcers, and those who adjudicate on the law. It is as simple as that.

This situation arises only because some person in a certain police area decided to take a differing view and to allow a number of officers to stand for council and be elected. That created an employment-related issue, which the Police Association decided to fight. It is interesting to note, and to put on the record right here and now, that in 2003, when New Zealand First raised this anomaly and asked questions about it, the then Commissioner of Police, Robbie Robinson, made very clear what the police view was, and it was that what had happened was an anomaly, it was wrong, and any review of the law needed to deal with it. That was his view, and interestingly—Mr Borrows knows this also—it is also the view of the current Commissioner of Police, Howard Broad. In fact, what did Howard Broad say in the select committee? He said: “If you’re asking me if I’m comfortable with the notion of one of my area commanders facing up to a constable who is a councillor on council, the answer is I’m not.” Those were his words. He has not been out there hammering the issue, because, as we know, employment-related issues have resulted from it. We can just see the line-up of Employment Court cases that would have been taken by the Police Association, if the Commissioner of Police had decided to exercise some authority and make it clear to officers that they could not stand for council. So we are making very clear and very precise in the Act what is appropriate and what is not.

Let us also deal with this little nonsense. This change does not mean that a police officer cannot stand for council—not at all. It simply means that he or she has to take leave, and if that officer is elected, he or she makes a choice as to which career to pursue. One of the other things that is forgotten here amongst this debate is the reality of the situation. I tell members to quietly ask any officers who work in a police station where a cop councillor works whether they like it. You see, Greg O’Connor and the Police Association have been very vitriolic in their personal attacks on me, and I understand there was quite a strident discussion with the Minister of Police that I would say bordered on—something. Intimidation springs to mind; bullying springs to mind. That is how I interpreted their approach to me. They ignore the fact that we are talking about only five officers out of 11,500. I tell members to go and ask the 11,500 what they think. They will say that they are sick and tired of it. Firstly, they will say: “Do you notice it is community constables? Do you notice it is youth aid officers? It is not CIB officers—they’re too busy. It is not beat staff—they’re flat out.” They will say that. Then members will hear stories about an officer in a two-person station having to cover all the councillor’s hours. Then they will hear stories from other officers who have had to adjust their shifts, because someone wants to pop off to a council meeting.

I ask the National Party members to answer this question: when the National Party is governing alone next year—which its members are telling everyone it will—will it be happy to have police officers be mayor? That is what Chester Borrows is saying. He is saying that a police officer should be able not only to stand for council but to be the Mayor of Wellington City, and to be a director of a local authority trading entity; that he or she can be a director of two local authority trading entities, and be the mayor, and be a constable. Yeah, right! I ask Mr Borrows to tell me now what that person’s real job is.

It is interesting to hear from Richard Worth how stretched the police are, how busy they are, and that they are deployed all over the world. We get complaints from Judith Collins and—

Dail Jones: Simon Power.

RON MARK: —and Simon Power, and Mr Hayes. They come to Parliament to petition for more police in their area. Yeah? Well, maybe the first thing we ought to do is make sure police officers are policing. And who has been the big critic of that? Mr Borrows, who has been telling everybody: “Oh, they’re not assigned to the front line. They’re not on the beat doing the job. But I don’t mind their being employed as a director of a local authority trading enterprise, or being a deputy mayor of a district council, and spending 45 hours a week as a councillor.” I say to Mr Borrows that he should get his story clean and straight. He should tell members what he stands for, because none of that makes sense, and judging by the grin on the member’s face, I see that he knows it. He actually knows it, and the cameras will record that, and that says it all. The member is playing political footsie. The message for the Police Association and the very few police officers whom Mr Borrows is championing is not to hold their breath if they expect Mr Borrows or Kate Wilkinson to change this legislation back when the National Party is governing alone, because it ain’t going to happen.

I note with interest that neither Mr Finlayson, a lawyer of—

Dail Jones: A barrister.

RON MARK: —a barrister of standing, nor Mr Worth, another lawyer of standing, has argued against clause 97. They might come down later on and add a little bit in support of their colleagues, now that I have said that, but at this point in time neither wants to tarnish his legal career, his legal standing, by arguing against this clause, because each knows the nonsense of doing that. So the next time we hear National Party members bleating on that officers are not assigned to the front line, that there are not enough officers out on the beat, that officers are not doing this and not doing that, there will be only one question that we have to ask them: how many officers would be out there if all of them were councillors on district councils? How much work would be done if all of them were like one officer I know who is spending 42 hours a week as a councillor? Everyone wants to talk about one officer. Look, we have three cases on our desk: Blenheim, Coromandel, and Waimakariri.

If there is one thing that we in New Zealand First have consistently argued for, it is preserving the reputation of the police. We were very angry about the quota ticketing system, because we believed that it undermined the public’s confidence in the police. Well, right now we have police officers involved in politics, and that undermines the public’s confidence in police. Let me also say that while I was coming in in the car I heard on the radio that officers know to excuse themselves when a conflict of interest arises. Well, I say to Mr Borrows that I am sorry but we have cases in writing from constituents who have made complaints that suggest that some officers would not understand a conflict of interest if it leapt up and bit them on the backside.

CHESTER BORROWS (National—Whanganui) : I find it hugely ironic that New Zealand First should make a big, staged presentation about conflicts of interest, especially—

John Hayes: From the deathbed.

CHESTER BORROWS: —well, Mr Mark got off his deathbed to come here, and that was worthy of him—when we have a party whose leader is a lawyer and was a partner in a law firm. Mr Mark is going on about conflicts of interest, and we have to ask ourselves, with regard to some of the things that have been talked about today and some of the things that are currently before this Parliament, if that leader is as smart as that, how come he finds himself in the predicament he is in today?

Pita Paraone: What’s that got to do with the bill?

CHESTER BORROWS: Well, it has plenty to do with the Policing Bill, because Mr Mark stood up and spoke about a person from Waimakariri. Mr Mark did not name the person, but we all know who the person is, because Mr Mark has been making personal comments in respect of that particular councillor for some time.

The very incidents and examples that were quoted by Dail Jones were from exactly that situation, but the trouble is that the members had their hours mixed up. One member said it was 30 hours a week and the other said it was 42 hours a week, but then he said it was 45 hours a week. But it all relates to one person: a councillor from Waimakariri.

Ron Mark: It was Thames; he was talking about Thames.

CHESTER BORROWS: When the member was talking about the waste management guy, he was referring to the man from Canterbury, right? So there we go. In any event, Mr Mark drew specific attention to a specific councillor from Waimakariri, whom Mr Mark has had some sort of stake with for a long time.

What Mr Mark fails to talk about, though, is the incredibly good work that police officers do in district and regional councils around the country on behalf of their local communities. Then Mr Mark says those police officers would not know when to recognise a conflict of interest even if it bit them on the bum, and would not excuse themselves. In actual fact, those people do that every day, and so do other councillors. When we have a councillor who is in business in a town, that councillor exempts him or herself when the time is right.

We have heard other people who are not supporting Supplementary Order Paper 213, which was put forward by National in my name, talk about a separation of power, and about advice on that from those who came before the Law and Order Committee to advise it on legislative matters. Yet the whole reason we have a Parliament is to make sure that the people who make the law are representative of the constituents of this country, because if we left it only to the lawyers and academics to make the law in this country, we would be living in a pretty clinical sort of a world.

The fact is that those of us who are elected to come to this House and represent our constituents have a job to do, and we are charged with doing that. I make absolutely no apology for disagreeing, for instance, with the advisers who came before the select committee and talked about the separation of powers. In fact, what do we know, one of the submitters came from Waimakariri as well. I make absolutely no apology for disagreeing with the Commissioner of Police, and I am absolutely convinced that he disagrees with me on a regular basis. So what? The point is that we have an adversarial system. We also have a system whereby this is a House of Representatives. It is not a House of head-nodders who will listen to everybody who wants to give advice, then run off down that track.

If we look at the legislation that has been brought forward by district councils and local authorities around the country, we see some of it has gone on to become nationwide criminal law. An example of that is the curfew system that was introduced in Te Kūiti. Another example was the liquor bans introduced in places such as Tauranga, and, for instance, to take account of New Year celebrations in places like Whangamata.

People would say there is a conflict in, for instance, a councillor who gives a view on the importance of legislation around liquor bans then being the person who has to go on to enforce a ban. What about the other Government agencies that have staff members who are working on local authorities? Does it mean, for instance, that a customs officer should not be part of the Taranaki Regional Council, which happens to own the port at New Plymouth? What a ridiculous situation we would have there. Another example would be an Inland Revenue Department officer who is employed by the Government for 40 hours a week, but who also works on a local authority. Will we exempt, then, from serving as a councillor any Government agent who is able, in his or her occupation, to enforce the law? What about health and safety inspectors? Will they not be allowed to be on local councils, too? What about those people who work for the Department of Labour, investigating industrial accidents? Should they not be allowed to be on councils, as well? Just how far will it be taken?

The whole point is that this particular provision came out of the beef of one person, from one party, and it was about one district councillor in particular. It is a convention that one incident does not make the law.

Just to follow up on another point made by Mr Mark, five serving police officers are currently on local authorities, and, as far as I understand it, there are 11,500 police employees. Well, where is the problem?

If we are going to talk about previous mayors, are we going to talk about Mayor Ron Hibbs from Greymouth? He served his community for many years as the local mayor while he was a community constable. He was able to fit his work hours around that office, to the pleasure of his district commander and the commissioner, because later on he was esteemed by the police themselves for the work he had done locally. Are we going to say Ron Hibbs’ service was not worth much and we can forget about his contribution to his local community, or are we saying he was in some way defrauding the New Zealand public, because there was no way he could have been the mayor of a small provincial town and been a police officer for 40 hours a week? In actual fact, the issue of whether some extra duties are going on by way of an officer being involved in a regional council—or in anything else, for that matter—and whether an officer can complete his or her hours of employment are matters entirely between the officer and his or her employer—the police. It is not uncommon for the police to give flexible employment opportunities to people so they can do just that.

I say to those parties who will not be supporting Supplementary Order Paper 213 that I believe they are being duplicitous. I believe they are not valuing the work of those police officers who have served, and are currently serving, their communities incredibly well on local authorities, and they are not valuing the realism those police bring to the role. Mr Benson-Pope has said that that information can be called upon at any time, but in fact that very rarely happens. If someone has the ability to add to a discussion and to enhance the debate while sitting at a table, that person should be given the opportunity to do so. To fail to support Supplementary Order Paper 213, which will allow our hard-working police officers to continue to serve in this way, is wrong, and those concerned will have to live with the consequences of that.

As a final point, I would like to say it is very interesting that no grandfathering counter Supplementary Order Paper was presented until today. It is interesting to note that the person we all esteem highly—Alf Filipaina from Manukau City Council—has been spoken about in glowing references today, and Supplementary Order Paper 226 in the name of Annette King will allow him to continue serving as a councillor. I bet members anything they like that if he was not there and Mr Robbie Brine from Waimakariri was there instead, there would be no grandfathering clause—he would be gone by lunchtime.

RON MARK (NZ First) : It is worthwhile capping that tirade from Chester Borrows. The first thing that we must make clear to people is that the five officers who are currently serving will continue to serve, including Robbie Brine whom Mr Borrows seems to be so focused on—in fact, no one else has mentioned his name. He will continue to serve as a councillor until he chooses to stand down or is not elected. That is the bottom line. This legislation does not affect him at all.

Chester Borrows: Now.

RON MARK: Now, tomorrow, the next day, the day after that, the day after the next election, and the day after the next election after that. If Robbie Brine or any of those five officers are re-elected at the next local government elections, they will continue to serve. It is a grandparenting clause—it is as simple as that. The second point from Mr Borrows was that these officers make valuable contributions to councils when decisions are being made. I say to Mr Borrows that they can still serve on a community board. [Interruption] Is that not enough money?

Chester Borrows: That’s a pat on the head.

RON MARK: Mr Borrows now denigrates the officers who are serving on community boards. How many officers are currently serving on community boards? Two?

Hon Annette King: Another five.

RON MARK: So Mr Borrows thinks that those five are just a bunch of wallies. He just said to give them a little pat on the head. For those who could not hear it, because his microphone is turned off, I repeat that his response to the officers who are on community boards was to give them a pat on the head. Let us put that in the Hansard. New Zealand’s 11,500 police officers can still continue to make a contribution. They can all stand for community boards should they choose to do so, and they will be permitted to do so.

The next point concerns advice to the council. Forgive me, but during the 12 years that I have been in this Parliament a select committee has always had the ability to call the police whenever it wanted advice from them. In fact, rather than hearing from just a constable, whose view of life is a constable’s view, the select committee can get advice from specialists, heads of departments, and men and women and officers who know thoroughly and intimately the issues involved. The police will select a team to come and advise the committee—Mr Borrows has been in this House long enough to know that—and the council can do the same.

It is interesting that a delegation from the Wanganui District Council, led by the mayor, recently came before the very same Law and Order Committee and gave a submission on a law change it wants made—a law that it has drafted. It was supported by Mr Borrows. And who is sitting on that council committee? Rāna Waitai is on it—a former police officer. [Interruption] He is not one now, but people do not have any problem, whatsoever, with having someone who is a former police officer putting himself forward for election, being elected, and coming forward to do the work that people want him to do. Mr Waitai understands clearly the need for the separation of powers. He clearly understands that—as clearly as some people do not. So the argument that these police officers give quality advice is a nonsense argument. The police can always make officers available to give quality advice, and here is the rub: it will not cost the council anything and it will not cost ratepayers anything. They will not have to fund a $40,000 a year salary. They will just ask them to appear and they will appear, and they will be the right people.

I say to Mr Borrows that he should not hang his hat too heavily on the notion that all police officers have excused themselves from meetings when matters of law and order and public safety have been debated, when appropriations have been made, and when decisions and determinations have been made about the allocation of appropriations and the expenditure of finance—because he might fall over on that one. Enough written evidence is coming into Parliament from other areas around the country, and minutes of council meetings do not lie. Those who are present are recorded. Those who excuse themselves from proceedings because they see a conflict of interest are recorded. Those who do not are also recorded. So enough of the nonsense and enough of the drivel. It is time to move on. Thank you.

• The question was put that the amendment set out on Supplementary Order Paper 213 in the name of Chester Borrows to omit clause 97 and substitute new clause 97 be agreed to.

CHESTER BORROWS (National—Whanganui) : I rise to speak to the title and commencement clauses in respect of the Policing Bill. Although we have had a fairly colourful and loud debate in respect of one particular clause, it has to be seen as a great day when policing is brought into the modern era. Yesterday I had the privilege—not the sad duty—to attend the funeral of Constable Dave Armstrong of the New Plymouth police, who died, aged only 56, at his desk while he was working as a scenes of crime officer in the New Plymouth police station last Thursday. The funeral itself and the celebration of policing in New Zealand were incredibly moving, with about 100 officers in an honour guard down the street outside the chapel. One of the officers whom I took up to that funeral was ex - Senior Sergeant Miles from Hāwera, who is a real institution. He started as the senior sergeant in 1972, left in about 1985, and served his country for many years as a police officer in the ranks up to senior sergeant. One of the jobs he attended was the Tangiwai disaster, so that gives an indication of his vintage.

I will repeat a couple of comments I made in respect of this legislation when it was first introduced to Parliament. I made the point that in 1958, when the Police Act we are replacing with this bill was implemented, it was a very different world from the one we live in today. Only a few years after the culmination of the Second World War we lived in a country that was building rapidly in terms of economic growth on the back of wool and meat. We were, as some people called us, the larder of Great Britain. Great Britain was truly great and bought everything that we supplied. If we think back to those times and the way we lived—hugely conservative as a country, hugely supportive of discipline, living in neighbourhoods, with mothers in homes, a tightly restricted supply of alcohol and suchlike, and drugs were virtually unheard of—it was a completely different place from where we are today. The police service then was a completely different organisation from the New Zealand Police today. The only organisation doing policing in the 1950s was the New Zealand Police. Now, of course, a number of organisations right across the country are involved in policing. For example, more security guards are operating in New Zealand than there are sworn police officers. But just to recapture a little bit of history, let me say to members that in 1958 there was one police car in the Taranaki police district and it was a 1955 DeSoto owned by the police—

Hon Annette King: Harry owns it now!

