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Volume 652, Week 4 - Tuesday, 17 February 2009
Tuesday, 17 February 2009
Correction—Criminal Investigations (Bodily Samples) Amendment Bill
Hon STEVE CHADWICK (Junior Whip—Labour) : I seek leave to correct the vote on the first reading of the Criminal Investigations (Bodily Samples) Amendment Bill. A vote was cast in error for the Progressive party. There was no entitlement to exercise a proxy vote on that occasion.
Mr SPEAKER: Is there any objection to the record being corrected? There is no objection. The record will be corrected accordingly.
Questions to Ministers
1. Hon PHIL GOFF (Leader of the Opposition) to the Prime Minister: Does he have confidence in all his Ministers?
Hon Phil Goff: Does the Prime Minister agree with the New Zealand Herald and others that Gerry Brownlee’s procedural blunders in the House last Thursday were “a major embarrassment to the Government, which made it look like it didn’t know what it was doing”; and when is he going to take decisive action against the Ministers that he promised he would act against if they did not perform?
Hon JOHN KEY: No, I do not agree with the New Zealand Herald, but I can confirm that by the end of this week, at the very latest, all stages of the Electoral Amendment Bill will have been passed. What I do find embarrassing is the way that the first action of the member, when he became the Leader of the Opposition, was to grovel to the New Zealand public to ask for forgiveness for the fact that the Labour Government had passed the Electoral Finance Act in the first place.
Hon Phil Goff: When will the Prime Minister apply the Government’s apparent commitment to “three strikes and you’re out” to Gerry Brownlee, who has now made significant blunders on three occasions in just three sitting weeks; or does he expect Labour to go on rescuing him from the consequences of his own incompetence?
Hon JOHN KEY: It is good to see that the Leader of the Opposition is so deeply focused on the Standing Orders that he does not seem to care about the economy.
Hon Phil Goff: I raise a point of order, Mr Speaker. A Minister, particularly the Prime Minister, is required to address a question, and I do not believe he did so—I think he deliberately avoided it.
Mr SPEAKER: I think experienced members know that if they ask political questions like that one, they are likely to get political answers.
Hon Phil Goff: How does the Prime Minister expect the country to have confidence in him, when he promised sincerely that the Government would lead by example on wage restraint, but as the Minister responsible for Ministerial Services he has agreed to hefty pay rises for the Beehive political staff, with more than a trebling of the number earning more than $150,000 per year, a trebling of the number earning more than $120,000 per year, and an increase in the average salary by $13,000 a year, while at the same time the Prime Minister generously gave people on the minimum wage a net increase of $3.78 per week?
Hon JOHN KEY: It is true that we have paid higher salaries in Ministerial Services. It is also true that we have hired a lot fewer staff than Labour did. I might add that it is interesting to see how many extra communications staff members were added between April and October 2008 by the Labour Government—and I wonder why that was.
Hon Phil Goff: In respect of the Prime Minister’s answer, can he guarantee, in terms of the number of Beehive political staff, that the figures he quotes represent the total complement of political staff he intends to employ, and that the numbers include contracted staff and political staff who are privately paid for or paid by the Parliamentary Service?
Hon JOHN KEY: To the best of my knowledge the staff numbers that were released reflect the staff that the Government has. We have fewer staff in our communications department, because we are quite happy to operate with fewer people who are of a higher quality.
Hon Phil Goff: How can the Prime Minister justify keeping his promise that “We will be looking at wage moderation across the state sector at all angles.”, and that those in the Government sector should have job security and therefore “should take that on board”, when he triples the number of people in his own department—political hacks—being paid more than $150,000 a year?
Hon JOHN KEY: I assure the member that there will be wage restraint. I have made it quite clear that that vote will not be increasing, though staff are not expecting pay increases—
Hon Phil Goff: They just got them!
Hon JOHN KEY: Actually, they did not. We hired different staff.
Government Spending Commitments—Lack of Funding
2. CRAIG FOSS (National—Tukituki) to the Minister of Finance: Is he aware of any reports of Government spending commitments by the previous Government that have no funding set aside to pay for them?
Hon BILL ENGLISH (Minister of Finance) : There are quite a large number of such reports, and I will discuss just a few of them. The previous Government made multi-year commitments to a $1 billion home insulation programme, for which no funding was allocated, and it made a range of commitments exceeding a billion dollars of investment in the rail system, for which no funding was allocated. In addition, it neglected to commit to the $1 billion over 3 years needed to maintain the viability of the Accident Compensation Corporation non-earners fund.
Craig Foss: Has the Minister seen any further reports of Government spending commitments that have no funding set aside to pay for them?
Hon BILL ENGLISH: Yes, I have. No funding was set aside for $300 million of economic transformation announced in the 2008 Budget, and there was only a fraction of the extra $600 million trumpeted for the Ministry of Foreign Affairs and Trade. In the light of those very large commitments, the previous Government pretended that it would put together a Budget on just $1.75 billion for new spending for this year, when its average new spending on the 3 previous years was almost twice that figure.
Hon David Cunliffe: Does the Minister accept Treasury advice that it is proper practice for future but as yet unfinalised cost estimates to be specified as either specific or contingent fiscal risks; or is he assuring the House that his 2009 Budget will contain none of those?
Hon BILL ENGLISH: Treasury appears to have had a great deal of difficulty keeping up with the large number of unfunded promises made by the previous Government, such as the promise of the universal student allowance, which even Labour worked out during the election campaign was a vote-loser, not a vote-winner.
Hon David Cunliffe: I raise a point of order, Mr Speaker. I see that you are already anticipating the nature of the point of order—that the response does not in any way address the question about the practice of unspecified fiscal risks.
Mr SPEAKER: The question, indeed, asked about the practice with regard to fiscal risks and the treatment in the Budget. I would ask the Minister to respond more directly to that part of the question.
Hon BILL ENGLISH: I actually did not understand that question.
Hon David Cunliffe: I raise a point of order, Mr Speaker. I am willing to repeat the question or to provide a short tutorial—
Mr SPEAKER: The member will resume his seat. Points of order do not have such comments attached to them at all. The honourable member should know that. I will invite him to repeat his question so that all members can ascertain the question and have it answered properly.
Hon David Cunliffe: Does he accept Treasury advice that it is proper practice for future but as yet unfinalised cost estimates to be specified as either specific or contingent fiscal risks, or is he assuring the House that his 2009 Budget will contain none of these?
Hon BILL ENGLISH: Well, the member might like to answer the question as to why the specific and highly contingent fiscal risk of the non-earners account was left out of the pre-election update. Why did the Government try to hide that billion-dollar risk?
Hon David Cunliffe: I raise a point of order, Mr Speaker. As you are well aware—and you have already ruled on it—my question was very specific. It was about the 2009 Budget. The member quoted a historical example, which does not counter the point that has been made. I look forward to the Minister addressing the question. Can we have another answer?
Mr SPEAKER: The question put to the Minister was pretty specific—it was about the treatment of fiscal risks. The Minister’s response was to ask why something was left out. I ask the Minister to indicate how fiscal risks will be treated in the future, which is what the questioner has asked. It seems to be a reasonable question. In the public interest the Minister does not have to answer, of course.
Hon BILL ENGLISH: I raise a point of order, Mr Speaker. If the member wanted the answer to that question he should have asked that question. You have put it much more clearly than the member did, and I invite him to ask a clear, straightforward question.
Hon David Cunliffe: Mr Speaker, at your direction I have repeated the question twice. You obviously found it clear. I am happy to repeat it a third time if that would assist the Minister.
Mr SPEAKER: I invite the member to repeat the question. I expect, though, that if the question is as I heard it before, that technical question is to be answered.
Hon David Cunliffe: Does the Minister accept Treasury advice that it is proper practice for future but as yet unfinalised cost estimates to be specified as specific or contingent fiscal risks, or is he assuring the House that the 2009 Budget will contain none of those?
Hon BILL ENGLISH: Yes.
Hon David Cunliffe: I raise a point of order, Mr Speaker. Given that you have three times directed the member to answer the question, particularly with reference to the forward-looking aspects of Budget 2009, can the Minister confirm that his answer—“Yes.”—was in relation to Budget 2009?
Mr SPEAKER: The Minister does not need to enlarge on his answer. He chose to answer one part of the member’s supplementary question, I presume with regard to Treasury advice, and that is all, under the Standing Orders, that the Minister is required to do. If the member adds more than one part to a supplementary question, he cannot expect them all to be answered.
Hon Dr Michael Cullen: I raise a point of order, Mr Speaker. I seek clarification from you. In the event that the 2009 Budget, for the first time since the Public Finance Act came into force, does not contain any specific fiscal risks, I take it the Minister will not be exposed to—
Mr SPEAKER: The member will resume his seat. He well knows that that is not a point of order.
Craig Foss: What was the operating allowance for the 2009 Budget, as set out by the previous Government?
Hon BILL ENGLISH: It seems from estimates from the commitments made by the previous Government that it made an allowance of $1.75 billion, but appeared to make commitments of more than $3 billion.
Hon Trevor Mallard: Did his answer to my friend David Cunliffe’s last supplementary question apply to the first or the second leg of that supplementary question?
Hon BILL ENGLISH: I did not hear the question.
Mr SPEAKER: The Minister did not hear that question and I invite the Hon Trevor Mallard to repeat it. I ask members of the House please to keep the noise down so that Ministers can hear questions.
Hon Trevor Mallard: Can I ask the Minister whether his reply to David Cunliffe’s last question applied to the first or the second part of that question?
Hon BILL ENGLISH: The first.
Hon David Cunliffe: Has the Minister seen reports that the Government’s so-called $9 billion economic stimulus package is in fact not new stimulus at all in that it is, rather, spending and tax cut decisions made very largely by the previous Government and before the latest data on the gravity of the international recession became available?