CHESTER BORROWS: Harry has it; he has dibs on it anyway, I bet. The only person allowed to drive it was the district commander or his driver. But the district commander did not know that on the night shift his officers used to grab the car, disconnect the speedo, and go for a wander around Taranaki to visit the outlying stations. They could hide the number of miles ticking over on the clock but they could not hide the fact that they had used all the gas that a big V8 used. There is no statute of limitations under the Crimes Act so I hope people are gracious, but the officers used to sneak down to Powderham Street, put a siphon hose in the back of a bus, and fill up the police district commander’s car with petrol stolen out of the back of the bus. When I told the officer telling me this that that was theft, he said no, it was just good police work.

It is funny to think back that in those days we lived under a totally different regime. Apparently we saw policemen as 10-foot-tall angels—not Hell’s Angels—who would give people a kick up the bum or a clip around the ear rather than put them before the courts. Courts were interesting places too. People would go to prison at the drop of a hat, for what today would be seen as next to nothing.

But, moving on, I say we have to accept that policing has changed significantly. Virtually every core aspect of policing in New Zealand is done by a private organisation in parallel with the New Zealand Police. To be quite honest—and I think the police accept this themselves—the police would be very hard pressed to provide a similar level of overall policing if there were no private organisations now carrying out police work within our country. We will also see, through the implementation of this legislation, access to biometric information, the ability to take and retain DNA samples, and those other investigative techniques that are able to give juries and decision makers within the court system the ability to make well-honed decisions backed up by good information.

The police are able to work in a fairly fluid way where needs are. They have the ability to authorise certain officers, who may not actually be sworn police, to carry out tasks that at present require a sworn officer to do them. That is a good thing, as long as we bear in mind that the spread of those we get to do these policing duties should not be too broad, and that those who are charged with enforcing the law are those who understand it and have the training and the ability to execute it—and execute it in a safe way not only from the police officer’s point of view but from the point of view of the offender or those who run up against the jurisdiction of our local police.

The legislation builds on changes we have seen over the last 20 years and takes account of the way crime is occurring in our communities and neighbourhoods and the way it is investigated by those charged to do so. The National Party is pleased to support the Policing Bill.

I compliment the Minister on the way she has conducted the review of policing to date, the implementation of the new Policing Bill—the replacement for the Police Act—and the collegial way in which she has approached that, with the input that those of us from across the House have been able to have in respect of that, and also with the input of those within the sector, particularly those private providers that I alluded to earlier. I also congratulate Superintendent Hamish McCardle on the work he did in preparation of the review documents, and on the conduct of the seminar that drew expertise from around the world and around the country to consider the matters before the review, as it was then, prior to the compilation of the Policing Bill as it is now, and the new Policing Act as it will be very shortly. I thank the Minister for the opportunity to have input into that, and I believe that it will be a bit of a hallmark in the way that Governments present and future will conduct themselves in respect of considering legislation that is apolitical, that will endure over time, and that will have such a huge impact on our communities—hopefully, for the better.

• Clause 1 agreed to.

• Clause 2 not agreed to.
• The question was put that the amendment set out on Supplementary Order Paper 227 in the name of the Hon Annette King to insert new clause 2 be agreed to.

• New clause 2 agreed to.

• Bill reported with amendment.

• Report adopted.

Hon DAMIEN O’CONNOR (Minister for Rural Affairs) : I move, That the Walking Access Bill be now read a second time. In speaking to this reading I will take the opportunity to extend my thanks to the Local Government and Environment Committee for its careful and very prompt consideration of this bill. The bill is the culmination of a lengthy process of public consultation. The committee received 136 submissions, resulting in a number of very useful improvements to the bill. I am pleased the committee was able to report that all changes were agreed to unanimously. This will give the many people who have expressed an interest in the bill and in the policy a real sense of surety for the future.

The primary purpose of the bill is to establish the New Zealand Walking Access Commission, with the aim of providing the public with free, certain, enduring, and practical walking access to the outdoors. In addition to setting up the commission, the bill re-enacts, with appropriate amendments, the provisions of the New Zealand Walkways Act 1990. At the same time, it transfers to the commission the present roles of the Minister of Conservation, the Director-General of Conservation, the New Zealand Conservation Authority, and conservation boards, in respect of walkways.

The commission is to be established as a statutory entity, with the status of an agency of the Crown under the Crown Entities Act, and will be funded largely by parliamentary appropriation. It will be governed by a board of up to eight members, and have all the usual powers available to a Crown entity. It is appropriate that the functions and powers of the commission as a Crown entity are broadly defined in the bill, as this will allow the commission sufficient flexibility to develop its policies and priorities within the purpose and objective of the bill. The commission will lead, and provide a central point for, the coordination of walking access. It will support the negotiation, establishment, maintenance, and improvement of walking access. Key tasks will include the improvement of existing access opportunities and the negotiation of new access across private land, including access to public resources.

The term “public resources” has not been defined in the bill. The committee did not consider this necessary, as the bill clearly provides that the commission give priority to access to conservation land, to local authority parks and reserves, to sports fish and game habitats, and most lakes and rivers. Sports fish and game are often referred to as public resources. Access that is negotiated over private land may take the form of a walkway, a lease or easement for walking access, or some other legal form. The commission will provide authoritative information, which is hard to obtain at present, on the location of public land that is open to walking access.

An important task will be to develop a code of responsible conduct, in order to provide a guide on appropriate behaviour and conditions of use in relation to walking access. The code will also provide a vehicle for the dissemination of information on the powers of enforcement officers, culturally sensitive sites, and other useful information.

The committee did not consider that there was a need to change the provision for a review of the bill to take place after a period of 10 years. Clearly, the commission will have its work cut out during its start-up phase in developing its statement of intent and in establishing relationships with relevant agencies and stakeholders to achieve its objectives, and complex issues will need to be worked through over a period of time.

The bill affirms the high value that we as New Zealanders place on access to the outdoors and to our natural heritage. In providing a focal point for walking access, the bill fosters an appreciation of the environment, and is well-aligned with wider Government priorities and initiatives that enhance New Zealanders’ sense of identity and promote healthy lifestyles. In providing for the negotiation of walking access across private land, the bill upholds landowners’ right to make decisions about public access to their property, and acknowledges their need to go about their business without threat to their safety and security.

It is a fundamental principle of the bill that such access will remain subject to negotiation and agreement with the landholders concerned. The committee supported that principle. Arbitration of disputes or compulsory acquisition of land for access is likely to be counter-productive, as it would destroy the goodwill that currently exists, and escalate demands for compensation. I note that although a minority report in the commentary on the bill takes the opposite view, that position was not pursued in the bill itself, as reported back to this House.

I point out that there was considerable public support for the general approach taken in the bill, and the committee did not question the need for a walking access commission, or change its primary functions. Two main areas of public concern were identified, however. The first was that greater provision needed to be made for the inclusion of other forms of access in addition to walking access, such as access with dogs, bicycles, or vehicles, or with firearms for hunting purposes. Although the negotiation of rights in addition to walking access was already provided for in the functions of the commission, the purpose of the bill and the objective of the commission have now been amended to specifically include the types of access associated with walking access.

The issue that attracted most concern was the provision carried over from the current New Zealand Walkways Act for walkways to be created on unformed legal roads. Many submitters were concerned that this would remove existing rights of access and restrict activities, such as access with firearms, dogs, bicycles, or motor vehicles, that would otherwise be lawful on the road. There seems to have been an assumption that the provision would result in the widespread creation of walkways on unformed legal roads, although this has rarely occurred in the past. The committee agreed that the fundamental purpose of the bill would not be affected if the provision for creating walkways over unformed legal roads was removed, and recommended that in view of the level of opposition to it, this provision be deleted. I agree with that recommendation. The extensive network of unformed legal roads that exists remains a valuable resource for public access even if walkways are not created over them.

I will briefly mention some of the other changes agreed to by the committee. A few changes have been made to the interpretation clause in the bill. The definitions of “private land” and “landholder” have been clarified, and a clearer distinction is made between “walking access” and “walkway”, which is only one form of walking access. In response to submissions the bill now includes improved procedures for the public to be notified about the creation, naming, and revocation of walkways, and here is also a greater focus on collaboration with local authorities.

The need for a list of priorities to guide the commission in negotiating access over private land has been reconsidered. The committee noted that the list of priorities set out in the bill was not ranked in any particular order, and that a list of priorities may be too limiting in any case. Instead, the bill now identifies the matters that must be taken into account by the commission when considering its priorities for negotiating access over private land. These matters now include the development of walking access that is continuous over land adjoining the coast, rivers, or lakes; access to conservation areas or access to areas of scenic or recreational value; and access to sports fish and game.

The bill has been amended to take account of the views of Māori and representatives of other persons who may have an interest in the naming of walkways. There is a new requirement that the commission consider the appropriateness of publishing maps that show the location of culturally sensitive sites. In addition, provision has been made for information on tikanga Māori, Māori relationships with the land and waterways, and sites of cultural significance to be included in the code of responsible conduct.

I am grateful to the Local Government and Environment Committee for these amendments and for a number of other minor technical amendments, which have improved the bill considerably. In establishing the New Zealand Walkways Access Commission the bill raises the profile of walking access and it provides a strong foundation for the improvement and extension of walking access opportunities in New Zealand. I have no doubt that the bill will result in the enhanced public enjoyment of our natural heritage and will make a significant contribution to our national identity, and I am very pleased to support it. Thank you, Mr Deputy Speaker.

ERIC ROY (National—Invercargill) : I have to say that I do not have any significant points of disagreement with the Hon Damien O’Connor, who led this debate.

I am not normally a member of the Local Government and Environment Committee, but I did ask our whips whether I might be associated with that committee for the purpose of dealing with the Walking Access Bill. I did that for several reasons. The first is my own personal situation. I am a keen tramper, hunter, gatherer, and boater—I have an inflatable boat with which I navigate rivers that may or may not have marginal strips on them—so I have a whole range of reasons to be associated with the select committee dealing with this legislation. I am also a landowner. On my rather modest landholding I think I have almost every land type that this bill may or may not be about. I have streams with marginal strips, streams without marginal strips, and wetlands without marginal strips. I have paper roads. I have formed roads that are not legal roads. I also have some pylons that are 70 metres high. So I am aware of quite a number of the issues surrounding the debate about what is quite a significant bill.

We need to understand that New Zealand is a unique country in a lot of respects. One of them is just the very nature of our country. We think of ourselves as having a sort of conservation estate and a rural landscape, yet we are one of the most urbanised countries in the world. A quarter of our population lives in one city, another quarter lives in another four cities, and, in fact, very, very few people reside in a rural environment. I would not say that we have a conflict, but we have this ongoing issue about access.

Another interesting thing about New Zealand is that it had laid down by instruction, firstly from Queen Victoria, a whole range of mechanisms of access that overlay a whole lot of property rights that exist. For various reasons, as I mentioned when this bill was introduced, some of the provisions that were laid down—particularly marginal strips, or what is known as the Queen’s Chain—were incomplete. In most cases there is a reasonably amicable interface between the public and the landowner. In some cases it is not so amicable. In some places there has been private capture of some unique public resources, and this bill does not actually deal with that. At some stage in the future this Parliament may have to address those issues if they escalate, or if some of the issues that exist now cannot be resolved. That may be an issue for the future, but this bill does not set out to resolve those issues.

New Zealand is a unique place, and another unique thing about New Zealand is the participation factor. If we look at the figures from Sport and Recreation New Zealand, which was the only agency I found to have these kinds of figures, we see that about half our population is involved in outdoor recreational pursuits that cross private land or the conservation estate, or that need to cross private land in some instances to get to the conservation estate. Camping, hunting, tramping, walking—there is a whole range of things out there. We are unique in a whole lot of ways.

The first instruction came from Queen Victoria in 1841, I think, and there have been a number of times in history when we have tried to look after the uniqueness of this access situation. The last major attempt was made by McKenzie of the Ballance Government, in around 1891. This bill is another step forward, so we are doing quite a significant thing here. The interesting thing is that this legislation acknowledges the property rights that exist. The bill acknowledges a lot of the difficulties out there, but it sees negotiation as the methodology by which these things need to be resolved. That is what it does.

I will talk a wee bit now about the purpose clause of the bill, because I think it is important. Some things around the bill’s purpose need to be amplified a little for the benefit of the House. There is another issue now because of today’s technology. Today we can buy little items like this global positioning system device that I have here, at a starting point of $150. We can download a cadastral map, and it can have a much more accurate description of what may or may not be out there than what the landowner has in a lot of instances. In a way, that also creates an issue that needs to be resolved.

Let us look now at clause 3, “Purpose”, in Part 1. Some bits need amplification. If we look at clause 3(a), we see mention of public resources. The bill does not define what a public resource is. A public resource is many things. It is our conservation estate, our vistas, our mountain scenery, and our access to them. It is the acclimatised fish and birds that exist out there, and it is the right to do whatever is necessary to be able to capture and hunt them. It is the right to go tramping. It is the right to do all those things that are intrinsically a part of the New Zealand psyche. It is the birthright that was first laid down, essentially, by our forebears, who wisely created some of the walkways and unwisely acclimatised a lot of birds and animals that probably should not have been here in the first instance, but they are here now and are part of our birthright. The public resource is all of those things, and this bill enshrines some negotiation powers that are important in relation to accessing it.

The second thing is that clause 3(c) talks about “responsibility for leading and supporting the negotiation, establishment, maintenance, and improvement of—(i) walking access …”. So negotiation is enshrined in the purpose clause. I hope that when the Walking Access Commission—which this bill sets up to resolve some of those issues—goes about the process of negotiation, there is an element of goodwill. Those parties that might be a wee bit recalcitrant need to note that the House has resiled from enshrining definite leverage points, in recognition of property rights, but the expectation is that there will be good-faith bargaining, and that some goodwill will come to the table in terms of that negotiation.

Further down in clause 3(c) is an interesting little subparagraph that captures something that is not otherwise in the bill. It gives the Walking Access Commission the right to deal with things that are outside walking access, and they include the carriage of firearms and crossbows, and anything else that might be needed.

Hon Member: Dogs.

ERIC ROY: Yes. The Walking Access Commission is allowed to take part in negotiating those things.

Let us have a word now about the Walking Access Commission. It is quite clearly set out in the bill that it has a role to negotiate—one needs just to read the commentary and the purpose clause—and that is the key thing that it does. So the bill sets up a Walking Access Commission and its No. 1 job is negotiation.

It also needs, I guess, to collect a database of what actually does exist now, and I guess that that information will be on a website somewhere so that people can get it. That will be an ongoing process. Brian Hayes, who was on the first Walking Access Committee, did some work on some specific properties, and in some cases it took 1 or 2 hours to actually identify what did and did not exist. In the first reading debate on this bill I raised several issues relating to why that is such a complex matter.

As Minister O’Connor said, another important function of the Walking Access Commission is to set up a code of practice, because there is a reluctance by some landowners to allow access where there is no acknowledgment of the kinds of activities that take place on the land and the kinds of things that are appropriate. Once upon a time everybody had a relation who was on a farm and actually understood all of that. As I mentioned at the outset, we are now an urbanised country, and we have lost some of that institutional knowledge about respect for land use. So there needs to be a code of practice.

In all, National members are supportive of this bill, we look forward to its progress through the House and we think it is a step forward. It is not a complete answer, but it is a big step.

MOANA MACKEY (Labour) : I am happy to stand in support of the Walking Access Bill in its second reading. As chair of the Local Government and Environment Committee, I want to thank all the submitters who wrote to us, emailed us, and came along to the select committee to express their support for, or their concerns about, the bill. I think that we, as a committee, managed to incorporate without too much difficulty most of the issues that were raised.