Hon BILL ENGLISH: Yes, I have seen those reports and I think most of them originated from me.
Hon Trevor Mallard: Will there be unspecified or contingent fiscal risks outlined in the 2009 Budget?
Hon BILL ENGLISH: Yes, it is a requirement of the Public Finance Act.
Jeanette Fitzsimons: Will the Minister admit that the billion-dollar Green Homes programme, which has already been legislated for in section 223 of the Climate Change Response (Emissions Trading) Amendment Act, was to have been funded out of State-owned electricity companies’ dividends, under the emissions trading scheme, and that it is only the actions of his Government in creating uncertainty around the future operation of the emissions trading scheme in the electricity sector that have put its funding in doubt?
Hon BILL ENGLISH: I know that that is the agreement the Greens had with the previous Labour Government, but they had also committed the same dividend stream to State-owned enterprises making renewable energy investments. I might also note that the billion-dollar package, which was announced as a billion dollars to make it look big, was apparently going to be spent over 15 years, so there is a good deal of confusion around how many times the State-owned enterprise dividends had been committed to being spent on a number of different things.
Jeanette Fitzsimons: Is the Minister aware of the vast literature showing that investment in energy efficiency reduces the need for investment in new power stations, and why is he just taking the word of the electricity companies about the need for their dividends, rather than investigating properly?
Hon BILL ENGLISH: Yes, I am aware of the literature, as are my colleagues the Hon Nick Smith and the Hon Gerry Brownlee, and they are putting themselves to the task of seeing whether the current Government can creatively take that opportunity.
Jeanette Fitzsimons: Will the Minister commit to funding the scheme out of his economic stimulus package if the Government moves to destroy the original source of funding under the emissions trading scheme—because this programme provides the best economic, social, and environmental return on any investment programme to secure jobs and the well-being of families?
Hon BILL ENGLISH: If such a scheme shows clear economic and productivity benefits, as well as the well-understood benefits particularly for the health of children, then the Government can put it alongside the many other schemes that people claim to me represent infrastructure that will increase the economic, social, and environmental well-being of the country.
Recession—Advice or Assistance for Affected Workers
3. Hon ANNETTE KING (Deputy Leader—Labour) to the Minister for Social Development and Employment: What advice or assistance, if any, is available to workers who have recently lost their jobs, had their hours reduced, or been sent on sabbaticals, as a result of the economic downturn?
Hon PAULA BENNETT (Minister for Social Development and Employment) : Work and Income has a range of support and financial assistance that could help workers facing cut-backs and redundancies. I encourage any people finding themselves in this position to contact their local Work and Income office.
Hon Annette King: Is this part of the assistance her Government is providing to the unemployed: a letter sent out by her department advising a client to go to a loan shark, and to pawn the cellphone and the kids’ toys to increase the client’s income before getting assistance; if so, is this appropriate advice to give to unemployed New Zealanders?
Hon PAULA BENNETT: I have not seen that letter. I look forward to seeing it so that, if that is the sort of information that is going out, we can hold someone to account.
Hon Annette King: Is she aware that the chief executive of Budgeting and Family Support Services, Mangere said the letter sent out by her department was offensive to the client, and the whole point of providing support to vulnerable clients is so that they do not go out to borrow more money from loan sharks at exorbitant interest rates; and if she thinks it is appropriate for her ministry to be encouraging clients to be more indebted, why?
Hon PAULA BENNETT: I do not think it is appropriate. I did not expect to stand up and agree with the member so early in my term as a Minister, but I do not think that is appropriate. I would love to see the letter. I hope she tables it at the end of this question and we can do something about it.
Hon Annette King: Will she give a guarantee that funding to budget advisory services will not be reduced, in light of the increased numbers of people who are now flowing through the doors of such agencies?
Hon PAULA BENNETT: This Government is looking at all areas of money and where it is being spent. We will continue to do that. I am looking at a line by line review and at value for money, and we will be supporting front-line services.
Jo Goodhew: What has the Government done as part of its focus on jobs and growth in the 3 months since the election?
Hon PAULA BENNETT: Our focus has been on a jobs and growth plan. We have raised the minimum wage to $12.50 an hour, we have CPI-indexed the increases, we are looking at the 90-day trial period bill, which will make a huge difference for New Zealanders to get into employment, and we will be supporting front-line services that directly help New Zealanders in their jobs.
Hon Annette King: I seek leave to table the letter from a case manager from Work and Income requiring a person to take out a loan, and to pawn the cellphone and the children’s PlayStation, etc.
Mr SPEAKER: Leave is sought to table that letter. Is there any objection? There is no objection.
- Document, by leave, laid on the Table of the House.
Hon Annette King: I seek leave to table a letter from Budgeting and Family Support Services, Mangere saying how offensive that letter is—that the department should be requiring people to take out loans—
Mr SPEAKER: Is there any objection to that letter being tabled? There is no objection.
- Document, by leave, laid on the Table of the House.
Fresh Start—Expected Outcomes
4. RAHUI KATENE (Māori Party—Te Tai Tonga) to the Minister for Social Development and Employment: What are the expected outcomes of the Fresh Start approach?
Rahui Katene: What assurances can the Minister give that iwi Māori can be involved in managing programmes and services to address serious recidivist offending by children and young people?
Hon PAULA BENNETT: The increased involvement of Māori providers is a priority. I have made a commitment to broaden the range of providers. This will be done by consulting with both the Māori Party and Māori in general.
Hon Annette King: Has the Minister seen reports, both internationally and in New Zealand, that show that the use of military-style corrective training has led to a 94.5 percent rate of reoffending, and that such programmes have been unsuccessful? Can she confirm that the Government’s programme for 40 youths is nothing more than window dressing?
Hon PAULA BENNETT: No, I have not seen reports like that. I have seen reports that say that if we work with young people over a long period of time, and if that work includes mentoring programmes, parenting orders, getting into family and whānau, making the work eyeball to eyeball, and making it really mean something, we can turn these young people around.
Rahui Katene: How will the Government’s commitment to whānau ora be demonstrated in these youth justice reforms?
Hon PAULA BENNETT: We are committed to working long term. The work we have been doing is not working for those thousand worst young offenders; we have to do it differently. This will be done over a period of time, and it will be done in different ways for different individuals. We recognise that Māori have different needs, and we will be implementing programmes that will have a real effect.
Young Offenders—Fresh Start
5. CHESTER BORROWS (National—Whanganui) to the Minister for Social Development and Employment: What plans does the Government have to deal with the most serious and persistent young offenders?
Hon PAULA BENNETT (Minister for Social Development and Employment) : The new Fresh Start programme, announced yesterday, will give judges many of the tools they have been asking for to break cycles of reoffending.
Chester Borrows: What is the difference between the corrective training programmes of 20 years ago and the new military activity camps?
Hon PAULA BENNETT: There are several key differences. Fresh Start is not like corrective training; rather, it is a concentrated long-term strategy to address the behaviour of some of the most high-risk young offenders. Core components of the military-style camps—intensive mentoring, drug and alcohol rehabilitation, and literary and numeracy programmes—are completely new and were never part of the old corrective training scheme.
Jacinda Ardern: How does the Minister plan to address the risk factors associated with youth offending—including poverty; dysfunctional, disadvantaged, and violent families; and alcohol and drug abuse—given her Government’s proposed cuts to Pathways to Partnership, which worked to address these very issues; or would her Government rather focus on offender programmes that just do not work?
Hon PAULA BENNETT: I thank the member for that scaremongering political speech to the non-governmental organisation sector! Fortunately, those organisations see more sense and know that we are working together on plans for these young offenders and on what really needs to be done. We take this programme seriously: we are committed to it, we will fund it accordingly, and we will make it work.
Chester Borrows: Has the Minister seen any media reports about the Government’s announcement?
Hon PAULA BENNETT: Yes. Last night I heard TV3 saying that the Prime Minister had delivered on another election promise with the announcement of the new Fresh Start programme, and commenting that Labour was on the wrong side of the issue. In addition, a poll out this morning showed that more than two-thirds of participants think that Fresh Start will help young offenders. Finally, the mother of murder victim Michael Choy was interviewed last night, and she welcomed the new approach to turning young offenders’ lives round.
Question No. 6 to Minister
Hon DAVID CUNLIFFE (Labour—New Lynn) : I raise a point of order, Mr Speaker. This question is directed to the Minister of Finance, who, with a bit of luck, is about to re-enter the Chamber—perhaps not. In the absence of the Minister, I seek your guidance. The member was present—
Mr SPEAKER: The member will resume his seat. He knows that it is not consistent with the Standing Orders to refer to the absence of any member from the Chamber. It is not his responsibility who answers a question; it is his responsibility to ask it. I invite the member to do so.
Hon Dr MICHAEL CULLEN (Labour) : I raise a point of order, Mr Speaker. I am not disputing your ruling at all, but it is legitimate for a member to seek an assurance that a Minister has not suddenly disappeared from the Chamber to avoid answering a particular question, when he would be available—
Mr SPEAKER: Dr Cullen, of all people, knows that is not an appropriate point of order. I invite the honourable member to ask the question.
Hon DAVID CUNLIFFE (Labour—New Lynn) : I raise a point of order, Mr Speaker. Without wishing to challenge your ruling, the particular reason I raised the point of order was that I could see the Minister—
Mr SPEAKER: The member is at risk of challenging my ruling. My ruling is that he will ask his question. It is up to the Government as to who answers it.
6. Hon DAVID CUNLIFFE (Labour—New Lynn) to the Minister of Finance: Does he stand by his statement about the Prime Minister that “Getting on those bloody planes he comes back with 10 different things. I just say we’ll look at that. The occasional one you just say that’s not going to work.”; if so, which of the Prime Minister’s ideas has he rejected?
Hon STEVEN JOYCE (Associate Minister of Finance) on behalf of the Minister of Finance: The honourable Prime Minister welcomes free and creative discussions in his team, where innovative ideas can be freely debated. The Minister can understand if that was not the environment that that member was used to back when he was a Minister.
Hon David Cunliffe: Mr Speaker—[Interruption]
Mr SPEAKER: Those members should let their colleague ask a question.
Hon David Cunliffe: Has he had any free and fruitful discussions with the Prime Minister about his off-the-cuff suggestion made at yesterday’s press conference that Fisher and Paykel Appliances may be in need of a bail-out, or does he believe that such speculation may risk further undermining of confidence in a publicly listed company?
Hon STEVEN JOYCE: As the Prime Minister has said previously, last month and also yesterday, we have said consistently that Government financial support could possibly be provided to corporates if required, but very much as a last resort.
Mr SPEAKER: The Hon David Cunliffe.
Chris Tremain: Supplementary question, Mr Speaker.
Mr SPEAKER: Chris Tremain.
Hon David Cunliffe: I raise a point of order, Mr Speaker. The member had not called, and I believe you had accepted my call.
Mr SPEAKER: Members are normally pretty generous on the way the House flows, and I was very grateful for the way the Hon Annette King let Jeanette Fitzsimons take the call when I made a mistake. I ask the member to be reasonable. If he insists, I do have to accept that. He made the first call, and if he insists, I will go to him.
Hon David Cunliffe: No objection.
Mr SPEAKER: Thank you.
Chris Tremain: What other ideas has the Minister seen for effectively managing our way through the current recession?
Hon STEVEN JOYCE: None at all from the Opposition, but apparently its finance spokesperson is working on something and hopes to have it ready before the next election, or, perhaps, before the next global recession.
Hon David Cunliffe: Does the consistency to which the Minister previously referred include his previous comments that “Imagine the billion dollars just spent on Air New Zealand and the ‘People’s Bank’ that could have been invested in fixing infrastructure. The Government is running loose with hard-earned taxes and debt. It should make you sweat.”; or is that one of the things one says in Opposition but not in Government?
Hon STEVEN JOYCE: In light of the current global financial recession, we have said consistently over the last month that we would consider Government financial support, but, again, very much as a last resort.
Hon David Cunliffe: Can the Minister confirm that, as referred to yesterday by the Prime Minister, the operations and mandate of the Overseas Investment Office are currently under review by a ministerial subcommittee that will be reporting to Cabinet by March 2008; and when will the Government make publicly available the objectives and terms of reference of that review, or is it the Government’s practice to conduct economically critical discussions in secret?
Hon STEVEN JOYCE: No, it is not being asked to report back by March 2008.
Hon Trevor Mallard: Has the Prime Minister given Fisher and Paykel Appliances an undertaking that that company will not be allowed to collapse?
Hon STEVEN JOYCE: Our primary method of supporting the corporate sector is to ensure that the banking sector is sound. We have then said that any companies having difficulty would be asked to explore every commercial option before considering any approach to the Government, and that if any consideration of Government financial support were needed, it would be very much as a last resort.
Hon Trevor Mallard: I raise a point of order, Mr Speaker. Although that was a very good general answer, the question was a very specific one: has the Prime Minister given an assurance to Fisher and Paykel Appliances?
Mr SPEAKER: There are a couple of problems with what the member is seeking me to assist him with. The first is that the Minister is not responsible for what the Prime Minister may or may not have said to Fisher and Paykel Appliances. Secondly, the question is getting very specific, when there was a very general primary question. I think that the matter has, therefore, been taken as far as it can be.
Hon Trevor Mallard: If I may speak on that point—and I thank you, Mr Speaker, for your tolerance—when Prime Ministers make pronouncements in areas of responsibility of Ministers, then it is certainly within the Ministers’ responsibility to answer. I think if—
Mr SPEAKER: The member will take his seat. I have heard sufficient, and the Minister does not have responsibility for what the Prime Minister may or may not have said. That is the end. [Interruption] He is not answering as the Prime Minister.
Recession—Small-business Relief Package
7. Hon Sir ROGER DOUGLAS (ACT) to the Minister of Finance: What steps has he taken, and does he intend to take, to ensure the pressure of economic adjustment does not fall entirely on the productive sector, in particular small business?
Hon STEVEN JOYCE (Associate Minister of Finance) on behalf of the Minister of Finance: The Government has taken a number of steps to assist small business. These include the small and medium enterprises package worth $480 million, which gives small businesses more time and money to get on with business while also providing a better environment for business; investment in infrastructure, which provides more certainty about jobs while bringing forward infrastructure work programmes across housing, education, and transport sectors and which is worth a further $483 million; and a strong focus on regulatory reform, with steps such as the review of the Resource Management Act, which is now well under way. The collective impact of these actions will greatly assist New Zealand businesses; further announcements will be coming shortly.
Hon Sir Roger Douglas: How does the Minister reconcile the Prime Minister’s undertaking not to reduce public sector job numbers with the goal of not imposing all of the forthcoming economic adjustment costs on the private sector?
Hon STEVEN JOYCE: The Government has made it clear that it is focusing its changes in the public sector on increasing productivity and on moving money and resources into front-line services.
Hon David Cunliffe: What might those changes be? What is the Government actually doing in addition to the policy commitments to support small business that were announced by Labour prior to the election and that are already in the process of being legislated for?
Hon STEVEN JOYCE: There have been a number of changes. Some of them are continuations of what the previous Government said it would do, yet did not do. I note that in August of last year the previous Minister of Health signalled to the Director-General of Health that further output gains in the Government sector should be driven by the reprioritising of resources through to the front line, rather than through significant fulltime-equivalent growth. The previous Government failed to deliver on that; this Government will deliver on it.
Hon David Cunliffe: I raise a point of order, Mr Speaker. I am sorry to trouble you, Mr Speaker, but my question was specifically about initiatives not proposed by the previous Government. In response to the question the Minister quoted an initiative that a Minister of the previous Government—namely this former Minister—took. He cannot—
Mr SPEAKER: In fairness, I think that the member should reflect back on his question. It was sufficiently vague that I thought the Minister answered it reasonably effectively.
Hon Jim Anderton: Has the Minister seen any reports that the period in New Zealand’s history when the productive sector of New Zealand faced its greatest pressure was the period when the member who asked the substantive question was the Minister of Finance; if so, can he rule out that member’s policy of historically high interest rates, the fastest rate of small-business failure in history, and the slowest period of New Zealand growth since the Great Depression?
Hon STEVEN JOYCE: A fair bit of that is ancient history, from where I am sitting. This Government will be resolutely focused on maintaining confidence, particularly in private sector, that it will deliver the economic growth that will ensure New Zealand grows quickly into the future.
Peseta Sam Lotu-Iiga: What has been the response by small businesses to the steps taken by the Government?
Hon STEVEN JOYCE: The small-business relief package has been almost universally welcomed across the small-business sector. For example, John Cook, the managing director of Stainless Design, which employs 75 people in Hamilton, said he expected to see a flow-on in the wider community. He welcomed changes to provisional tax and he also added that the Government’s actions would allow small businesses to climb into the next tier.
8. Hon RICK BARKER (Labour) to the Minister of Veterans’ Affairs: Is she doing anything to increase awareness of veterans’ entitlements?
Hon JUDITH COLLINS (Minister of Veterans’ Affairs) : Yes. My department is well aware of my desire to ensure that veterans are aware of their entitlements, and I meet regularly with the Royal New Zealand Returned and Services’ Association and the Chief of Defence Force to ensure that the department is responding to the needs of veterans.
Hon Rick Barker: Does the Minister’s statement on veterans’ pensions that “If you don’t ask for it, you don’t get it.” signal a change in policy towards veterans’ pensions of being more bureaucratic, mean spirited, and uncooperative with veterans; and how does this square with the public sentiment that we should be generous to our veterans for their sacrifice and service to our country?
Hon JUDITH COLLINS: Well, it does not, and that is because I did not make that statement. I am happy that the member has asked the question, which gives me the opportunity to correct the matter. I made a written statement to the reporter. That statement is in the document I am holding. I will seek leave at the end of this question to table it. It will show that the reporter has completely misquoted me. What I did say is this: “Veterans should get their full entitlements if they wish.” That was the statement; it was misquoted. I will seek leave to table a complaint to the editor of the Sunday Star-Times and a full transcript of the entire email correspondence, and I will be seeking an apology.
Hon Rick Barker: Is everybody else wrong except the Minister in her approach to these issues, or will she simply try to put her name on the achievements of the previous Government of a historic memorandum of understanding with Viet Nam veterans, moving to restructure the veterans’ organisation, and rewriting the War Pensions Act; and what will be her achievement for veterans?
Hon JUDITH COLLINS: Perhaps that member did not listen. I did not make that statement. The correct statement that I made was in writing. It is here. It will be tabled.
I seek leave to table the following: a letter from me to the editor of the Sunday Star-Times, complaining about misreporting; and correspondence in the form of emails, all of which state exactly what was said and how it was said.
Mr SPEAKER: Is there any objection to that set of documents being tabled? There is no objection.
- Documents, by leave, laid on the Table of the House.
9. SANDRA GOUDIE (National—Coromandel) to the Minister of Corrections: What reports has she received on the performance of the Department of Corrections?
Hon JUDITH COLLINS (Minister of Corrections) : I have received an alarming report from the Auditor-General on the department’s management of offenders on parole. Between 1 May 2007 and 4 May 2008 the Auditor-General examined the case files of 100 offenders, 52 of whom were high-risk and on the offender warning register. Unfortunately that examination identified serious failings in the management of parole.