I also want to thank the officials who advised us on the bill. Certainly, the advice we received was very timely and of a very high quality. There is no doubt that there was a lot of passion amongst the officials for this legislation, and it was a pleasure to work with them on the bill. I especially want to thank the members of the Local Government and Environment Committee—both the permanent members and the members who were subbed on, including the member who has taken his seat. It was clear that the members had a wealth of knowledge, and the select committee was able to tap into it. As a little thankyou to the honourable member Eric Roy, we made sure that his crossbow was covered by the legislation.

Eric Roy: My longbow!

MOANA MACKEY: Oh, the member’s longbow. We had that discussion many, many times. It was a small price to pay for the wealth of knowledge and experience that that member brought to the select committee. I thank the walking access panel, which did a huge amount of work on this legislation and this policy that the select committee was able to add to. Of course, the numerous groups that had gone before it had also done a lot of work.

I am sure members in this Chamber are well aware of the history of this particular legislation. I am very pleased that we are able to stand here in the Chamber today with what I hope will be very strong support amongst this Parliament for a very important step for walking access in New Zealand.

Certainly I agree with what the previous member said. Sometimes the perception and the reality can be quite different, and in New Zealand we have a number of areas where we need to face up to some of the realities when they do not match the perceptions. We need to do this when it comes to the environment, when it comes to our own sustainability as a country, and also when it comes to walking access. New Zealanders pride themselves on having open access to the great outdoors. I suspect that if one polled people about it, of those who would say that they used those rights, probably fewer would actually use them. But the reality is we pride ourselves on being a country that does have that access.

I think this Parliament needs to step up and do what we can to make that more of a reality, because as we have seen land use change, as we have seen our agricultural and horticultural sectors become stronger, and as we have seen urban sprawl, I suspect that many of the rights that people naturally assume are there and will always be there have been eroded away. That might not be because the people who own the land that some of these access ways are on do not believe they should be there; it might be that they do not realise they are there. It might be that they do not believe that the access ways are appropriate any more. I think this country has come to a point where we need to address this issue through Parliament, and I believe that the Walking Access Commission is a very good way to do that.

I come to some of the changes that the select committee made. We wanted to make it quite clear that the Walking Access Commission is able to deal with forms of access other than just walking access. The select committee looked at this issue quite closely. Unfortunately, it became clear that changing the name of the commission, which seemed the simplest thing to do, to make sure that people were aware that it was not about just walking access—although that is clearly the main focus—was outside the scope of the bill, given that the bill is called the Walking Access Bill. Changing the name of the commission would have been quite a substantial change and outside the scope. So we shifted to the purpose clause something that was already in the bill, in order to make it clear that other types of access associated with walking access, such as access with firearms, dogs, bicycles, and motor vehicles, are included. We also made it clear that wheelchairs and other mobility vehicles are included, as are companion dogs that are used, for example, to help blind people. We wanted to make it clear that those things are part of the commission’s work, and that we believe them to be important. People should not read into the legislation that it is only about walking access and not about any other form of access at all. That was one of the changes that the committee made.

Probably the next most significant change that we made was around an issue that a number of us had received numerous emails on, and that was the concern of four-wheel drive groups in particular, but other groups as well, about the creation of walkways over unformed legal roads. It seems there was perhaps a bit of misinformation out there about what the bill was doing. In order to be completely clear that the intention was not to get rid of these access ways, we simply deleted the clause that people had concerns about. We removed it entirely. I do not think we could be any clearer about the fact that that was certainly not the intention of the Government, and certainly not the intention of the select committee, as one can see from the bill that has been reported back.

A number of the submitters raised concerns about the level of involvement that they may have, or that may be required, under the bill in terms of public notification of, and public consultation on, the creation, naming, and removal of walkways. So we have bolstered that part of the bill a little bit and made it clearer who needs to be involved, who needs to be consulted, and who should be informed when these kinds of changes are taking place. It was the will of the select committee that people be as involved as they possibly could without causing onerous stress on the Walking Access Commission, local authorities, and other groups. Once again, we expect that common sense will be used when these matters are being considered.

We wanted to leave the bill as flexible as possible, because, of course, this Walking Access Commission is going to be covering a variety of different parts of the country, different types of access, and different levels of access. We certainly did not want to tie it up in a whole lot of processes that mean that significant projects require far too little consultation or public involvement, or to go the other way—that relatively simple matters require far too much. So we tried to leave the bill as flexible as possible whilst ensuring the basic public right to be consulted on what is happening. Issues about safety and security were also raised with the select committee, and we clarified the liability of those involved.

I think this reported-back bill is a very good piece of work done by the select committee. I am pleased to hear the National Party is supporting it, and I commend the bill to the House.

Hon DAVID CARTER (National) : I want to start by thanking the chair of the Local Government and Environment Committee, Moana Mackey, for keeping me informed and inviting me to attend as a participant on that committee. Unfortunately, I was not able to attend very often, but I have a significant interest in this public access issue.

I want to pick up on a comment made by my colleague Eric Roy when he said that this bill goes a long way to solving an ongoing issue of access around rural New Zealand. From my point of view, it became an issue because of the way it was poorly handled by the Labour Government.

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

Hon DAVID CARTER: Prior to the dinner break I was discussing Eric Roy’s contribution. My colleague said that there has been an ongoing issue with public access to rural land. I said that I did not think that was true historically but that it had certainly become a major issue over the last few years, and I think some people are to blame for the fact that it has become a major issue. I accept Mr Roy’s argument that New Zealand is going through a process of urbanisation, and there may be some ignorance of common courtesy and rules amongst some people who are tempted to access private land.

I have to say that my attitude to this issue was summed up fairly well last Friday, when I met with a man called Ed—who is actually my hairdresser. He is a very keen hunter and fisherman. He spends most of his weekend with his children, including his 10-year-old daughter, out hunting—often with dogs used for pig hunting. Ed said that in his 25 years of passionately pursuing that particular hobby, he had never been refused access by any farmer, apart from over lambing time—and he accepted that during lambing time it is simply not appropriate to be on some of those farm properties.

Ed summed it up for me: there has not been a significant issue with most New Zealand farmers over most rural land. I think Helen Clark and the Labour Government did huge damage to this debate by suggesting that there had been issues. In fact, the feeling I picked up from many of my farming friends throughout New Zealand was that the very goodwill that had existed for, perhaps, 150 years would be put at serious risk if any hunter or recreationist thought they could assume the right to wander over privately owned land without simply asking for permission in the first place.

Again, I acknowledge that Eric Roy has been involved in this issue for a long period of time. He acknowledges that on some occasions there is private capture of a public asset. I agree with Eric that that becomes an unacceptable situation. As he pointed out, this legislation does not actually resolve those particular circumstances—and, I might add, I think they are relatively few in number. But what this legislation does is to set up a process of identifying where there is potential for private capture of a public asset. It then sets up a process whereby people having identified those particular situations, at least attempt to negotiate solutions with private landowners that recognise those property rights. For me that is a significant advance in this debate.

The final thing I want to mention is the issue around the paper roads that exist in many parts of New Zealand—they cover my Banks Peninsula farm property extensively. I never purchased those particular parcels of land in the first place. As a custodian I have grazed them, and I have had the use of the grazing. I have also looked after them and kept them free of weeds and pests, but they have never been my private property. What is interesting in these debates, particularly in respect of Banks Peninsula, with which I am particularly familiar, is that those pathways created—and I understand they were surveyed perhaps in London, before the first four ships even arrived—in many cases do not provide practical access.

I look forward to the day when there will be a sensible discussion between myself as a landowner and the commission, presumably involving the now Christchurch City Council, where a better way can be established that gives the people—particularly of Christchurch—access to the beautiful Banks Peninsula. As a landowner, I would certainly cooperate fully with that process, and I suggest to the House that nearly every farmer on the Banks Peninsula that I know would also quite happily be involved in that process.

Incidentally, there is a walkway that has been voluntarily created around a particular block that I own. There is public access to the Packhorse Hut. My farm property surrounds the Packhorse Hut. Access to the hut to the top of Mount Herbert could be achieved by quite impractical paper roads, but a track has been established and marked on the land with the consent of myself and other landowners. We enjoy going up there in the weekends, when we enjoy our own property and watch many other New Zealanders out there enjoying the outdoors of Banks Peninsula. The only time that it is closed is over the current month and a half, when farmers in Banks Peninsula are involved in lambing.

I think that typifies what can occur in this debate. Most farmers enjoy the public of New Zealand accessing their property. They simply want the courtesy of being asked. They certainly want the courtesy of non-access being observed at times of calving and lambing, where it clearly interrupts farming operations. They want to know where people are so that in the event of an emergency or accident they are at least semi-informed of where people might be.

I am pleased that this legislation has progressed to this stage, and I am certainly pleased to see that it will be passed before the election. It has been a difficult debate over the last few years; a debate that I think has been created by a few vested interests and by some politicians who are ignorant of the true facts out there in rural New Zealand.

Dr RUSSEL NORMAN (Co-Leader—Green) : The Green Party will be voting in favour of the Walking Access Bill. The bill moves towards Green Party policies in a number of ways—the establishment of a code of conduct; additional focus on, and resourcing for, negotiating access; a commission to build relationships with landowners and land users; and improved mapping and information. These are all positive things, and the Green Party will be supporting the bill for those reasons. However, we have to say we are disappointed that what we thought was an opportunity to enshrine in legislation public rights of access has been missed with this bill. The valuable and well-meaning objectives of the bill, and the functions of the commission, are thereby limited because of that failure. Fundamentally, we remain unconvinced that we have the right balance in this bill between private property rights and the rights of public access to public land and public resources.

As we stated in our minority report, the Green Party has long advocated for a commission with powers beyond mere voluntary negotiation. If the public has rights to land and to public resources, then there must be an authority with the ability and the power to uphold those rights against unreasonable exclusion and exclusive capture. This bill establishes a commission to facilitate and negotiate, but not to arbitrate.

We are unconvinced that the public rights of access are sufficiently enshrined in law, relative to the well-entrenched private property rights. This bill was a chance to enshrine public access rights and public rights, but it has failed to do that. The statement of public rights of access in this bill is confined to the purpose clause of the bill, which states that the intent of the legislation is to “provide the New Zealand public with free, certain, enduring, and practical walking access to the outdoors …”. It is quite obvious that private property rights in our country are thoroughly clear and entrenched in New Zealand law, whereas public access rights are significantly less entrenched in law. This includes both access to public lands—such as the coast, lakes, along rivers—and access to public resources.

The bill defines public and private land, but it does not define public resources, which include wild game, wildlife, freshwater fisheries, and natural water. Such resources do not attach to land title and belong to the public. The public has rights to them and, therefore, rights to fair and reasonable access to them. It also includes public access to customary resources, be it Māori access to eels or pounamu, or general public access to whitebait, trout, or deer. It also includes public access to recreational opportunities on rivers and beaches, and in public, recreation, and conservation lands. Too often unreasonable landowners have blocked access, to exclusively capture public resources for their own ends—personal or commercial. I certainly acknowledge, as previous speakers have, that the vast majority do not do that, but we do know that it happens. We certainly hope this bill will put an end to this exclusive capture but, given the weaknesses of the bill, only time will tell whether it achieves that.

We welcome the establishment of an access authority, albeit limited by an inability to exercise that authority in access disputes and a continued lack of clarity as to the extent of public access rights. The commission will have quite a bit to do. We certainly hope it will not lose sight of the main policy problem that the legislation is trying to solve—that is, the thorny access obstacles in specific places. The commission is faced with mandates to do work on strategies, glossy brochures, mapping information, education, advice provision, and administration. These are all important aspects to access provision but they do not resolve the real, and very difficult and growing, problem of access—access of the public to their own public resources right across New Zealand.

The Green Party also believes that the bill is a back-track on early Government policy of enshrining public rights in completing the Queen’s Chain. Given the significant change in access policy with this bill compared with previous Government policy, and even aspects of the Acland Walking Access Consultation Panel reports, it is outrageous that the bill has a review period of 10 years. We think that 10 years is a long time to see whether this will work and whether it will prove that it will give people access to their own resources—resources owned by the public that the public does not have access to. For that reason we support a shorter review period of 5-yearly reviews.

We will be seeking continued progress on public access in New Zealand through this bill, in complementary ways. I would just like to touch on one of those, which has been raised by Federated Mountain Clubs and Fish and Game New Zealand. Currently, the Government is a bit reluctant to notify, or engage with, access stakeholders when overseas land sales occur. Sales of significant land to overseas buyers are approved by the Overseas Investment Office—some would say rubber-stamped—and conditions can be placed on sales, including conditions of access. There have been examples where that has been done to good effect and access has been increased during the process of going through the Overseas Investment Office, but there have also been examples where opportunities have been missed to use that process to improve access. It seems perfectly reasonable to the Green Party that the office should liaise with the Walking Access Commission—which this bill will establish—in these situations so that we can identify and set conditions for public access if these sales go ahead. The commission will have the expertise and contacts with the appropriate stakeholders. We will continue to work with the Government and other parties to achieve this.

I would like to end by thanking the members of the public and organisations that have been key to driving these access issues, and have contributed along the way. Fish and Game New Zealand is a crucial advocate both for environmental protection and for public access to public resources, as is Federated Mountain Clubs, which has a long and proud history of advocating for New Zealanders’ rights to recreate in our mountains and rivers.

TE URUROA FLAVELL (Māori Party—Waiariki) : Tēnā koe, Madam Assistant Speaker. Kia ora tātou i tēnēi pō. As I understand it, a key statement appeared throughout some of the 136 submissions received from the public about this bill, and I note that the submission from Te Rūnanga o Ngāi Tahu stated it pretty clearly. It stated: “The Crown has a duty under article 2 of the Treaty to protect Māori in use of their lands and waterways to the fullest extent practicable.” I note that the Tuwharetoa Maori Trust Board and the Federation of Māori Authorities were united in their position, which was: “Article two of the Treaty granted ‘te tino rangatiratanga … o ratou whenua o ratou kainga me o ratou taonga katoa’, or the ‘full and undisturbed possession of their lands and estates, fisheries and other properties’. This article therefore guarantees Maori the right to determine access to their land.” I have to say that it is a view that the Māori Party absolutely supports. We know that iwi Māori have a special relationship, a partnership relationship, with the Crown that is separate from that of general citizens. We also know that a consequence of the unique Treaty relationship involves the duty of the Crown, and all agents of the Crown, to undertake the active protection of the rangatiratanga rights under article 2.

So when the Local Government and Environment Committee finished its report, without so much as even the word “Treaty” included in its brief, we thought there must have been some huge mistake. We will therefore be representing the views of hapū and iwi, and during the Committee stage we will introduce the Treaty clause that submitters asked to be inserted in the bill.

It makes for interesting analysis that the first two bills on our Order Paper today—the Walking Access Bill and the Policing Bill—have both suffered from minuscule vision when it comes to the most critical issue of honouring Te Tiriti o Waitangi. We are trying not to read too much into it: that in both cases Te Rūnanga o Ngāi Tahu has been instrumental in coming forward, recommending to the Crown that a Treaty clause would improve the overall effectiveness of this legislation.

So we might ask why the Crown is not prepared to listen to the wisdom of Ngāi Tahu, at least, in helping this nation move forward. My understanding is that Te Rūnanga o Ngāi Tahu’s submission outlined what a Treaty clause could do, in effect. A Treaty clause would ensure that the rangatiratanga and mana of tangata whenua over customary land and sites of significance were respected and protected. A Treaty clause would enable our kaitiaki responsibilities to be recognised in decision making. A Treaty clause would demonstrate that public access to private land and Māori land remained subject to negotiation and agreement with landholders. If not through the bill, then one would expect, at the very least, that the New Zealand Walking Access Commission would include such a clause, as both the Federation of Māori Authorities and the Tuwharetoa Maori Trust Board recommended—namely, a Treaty clause being an important provision enshrined in their constitution and rules.