Jonathan Young: What were the key findings of the report of the Auditor-General into the management of offenders on parole?
Hon JUDITH COLLINS: The Auditor-General found that in most of the 100 case files, the department had not followed one or more of its own sentence management requirements. Those requirements are in place to keep the public safe, and the public has a right to expect them to be followed.
Hon Dr Nick Smith: Oh, here’s the guilty man.
Hon Clayton Cosgrove: Too much coke, eh, Nick?
Mr SPEAKER: The member will ask his question.
Hon Clayton Cosgrove: Will the Minister guarantee that National will fund additional probation officers and prison staff to ensure that staffing keeps pace with workloads created by the increasing numbers being dealt with by the corrections department, as Labour did when it was in office and funded in last year’s Budget an extra 89 probation officers, as the Department of Corrections requested?
Hon JUDITH COLLINS: It is interesting that that member should ask that question, because when he gets the chance to read the report he will see that his Government did not properly fund the probation staff in the service, as noted by the Auditor-General.
Jonathan Young: Did the Auditor-General make any recommendations regarding the management of offenders on parole?
Hon JUDITH COLLINS: The Auditor-General made 20 recommendations, most of which urged the department to always follow its own procedures. Because of the potential risk to public safety, any non-compliance with requirements and procedures compromises the safety of the public. I support all the recommendations of the Auditor-General, and I am treating the findings of this report extremely seriously.
David Garrett: Does the Minister still have confidence in Mr Barry Matthews, given the series of disasters in his department during his watch, the latest of which we have just heard about, and another of which was the multimillion-dollar drug ring apparently run by cellphone from Auckland prison?
Hon JUDITH COLLINS: I am confident that Mr Matthews is fully aware of how seriously I view this issue.
Public Sector Jobs—Cuts
10. GRANT ROBERTSON (Labour—Wellington Central) to the Minister of State Services: Does he have a target for cuts in public sector jobs; if so, what is that target?
Grant Robertson: Which of the following statements is correct: the Hon Heather Roy’s that there is to be a 10 percent cut in public services, Paula Bennett’s that there is to be at least a 5 percent cut, or his own statement made just now?
Hon TONY RYALL: The member misrepresents the views of the three members whom he has quoted.
Louise Upston: Is it the Government’s policy to cut the number of public servants?
Hon TONY RYALL: The Government’s policy is to cap the size of the core bureaucracy in our first term of Government. Our priority is to grow front-line services that directly benefit New Zealanders.
Grant Robertson: Can the Minister confirm that up to 30 jobs will be cut at the National Library, and that hundreds of people are set to lose their jobs at the Ministry of Social Development and the Tertiary Education Commission; and how does this fit with National’s promise to cap but not cut public service numbers?
Hon TONY RYALL: The member will have to ask individual Ministers for confirmation of those figures. I can tell the member that after 9 years of a free-spending Labour Government, the number of back-office public servants is out of proportion. This Government is determined that the focus will go on improving front-line services for New Zealanders.
Grant Robertson: I seek leave to table a newsletter from the Hon Heather Roy, in which she says that all Government Ministers and departments are looking at 10 percent cuts in public services.
Mr SPEAKER: Is there any objection to that newsletter being tabled? There appears to be no objection.
- Document, by leave, laid on the Table of the House.
District Health Boards—Financial Health
11. Dr PAUL HUTCHISON (National—Hunua) to the Minister of Health: What reports has he received on the financial health of district health boards?
Hon TONY RYALL (Minister of Health) : I have received several reports. I regret to advise the House that, in total, these reports reveal that the new Government has inherited district health boards that are on track to financial crisis. The outgoing Labour Government told New Zealanders that district health board deficits were expected to grow to $111 million in this financial year. One of my first actions as Minister was to personally require district health boards to provide information on their true financial situations. Their responses have revealed that district health board deficits are expected to be around $160 million this year. The Labour Government’s legacy includes 18 of 21 boards with worsening financial deficits.
Dr Paul Hutchison: What is the latest advice the Minister has received in relation to district health board deficits?
Hon TONY RYALL: I have received fresh advice this week from the Crown Health Financing Agency. The agency expects district health board deficits to be well in excess of $200 million in 2009-10. It is a matter of very serious concern that the agency also expects seven further district health boards to be classified as at risk, meaning 14 of our 21 district health boards will be at risk according to the Crown Health Financing Agency.
Hon Ruth Dyson: Did the former chairperson of the Otago District Health Board show any commitment to resolving issues of that board’s deficit, as compared with, say, the chairperson of the Hawke’s Bay District Health Board, who said publicly, in relation to his board’s deficit, that its predicted $500 million savings were never real and were presented only to pacify the Minister?
Hon TONY RYALL: The former Minister will be interested to know that the Otago District Health Board’s deficit has worsened from $9 million to $13.2 million.
Dr Paul Hutchison: What reports has the Minister received in relation to capital?
Hon TONY RYALL: The blowout in deficits to $160 million is very concerning for this year, but as serious or more serious is the crisis track in relation to resources for important capital works like new hospitals. In 2008, over $200 million in capital requests were unable to be funded, and in 2009, requests of over $400 million have already been received—a total of over $600 million in capital needs from district health boards. The Labour Government left very little provision for any of these demands.
Schools—Healthy Food National Administration Guideline
12. SUE KEDGLEY (Green) to the Minister of Education: Did she seek advice from the Ministry of Health, the Ministry of Education, or Sport and Recreation New Zealand on her decision to remove the National Administrative Guideline requiring schools to sell only healthy food; if so, what concerns, if any, were raised?
Hon ANNE TOLLEY (Minister of Education) : As I am the Minister of Education I sought advice from the Ministry of Education. A concern was raised that money previously spent on the policy may be seen by the public to have been wasted. The ministry also advised me that, as with any policy change, there was a risk of some criticism. What has become clear to me from discussions with the sector is that this regulation was confusing and burdensome. Rather than retain onerous regulations for boards of trustees and principals, this Government trusts them to make appropriate choices about healthy food. The Minister of Health totally supports the decision.
Sue Kedgley: How can the Minister claim that schools were confused and opposed to the guidelines, when public health nutritionist Bronwen King says: “Contrary to what is being suggested, most schools, in our experience, have embraced the guideline positively and have been right behind providing a food environment that promotes better learning and behaviour.”, and when a Waikato school food coordinator I spoke to earlier today said she had not heard of one complaint about the guidelines amongst the 150 schools that she deals with?
Hon ANNE TOLLEY: We accept that many schools have done work in the area to ensure that their students can make informed decisions. We are not asking schools to change their existing practices. They are free to decide on an individual school basis how they promote healthy food and drink. From all the comments that I have seen in the media and have received personally, our confidence in schools’ judgment is well placed.
Hon Chris Carter: Can the Minister explain what she meant in her press release of 5 February 2009, when justifying her decision to reintroduce junk food into school canteens, when she said that the decision had nothing to do with teaching and learning, despite extensive educational research that shows strong linkages between diet and classroom behaviour, and that childhood eating patterns are a strong determining factor leading to adult obesity?
Hon ANNE TOLLEY: I think there is a general acknowledgment that there is no silver bullet to solve the obesity problem. Unlike the Labour Government we will not be using computer games on expensive websites to lure kids out into the playing fields. As Minister of Education I am focused on getting more schoolchildren engaged in regular physical activity, and on working with the Minister of Health and the Minister for Sport and Recreation on plans to get more schoolchildren regularly participating in sports teams and clubs.
Allan Peachey: What reports has the Minister received in response to her decision to remove clause 3 from National Administration Guideline 5?
Hon ANNE TOLLEY: I have seen several positive reports from school boards of trustees and principals. I have seen a press statement from the New Zealand School Trustees Association, which stated: “At the practical level, many schools could see that their efforts would be better placed focused on the more important task of improving learning outcomes for all students, rather than becoming the food police.” I have also received numerous positive emails from principals, one of whom wrote to me and said: “I just wanted to say how pleased I was to actually see a Minister of Education take away excessive and unnecessary work for staff and principals. Anything that gives me more time to concentrate on teaching students how to read, write, and do maths is great, in my book.”
Sue Kedgley: Can the Minister confirm that as a result of her decision, there are now no minimum standards for schools about the food and drink they sell, and that schools are now free to sell whatever high-fat, high-sugar junk food they like, even if it undermines the school food guidelines and contributes to rotting teeth, type 2 diabetes, and bad behaviour; and is the Minister becoming the Marie Antoinette of education Ministers, advising school boards: “Let them eat cake, drink coke, and go nuts.”?
Mr SPEAKER: The Minister may answer whatever part of that question she chooses to.
Hon ANNE TOLLEY: I think that the member is rather exaggerating, and I refer her back to the announcement. Schools are still required to promote healthy food under National Administration Guideline 5.2. I believe that the scenario the member has raised is most unlikely. At the end of the day, this Government trusts schools more than that member and will not retain regulations that are burdensome to comply with and can be thwarted by a kid hopping over the fence and buying a pie at the local dairy. [Interruption]
Mr SPEAKER: I ask members to show the member asking the question some courtesy. It is difficult to hear.
Sue Kedgley: Can the member confirm that although there is an obligation to promote healthy food, there is absolutely no obligation on any school in New Zealand to sell healthy food; and has she seen the Public Health Association’s release, which says that her decision flies in the face of latest international evidence on the link between obesity and cancer, that it is a giant step backwards, that it is an ill-advised decision that appears to have been made on no evidence, and that it flies in the face of clear evidence of harm?
Mr SPEAKER: The member will resume her seat. I invited her to ask a supplementary question, not make a speech. I call the Hon Anne Tolley, and not too long, Minister, please.
Hon ANNE TOLLEY: The majority of students bring food from home. The previous rule did not stop students from taking unhealthy food to school or stopping off at the local dairy or pie shop on the way to and from school.
Hon Chris Carter: I seek leave to table a response from the health foundation condemning the Minister’s move.
Mr SPEAKER: Leave is sought to table that document. Is there any objection? There is objection.
Sue Kedgley: I seek leave to table a statement by a dentist—Dr Rob Beaglehole saying it is a retrograde step that will have negative ramifications for children’s health and teeth.
Mr SPEAKER: Leave is sought to table a statement by a dentist. Is there any objection to that? There is objection.
Sue Kedgley: I seek leave to table a statement by the National Heart Foundation pointing out the huge benefits in the classroom in terms of learning and concentration when children consume nutritious food.
Mr SPEAKER: Is there any objection to that document being tabled? There is no objection.
- Document, by leave, laid on the Table of the House.
Sue Kedgley: Finally, I seek leave to table a release by the Public Health Association saying that the decision appears to have been made based on no evidence and that it flies in the face of clear evidence of the harm caused by overeating and obesity.
Mr SPEAKER: I want to make this clear; is it a press release?
Sue Kedgley: It is a press release.
Mr SPEAKER: It is a press release. Is there any objection that press release being tabled? There is.
Hon Rodney Hide: I seek leave to table a document showing that for the Greens, it is OK for our kids to smoke dope, but what they cannot do is have a cake now and again.
Mr SPEAKER: Leave is being sought to table that document. Is there any objection to that document being tabled? No, there is no objection, but I do stress that the document must be tabled before the end of the House today.
- Documents, by leave, laid on the Table of the House.
Keith Locke: I raise a point of order, Mr Speaker. I do not know quite what document—
Mr SPEAKER: The House has already dealt with that document.
Urgent Debates Declined
Otago District Health Board—Removal of Chairperson
Mr SPEAKER: I have received a letter from the Hon Pete Hodgson seeking to debate under Standing Order 380 the decision of the Minister of Health to remove the chairperson of the Otago District Health Board. This is a particular case of recent occurrence, and it does involve ministerial responsibility. However, not every decision by a Minister can give grounds for a debate. The Minister has made a governance change, but the board is still in place and the previous chair is still a member of it. Furthermore, the member in his application has referred to a case that I understand is currently before the court, awaiting sentence. Standing Order 111 prevents reference in debate to matters that are before the courts up until the time that the sentence is delivered. I do not think I would be justified in giving priority to this particular issue over other business of the House today. There will be other, more appropriate opportunities to consider the performance and current operations of the Otago District Health Board. The financial review of the board is currently before the Health Committee. The application is therefore declined.
Mr SPEAKER: I will choose to ignore that.
Hon TREVOR MALLARD (Labour—Hutt South) : I raise a point of order, Mr Speaker. It relates to your interpretation of Standing Order 111. Standing Order 111 refers to “prejudice to the trial”. This is not a case of prejudice to the trial. The trial has been completed. It is a sentencing matter, and that is for the judge alone. I am not asking you to reverse your decision now, but to come back with a considered ruling as to whether sentencing is regarded as part of a trial. To do that, Mr Speaker, you would have to indicate that a High Court judge, as opposed to a jury, was likely to be swayed by this House.
Mr SPEAKER: The point raised by the Hon Trevor Mallard is a point worthy of consideration, so I will listen to the Hon Pete Hodgson.
Hon PETE HODGSON (Labour—Dunedin North) : Mr Speaker, I wish simply to provide you with some information, which is that two people were arraigned in front of the High Court, they were charged on a number of counts relating to fraud, and both gentlemen were found guilty on all counts. This was some months ago, both of them are in custody, and the only thing remaining from this court case is the sentencing hearing and the sentencing.
Mr SPEAKER: Obviously, I am not prepared to go back and reconsider my decision in respect of the application, because it fails on more than one ground. The sub judice issue is simply one of the issues. The primary matter that I have to consider as Speaker is whether the matter is of sufficient moment to set aside the business of the House.
Hon Annette King: It was when Hawke’s Bay went out.
Mr SPEAKER: Actually, that is a very interesting point that the member has just made by interjecting—although she should not have interjected while I was speaking. The member referred to the Hawke’s Bay, where an entire board was dismissed and replaced by a commissioner. There were issues, therefore, of a democratically elected board being replaced. In the case that is before me today, only the chair of the board is being replaced—by another board member—and the chair remains on the board. It is my judgment that that is very much a different order of magnitude.
But I now come back to the point raised by the Hon Trevor Mallard, because this is a very interesting issue in respect of our sub judice rulings in this House. As I understand it, and I will seek further advice—if anything I say at this juncture is not correct, I will come back to the House on it—the sub judice rule relates to matters that are before the court, and sentencing is part of the court process. I believe that it would not be appropriate for me to say that because a conviction has been delivered by a court, therefore the matter is not sub judice, and sentencing does not matter. It is my understanding that sentencing is part of the court process, and therefore we need to be careful not to say that because the court has delivered its decision in respect of conviction, the matter is no longer sub judice. If there is anything wrong with what I have just said—and I will seek further advice from the Clerk—I will certainly come back to the House on it, because this is a serious issue.
Hon TREVOR MALLARD (Labour—Hutt South) : I raise a point of order, Mr Speaker. Thank you, Mr Speaker, and I apologise for taking more time, but Standing Order 111 is very clear in its last clause—“if it appears to the Speaker that there is a real and substantial danger of prejudice to the trial of the case.” I think it would be a very long stretch for you to rule that comment in this House on the chair’s dismissal provides a real and substantial danger of prejudice to a sentencing by a High Court judge. I think our judges are well above that.
Hon MAURICE WILLIAMSON (Minister for Building and Construction) : It may help you, Mr Speaker, if you look at Standing Order 112(2), which states: “Standing Order 111 ceases to have effect in any case when the verdict and sentence have been announced or judgment given.”
Mr SPEAKER: I thank the honourable member for his assistance. That has always been my understanding, I must say. As I have promised the honourable member Trevor Mallard, if I am wrong in believing that sentencing is a crucial part of the sub judice rule, and on the fact of whether a judge is involved in deciding a case, as distinct from a jury, I am very happy to come back to the House, because these are important issues for the House. I think the rights of the House are hugely important, and we should not be compromising them. However, likewise, the relationship with the courts is also hugely important, and we must not trample over that important difference. If there is anything wrong with the ruling I have given today, I will certainly come back to the House on it, but what the Hon Maurice Williamson has just reminded us of was certainly my understanding of the situation, and that deals with that issue.
Mr SPEAKER: Does the honourable member want to introduce new material on this issue?
Hon DAVID PARKER: Yes, just to assist. I do not think Mr Williamson’s point does assist, because it says that when sentence has been passed there is no matter for you to consider as to whether there would be prejudice, but that does not mean to say that there is necessarily prejudice in respect of Standing Order 111 at an earlier time. It will still be a matter for your determination as to whether there is likely to be prejudice. I suggest that Mr Mallard’s point is still worthy of consideration.
Mr SPEAKER: I thank the honourable member for his contribution. We will not debate it further today, because I will seek further advice on this matter. As I have stated clearly, I accept this is a serious issue, and there is no way that I want to compromise the rights of this Parliament. I will make sure that the sub judice issue is looked at very, very carefully.
Hon GERRY BROWNLEE (Leader of the House) : I move, That urgency be accorded the adjourned debate on the first reading and remaining stages of the Electoral Amendment Bill. This bill overturns a number of the provisions in the Electoral Finance Act that caused a great deal of difficulty and angst during the last election period. The Government considers it desirable that this bill be passed into law as soon as possible.
|Ayes 69||New Zealand National 58; ACT New Zealand 5; Māori Party 5; United Future 1.|
|Noes 53||New Zealand Labour 43; Green Party 9; Progressive 1.|
|Motion agreed to.|
Electoral Amendment Bill
- Debate resumed from 12 February.
Mr SPEAKER: I call John Boscawen, and in calling him I point out that there was confusion when he rose to take the call previously. I am going to allocate him 10 minutes, if he wishes to take it, for his contribution.
JOHN BOSCAWEN (ACT) : I will repeat just part of what I said on Thursday night. Just under 15 months ago, on Saturday, 1 December 2007, I organised a protest march against the Electoral Finance Bill in Queen Street, Auckland. I am told that the police estimated that around 5,000 people protested on that day, and if that is correct then it was the largest political protest in New Zealand for some years. It was one of just six protest marches against the bill that were organised in Auckland, Wellington, Christchurch, and Tauranga.
When I organised the protest march I had no inclination whatsoever that less than a year later I would be elected to this Parliament as a member and that I would be standing now to speak against the Electoral Finance Act and voting for its repeal.
I acknowledge the 5,000 people who protested that day, and the many thousands of others who protested in one form or another, whether it was by protesting in other centres, writing letters to members of Parliament, or sending emails, or in whatever way.
For each of the protest marches I organised—with the exception of the one at Parliament in Wellington—I was particularly careful to make them apolitical. Although a number of sitting MPs and would-be MPs attended those protests, I was very careful not to allow any existing members of Parliament to speak. I wanted the protests to be apolitical. Free speech is an apolitical issue.
I was approached by a member from the office of the then Leader of the Opposition, now the Hon John Key, and asked whether if Mr Key was to attend the protest I would allow him to speak. Although I appreciated Mr Key’s support, I indicated to his office that I was not prepared to allow him to speak if he attended the march but that I would read a statement from him. I intend to start this first reading debate by repeating the statement Mr Key gave me on that day and that I read to the 5,000 people assembled in Queen Street.