This is for us a very important bill, and the federation confirmed that for us. Any bill that threatens to impact on “te tino rangatiratanga … o ratou whenua o ratou kainga me o ratou taonga katoa,” we in the Māori Party take very, very seriously. Māori have already been, and continue to be, deprived, as we have seen over our history the deprivation of our people of most of our lands, and do not want to see the continuation of any more plans to alienate or confiscate in the name of the Crown.

The Māori Party holds true to the challenge laid down so many years ago by Tahupōtiki Wīremu Rātana that the Treaty should be embodied in statute, that legislation should ensure the protection from sale of our lands, that there should be no more land confiscation, and that there should be compensation for land that has been stolen. This was the challenge represented, I believe, through the placement before a former Labour Prime Minister of four objects. This will be a bit of a history lesson for us, Madam Assistant Speaker. They were a potato, a broken watch, a hūia feather, and a greenstone tiki. As I have heard about and read about, T W Rātana explained to Michael Joseph Savage that the potato was the ordinary Māori needing his or her land; the broken watch was the broken machinery of law relating to the lands of Māori—only the law could repair the law; the tiki stood for the mana of Māori people; and the hūia feather, a sign of a chief, would be worn by Mr Savage if he would look after his Māori people. Yet as history and Hansard record, that hūia feather would not be worn, the tiki would be discarded—indeed, we believe that those original four objects to be would all be lost in the legacy of broken promises and unfulfilled dreams.

For us, this bill would have been a great opportunity to address those expectations. This bill could have signalled a commitment to enshrine the Treaty in legislation. It could have been used to repair the law itself and to guard against further alienation. We ask why this Government is not prepared to insert a Treaty clause into the legislation. Why did it not support the Māori Party amendment to insert the Treaty clause into the Policing Bill? The numbers on that evening indicated the amendment would have passed in this House with 60 Ayes and 58 Noes. Instead, what we have is a “yes, but” bill.

Clause 8 deals with the composition of the New Zealand Walking Access Commission. Submitters recommended that Māori representation, the capacity for the sharing of knowledge of tikanga Māori, on the commission’s board be increased from one. The select committee included that view in the report, yes, but no amendments were included to address it. Then we turn to the protection of sites of Māori cultural significance. Te Rūnanga o Ngāi Tahu advised that permission should be sought from tangata whenua before information relating to mahinga kai, wāhi tapu, and other sites of cultural significance be published. Yes, the committee agreed it was important, but it was not so much significance but cultural sensitivities that the commission should take account of.

Clause 10(2) minimises the advice of Ngāi Tahu by suggesting that the commission should consider any cultural sensitivities of which it is aware, without actually explicitly requiring it to gain the permission of tangata whenua.

Then there is the concept of the code of responsible conduct for users and landholders. Again, Te Rūnanga o Ngāi Tahu came up with robust advice, specifying that the code should include information on tikanga Māori, Māori relationships with land and waters, and desirable standards of behaviour to be observed when accessing sites. Yes, but we will take it on the first part of this thinking of the select committee, so clause 16(1)(bb) was inserted to include reference to guidance about tikanga Māori. The Federation of Māori Authorities has spoken for so many in endorsing the principle of the code of conduct as a benchmark standard to which the users must adhere. It was hoped that such gold standards would include information and understanding of Māori land, à la rāhui, negotiated permission, wāhi tapu, all those sorts of things, as part of the desirable standards of behaviour to be observed. So it was pretty disappointing that the select committee has continued to be a little bit half-hearted about this in its recommendations to simply include a reference to guidance about tikanga Māori, rather than a stronger statement of support such as adherence to tikanga Māori.

This bill has some very positive features as it has emerged from the select committee process. We are pleased that there are new clauses to require the commission to take into account the views of local hapū and iwi in the naming of walkways over either public or private land. We are pleased, too, with the amendments to clause 29 to allow the commission to purchase private land as a means to provide public access. The word “acquire” has been removed from this clause to remove the implication of the compulsory acquisition of private land, a concept that Māori shudder even to contemplate. But in summary, our position on this bill is influenced by the prevailing “yes, but” mentality. We do not believe that it is acceptable to minimise, to trivialise, or to compromise the guarantee of Te Tiriti o Waitangi to protect Māori in the use of their lands and waterways to the fullest extent practicable. Throughout this bill every attempt is made to dilute and diminish the mana of the arguments put forward by mana whenua, and because of that we cannot possibly support this bill at its second reading.

JUDY TURNER (Deputy Leader—United Future) : I stand on behalf of United Future to speak in support of the second reading of the Walking Access Bill. United Future considered it very worrying that included in the bill that went to the Local Government and Environment Committee was such a large section on the establishment of walkways across public land. This topic was barely touched upon by the Walking Access Consultation Panel. Presently, public land has few restrictions. However, walkways administered under the New Zealand Walkways Act by local government would be much more restrictive with, for example, no vehicles, guns, or dogs being permitted along these walkways—all of which are often used by keen fishermen, hunters, or trampers.

The establishment of walkways over public land administered by regional and local councils would have served to displace unformed legal roads as a legal entity. Under the New Zealand Walkways Act a regional council can apply to stop a legal road by selling it and de-gazetting it, which means this legislation may well have succeeded in stymieing public access, rather than enhancing it. United Future is far happier with this bill, now that the select committee has identified that “the power to create walkways over unformed legal road is not critical to the success of the walkways regime”, and has since deleted this clause from the bill.

It is a special and crucially important feature of New Zealand that wildlife, freshwater fisheries, and natural water do not attach to land title under New Zealand law but, rather, are part of the public estate owned by everyone in general. As a consequence, it is not unreasonable that these notional owners—that is, the general public—should be able to expect and have fair and reasonable access to that which is theirs, while respecting the property rights of landowners, for recreation and for something as basic as food gathering in the case of fishers and hunters, but also other forms of food gathering, such as shellfish, and Māori customary food gathering.

A future consequence of this is that there are therefore now two sets of property rights in New Zealand—private property rights in land, and public property rights in public resources. This is what makes New Zealand special, and has its origins in the wishes of early settlers to not see a replication of the landed gentry owning and exclusively controlling the fish and game animal resource. It is therefore good and important that clause 3 specifically refers to these public resources. However, the Hansard record needs to show that Parliament intended public resources to include wildlife, freshwater fisheries, and natural water.

United Future joins with the Green Party in voicing our ongoing concerns over a couple of aspects of this bill. The New Zealand Walking Access Commission, established by the bill, remains basically toothless. Although it can negotiate with landowners to acquire an easement or lease over the land for use as a walkway, it has no formal power to resolve any disputes over access. This is particularly important when negotiating over private land in order to gain access to a public resource, such as a lake or a river. We envisage and agree with the National Party that for 90 percent of cases this will not be a problem. The commission will effectively be able to negotiate access across private land with the least bit of hassle to landowners. However, in the few cases where access is difficult to negotiate, the commission has no formal power to resolve the dispute and provide public access to a public resource by way of a walkway or enforcing access by way of an unformed legal road. It is difficult to understand this aspect of the bill. The intention is there to resolve the issues surrounding the public’s right of access. However, the commission that the bill sets up has no formal powers to do that.

The bill sets out that the Minister, after 10 years, will consult the Walking Access Commission and review the bill. This will cover whether it is still needed, what amendments may be necessary, and also a review of its effectiveness and the operation of the commission. United Future supports the reasoning for a review, but we are concerned that 10 years is too long to wait. Surely any problems in the implementation of this legislation will be clear after a much shorter time—perhaps 5 years, as the Green member suggested. We are worried that a 10-year wait will possibly allow a flawed process ample time to become entrenched and thus very hard to review accurately and amend.

Finally, we want to finish this second reading by recognising the efforts of the Fish and Game people in causing this bill to happen. It began back in 1999 when they convinced the then Labour Opposition, which made a manifesto commitment. Fish and Game were able to convince them that there was a growing issue around access and that New Zealand was seeing the beginnings of a privatisation of public resources through the misuse of the Trespass Act to exclusively capture public resources that were on public land—for example, rivers running through private land, game found on public land, and things like that. We congratulate Fish and Game on being so alert to this so many years ago, and we are very pleased to support the second reading and progress this bill through the House.

Hon DAVID PARKER (Minister for Land Information) : I am very pleased to speak in support of the second reading of the Walking Access Bill. I first acknowledge the members of the Walking Access Consultation Panel, who were behind the design of this solution. It was chaired by John Acland, and members were Eric Roy; Brian Hayes, former Registrar-General of Lands; John Aspinall, a farmer from the Mount Aspiring area; John Forbes, a local government representative from up north; and Bryce Johnson, from Fish and Game, who is in the gallery. I apologise to anyone I have missed out—those are the members I can recall.

This bill has an interesting history. Our forebears in New Zealand were very wise when it came to the provision of public access. Queen Victoria, through her agent, instructed the administrators of New Zealand, when subdividing land prior to settlement by settlers who were purchasing land or settling land upon colonial occupation of New Zealand, to lay off access strips alongside all rivers, lakes, and foreshore, and that there be access strips reserved at regular intervals through the land that was being freeholded. The mechanism that was used was paper roads. Paper roads are Crown land over which people have rights of access. It was the mechanism that was commonly used, not just for what are now called paper roads, but also around lakes, rivers, and the foreshore.

That requirement was generally honoured, but occasionally it was not. A lot of the access ways were created for the future public access of New Zealanders. They were never intended to be formed—indeed, these were organised before there were cars. Where they were intended to be used it was by people on foot and people on horses. Sometimes there was maybe no active expectation that they would be used in the foreseeable future, but there was recognition that some time in the future there would be a need for public access. So these paper roads have been created all around New Zealand. Over the succeeding 100 years a lot of them have fallen into disuse, and there have been changes in occupation of the surrounding land.

I was very pleased to hear David Carter’s acknowledgment that, despite that change in historical use of the surrounding land, he and the National Party now acknowledge that there should be public rights of access along those public strips.

Jacqui Dean: Always did.

Hon DAVID PARKER: Well, it is true that some of her party always did.

Jacqui Dean: Don’t make it up.

Hon DAVID PARKER: Actually, I am not. I will actually quote a meeting that I was at earlier in this debate, a few years ago, when this issue was raging. I am not putting this on the National Party, but I was at a meeting where Federated Farmers representatives were speaking. They were saying: “Well, yes, we’ve got private rights.”, and I said: “Well, the public have got public rights in respect of these paper roads.” The response—

Jacqui Dean: You’re making it up.

Hon DAVID PARKER: No, I am not. I will name the gentleman to the member later but I will not publicly shame him now. He said: “But there’s been change of land use. We’ve got the right to control access along these paper roads.” That, of course, is the fiction that developed until we had this debate in the last few years: that there were no public rights in respect of those paper roads. This debate and the very good work that was done—particularly by Brian Hayes setting out the history of paper roads, but generally by the Walking Access Consultation Panel—has illuminated this issue and forced there to be an acknowledgment in Parliament that the public has public rights in respect of paper roads. This is the mechanism through which we are, in a practical sense, enabling people to exercise their rights of access through these public strips to rivers, lakes, foreshore, and conservation areas.

One further aspect I would like to just touch on before I sit down is that the large exception to the laying down of proper paper roads is in the South Island high country. The reason why that occurred is laid out in Cabinet papers, for people who want to search through the Internet. Essentially, when the South Island high country was settled, no long-term tenure was being granted to the farmers—they had non-renewable pastoral occupation licences limited to a term of years. At the end of the term that land would have reverted to the Crown and any access issues could then have been resolved. For good reason, those non-renewable pastoral occupation licences were turned into perpetually renewable leases, and the reason that happened was that without security of tenure, no one had a long-term interest in the land. Their value in the house they built could be lost, and any fences or paddock and pasture improvements they did could be lost to them, so they did not do it. It was not economic for them.

So the Government of the day turned the licences into perpetually renewable leases, but recognised that there were historical deficits in access alongside lakes and alongside rivers. Those properties are enormous properties and are sometimes still not surveyed—they were defined by way of mountain ridge and river, so the river was in the lease. We are slowly fixing those things, but there are other rights under the Land Act to fix those things, so in terms of Judy Turner’s concern that there are no powers to fix some of these areas where there is no access—in fact, there are. There are powers under the Land Act, and there are powers that councils and central government can exercise under the Public Works Act if there are areas where there is no access but access is needed. Those powers already exist; there is no need to state those powers again in respect of this legislation.

This legislation is primarily concerned with regulating and ensuring that people can exercise their public rights of access over public roads, or unformed paper roads as they are sometimes called, so that they can access rivers, lakes, foreshore, conservation areas, and public areas that we as a birthright in New Zealand all feel that we should have access to.

This is very good legislation. I compliment the Minister Damien O’Connor on charting what have been difficult waters at times and getting to a practical solution that I think will enable all New Zealanders to march forward with pride as we move through this in a non-confrontational way and improve access.

Jacqui Dean: Oh!

Hon DAVID PARKER: In terms of Jacqui Dean’s laughter, this issue is relevant to her electorate. She pretends to be supportive of these issues now but the reality is that she had been one of those people who have been, I think, a little bit too willing to undervalue the public’s rights over public roads and suggest that other people have rights that should outweigh them because of changing land-use practices on the adjacent properties. Having said that, I am pleased that we have reached an accommodation across this issue, and I value Eric Roy’s wise words on this issue. I recommend the legislation to the House.

JACQUI DEAN (National—Otago) : To echo the words of the previous speaker, the Hon David Parker, former MP for Otago, this is good legislation. The reason this is good legislation is that it has come full circle over the past 6 years or so to mirror the position of the National Party on the issue of public access. I say that, because in the course of my 3-year tenure as the MP for Otago—and being a constituency MP who actually gets out into the electorate and talks to my constituents—I know that many of those very same farmers have long held the view that is encapsulated in this bill. So let us get off our high horses, I say to Mr Parker, and stop talking about the grand scheme of the Labour Government, because this bill is nothing more than the National Party’s position. The bill has come full circle. It is nothing more than what the farmers, particularly of the high country, have welcomed with open arms.

Is it not ironic that the Minister for Land Information, Mr David Parker, is the very Minister who is closing off access during the course of his negotiations with Crown pastoral lessees? I think that is one of the greatest ironies I have seen in this House.

Hon David Parker: That’s absolutely wrong.

JACQUI DEAN: It is absolutely true. No wonder high country farmers, to a man, are implacably opposed to this Labour Government, to the point where the Minister David Parker does not even venture anywhere near high country farmers because he just knows that his reception will be no more than what he deserves. Just as a point of clarification, I tell Mr Parker to take off the rosy spectacles. I do not believe that the Government came to an agreement with Crown pastoral leases in order to provide security of tenure, which it is now doing everything it can to erode. Rather, it was because the high country land was so infested with rabbits and gorse and other introduced pests and diseases that the Government sought a way to manage that land, and turned to those farmers who were prepared to take on that burden. It is interesting, is it not, that the lessons of history have not been learnt by this Labour Government.

Returning to the Walking Access Bill, I say again, and I reiterate the position of my colleague David Carter, that this bill really encapsulates something that effectively was not broken. As far as I am aware, in my large electorate of Otago it can be argued, and I think I can argue it very successfully, some of the greatest opportunities to explore the outdoors can be found. I have not had one incidence of somebody coming into my office or stopping me in the street wherever I am in the electorate and saying: “I cannot get into the high country; I cannot get to a stream because I have been denied access.” Actually, there was one gentleman who, I understand, did—and he was a bit of a curmudgeon, who has now moved on from ownership of that land; I think he sold it—in a rather mean-spirited way deny access.

What happens is that farmers and private landowners are incredibly proud of the land they have either stewardship over or access to. They are incredibly proud of the fact that their land may be adjoining a good fishery or hunting spot, and they enjoy good relations with many of the recreational hunters, fishers, and trampers who wish to get out into the beauty that is the Otago electorate and the lower part of the South Island, and, indeed, all of New Zealand.