Mr Key said: “Within 2 weeks Helen Clark’s Labour Government will force the Electoral Finance Bill on to the people of New Zealand. They plan to steamroll this bill into law by a slim majority of Parliament before Christmas. National simply does not have the votes to stop it. Labour has turned its back on the convention that significant changes to our election laws should have bipartisan political support and public backing. The electoral bill has neither. It stifles free speech for 1 year in 3 and it is cynically designed to protect incumbency. Labour is not listening; National is. Today I give you this assurance: if I have the privilege to be the next Prime Minister I will overturn this law. I will set about building a proper political consensus for fair changes to our election laws. I will listen to what people like you and many thousands of others are saying. You are fighting for a principle. You are fighting for the most important principle: you are fighting for democracy. I salute you. John Key.”
I congratulate the Hon John Key and I congratulate members of the National Party, because this is yet another commitment that John Key made prior to the election that he is fulfilling. The ACT Party will be voting for the Electoral Amendment Bill.
Just a couple of weeks after that protest march on 1 December I stood up in the gallery, as members of the public are now, and I looked down on the third reading debate of the Electoral Finance Bill. Many speeches that day impressed me. I recall particularly the speeches of the then Leader of the Opposition, now the Prime Minister; the deputy leader of the National Party, now the Deputy Prime Minister, the Hon Bill English; and Rodney Hide. But one speech impressed me more than others—it is etched in my memory—which was from Hone Harawira. He started his speech by saying: “Yes, folks, money talks, but nothing talks quite like the truth.” The truth has finally spoken.
When the Hon Phil Goff was elected leader of the Labour Party last November the first thing he did—in fact, on the day he was elected—was to move to distance himself from the previous administration, distance himself from the Electoral Finance Act, and acknowledge the mistake that both he and his party made. I congratulate him and I congratulate the Labour Party, because the Electoral Finance Act was all about incumbency. It was about protecting people who are already in power. It is not surprising that Labour is now supporting the repeal of the Electoral Finance Act. It is not surprising at all, because it was designed to keep Labour in power. It was designed to keep an existing Government in power, and it is a credit to National that it is not going to use the same rules to allow it to be more easily elected in 3 years’ time.
In a democracy, free speech is one of our most basic rights and privileges. The right to speak out and to criticise a Government or, for that matter, to speak in favour of a Government is one of our most basic, fundamental human rights. Generations of New Zealanders have gone to war to protect our rights and those freedoms. I ask members to take a look around this Chamber at the various battles and wars that are depicted around us—for example Passchendaele and Gallipoli. You see, free speech is not an issue for party politics; it is an issue of concern for all New Zealanders.
Notwithstanding widespread public opposition, the Labour Government, with the support of the Greens, passed the Electoral Finance Act and placed restrictions on ordinary New Zealanders to speak out and criticise the Government. Those restrictions went far beyond what the Human Rights Commission considered reasonable. The Labour Government did that for the worst possible reason. Fearing that the Labour Government might lose the last election, it placed restrictions on the rights of people to criticise it, in a, thankfully, failed attempt to be re-elected. Even worse, at the same time as it was placing restrictions on the rights of ordinary New Zealanders to speak out against it, it altered the law to allow itself to spend even more of taxpayers’ money on promoting its own policies. I refer in particular to Labour’s so-called pledge card. The Labour Government passed a law to make legal in 2008 that which was illegal in 2005, and it repeatedly ignored the submissions of the Human Rights Commission.
The problems with the Electoral Finance Act go right back to the very beginning. Incredibly, the former Labour Government sought to regulate every form of political speech. Anyone who wanted to make any sort of political comment whatsoever was required, as a minimum, before saying anything, to sign a declaration before a justice of the peace or, alternatively, to register as a third party before the Electoral Commission. Members listening to this speech, and members of the public, will find that very hard to believe, but it is actually true.
Notwithstanding the sacrifices that have been made by New Zealanders in two World Wars, the Government proposed that people had to sign a declaration before a justice of the peace. It is like Marie Antoinette saying “Let them eat cake.” How arrogant is that!
The Government said to New Zealanders: “If you’re not happy with that, you have to object.” And thank goodness over 500 New Zealanders and New Zealand organisations did just that. I was one of them, and thankfully so was the Human Rights Commission, which gave a damning indictment on the original electoral finance legislation and the Labour Government. The commission concluded by saying: “The bill, in its current form, represents a dramatic assault on two fundamental human rights New Zealanders cherish: freedom of expression and the right of informed citizens to participate in the election process.” It concluded by saying that the bill was inherently flawed and should be withdrawn. Anticipating—correctly, as it happened—that the commission would be ignored, it went on to say that if the Government was not going to listen to it, and not going to withdraw the bill and start again, as the commission recommended, then the Government had to make four essential changes. The commission repeated that advice on 18 October, when its officials appeared before the select committee in person.
My time is coming to an end, but I am expecting to speak on the second and third readings of this bill. In those speeches I intend to outline how the previous Government continued, and repeatedly continued, to ignore the recommendations and advice of the Human Rights Commission, and totally misrepresented the position of that commission to the public of New Zealand. But, in the end, that did the Labour Government no good. The people of New Zealand saw through what it was trying to do, and voted it out of power. Thank you very much.
RAHUI KATENE (Māori Party—Te Tai Tonga) : I stand to speak on behalf of the Māori Party, fuelled by the burning passion that comes from the rapid journey from selection to election as a member of Parliament. In the 84 working days between my selection as the Māori Party candidate for Te Tai Tonga and election day, I became intimately aware of the intricacies and anomalies of the Electoral Finance Act 2007. As part of the latest intake to Parliament—the class of 2008—the machinations of electoral finance law became a vital component of my learning about the art of political campaigning. Suddenly, my every waking moment was spent in appointing a financial agent. The Electoral Commission became the source of authority for every question that came up in my campaign, and, as a practising lawyer, I agreed with its concerns that parts of this Act were almost impossible to interpret. Yet, ironically, the original 2007 Act was intended to promote public and political confidence in the administration of elections, and to encourage participation in parliamentary democracy.
It is hard to encourage confidence in an Act that even the Electoral Commission struggled with. These issues of accountability, transparency, and integrity are of paramount importance to iwi Māori. The pursuit of tikanga such as accountability, transparency, and integrity give expression to kaupapa such as rangatiratanga, or chieftainship, and kaitiakitanga—the sustainable protection of taonga. We have supported donation disclosure in the electoral finance regime, therefore, as a transparent act, and we are pleased that the existing provisions of the Act relating to the donations of political parties and constituency candidates will be retained in this new interim regime.
It is all about walking the talk. It is about fully participating in a democracy, and making a commitment to honourable behaviour. In every aspect of our lives, we consider that maintaining integrity and transparency is second nature. It is about being upfront, being honest, and giving substance to the kōrero. Pēnā ki te tangihanga, ka tae ā-tinana tātou te Māori ki te marae kia kitea te tūturu o te whanaungatanga ki te tūpāpāku. Like that which we do in tangihanga, we as Māori will always attend the marae in person to show our respect, our support, and our connection to the deceased. We do so to make real our expression of sympathy, and to give physical form to the emotions we seek to convey.
It is because we hold these values in such high regard that the Māori Party welcomed the provisions within the Electoral Finance Act 2007 that were established to provide greater accountability on the part of candidates, parties, and others engaged in electoral activities, in order to minimise the perception of corruption. We have all lived through the tales of political parties that seek out dubious trusts or lawyers’ accounts to obscure the actual identity of donors. We welcome, therefore, the decision to retain the rules around donations, including anonymous donations and overseas donations. Although we support the retention of the provisions that relate to donations and penalties, we believe that the current rules could be simpler and more transparent. It is in this regard that the Māori Party is pleased to support this bill, and the interim regime, as merely the first stage of the reform of electoral finance law.
That the law needs reforming is without a scrap of doubt. The opportunity to reframe a replacement law, from all reports, appears to have been unanimously supported across the House. That is a very solid foundation from which to move forward. The Māori Party is a firm believer in the concept of kotahitanga, wherein all people are encouraged to make a contribution, to have their opinions heard, and to then reach a consensus together.
The politics around electioneering, and the performance of political parties in an election campaign, are issues with which New Zealanders have a particular fascination every 3 years. As a relatively new party in this Parliament, the Māori Party has always been extremely interested in inspiring participation in the operations of our democracy. We believe that the exercise of democratic participation is of such crucial importance to a healthy nation that discussing improvements in the performance of the system is a worthwhile activity for all citizens. We think that it is vital that people own electoral participation in a democracy. They must be intimately involved in guiding Parliament as to how this can operate. This is an aspect that the Public Service Association has been particularly vocal about, with its national secretary calling for an electoral process that is robust, fair, and transparent. No Parliament should ever be so arrogant as to make changes to the nature of democracy without consulting the people first.
So we are pleased that an extensive timetable is proposed for the second stage of the reform, including the release of a discussion document on electoral finance, a minimum period of at least 6 months for the bill to be at the select committee, and a commitment that consultation with all parliamentary parties will take place at every stage of the reform process. Such commitment to obtaining buy-in is a very clear way to invest in the type of broad-based support that is required. We are adamant that electoral finance laws must not be designed and determined by politicians and parties in isolation from the people.
We know that the levels of political participation and engagement are consistently lower in Māori electorates than in general electorates. In the last election the actual turnout in the Māori electorates, at 62 percent, was disappointingly low compared with the figure of 80 percent in the general seats. What is more, the Māori electorate with the highest turnout, Waiariki, with a turnout of 64.54 percent, was still considerably lower than the general electorate with the lowest turnout—Manukau East, with 71.55 percent. In the last election the Māori roll turnout was the lowest in any election since 1981, apart from 2002 when it was just 57 percent.
Why is the issue of turnout so important? It is because political engagement is vital in the successful running of a diverse and representative democracy. In 2008, 2.38 million New Zealanders elected 122 people to represent their views and interests. Quite frankly, if there were significant numbers of other New Zealanders—specifically, Māori—turning out to vote, then we could not pretend to be a representative Parliament, or, as some might like to think, a microcosm of society itself.
These are complex issues, and it is because of this issue being so important that the Māori Party negotiated and achieved a commitment in its confidence and supply agreement with National to establish a group to consider constitutional issues, including Māori representation. This group will be established by no later than early 2010, and it is a key mechanism by which we think some of the issues around Māori involvement in democratic participation will be addressed. But if we could sound one clear word of warning in respect of the second stage of electoral reform, it would be that the Government should think very carefully about how to excite Māori participation in any discussion around the adequacy of electoral administration policy.
We support the retention of donation disclosure and the regulations around the penalties. We are pleased that the administration of electoral legislation remains with the party secretary or the candidate, rather than appointing an additional layer by electing a financial agent. But, most of all, we are so pleased that the inordinate number of rules and regulations is to be managed. We are pleased that the ridiculous attention to the meticulous is to be removed, and we are hopeful that this will open up the doors to a far wider involvement of all New Zealanders in the electoral system. High on the list of the positives has to be the fact that the bill returns us to the point where all election expenditure is to be regulated in the 3-month period through to polling day.
Finally, we signal our readiness to be fully involved in subsequent processes to engage in further electoral finance reform, in order to ensure that a far more efficient and responsive electoral system is in place in 2011. We will support this bill.
Hon PETER DUNNE (Leader—United Future) : The introduction of the Electoral Amendment Bill brings to a close a rather sad chapter in our recent political history with regard to electoral law, but it does not remove the issues that originally gave rise to the first bill. Like other parties, United Future will support the introduction and passage of this bill, and we will participate willingly in the process of consultation that the Minister has referred to, as a way of resolving the issues and ensuring that we have robust, viable, and widely supported electoral law in place for the next general election.
I make this point at the outset: we voted for the bill until its final reading, when we bowed to the weight of public opinion, as representatives of public opinion, and voted against the bill. It remains one of my biggest regrets in my time in the House that we did not withdraw our support for the Electoral Finance Bill at an earlier stage, and that we took so long as a party to heed the public message.
When the 2005 election was over and all of the revelations about the activities of nefarious groups and others were laid bare, it became vital that our electoral law be amended in order to do a couple of things: to introduce greater transparency into the funding of political campaigns, and to introduce greater transparency and accountability into those organisations that chose to participate in the electoral process. There had always been a sort of gentleman’s agreement previously about the way in which these matters had been carried out, and it was only the excesses of the anonymous campaigns associated with the 2005 election that brought the issues starkly to a head.
On the face of it, it is absurd that there are constraints on the behaviour of political parties during election campaigns—financial constraints and other constraints—about what they can and cannot do and within which period they can and cannot do it. However, prior to the passing of the Electoral Finance Act there were no such constraints on other organisations seeking to influence the outcome of an election by exercising their right to free speech.
I think the essential failure of the Electoral Finance Act, aside from the complexity of the definitions it introduced, was that it went too far in drawing that line. I do not think anyone argues that there should be a position whereby political parties are constrained in what they can say and do, while any organisation acting on their behalf, either deliberately or just coincidentally, suffers no constraint. The question is what that level of responsibility should be.
In the case of the Electoral Finance Act, I think three major issues of difference emerged. The first concerned the regulated period and the fact that the clock began to tick on 1 January in an election year, whether or not that election was held in the first half of the year or the latter half of the year. Also, the constraints that applied to both political parties and other groups were so tight as to make their effective participation extremely difficult and, in some cases, virtually unobtainable or unachievable.
The second problem was the range of definitions that the Act introduced as to what constituted a political advertisement or a political message. Members have spoken already of the many calls made to the Electoral Commission and the Chief Electoral Officer, the resort to legal advice, the hours spent poring over the documents trying to figure out what was on and was not on, and the risk we faced all along that someone was going to get caught and made an example of, which meant we would all then be subject to the discipline of that process. That made the organisation and management of the election last year far more complex than it needed to be.
So we ended up with two things, actually. First, a lot of the messages from political parties were couched in such vague and general terms as to almost be non-messages, not because they did not have policy to advance but because they did not want to fall foul of the provisions of the Electoral Finance Act. So people being asked to make an electoral choice were often trying to figure out what it was precisely that the parties were saying to them and how those messages were being conveyed.
The second consequence was an even more ironic one. A member earlier referred, quite properly, to the concern about the fact that there should be no great advantage to incumbency—that political parties should not be able to organise the electoral process in such a way that it would suit the parties currently represented in this Parliament. Ironically, that is exactly what the Electoral Finance Act did. One thing members of Parliament are very good at, across this House, is working out where they can draw the line between what is a parliamentary activity and what is a party political activity. That line has been redrawn several times over the last 18 months. So the ambition of the Act to try to level the playing field actually failed. We all became much better at knowing how to manipulate the system and stay within the law.
At the same time as that was going on, we had an Electoral Commission that was under-resourced, that was unwilling to step into the breach and give clear and definitive advice, and that gave parties the option all the time of basically saying: “Try it and see. If you can get away with it, well and good. If there is a complaint lodged against your activity, then perhaps you have to review it.” Wherever one sits on the political spectrum, that is a hopeless way to run an election. It creates uncertainty, and it creates a whole level of bureaucracy that is simply ridiculous.
The previous speaker, Rahui Katene, referred to financial agents. I still fail to see why members of Parliament need to nominate a financial agent. It is our heads that are on the block and our signatures that are on the form. If we fail to declare our expenditure properly, accurately, and legally, then we are the ones to be held accountable. Under the Electoral Finance Act, an electoral agent, financial agent, or party secretary is held accountable for our failings. I still think that is wrong. I thought it was wrong when the original bill went through Parliament, and I think it is equally cumbersome and wrong today. I hope that in the review we try to streamline the procedures for administration, so that those of us who put ourselves forward for election accept the full responsibility of doing so when it comes to accounting for our behaviour during the electoral period.
The most precious thing in any democracy—and we often hear references to this country as the oldest parliamentary democracy in the world—is the ability for people to participate freely in the electoral process without coercion or limitation, and for the free and open expression of a range of political and other opinions.
Whether it was intended or not—and I am inclined to think it was more an error than an intent—the consequence of the Electoral Finance Act, none the less, was that very severe restrictions were placed on the ability of people to go about their normal way of life during an election period. There were fears that Internet conversations would be caught, and no one seemed able to give a definitive ruling on that. There were the ludicrous sorts of efforts we saw to my right of parading clothing like some mannequin on display all the time to tempt the provisions of the Act. There were cars written with party slogans, and right down the bottom in language one could not see—but it was there in order to comply with the Act—was the financial authorisation. Even bumper stickers, which people hardly see anyway, had to carry a financial authorisation. New Zealand became obsessed with the minutiae and the detail, rather than what the election campaign was all about.
I am glad that this bill is progressing. I am very pleased that we will take time to consider it properly in terms of a replacement, and I think that the important thing that the Minister needs to bring to that is a sense of open-mindedness, of willingness to engage, and of seeing that the electoral system is the property not just of the politicians but, fundamentally, of the people of this country. They make the call on election day. As we say in the prayer at the start of this Parliament, we are their servants; we are not their masters. It is about time the law reflected that.
As I said at the beginning, this bill is the end of a very sorry chapter in our history. The issues need to be addressed, and I hope that this repeal provides the opportunity for a thorough and proper reconsideration, and for good legislation to emerge in the future.
CHARLES CHAUVEL (Labour) : I would like to make a contribution to this debate, and I begin by congratulating the Minister of Justice on his portfolio. It is a distinguished warrant to hold in the history of this country. When members on this side look into our party’s history, we think of the names Palmer, Finlay, and Mason. We are very proud of those figures and the contributions they made to the job of Minister of Justice when they performed it. I know that the current Minister looks more to the tenure of Hanan for his inspiration, and I think it is good for the lawyers in the House to know a little bit about the history of those who went before them in their roles. I wish Mr Power well in his role, and I assure him that Labour will take a constructively critical approach to his tenure in the portfolio.
In terms of the speeches that have gone before on this legislation, I also commend the Minister on the tone of his contribution. It is good to hear that an open-minded and multi-partisan approach is to be taken on the fresh look at electoral law that is intended to apply at the election that must be held no later than the end of 2011. I certainly join other members who have expressed the hope that those undertakings, so refreshingly given by the Minister, will pan out over the legislative process, because it is obviously important that we get this question right.
I must say that I was sad to hear some of the other contributions that have been made in the debate, particularly that of the Attorney-General, Mr Finlayson. I was hopeful that we might manage to avoid extreme partisanship in this debate because of the tone that was struck by the Minister of Justice. Indeed, from listening to Mr Finlayson’s speech, if one were an uninformed listener it would be very easy to form the impression that the party currently occupying the Treasury benches was somehow the traditional guardian of the rule of law in this country. That would forget the very many abuses of important freedoms under National Party leaders from Holland right through to Muldoon. If one thinks about a number of those examples, one can see that the picture that Mr Finlayson tried to paint is unfortunately a false one. There was the administrative disaster that was the 1978 election, when over Labour’s protests the electoral roll was allowed to become badly out of date, with chaotic consequences. There was the National Party’s implacable opposition to the enactment of the New Zealand Bill of Rights Act in 1990. There was the unfortunate decision prior to the 1993 election to make enrolment harder. This was opposed by Labour, and it obviously had a disproportionate effect on lower-income voters who might have been expected to vote for this party.