The New Zealand Walking Access Commission has many roles and responsibilities, but I think it is important to note that its role is to negotiate with private landowners. It does not have powers other than that, and that is the way it should be. It reinforces yet again that this Walking Access Bill very neatly comes round to National’s position as it has always been on this issue.

The Local Government and Environment Committee had a number of excellent submissions on this bill, but there was one that, to me, was the most telling. I will paint the picture for members. We heard submissions from a number of interest groups: the Royal Forest and Bird Protection Society; the New Zealand Fish and Game Council, which gave good submissions; four-wheel drive enthusiasts; and tramping and mountaineering clubs. All gave their views, which were accepted and welcomed by the select committee. But it was the submitter who talked about being able to have access to New Zealand’s beautiful back country because it was great for the submitter’s family—that was the submission that said to me this bill is a good bill.

I will close there, but I want to thank members of the select committee and the submitters, who all brought something to the bill, and whose views have all been catered for. We support this bill.

MARTIN GALLAGHER (Labour—Hamilton West) : I listened with some interest to the previous speaker, Jacqui Dean. She is very much like the traditional conservative. When a progressive and visionary Government introduces legislation—and I believe the Walking Access Bill will be seen as one of the great achievements of this Government and this Parliament—she runs with it eventually, then tries to claim some credit and claim that it was her policy all along. Certainly I can see Peter Brown laughing at that and acknowledging that that is how conservatives run. In her heart of hearts, even Jacqui Dean knows that to be true.

I want to pay huge tribute to people such as David Parker, who has been an incredible advocate for his area. He has reminded colleagues on this side of the House of the incredible heritage and gift that Central Otago as a region is to the rest of the country, and of the need to ensure that in the long term, for our children and grandchildren, we have adequate access to the treasures of our nation. I also want to compliment Damien O’Connor, an incredibly hard-working Minister, who has stewarded this bill.

I believe I should also pay tribute to Jim Sutton, who did a lot of work. There was a lot of to-ing and fro-ing, and many submissions to the Local Government and Environment Committee. The committee chair, Moana Mackey, did a very good job as well. I want to be gracious, and I will be gracious and acknowledge Lesley Soper. I was in Invercargill earlier this year and she was doing a very good job down there and, again, she was very supportive of this legislation. But let me also acknowledge Eric Roy and his work in helping us get to where we are today.

For me, as a Waikato member of Parliament, this is very important legislation. I will give the House a very practical example of one of the worries I have. A few years ago if one was to turn off and take a scenic route into Hamilton from Ngāruawāhia down the Tūrangawaewae side into Hamilton East, one would have seen splendid views of the beautiful Waikato River from River Road. Now, bit by bit, inch by inch, month by month, that view is being obliterated by the building of some very expensive houses that come between us and our view of our wonderful heritage. [Interruption] I do not understand why members opposite are interjecting at this point. I am simply trying to explain why it is critical to have an environment in which we build a series of walkways and access routes to our heritage so that our children and great-grandchildren can still enjoy the view of that beautiful, precious resource and treasure, our Waikato River.

We have to ensure that this does not become like some kind of Miami-style, Florida-style beachfront whereby the beaches and riverways are blocked off by the wealthy, and the public cannot get access to them. I say to Opposition members that they should listen to the wise words of Eric Roy. They should not laugh, as this is a very serious problem in this country. It is becoming increasingly serious. Parts of our heritage could be locked away, and that is why I am delighted by the Walking Access Bill.

I believe that this bill will go down as one of the more visionary Acts of Parliament. It will be a great achievement, not just by this Government but by Parliament as a whole. It is about ensuring that New Zealanders enjoy their natural heritage and that we gift to our grandchildren the right of access around this country. The important point—and it is a good aspect of the bill—is that the bill will achieve a proper balance between the rights and aspirations of the public in terms of access to our beautiful countryside, the property rights of landowners, and the practical needs of farmers and other land users to carry out their business without undue hindrance. I acknowledge some very good input from Federated Farmers in the Waikato. Some very, very good farmers and other people in our rural communities have shown real leadership and wonderful support with regard to this bill.

Finally, I want to express a debt of gratitude on behalf of this Parliament to people like John Acland and his team who worked around the country. I attended some of the consultation meetings that he undertook, and I thank him. His legacy, and that of those who worked with him, will go way beyond this Parliament, and indeed way beyond this generation. As I said earlier on, I do not think we should underestimate the significance of this legislation in preserving the wonderful treasure that is New Zealand and the New Zealand countryside. I look forward to the Committee stage and third reading of this bill. Hopefully, before this Parliament rises this bill will become the law of this country.

CHESTER BORROWS (National—Whanganui) : I rise in respect of the Judicial Matters Bill, and note that the bill’s explanatory note states that the bill is designed to implement measures that “are aimed at maintaining and enhancing public confidence in the judiciary; and recognise the fundamental importance in a democracy of ensuring an independent judiciary and addressing judicial resources.” I do not think anyone in this House would disagree with these broad objectives. It seems obvious that public confidence and an independent and adequately resourced judiciary is essential to maintaining the rule of law. Let us look closely at how Government has chosen to address these worthy objectives. The Judicial Matters Bill can essentially be broken down into two components.

Firstly, the bill seeks to make changes to the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004. The bill allows for the appointment of a deputy commissioner to perform the commissioner’s functions when the commissioner has a conflict of interest, is absent from office, or is incapacitated, and during a vacancy in the office of the commissioner. As National members have previously pointed out in the course of this debate, it is difficult to see where or how the conflicts that the bill contemplates would arise. Even if a conflict did arise it is likely to be minimal and easily overcome—maybe by the appointment or secondment of another judge to step in and take over. It seems that Part 1 essentially seeks to address a mischief that does not even exist by creating the post of deputy commissioner. It is creating another tier within the judicial system—one that does not need to be there. Given that the office is relatively small, conflicts virtually never arise, and when they do they are hardly insurmountable.

The second problem is that the bill seeks to amend the Judicature Act 1908 to increase the number of Associate Judges of the High Court from six to nine. Leaving aside the fact that there are already seven associate judges sitting in the High Court, this provision seems to be pretty sensible, but this part is more significant in terms of what it does not do. The problem with this provision, and the entire bill, is that it does not even begin to address the underlying problems affecting the court system—those problems around court delays. The bill is nothing more than window dressing. It ignores the systemic problems that are plaguing the court system and plunging it into what seems to be a state of trying to swim in golden syrup. We know that public confidence in our court system is low, and it is little wonder. In my electorate in Wanganui the average waiting time for a High Court jury trial is around 383 days.

Colin King: How many days?

CHESTER BORROWS: It is 383 days.

Kate Wilkinson: That’s over a year.

CHESTER BORROWS: It is well over a year, and Wanganui is not just a one-off. Many other centres around New Zealand also have average High Court waiting times of well over 300 days.

The bill completely ignores the extent of the criminal and civil bottlenecks that beset our High Court. The Government does not have the imagination or the courage to get to grips with the actual problems that are affecting the courts in New Zealand, so instead it brings these feeble piecemeal legislative proposals before the courts. Where are the judges with the force of personality to ensure that court deadlines are actually met? Where are the judges who are ensuring that police meet disclosure timetables or that defence counsel meet their obligations, meet their timetables, and make themselves available for court? If, for instance, only a small number of barristers operate at the level of the criminal Bar in the High Court—as is often the case in provincial centres—then there needs to be the personality or the force of personality to ensure that the work is spread around those who can aptly fit in—rather than having delays in the Wanganui High Court of 383 days.

Trying to fix the problem by slipping associate judges into the system does not go anywhere near sorting out the fact that nobody is making sure that the backlog of cases is actually being dealt with, that waiting times are coming down, and that more and more parties to cases are sticking with their obligations to their clients and as officers of the court to ensure that things move through the system. This Government has put any substantive reforms in the too-hard basket. The Government is just buying time until it can fob off this problem on to somebody else, and I can assure Government members that National is only too happy to take up the challenge should we be privileged to be in Government after the election—God knows when.

HONE HARAWIRA (Māori Party—Te Tai Tokerau) : Kia ora, Madam Assistant Speaker. Kia ora tātou te Whare. I was thinking about how best to open my speech on this bill, and I happened to raise the subject with a good friend of mine, a Mr Derek Fox, the Māori Party candidate for Ikaroa-Rāwhiti. He suggested a line used by Te Kooti, back in the 1860s. It went something like this: “Mā te ture anō te ture e aki.” Let the law look after the law. I was so impressed with that little comment from Mr Fox that I thought I would see whether I could get a double-up. So I called up another good friend of mine, Rāhui Kātene, the Māori Party candidate for Te Tai Tonga, who happens to be an excellent lawyer with very good connections right throughout the South Island and Wellington. She told me that Dame Sian Elias, when she was appointed Chief Justice, said: “One of the reasons I’m so optimistic about the future is because what happened at Waitangi in 1840 is so consciously founded on an expectation that justice will be achieved through law.” So given the quality of the contributions of my good friends Derek Fox and Rāhui Kātene, I am happy to say that it is those thoughts that have helped guide our consideration of this bill about the appointment and conduct of judges.

We take it for granted that the public should have confidence in the honesty and integrity of the judiciary, and in the impartiality, consistency, and fairness of their decisions. Yet in the first year of the operation of the Judicial Conduct Commissioner, I note that about 100 complaints were made against judges. Those complaints were of bias, sexism, rudeness, delays, incompetence, inappropriate remarks, and a failure to listen. Most were dismissed and none was referred to the Attorney-General for action.

I also note the comment that although Ministers of the Crown are supposed to be accountable to Parliament, judges are accountable only to the Judicial Conduct Commissioner and judicial panels for misconduct, which means that it is really important that those appeal authorities are functional, efficient, and open to public scrutiny. So although the Māori Party supports the appointment of a Deputy Judicial Conduct Commissioner to cover absences and possible conflicts of interest for the commissioner, I decided to get another view on the whole issue. While we were out door-knocking for the Māori Party in Hamilton last week—and I am happy to report to the House that the analysis of the door-knocking suggests that the Māori Party will be a shoo-in at the election—I decided to ask another good friend of mine, Angeline Greensill, Māori Party candidate for Hauraki-Waikato, what she thought about the appointment of a Deputy Judicial Conduct Commissioner.

She suggested that we should recommend people who have demonstrated an ability to uphold kaupapa and tikanga Māori in the justice system. She also suggested that we note Moana Jackson’s analysis in TheMāori and the Criminal Justice System: a new perspective—he whaipainga hou, where he states: “The background and experience of judges is confined by the ethno-centrism of their own heritage and the social attitudes which they address are determined by the values of the dominant culture.”

That report was written in 1988 so we thought we would see how things have changed over the last two decades, if at all. What we found was that in 1980 Māori were being convicted twice as often as Pākehā for crimes that receive a custodial sentence, and in 2006 Māori were still one-third more likely to receive a custodial sentence than Pākehā. We also found that although the total number of sentences handed down to Pākehā has remained basically unchanged since 1980, the number of sentences handed down to Māori has more than doubled from 20,000 in 1980 to 42,000 in 2006.

I take this opportunity to extend my heartfelt thanks to Derek Fox, Rāhui Kātene, and Angeline Greensill for the excellent quality of their contributions to this debate and I look forward to their being able to offer that knowledge and analysis to other legislation when they join us here in this House on a more permanent basis after the election.

Of course other factors that influence sentencing by judges are a critical variable in the judicial process, hence the need for scrupulous conduct on their part. Among the issues we want to raise is the need to identify judges whose sentences are so consistently harsh that they may be seen as criminalising youngsters without sufficient consideration for their rehabilitation, or judges who treat the underclass much more severely than they treat offenders from the upper class. Sometimes a judge’s conduct might not look too bad in a particular case, but shows a distinct pattern and bias when considered over a longer period. I will be asking the select committee to look into whether there should be room for complaints about conduct based upon a judge’s overall record and not just on specific decisions.

This legislation also proposes to allow the commissioner to take no further action if he or she feels it might be unjustified. Although we accept that proposal in the interests of honesty and integrity, we would also expect the commissioner to ensure equality and fairness to all parties involved in a complaint. The main issue for the Māori Party is that in whatever stage of the justice system our people may be involved, they get a fair, efficient, independent, and impartial hearing, and we know from the 2004 Law Commission report they are not currently getting that. Māori and Pasifika consistently tell us how hard it is to get basic information, how hard it is to get a decent lawyer, and how, if they get one, the lawyer costs too much, how some judges are to be avoided like the Black Plague, and how monocultural, unfriendly, and alienating the whole judicial system is.

Like everybody else, the Māori Party wants to see a decrease in the number of Māori arrested, convicted, and imprisoned through the criminal justice system. But we are also passionate about the pursuit of justice and the need for respect from the judiciary to Māori people and Māori issues. Someone once told me that if peace is not merely the absence of war but also the presence of justice, then we have no peace in Aotearoa because we sure ain’t got no frickin’ justice. We do not get justice by fiddling with existing laws, we get justice by reconsidering the very principles on which we base our laws, the way in which we make them, the way in which we enforce them, and the way in which we repeal them when we realise how stupid some of them are. It is in that spirit that we will be supporting this bill at its first reading. Kia ora, Madam Assistant Speaker.

Hon RICK BARKER (Minister for Courts) : I move, That the Judicature (High Court Rules) Amendment Bill be now read a first time. At the appropriate time I intend to move that the bill be referred to the Justice and Electoral Committee for consideration, and also to ask the committee to report back to the House by 9 September. The Judicature (High Court Rules) Amendment Bill will implement a major rewrite of the High Court Rules, and will replace the current High Court Rules that are contained in schedule 2 of the Judicature Act 1908. I am hopeful that we can get this bill through the select committee, and back through the debating of the second reading, to complete it as soon as possible, because the tidying up of these rules will be a significant benefit to all court users.

The High Court Rules govern the practice and the procedure of the High Court. Their purpose is to facilitate the expeditious, inexpensive, and just dispatch of court business, or otherwise assist the due administration of justice. The High Court Rules, with suitable adaptations, will also apply to civil proceedings in the District Court, where they will be supplemented by specific provisions.

In 2004 the Law Commission recommended that the rules of the court be redrafted with the following aims: to clarify and simplify the language, to have proportionality of procedure, and to enhance access to justice for all citizens. In 2004 the Rules Committee commenced separate projects to redraft the High Court Rules and the District Court Rules. Between 2004 and 2008 the Rules Committee reviewed the current High Court Rules and prepared the new High Court Rules.

An exposure draft of these rules was released in April 2007 for a 3-month public consultation period. Submissions received supported the revisions, and further drafting improvements followed. One of the major goals of the rewrite was to give the rules a general tidy-up by improving the rules’ structure and layout, by updating the language, and by removing obsolete rules and statutory references. Individually these changes may seem insignificant, but when put together they are significant for all court users. Although the new rules closely follow the content of the current High Court Rules, there are certain changes that although related to the court procedure, require parliamentary approval. This rewrite has been no small feat, as shown by the thickness of the bill containing the rules.

I express my gratitude to the Rules Committee for their considerable endeavours. In particular, I acknowledge the work of Justice Baragwanath, who was the chair of the Rules Committee for most of the project, and Dr Donald Mathieson QC, Special Parliamentary Counsel for the Parliamentary Counsel Office, who was responsible for leading the drafting of this very large and very good legislation. I also acknowledge the other members of Parliament here today who have had a considerable hand in this, as well.

This legislation has been well debated and thoroughly worked through. It is a very fine example of legislation that will have almost unanimity in this House, certainly with those who have shown any interest in it. The legislation is long overdue and well looked forward to. Proposed amendments constitute an important improvement in ensuring an effective and efficient court system. I commend the Judicature (High Court Rules) Amendment Bill to the House.

CHRISTOPHER FINLAYSON (National) : The National Party will support this bill through all its stages, and we will support its rapid return to the House from the Justice and Electoral Committee for a number of reasons. Primarily, as the Minister observed, the gestation period for this redraft has been quite some time, and during its course the Rules Committee has extensively consulted on these rules. So it should not be necessary for the Justice and Electoral Committee to have an extensive period of public submission. This may seem to be a rather dry and dusty topic—

Dr Richard Worth: No!

CHRISTOPHER FINLAYSON: Oh, it is, I tell Dr Worth, or at least it is on appearances. But I think it is fair to say that procedure is not an aspect of justice; it is essential to justice. The primary aim of the High Court Rules, and indeed of other rules of court, must be to secure, as the Minister said, the just, speedy, and expeditious determination of proceedings. It is also true that, to the public, the procedures of the court seem to be very arcane, and people do not seem to understand them, which is not surprising given the way they are drafted.

Indeed, one English commentator said, of civil justice: “Its procedural part is generally or at any rate popularly regarded as being highly technical, rule-ridden, formalistic, shrouded in mystery, and serviced by its own cloistered priests, some of whom perform their ritual capers and speak in unfamiliar language in strange surroundings and, in the highest strata, dressed in ornamental garb. Thus it is that for most people civil justice is a remote, incomprehensible, mystifying, and in some ways terrifying area of the law. What is needed above all today is a breath of fresh air to blow through the corridors of civil justice to demystify the process, to render it plain, simple, and intelligible, to enable not only the experts in other disciplines but also the person in the High Street to understand and appreciate its operation, and in this way to bring justice closer to the people.” One can only say “Amen!” to that.

I want to recount the history of the rules revision project, because I do not think that the Minister got it entirely right. The original Code of Civil Procedure had been in force in this country for many years, and in 1970 the Rules Revision Committee was constituted as a subcommittee of the Rules Committee. Its purpose was to take a good look at the Code of Civil Procedure and to update it. Incredibly, there was a 14-year gestation period, and the reforms were passed in the 1980s—shortly, I think, after Sir Geoffrey Palmer became Attorney-General. The High Court Rules have been in force since that time, and during that period there have been a number of changes to the rules as they have been progressively updated by the Rules Committee over the years. I was a member of the Rules Committee from 1999 until 2005 when I was booted off it shortly after I came in here, because the Ministry of Justice officials did not think it was appropriate for me to be on it, even though they got it wrong—it is a statutory committee and it is not part of the executive.

Anyway, in 2002 I proposed that the members should step back from the Rules Committee day-to-day workload, look at the rules as they had developed, and consider whether an update was required. And after 6 years we got to the stage where this bill can be introduced. The changes that are proposed are stylistic more than substantive. The rules as they had developed after 20 years—being in force since 1985—had become very convoluted and confusing. We had rules such as 700ZZAA, and so on, and the proposal was to put them in a form that was easily understood, so that is what we have with this bill. Instead of having the rules sequential, there are now parts that deal with particular issues—for example, Part 5 deals with “Commencement of proceedings and filing of documents”.

The changes that are proposed are sensible. There is not a great deal of substantive change and those that are substantive we can cover when the bill comes back to the House from the select committee. A number of prospective changes are introduced by this legislation, but they will not come into force immediately. For example, the bill proposes a commencement date of 2009, except for Subparts 15 and 16 of Part 5 of the High Court Rules. These latter provisions, which relate to the electronic filing of documents at the commencement of proceedings, will commence at a date to be established by Order in Council. These are actually rules that are in force in pretty well every jurisdiction except New Zealand. Electronic filing in this country is long overdue, and it is time that the Ministry of Justice moved to introduce it. It is not a huge task, and it will greatly simplify procedures for those who are involved in court proceedings. It will also cut down on the excessive paper that much litigation seems to generate. That is an example of a prospective change but, as I say, most of the changes dealt with here are stylistic. Indeed, that was the purpose of this rules revision project. It was not to deal with substance but to deal with putting the rules in a more sensible order, and then substantive reform could come at a later stage.

The Minister quite fairly mentioned Justice Baragwanath. He was chair of the Rules Committee for the major part of the project, did an excellent job, and ensured that this project was progressed. The former Attorney-General came along to the committee, and she thought it was all too hard and would require a great deal of expenditure and research. It was due to Justice Baragwanath and also to George Tanner, who was then Chief Parliamentary Counsel, and to Dr Don Mathieson QC, who was engaged and who has done an excellent job to update these rules, and his efforts should not go unnoticed. The Minister also did not mention the excellent work undertaken by various members of the Law Society. Groups of people were asked to look at particular areas. They did that work without delay, and their reports, which were fed into the Rules Committee and into the steering committee, were of a very high standard indeed.

So that is the background to the introduction of this legislation. As I said, National will cooperate to ensure that the legislation is passed through all its stages very quickly. It is long overdue; it is but a start. As I said at the outset, this is a very arcane area of the law, but it is fundamental to dispute resolution. If the rules are unintelligible or if they are unnecessarily arcane, they can delay the resolution of civil proceedings, and that is not in the public interest. The National Party supports this legislation, says it is long overdue, but says that it is only a step in the reform of civil justice. It is one of those areas of the law, like so many areas, that this Government fails to understand and has failed to deal with in its 9 long years in Government, and it is high time that this area was given some prominence because it is extremely important. If people cannot go to court and resolve their disputes in a peaceable manner, justly, speedily, and inexpensively, then we fail as a country.

National will support this legislation through all its stages. As I said, it is long overdue, and it is only because of the efforts of Justice Baragwanath and a small team of people that it has been brought to this stage.

• Debate interrupted.

CHARLES CHAUVEL (Labour) : The High Court Rules set out the rules of operation for the High Court in its civil jurisdiction. As we have heard, in 2004 the Rules Committee commenced separate projects to redraft the High Court Rules and District Court Rules respectively. That followed the Government’s acknowledgment that it was appropriate for the Rules Committee to decide on the content of any redrafting project, as recommended by the Law Commission. In April 2007 an exposure draft of the new rules was produced. This was released for public consultation. Particular targets of that consultation exercise were the New Zealand Law Society; all of the 14 district law societies that then existed; the New Zealand Bar Association; the New Zealand Institute of Chartered Accountants, as it then was; the New Zealand Business Roundtable; the Ministry of Economic Development; and the Commerce Commission. The Ministry of Justice then commissioned an independent review from David Goddard QC, and his report was included in the nine submissions that were examined in October 2007, which led to further drafting improvement. So it was that in June 2008 the Rules Committee concluded its redrafting project.

I wish to commend the legislation to the House. In its full form it comprises 759 pages: the Judicature (High Court Rules) Amendment Bill, which has 10 clauses, the explanatory note of the bill, and a schedule, which is, of course, where the meat to the legislation is. It contains the new rules, and prescribed forms totalling 223 pages. Although the legislation is massive in size, it is quite straightforward and simple, even for those provisions that require parliamentary authorisation.

Most of the proposed High Court Rules in the new schedule follow the content of the existing rules, but they also improve accessibility. They adopt a plain English drafting style. There is a new layout, with a logical series of parts and subparts that follows the sequence of general proceedings, and then special topics, such as those dealing with the insolvency or admiralty jurisdictions of the High Court.

One of the key changes that require the authorisation of this House and, therefore, of Parliament is the repeal of section 52 of the Judicature Act 1908, which is an obsolete provision. Also, attachment orders are modernised. The practice available in the District Court that provides for attachment orders on wages and benefits to recover civil debts is brought to the High Court. As with District Court orders, employers will, on a conviction, be liable for a fine of up to $1,000 for failing to administer an order—that is by virtue of clause 10, which is an amendment to the Summary Offences Act—or for discriminating against an employee who is subject to an order. That is dealt with in clause 9 in an amendment to the District Courts Act.

Service out of New Zealand is also modified. The legislation clarifies service out of New Zealand for civil proceedings and the High Court’s powers to grant interim relief in support of proceedings before a foreign court. Indeed, Mr Finlayson and I were at a meeting of the rules subcommittee just this morning, where this matter and several others were considered in some last-minute work on the rules that are now before the House. There are changes relating to international and trans-Tasman court proceedings. Of course, the House will be aware that a treaty has been concluded between the Commonwealth of Australia and New Zealand to make the enforcement of court judgments in all superior courts across the commonwealth and in New Zealand more easy, and the rules that will ultimately emerge from this exercise will also facilitate that process.

The rules codify some common law practices such as freezing orders, encompassing Mareva injunctions; freezing assets, including those of third parties, where there is a real prospect that the assets may be required to satisfy a judgment; and search orders, such as Anton Piller orders, where the ability to search and seize evidence required for a civil proceeding is dealt with.

There are four other important changes. The e-filing provisions, which will commence at a later date by Order in Council once the operational and financial implications for the Ministry of Justice are settled, are important provisions. The former rules relating to constituency election petition rules are omitted. They will be dealt with in stand-alone rules to be made by Order in Council. Rule 1.16, which I want to draw particular attention to, operationalises the use of New Zealand Sign Language in the High Court. This was a matter that I raised at my first meeting of the subcommittee, and I am delighted to see that the provisions have been incorporated appropriately into the rules. Then there is rule 1.22, which is an example of some of the new rules that enable the High Court to respond to modern requirements where procedural safeguards allow, with the agreement of the parties, the court to correspond with foreign courts.

Some tributes have been paid tonight. I think it would be remiss if Justice Fogarty were not recognised. He is the new chair of the Rules Committee, and the judge is doing a fine job in that role. It is not easy to bring together the differing arcane perspectives of lawyers who enjoy debating procedure, as can probably be imagined, but the judge is doing an excellent job in that respect, if I may say so.

It is delightful to hear that this very sensible series of amendments, bringing in these new rules, will receive support from across the House.

Dr RICHARD WORTH (National) : Others have said that this is not exactly a bowel-gripping topic, but what a delight it is to see with us tonight the Judicature (High Court Rules) Amendment Bill—some 759 pages and 33 parts of closely written material, full of information that will be of great help to lawyers practising in the civil jurisdiction of the High Court.

I would like to start, if I might, in just offering three propositions to the House reflective of core legal principles that should, in my view, underline any successful civil litigation process. The first is picked up in the tagline “Justice delayed is justice denied”, and we all know that. We all know of the sorry state of the civil lists in a number of registries throughout New Zealand, where litigants wait, sometimes for many years, for their cases to come to court, and, as I will seek to develop in the course of the short time I have available tonight, these issues are of real concern.

The first tagline then is “Justice delayed is justice denied”, and the second is “The courts are open to everyone, like the Ritz Hotel”. That is quite a profound but sad statement, because it indicates that for those who have money there is access to justice, and for those who have legal aid there is access to justice, but there is a big swathe of players in the middle who are denied the opportunity, in an effective way, to exercise rights of access to Her Majesty’s courts and Her Majesty’s judges.

The third proposition that I would seek to advance is founded in a case decided by Lord Denning, a very famous English judge. I am indebted to the Hon Mr Barker for giving me this reference to Burmah Oil Co Ltd v Bank of England. He noted accurately, I found when I had checked it, that the case citation is [1979] 1 WLR 473. When we were talking of this the other day he reminded me briefly of the facts. Documents were inadvertently disclosed in the discovery process of litigation relating to an oil company’s challenging the fairness of a commercial agreement with the bank. What happened was that the lawyers had covered over the part of the material that was privileged, but it was possible, in holding the documents up to the light, to see what had been blanked out. Lord Denning said—in words that I think should be inscribed on every court lawyer’s heart—“In litigation, as in war. If one side makes a mistake, the other can take advantage of it.”, and then closed the comment, as Mr Barker reminded me: “No holds are barred.” That is a reference to the adversarial aspect of litigation, and I am very much aware that there are philosophical schools that would say the time has come to review those adversarial processes and perhaps move to a more inquisitorial system. For myself, I do not agree with that stance.

Here we have these High Court Rules. When I first commenced in practice there were rules known as the Code of Civil Procedure. Now there are the High Court Rules in what I think is the second version. I just want, though, to say something about one aspect of those rules, centring on the regulatory impact statement, because what we are talking about here is basically amending the Judicature Act to provide by way of a schedule this amount of material that I now hold up. These High Court Rules will implement a major rewrite of the current rules, making them more accessible and more understandable for new users, and they closely follow the content of the existing High Court Rules.

Others have spoken about the history of the rules. I do not want to deal with that. But it is asserted with some merit, I am bound to say, that the current rules are outdated. They create a barrier to justice. They are overly complex. They use outdated language. They do not contain current statutory or technological references, and I suppose, for some, they can be difficult to follow, and for some matters contain relevant provisions in different parts. In addition, some necessary improvements to court processes require primary legislation to enable their adoption. I think it was Mr Finlayson who very wisely said to the House that it would have been possible to make most of these changes simply in the context of delegated legislation. Instead the opportunity has been taken to make these changes by primary legislation. So the principal objective is to increase the accessibility of the High Court Rules for court users.

A second objective has been to adopt a plain English drafting style, and to reorganise the rules into a more logical structure. The sequence of the rules now follows the sequence of proceedings for a High Court case with special topics. Those special topics include insolvency and admiralty, and that forms the latter part of it. As Mr Finlayson has also said, there are other objectives, which include allowing electronic filing of documents at the beginning of proceedings, enabling the High Court to issue attachment orders to recover debt like the District Court practice, clarifying the requirements for service outside New Zealand, and codifying the common law tests for Mareva injunctions and Anton Pillar Orders, which can assist the successful conduct and outcome of civil proceedings.

Surprisingly, when I looked through the rules I found no reference to emphyteutic leases. I hope that body of the law is not going to be lost to us, because in that there is certainly fine legal principle that remains of immediacy today. But emphyteutic leases, for the present, will remain, it seems, outside the scope of the rules.

There are, of course, a number of ways in which disputes between parties can be resolved, and there is a classic taxonomy of what those various possibilities are. I guess they start from what in international law have been called good offices, and they include conciliation, mediation, arbitration, and finally litigation. I just pause for a moment on arbitration, because arbitration and mediation in the face of process failures in the High Court have become much more commonly used. I think that is really for two reasons. The first reason is that the delays in the court process are so unacceptable in the context of commercial transactions, and to some extent transactions that have quasi commercial character, that parties are simply not interested in processes of that type with those delays.

The second issue revolves around interlocutory proceedings such as discovery. I have referred to the Burmah Oil case, which was a case about discovery of documents. Discovery of documents is where one, as a party to the litigation, is required to disclose on oath the documents in one’s possession that may be relevant to the proceeding—

Christopher Finlayson: Custody or control.

Dr RICHARD WORTH: Yes, custody or control. And it is right to say that that discovery process can, in major litigation, be a task that drags on over a substantial period of time, is not without complexity, and is often the subject of confrontational challenge. So I do express regret that, in these rules dealing with discovery, there was a better process to be followed, which has not been. If there is any change that Mr Barker might care to make to these rules when he has a careful look at the discovery provisions—if there is time to do that before the next election and a change of Government—I am sure he will come up with a formula that is more suited for more effective, cost-efficient discovery of documents. Of course, when the parties contemplate their choices and think of mediation that is non-binding, think of arbitration that is binding, and think of resolution by court determination, they are probably going to be drawn to a mediation arbitration possibility. Why would that be, and what are the advantages of arbitration? Well, arbitration, of course, is enforceable, and results in an enforceable award. It is the determination, is it not, on disputed questions of fact and law by an arbitrator. And, as a matter of history, it is the oldest adjudicative mechanism of dispute settlement.

Mr Barker is going to be under test for this. I am hoping there will be some changes made. I am hoping that his advisers will blindly lead him down a number of paths, and he will seize on the very best outcome. We in National are certainly keen to help him.

DAIL JONES (NZ First) : When I saw the Judicature (High Court Rules) Amendment Bill it brought a very warm glow to my heart, because it reminded me of something that Justice Barker once said, before he became a judge. We were discussing civil procedure and a most important issue arose—that is, the question of costs. How does one work out one’s costs on a case? Justice Barker said: “Well, you just hold up the file.” The nice, heavy weight of this particular folder made me think quite warmly that it must have cost a lost of money to get this bill through the system, and it will be very interesting to see how it is carried out.

The High Court Rules, or, as Mr Worth would say, the Code of Civil Procedure, were in existence when I started practice. In looking at this set of new High Court Rules—New Zealand First, of course, will be supporting the bill and its quick passage through the House—I have just a couple of queries. Very little has been done in the mortgagee sale area. Once upon a time mortgagee sales were the domain of the High Court. One had to lodge one’s documents through the High Court until, I think, the late 1980s, when, as a result of the economic times, High Court mortgagee sales were dispensed with. I notice also the provisions for company liquidation, and I expect practitioners will be very interested in the simplification of the process for winding up companies, which will be big business in the not too distant future and will get even bigger still.

The area that is of greatest interest to me is Part 27 of the new schedule 2 to be inserted in the Judicature Act, which deals with grants of probate and letters of administration. This area of law is something that I was involved with from, I think, as early as 1963, as a clerk in a law firm that had a reasonable High Court probate practice. It is useful to see the new provisions—the new draft affidavits and suchlike—in the schedule. I know that some practitioners have experienced problems with regard to changes in the affidavit for a planning grant of probate, and the probate form and the application itself were brought about by confusion in the Law Society’s draft form on the Internet. I suggest that any practitioner who is having difficulties gets a copy of these rules in advance, to get a better idea of what is required by the Law Society.

These rules have become more complicated over the years, and what was pretty simple once upon a time is now confused. For example, if a deceased person has no will and there is an intestacy, it can become complicated in so far as administration is concerned where a claim is made by the deceased person’s spouse, de facto spouse, or civil union partner, or by one or more of them, as the case might be. Furthermore, the decision of which option to choose in the application in terms of the relationship property legislation can be complicated.

It is something of a minefield at the moment to try to get letters of administration through the courts. I had a dreadful case a while ago where a 76-year-old lady who had been happily married for more than 40 years had to include in her documentation a provision that, no, she did not have a lesbian partner. It is quite crazy the way that the rules have developed, but I guess this is a consequence of modern times.

However, I am sure that these rules will simplify matters. I look forward to them being put through the House as soon as possible. I am sure that the select committee will hear from the Law Society and will take up any comments it has to make. In fact, New Zealand First wants to make sure that the Law Society and any other legal groups that want to make submissions can make submissions and be heard. I doubt that there would be any objections to that at this stage, bearing in mind the 800 or 900 pages of this legislation and the amount of time that has been taken on it. I look forward to the legislation being put through the House before the election.

TE URUROA FLAVELL (Māori Party—Waiariki) : Tēna koe, Mr Deputy Speaker. Thank you very much for the opportunity to take a call on the Judicature (High Court Rules) Amendment Bill. I have to say that it is a bit of an irony for the Māori Party to be considering yet another bill that presents for debate a set of rules, in this case to help determine and assist the practice and procedures of the High Court. Further up the Order Paper we discussed the development of a code of responsible conduct for users and landholders in the context of the Walking Access Bill, and here we are debating rules that will facilitate the “expeditious, inexpensive, and just dispatch of court business,” through the revision of the High Court Rules. The irony, of course, is that we in this House are debating appropriate codes of conduct, when the majority of the members of this House themselves have been unable to sign up to the code of desirable conduct.

We think the nation noticed that it was only the Māori Party, the Greens, ACT, and United Future that were prepared to sign up to the standards of behaviour and appropriate codes of decorum that uphold integrity, honour, and respect in this House. Fourteen months ago those four MMP parties united to sign a voluntary code of conduct and invited other parties to follow suit. We were concerned that the behaviour of some MPs in the House had for some time created a poor environment for political debate—unfortunately—and we are of the view that it is not surprising that the general New Zealand public have such little confidence in politicians, when they observe the abusive slanging matches and the level of rudeness that sometimes shape the parliamentary Chamber. So it is a little bit rich, we say, to be sitting and considering legislation to assist the due administration of justice when some parties themselves in this House are unprepared to abide by desirable standards of behaviour.

The Māori Party was proud to sign up to the code of conduct, as the code is consistent with the standards we have set for ourselves. The Māori Party, as members will know from the numerous speeches given by us, is driven by kaupapa Māori, by values and principles that have been passed down from our tūpuna, so the concepts of rules that regulate the practice and procedure of the High Court are concepts that we readily understand.

We are also pleased to accept recommendations that have come, we understand, from consultation within the sector. I noted that the draft went through a 3-month consultation process, which especially targeted the New Zealand Law Society, the district law societies, and the New Zealand Bar Association. I am not a lawyer in any way, shape, or form, but I presume that if anyone can understand the significance of the revised rules, it will be those sorts of groups. Yet here is the thing: the Law Commission report states that pending wider constitutional discussions to consider a more just relationship between tikanga Māori and Western law, the law could be more bicultural.

In this bill we have a whole heap of amendments to make the justice system, and therefore the courts, more accessible. Others have outlined some of these issues, and this in itself, we think, is a response to the Law Commission’s 2004 report, Delivering Justice for All: A Vision for New Zealand Courts and Tribunals. The question we ask, however, is whether it is a case of justice for all. How are the views of tangata whenua, of Māori legal experts, of whānau, hapū, and iwi incorporated in this bill, or is the assumption that the only ones interested in the procedures of the High Court are the judiciary and the legal professionals? Successive Governments have sidelined constitutional discussions, and have failed, really, to take up the opportunity to entrench the Treaty in legislation. Tangata whenua have frequently raised the issue that the very structure of the court system pays inadequate respect to Māori tradition and is insensitive to our needs. Too many Māori simply do not feel that the justice system can be relied upon to deliver justice to them.

Members might be aware that 20 years ago Moana Jackson’s ground-breaking report at the time, He Whaipaanga Hou: A New Perspective, described the issue of Māori responsiveness, with particular reference to the courts. That report stated: “Of all our institutions the courts are probably the most determinedly monocultural. The trappings of horse hair and silk, the ritual of procedure, and the very language of the law, are obvious illustrations of their essentially English origins.” The report continues: “They are seen to deny real Maori access to justice, to effectively exclude defendants’ whanau from the process, to favour Pakeha who have power and status, and to be culturally biased in the presentation and disposition of cases.” Fortunately, some of those things have changed dramatically over the two decades, to improve access to justice for all. The traditional bleached hair wigs and 18th century headwear have been out of sight since they were abolished, I am told, in 1996. The language of the law has, with this bill today, come around, and we welcome not only plain, simple English but also te reo rangatira, the language of other peoples, and sign language.

We are pleased to see that recommendation 100 has been taken up, where attention is paid to clarity and simplicity of language, and to proportionality of procedure. The complex and prescriptive rules as they previously stood, acted against due access to justice, so it is very positive to see that we now have rules that make plain sense. We in the Māori Party have always supported any moves to create a system that is more responsive to, and effective for, all New Zealanders, and we say that creating plain language is a pretty good place to start.

We support the focus seen in Part 3 relating to the use of Māori language, translations, and sign language in any proceedings, conferences, or hearings. There is also consideration within the rules to enable the translation of documents into te reo Māori, and indeed there is provision for an affidavit in any language other than English to be filed in a proceeding.

There are still unresolved issues, as set out so clearly in that statement from He Whaipaanga Hou, Moana Jackson’s paper. Māori have spoken about the desire to incorporate key Māori cultural practices in the courts, such as the ability of whānau to speak in court and to support victims and defendants in culturally appropriate ways. Ongoing emphasis has been placed on the capacity to put culturally relevant factors before the court, and there has been a strong desire to move the court experience away from the process focus towards the making of court appearances meaningful and resolution-based, which includes community involvement.

This bill, like any other bill, could have been an opportunity to do something about these concerns; again, it has not done so. But we will support this bill because we agree with the principal focus of the revision of this legislation, which is to enhance the accessibility of rules to all court users. We support easier-to-understand language, we support the pretty practical changes, the pragmatic changes, such as rules to enable electronic filing of documents, and we support the overall concept that court procedures must be simplified and costs minimised. But we remain of the view that there is still much to be done in enhancing access to justice for all. Kia ora tātou.

KATE WILKINSON (National) : Like my National colleagues, I rise to speak in support of the first reading of the Judicature (High Court Rules) Amendment Bill. Throughout the debate we have heard that the purpose of the bill is to repeal and then substitute schedule 2 of the Judicature Act; schedule 2 contains the High Court Rules. The rules govern practice and procedure of the High Court, and their purpose is to ensure the just, speedy, and inexpensive determination of proceedings.

The explanatory note of the bill clarifies that the High Court Rules apply to civil proceedings and that they facilitate expeditious, inexpensive, and just dispatch of the High Court business and otherwise assist the due administration of justice by regulating the practice and procedure of the High Court. Although these rules could have been made by way of secondary legislation or Order in Council, there are certain provisions that should be made by way of primary legislation—hence this bill.

New rules are introduced by this bill—for example, the right to make urgent applications orally; the ability of unrepresented litigants, when approaching the courts without notice to the other side, to do so without legal help in appropriate cases; or the ability of the High Court to correspond with foreign courts under procedural safeguards. However, if the Minister believes that this is the panacea to all court delay problems and issues, then he is sadly misguided. More can certainly be done to improve the quality of civil justice in the High Court.

We need to have confidence in our New Zealand legal system, not just in the criminal jurisdiction but also in the civil jurisdiction. Unfortunately, as a recent poll has shown, 62 percent of those surveyed do not have full trust and confidence in the justice system. Is that surprising? Well, probably not, considering the lack of understanding of the current regime.

When we lodge a question to the Minister asking for the court waiting-times, the delay is almost as bad as the delays in the courts themselves. For example, it took over 3 months to receive a response to our written questions, despite the requirement for a response in 6 days. Then in February this year we asked for an update of the court waiting-times as at 31 December 2007. The answer we received from the Minister was: “Due to the significant amount of manual collation required to produce the information to respond to your question, it has been decided”—and this has nothing to do with Speakers’ rulings or anything, and nothing to do with the 6-day requirement for an answer—“that the ministry shall produce a report on this information on a 6-monthly basis.” The reports, he said, will be run for 30 June and 31 December each year, and the information would be available 6 weeks after that date.

Well, it is now 26 August. The next report was supposed to be for 30 June 2008 and we are still waiting. So the latest data that we can obtain from this Minister in relation to the court waiting-times is as at 30 November 2007—information that we received 4½ months after requesting it. That is 4½ months of delay. So we are expected to believe, or trust, that this bill will be the panacea to all civil waiting-times. It is a start but it is certainly no panacea. What is the evidence? The figures as at 30 November 2007 show that in the civil jurisdiction in Auckland High Court, in defended civil cases, the median waiting-time was 348 days. Before that, as at 30 June 2007 it was 258 days. It has got worse.

Nationally the median waiting-times in the High Court for defended cases have increased from 249 days in June 2007 to 315 days in November 2007. That has got worse. Christchurch High Court median waiting-times have increased from 252 days to 288 days in the same period. It has got worse. In the Dunedin High Court those times have increased from 155 days to 239 days in the same period. It has got worse. In the Wellington High Court they have increased from 257 days to 261 days in that same period. That has got worse. In the Hamilton High Court they have increased from 211 days to 219 days in that same period. That court has got worse. In the Rotorua High Court those times have increased from 160 days to 197 days for that same period. That court has got worse. In the Invercargill High Court those times have increased from 47 days to 83 days in the same period. That court has got worse. That is only in the civil jurisdiction. I have not even mentioned the criminal jurisdiction, which, believe it or not, is even worse.

I could go on. The picture is certainly not great, and it will take more than a tweaking of the High Court Rules to fix what is really an endemic problem within our court system. It is a problem not helped by the tardiness of the Minister in actually giving us the details. Mind you, it is probably no wonder he is tardy, because the details are not pretty. It is no wonder we still cannot obtain an update of the accurate situation as at 30 June 2008—2 months later—and we can only assume that this Government is trying to hide the real picture. The real picture is that the Government has run out of ideas on how to address the problem of court delays. This bill—and it is no small bill—may help, but it will take a lot more than this to restore trust and confidence in our justice system. National supports the bill. It is one measure of many that is needed, but at least it is one measure, and it deals with only the civil side of justice. We also need to deal with the delays in the criminal jurisdiction and the increasing number of stays of prosecution in the criminal jurisdiction.

However, this bill and the High Court Rules do not relate just to court waiting-times, court procedure, and court delays. The speaker from New Zealand First quite rightly mentioned the rules in relation to applications for grants of probate in relation to wills. It is interesting to note the minutia that these rules go into. There are rules for the margins on the applications; there are rules for the quality of paper that has to be used—it has to be a certain weight—and there are rules for the cover sheets. In the old days we used to have rules for staple holes in wills, because often, if one wanted to photocopy a will, there was a tendency to take the staple apart, photocopy the will, then re-staple it, and if there were extra staple holes in the will, one had to swear an affidavit explaining to the High Court why there were an extra couple of staples holes in that will. No matter what the size of this bill, there does not seem to be any mention of staples. So, certainly, some of these rules relate to form rather than substance.

National is supportive of this bill. It is a step in the right direction. It is certainly not a panacea in relation to the situation of court waiting-times in the civil jurisdiction, or in the criminal jurisdiction for that matter. Those times, as I have said, are getting worse. This bill may help. We hope it will help. It is a step in the right direction, and National certainly supports its expeditious progress through the House.

• Bill read a first time.

Hon RICK BARKER (Minister for Courts) : I move, That the Justice and Electoral Committee consider the bill and that the committee report to the House by 9 September 2008.

• Motion agreed to.

Hon Dr MICHAEL CULLEN (Minister of Finance) : I move, That the Reserve Bank of New Zealand Amendment Bill (No 3) be now read a second time. I want to begin by thanking the members of the Finance and Expenditure Committee for their prompt handling of this bill. Some 17 submissions were received and most were supportive of the objectives of the bill. This bill establishes a framework for the regulation of non-bank deposit takers, with the aim of promoting a sound and efficient financial system. The bill would do this by establishing prudential standards and providing depositors with a clearer basis for distinguishing between lower-risk and higher-risk entities. This is a significant step forward and should provide more confidence in a sector that has clearly faced a number of challenges over the last year or so.

One requirement that the bill imposes is the requirement to obtain a credit rating. As it will take time for deposit takers to comply with this requirement and for the Reserve Bank to recommend regulations that approve rating agencies, the select committee recommended a transition period of 18 months after the commencement of the Act. The definition of deposit takers, as introduced by the bill, targets the substance of deposit taking to ensure the activity is captured instead of particular types of organisations. The Reserve Bank will be empowered to assess which institutions are captured on a case by case basis, with a view to exempting those that might be inappropriately caught. The wide definition does place emphasis on how the exemption powers will be used. It will provide more certainty about how an exemption decision could be made.

The select committee agreed to amend the bill to provide statutory tests that must be met before an exemption can be granted and guiding principles that the bank must follow in exercising its discretion. For example, an exemption must only be granted if compliance with the bill would be unduly onerous or burdensome. In addition to granting exemptions, the bill gives the Reserve Bank other discretions, such as imposing terms of conditions on exemptions and recommending to the Minister of Finance that prudential regulations be made. The select committee has suggested that the principles that must be taken into account by the Reserve Bank be clearly laid out in the bill.

One important principle is that of consistent treatment between deposit takers. These measures will provide more guidance to the Reserve Bank in its new role, and a greater degree of certainty for entities affected by its decisions. The prudential regime for the non-bank sector has a range of technical components for which the Reserve Bank has the power to recommend regulations. They include credit rating details, capital requirements, liquidity requirements, and related party lending. Because these areas are technical and detailed in nature and could evolve over time, they are best imposed through regulation. Other components of the regime, such as risk management and governance requirements, are less technical and should be set out up front in the legislation. The select committee has therefore recommended that within these two areas specific measures be included in the bill as direct obligations on deposit takers.

The bill creates new offences by non-bank deposit takers, trustees, and directors of deposit takers. The legislation gives the Reserve Bank powers to investigate and enforce the regulatory requirements under the new Part 5D. The select committee recommended providing statutory defences for deposit takers if the contravention was due to the actions or default of another person, and when a deposit taker took reasonable precautions and exercised due diligence to avoid a contravention. These defences are conventional in commercial law statutes and provide a better balance to the bill.

Given that much of the effect of the bill can only be determined once regulations are in place, the select committee suggested that the regime be required to be reviewed within 5 years of commencement, but with the results of the review to be reported to Parliament. This will provide members of Parliament with the opportunity to assess the regime and potentially revisit some of its features. Finally, the select committee recommended a number of amendments that clarify the intent of the governance and accountability provisions in the bill, including clarification as to the ability of the Minister to request policy advice from the Reserve Bank and to the requirement for the Reserve Bank to produce regulatory impact assessments of its policies.

I would like to take this opportunity to signal my intention to introduce a Supplementary Order Paper to deal with two technical issues. One is the commencement provision for the minimum capital requirement and the other is ensuring that the Reserve Bank can request information about deposit takers from the trustees who are supervising them. This will assist the Reserve Bank in assessing both the financial system and the performance of trustees. Members I think will understand, in the light of recent events, that these are quite important issues at the present time. Once again, I would like to thank the select committee members for the work they have undertaken on this bill. The bill has been significantly enhanced through the select committee process. It will give more confidence to the New Zealand financial sector at a crucial time throughout the developed world where the financial sector is under stress.

Dr the Hon LOCKWOOD SMITH (National—Rodney) : I am happy to speak to the second reading of the Reserve Bank of New Zealand Amendment Bill (No 3), because the National Opposition would say it is timely that legislation such as this is passed by the House. It is very sad to note that in recent times many ordinary Kiwis, many New Zealanders who have struggled to save some of their income, some of their wages and salaries over their working lives, have sadly lost money in the collapse of certain financial institutions. Of course, many of those financial institutions are covered by this bill. In this bill we refer to them as non-bank deposit takers, and that is what most of our finance companies are. They are not banks, but they certainly are deposit takers.

It is very difficult to get perfection in this kind of legislation, but I think one thing that is very important is to try to get better information out there for the public, on which they can make judgments about the kind of institution that it might be appropriate for them to invest their savings in. But they need help with that, and that is why this bill is so important.

The Finance and Expenditure Committee put a lot of work into the bill, and any member of the House who has read the commentary on the bill will see that the select committee has recommended a number of changes. This is new legislation. OK, we have experience of the Reserve Bank regulating the banking sector, but in many ways the banking sector is easier to regulate because it is more defined. We have certain trading banks, and they are defined by certain characteristics. Once we start to talk about non-bank deposit takers, we are talking about finance companies, credit unions, and so it goes on, and they are rather more difficult to define.

The first thing the select committee had to explore in some detail is, how do we define non-bank deposit takers? Who should be included? Who should not be included? We can get down to some institutions, to use a generic word, that it really makes no sense to include in this kind of regulation. So the select committee believed it was sensible to amend the bill to add a substance test, in order to exclude from these provisions persons whose business is not substantially deposit taking. People like used-car dealers can offer financing to people who purchase cars from them, but clearly, although they might be in the business of financing, they are not deposit takers as such. So it was quite important that we clarified the definition of deposit takers used in this legislation. I think the select committee has done a reasonable job of clarifying that definition, and of making sure that the Reserve Bank has the opportunity, in carrying out the regulatory requirements of this legislation, to exclude certain institutions from these arrangements.

The bill as amended by the select committee now sets out some factors or principles that should guide the Reserve Bank in making decisions about any deposit takers that might be excluded from the provisions of the legislation. The select committee suggested some sensible amendments in relation to some of those matters. For example, the bill as introduced required the Reserve Bank to consult when a non-bank deposit taker was to be excluded from these provisions. Obviously, that is not necessary, because where the Reserve Bank proposed to exclude a certain institution, that institution would not object to that. I think the select committee has made that reasonably sensible.

But then there was another range of issues that the select committee had to address. What the legislation proposes, of course, is that non-bank deposit takers have to get credit ratings. Not many of them have a rating at the moment. We must also appreciate that just having a credit rating does not mean they are safe places to invest one’s money. I think Hanover Finance had a BB+ credit rating, did it not? Although that is not a full investment-grade credit rating, to many people it seemed like a pretty good credit rating. Yet many people who put their money in there have suffered. So it is important as this Parliament passes this legislation, which we all agree is an important step forward to protect New Zealand investors from being encouraged to put their life-savings into pretty shonky investment or deposit takers, that New Zealanders understand that this is not a guarantee against institutions failing to perform, because a credit rating on its own does not mean a guarantee against failure. We hope that the prudential supervision role that the legislation sets out for the Reserve Bank again will minimise risks, but nothing makes that an absolute guarantee that New Zealand investors will not face any risk, at all.

In requiring institutions to get a credit rating, I think it was really important—the Minister of Finance has already referred to this—that we recommended that the bill be amended to provide a transition period for that. At the moment, of course, part of the process is that the Reserve Bank has to approve the credit rating agencies, and that is not completed yet. The Reserve Bank has to complete that process before the non-bank deposit takers can get their credit ratings from the agencies. So the 18-month transition period is sensible, and if members look at some of the detail of the amendments they will see that where a non-bank deposit taker has not been able to get its credit rating within that 18-month transition period, there is a provision for the Reserve Bank to enable the entity to carry on business while it gets its credit rating, if in fact there have been difficulties around the Reserve Bank providing approved credit rating agencies and so forth. So I think the legislation provides a sensible transition to the new regulatory regime. If we look at some of the issues that the select committee worked on, we will see there has been quite a sensible response to the challenges.

Then we go on to the issues of governance, and again the select committee has recommended some amendments there to make sure that institutions have at least two independent directors, and that the chair of the institution is not an employee—a number of provisions to try to make sure that there is more sound and transparent governance of those institutions. If we then go through the kinds of issues we addressed, we move on to things like risk management. The institutions have to have a risk management programme, and again the select committee has recommended some amendments there that seem reasonably sensible in terms of the development of risk management programmes. There is again a transition period before both the governance and risk assessment requirements come into effect.

If we take all those issues together—and let me just summarise, because I do not want to take up too much of the House’s time—the National Opposition supports these moves. We are saddened by the losses suffered by ordinary Kiwis in recent months as a result of the collapse of some finance institutions. We think the amendments proposed by the select committee make this legislation more workable, and I think in its current form it is fairly sensible. We look forward to seeing the Supplementary Order Papers the Minister has foreshadowed.

CHARLES CHAUVEL (Labour) : I am pleased to follow the member who has just resumed his seat, Dr the Hon Lockwood Smith, and I endorse the sentiments that he has expressed, starting with the losses that ordinary New Zealanders have suffered over the last few months because of the difficulties in the finance sector. He is right in commending this legislation to the House, along with the other measures that are currently being considered by the Finance and Expenditure Committee, namely the financial providers and the financial advisers legislation, which together form a suite of statutory protections for investors in what has, frankly, hitherto been an under-regulated sector, particularly when we compare the level of consumer protection that exists here with that in our nearest commercially sophisticated neighbour, Australia.

The Reserve Bank of New Zealand Amendment Bill (No 3) comes in response to a review from Treasury—that was its original genesis—and the Ministry of Economic Development and the Reserve Bank of New Zealand, which looked in 2005 at the regulation and performance of New Zealand financial institutions, and a more recent review of financial products and providers. As I say, this bill comes in response to that review. It will bring the regulation of non-bank deposit takers into line with international benchmarks. It will require those non-bank deposit takers to comply with minimum prudential requirements, which will be set by the Reserve Bank of New Zealand, and it is appropriate that broadly the same regime should be brought into effect as to bank and non-bank deposit takers. As far as the consumer is concerned, there is little difference, and it is appropriate that similar protections should exist across all sectors where there is the activity of taking deposits.

As Dr Lockwood Smith said, there is an issue around the definition of non-bank deposit takers. We have sought to address that in the Finance and Expenditure Committee’s report. We have included finance companies, building societies, and credit unions that issue debt securities and provide financial services. I hope that the definition will be sufficient to achieve the consumer protection ends of the legislation.

As has also been mentioned, the bill proposes that non-bank deposit takers should be required to have a current credit rating from a rating agency approved by the Reserve Bank. Of course that is not a panacea; it is not a be-all and end-all. What is required alongside that requirement are not only the other measures that are contained in the legislation, which I will mention in a moment, but also a general raising of the level of financial literacy on the part of New Zealanders. One of the things I think the select committee hopes is that with the advent of an institution like KiwiSaver, where people have to look at what is happening with their retirement savings, people will take a more active interest in what is happening with the money they have in the bank or invested for their superannuation, and that, over time, working with Government initiatives in this area we can really lift the level of New Zealanders’ financial literacy, in the same way that has occurred in Australia since compulsory superannuation came about there.

The bill also empowers the making of regulations that require trust deeds to include a capital ratio that the non-bank deposit taker will be required to maintain, a maximum limit on exposures to third parties, and requirements as to liquidity, and these amounts are to be set out in the trust deed. Those are the complementary measures I mentioned that, along with the financial rating requirement, ought to provide a suite of protection measures in this bill for consumers, and really provide meaningful protection in the non-bank deposit taking sector. The bill also includes amendments to governance arrangements, and they will increase transparency and accountability—again, really shining the light into this sector and making sure it is cleanly governed and cleanly run for the benefit of consumers.

It has been mentioned that the Finance and Expenditure Committee has recommended a number of changes to the legislation, and I intend to speak in more detail to those changes during the Committee stage. I thank the Minister for his acknowledgment of the work done by the select committee. I think that all members of the select committee put a lot of work into ensuring that the bill that was returned to the House was the best possible bill that could come back. I think that the legislation to follow—the providers and advisers legislation—is a necessary complement to this bill to ensure that as far as the consumer of financial services is concerned, there are appropriate protections. I thank the specialist adviser to the committee. He provided, I think all committee members would agree, very useful and sensible advice in terms of the amendments recommended to the House. I also thank the select committee staff for their invaluable assistance. It is good to hear that this legislation, by the sound of it, will have widespread support across the House. That is appropriate because it is a very good bill.

TIM GROSER (National) : National is supporting the Reserve Bank of New Zealand Amendment Bill (No 3). It is an overtly technical bill, but I believe that that should not obscure the fact that it relates to something fundamentally important.

I suspect that if we were to ask members across various different parties in the House what they thought were essential attributes for a stable society, we would come up with a fairly common core of issues around the rule of law, property rights, democratic process, freedom of press, and so on and so forth. But, actually, the preservation of a sound financial system is absolutely central to any successful and stable society. One can see that most clearly in the absence of that condition. When I was living in Indonesia I saw many reasons why the Suharto regime might have eventually fallen, but, like everybody else, no way did I predict that it would become a consequence of a fall in the Thai baht. So one can see the impact of financial contagion in any society that has weak financial institutions. I certainly recall when I first went to live in Jakarta it was pointed out to me that there were 250 banks with an average asset valuation of the size of a typical Westpac branch in New Zealand. So financial contagion can lead to dramatic political change, and, of course, in some respects, some very negative and oppressive regimes have been brokered in history through unsound financial systems.

What we are debating here is very technical but fundamentally important to our own society in the long term. When we think about the two principal functions of the Reserve Bank of New Zealand—price stability, as defined by Parliament, and the preservation of a sound financial system—we find that this bill, which is pushing out that second responsibility into the non-bank deposit taker sector, makes a very serious and significant contribution to what is a very important part of any stable society. We are, in a sense, very fortunate in this country that we have a generally sound financial system, but, of course, it is precisely in this sector that we have discovered recently—and, in many tragic cases, rather too late in terms of this legislation—what the implications are for New Zealanders who have not had that stability.

It is worth reflecting on the fact that about 95 percent of the assets of the financial sector are in the traditional banking sector, while about only 5 percent are in the finance company sector. People make a number of comments about Australian ownership of the banks, but it is of little comfort to people if they lose money in a locally controlled bank. The Australian banking sector dominates the traditional banking sector, but what we know is that those banks are amongst the soundest in the world out of the thousands of banks that exist. That is the bedrock point, I think, behind this legislation, and what is quite clear is that we have gone from a situation historically in the 1960s and 1970s of excessive regulation of the banking sector, through to an under-regulated non-bank deposit taking sector. I think there is some tendency sometimes in New Zealand society for us to move from one extreme to another, and this is possibly another example of that.

It is intriguing that this bill predates the meltdown in the finance sector, and, as other speakers have commented, it is grossly unfortunate for those people who were caught up in the collapse of many of our finance companies that this is rather too late to assist them. I have always felt that the phrase “caveat emptor” in some cases, although an essential principle that we have to respect, is sometimes as cold as charity. Asking even reasonably economically literate New Zealanders to try to make an assessment about the financial prudence of companies in which they are investing their money is a bridge too far, I think, for many New Zealanders. So, quite clearly, we have been short of an adequate regulatory framework in the non-bank deposit taking sector, and although it is a little unfortunate that we did not move more quickly in this respect, at least we are now putting in place some additional and much-needed regulatory framework.

I suppose that as we seek to introduce a sounder regulatory framework in this sector, we inevitably create an incentive structure for some other sector then to emerge precisely to escape the new regulations. This is the process of financial disintermediation. I remember that when I was a young New Zealander—some rather long time ago—because of the excessive regulations around the banking sector in terms of mortgage finance, people like me who were young New Zealanders at the time used to go into solicitors’ funds to try to get mortgage finance, precisely because they had grown up as a source of mortgage finance because the banking sector was so heavily regulated. So it is a sort of cat and mouse game that the authorities play with the markets here. We are now moving—a little late, probably—to put in a proper regulatory framework in this sector. By doing so we automatically create an incentive for some other growth in some non-regulated part of the sector, and no doubt a future Parliament will have to come back to fix this up—that is the way it works.

The essential characteristics of this bill have been pretty well described by other speakers. We know we have a regulatory framework that currently exists only for the first tier of the banking sector and we are now seeking to apply a similar regime to the second tier. Quite clearly this will include finance companies—the source of so much grief recently—but I see some very sensible changes have been introduced in the select committee process to stop the unintended capture of certain other institutions, such as hire companies that accept deposits as part of their security process. I see that there is a sensible threshold limit of $10 million in assets, below which this legislation will not apply, and there are minimum prudential requirements around capital, adequacy ratios, and governance regimes and requirements that are being put into place.

As other speakers have said, although I think the whole concept of giving the non-bank deposit takers a credit rating is a sensible move forward, it is very important that New Zealanders do not see this as a panacea, and there have been several good examples given by previous speakers.

The disclosure of key financial information is another important aspect of the bill, and it will be pleasing to see that the Reserve Bank now has a statutory responsibility to report to the House regularly on its activities.

All in all we support the bill. As I said, it is unfortunate that it has come too late to help New Zealanders who have had savings destroyed in the meltdown of the finance companies, but at least it will perhaps save some grief in the future.

R DOUG WOOLERTON (NZ First) : In the 2 minutes remaining I want to say that New Zealand First likewise supports the Reserve Bank of New Zealand Amendment Bill (No 3). My colleagues have talked about the bill. I want to say that it is unfortunate that the meltdown of the finance companies has come at a time when we in New Zealand, across the board, are trying to encourage people to look at shares and deposits rather than property. It reminds me of an article I read some time ago that made a joke out of statements of that kind. It said: “We wish New Zealanders would invest more in things other than property.”, and asked why New Zealanders did that. The answer was that it was because property very rarely turns itself into a Porsche 911 overnight. That pretty much sums up what this bill is about. It is trying to give more information to people who are trying to broaden their investments. It is a tragedy that those people who have done that have, in recent times, in some cases lost almost all of their life-savings.

• Debate interrupted.