It would be very wrong to accept the picture painted by Mr Finlayson. Perhaps his partisanship is unsurprising given some of the hysterical contributions to the debate he has made concerning this legislation. I was looking at Hansard, and I saw his references to the Labour Party as “excrescence” and “lower than vermin” in the general debate on 28 August last year.
Hon Ruth Dyson: That’s a very mature contribution.
CHARLES CHAUVEL: Well, it is a shame, given the promise made by that member in his maiden speech to observe a high standard of non-personalised debate, but it is good that the Minister of Justice was able to set an example to the Attorney-General and show him how a debate on a quasi-constitutional matter really ought to proceed.
There is one other matter that Mr Finlayson alluded to that I want to correct, and it is something that is often said by that member. It is a criticism of his predecessor as the Attorney-General, the Hon Michael Cullen, over the absence of a New Zealand Bill of Rights Act inconsistency report relating to the provisions of the Electoral Finance Act. If one looks at the provisions of the New Zealand Bill of Rights Act, one can see that the Attorney-General has a duty to determine whether a provision is inconsistent in his opinion and, if so, to report to the House accordingly. On this occasion—and I remember the sequence of events quite well, because I made myself familiar with it—the Attorney-General received advice from officials that in respect of the bill the question of freedom of expression was quite finely balanced as to whether there was a requirement for a report on inconsistency, and that in the end it was a judgment call that the Attorney-General would have to make.
As the Attorney-General considered the matter and the restrictions on freedom of expression contained in the bill relating to such matters as a regulated period, he determined that they were justifiable in a free and democratic society. He went one step further; he then caused to be published all the advice that he received on that question in a publicly available way on the Internet, so that the public were able to see the matters he had taken into account in deciding that it was not necessary to report an inconsistency to the House. Just because the present Attorney-General says that he would have taken a different course of action and formed a different view on this opinion, it is no reason to criticise the former Attorney-General, and then repeat criticism of him; he deserves better than that.
On the substance of the Electoral Amendment Bill, my colleague David Parker has indicated the course the Labour Party will take, so I will not repeat it. But I do want to make one or two other observations. I welcome the retention of the donations and the penalty regime that was contained in the Electoral Finance Act, which this bill will accomplish. In welcoming that, I acknowledge Green member Metiria Turei, who sat on the select committee and was instrumental in coming up with the transparency of donations regime that we are retaining. I am not sure that she has had due credit in the House for her contribution, but it is well deserved.
In terms of the discussion that needs to occur going forward—on what law should be in place for the next election and to attempt to achieve a consensus that preserves the principle that the New Zealand electoral system should not be open to abuse, or sale to the highest bidder—this House can be assured that members on this side will be making a vigorous contribution on those questions.
I conclude my remarks by noting that just because we are reverting to most of the law applying at the 2005 election, members on this side would not want to see a rerun of the manifest misconduct that was engaged in during that election. That has been described very well in this debate by Russel Norman and just now by Peter Dunne. I offer my condolences to the officials who are present in the Chamber for the fact that they will have to go through the exercise of reviewing our electoral law again in a space of a couple of years—I can imagine that they are looking forward to it with great relish. But I do express the hope that Parliament can achieve a new electoral law that does achieve transparency and encouragement of broad participation, and that ensures all voters are of equal value, whatever their economic status. In the past this country pioneered the enfranchisement of all our citizens regardless of race, class, or gender. I hope that we can honour and extend that tradition as we now consider what our future electoral law should be. Thank you, Mr Assistant Speaker.
AMY ADAMS (National—Selwyn) : I rise to speak in support of the Electoral Amendment Bill, and, having lived through the best part of 2008 with the Electoral Finance Act as a millstone around my neck—as so many of the members in this House will have found—I am very pleased to now have the opportunity to stand in this House and say it has to go. Its legacy, in my opinion, will be a year of chaos, confusion, and lost opportunities. Long before I had thought of standing as a political candidate at the election I was, like many other New Zealanders, a vocal opponent of the Electoral Finance Act. I took that stance because I was concerned it would act as a serious impediment to full and open debate in 1 year out of every 3 years. And can members guess what? It did. Even the Electoral Commission has talked about the chilling effect the Act had on political participation.
When the New Zealand Law Society told the previous Government of its concerns about the Act and the restrictions it would put on people’s ability to participate in political debate, the Labour Government should have listened to the society, instead of continuing to ram through its own agenda. One of the bizarre effects of the Act meant that from the moment I was selected in May 2008 that Act applied to me retrospectively, and, suddenly, everything that I had spent over the previous 5 months from 1 January might have somehow been considered to be within the inexplicable scope of what now became election advertising. If we consider the way the Act extended the definition of electoral advertising, I do find it somewhat surprising that the Green Party supported it, given that the Act had the strange effect of making it financially impossible for electorates such as my own to reuse existing hoarding frames, and making us use new timber instead for that purpose. If the electoral advertising rules were unclear and hard to work with, the third-party rules were just as obscure, taking up unnecessary volumes of court time and money.
A fair and workable system of electoral rules is fundamental in any democracy; the Act is neither. It is anti-democratic, and it shuts down legitimate public debate in 1 year out of every 3 years. Furthermore, it meant that the general public at the 2008 election got less information from and about political candidates than they otherwise might have got and probably deserved to get, because of the necessity for each candidate to take an overly cautious financial approach due to the inherent interpretation problems with regard to the Act.
I end by saying I am hardly surprised to hear the Opposition now agrees that the Act should be repealed, given that in the end it failed to deliver the result the Opposition anticipated it would. What we need instead is a fair, considered, multiparty approach to our election rules. I am very pleased to see that is now what we will get.
Hon PETE HODGSON (Labour—Dunedin North) : Let me be first to agree that the Electoral Finance Act as it is currently on the statute book does cause confusion. It does cause uncertainty, and like the previous speaker, Amy Adams, I found it confusing and uncertain as we rushed to seek the detail of how it might be interpreted. However, my contribution today—having made that point—is to speak about the value of electoral law, in the first instance, and about the importance of process in electoral amendments as the years go by. I have spent 9 years on the Electoral Law Committee. I was on the committee that gave us, for better or for worse, MMP, and I was involved in many other aspects of electoral law during the 1990s. There are some features of the New Zealand electoral system that, like other laws in this land, reflect the political culture of New Zealand, and by their very nature are highly restrictive. The electoral activities of this land are a highly restrictive set of activities, and they always have been—how many times we are allowed to vote, how old we have to be, what we are allowed to say, and whether we are allowed to bribe people or “treat” them, as we say rather quaintly. These are things that have been in the electoral law for some time.
Other things have been a feature of our law as well. One of them is that no one should be allowed to attempt to buy a democratic outcome. Using the word “buy” I mean bringing to bear a bunch of money legally gained, but privately gained, and putting it towards the result of some plebiscite or other. Many countries do not try to avoid that. The American public seem to be inured to the idea that millions and millions are spent on their campaigns, despite their various regulatory efforts. In the New Zealand context it has been occasioned through two basic mechanisms. One of them has been to say: “Here is the limit on what you can spend. Here is the limit on what you can spend locally; here is the limit on what might be spent nationally; here is the limit on what can be spent in a by-election.”, and so on.
The other mechanism is to put some constraints on the transparency of donations so that one can receive a donation above a certain amount, but only if one declares whom it comes from. The reason for doing that is very, very straightforward—that the public seeks some reassurance that there is not some purchasing. Again, I use the word “buy” or “purchase” to reflect the idea that money, as opposed to thought, analysis, political wisdom, or whatever, is being used to channel the viewpoint of a certain political party. That has always been something that has been a stranger to our electoral system. We have spent quite a lot of time ensuring that that is the case. It is always difficult, because of what is called financial intermediaries whereby people put money through trusts, and the Electoral Finance Act on the statute book at the moment has sought to deal with that. We will not cast aspersions again about who was doing it the most, or the least, or whatever, but in recent times it has been there in response to the fact that some political parties have put money through trusts.
We have also ensured that people are not providing undue influence by—and this has been around since the 1990s—using some such body as a sponsor. There was a time when certain members of this House used to win their local campaigns under a first past the post system by getting famously well-known or popular groups to sponsor them. That then became, if you will, deemed to be an interference in the electoral process. Throughout all that time the Electoral Law Committee has sought to resolve these matters across the party lines.
I need to just say this gently, but I am going to say it rather firmly none the less: there is a body of opinion in the minds of some of us in this House that when the Electoral Finance Act was put together, consultation was not up to scratch. I hold a different view. Consultation was attempted endlessly, at least in the initial stages when the Electoral Finance Act was put together, and some parties in this House chose not to involve themselves. I guess they made their own choice to say that they did not want those new constraints and, therefore, they would not involve themselves in the consultation. They then claimed—wrongly—that the consultation was not available to them from the outset. That was simply not the case, and I want to put that on the record.
The other thing I want to put on the record is this: the Electoral Finance Act was occasioned by two distinct and separate changes in behaviour in 2005 by one political party, which was the National Party. Again, I am not using it as a whipping boy and I am not using it with any anger; I am stating the simple logic of the origin of the Electoral Finance Act. The two changes were these. The first was that the electoral season, all of a sudden, became very long. Until the Electoral Finance Act was put in place, there was an agreed and legislated-for 90-day period during which time any expenditure limits would be counted. The Electoral Finance Act extended that, from 90 days prior to an election, to 1 January in the year an election was due. So that might mean that it would last for 10 or 11 months, and indeed, in the 2008 calendar year, it did last for over 10 months.
The reason for that was that until that time, political parties had more or less not bothered to campaign until the 90-day period had got under way. They might have been organising like hell and they might have been raising money right, left, and centre, but nobody bothered to campaign until the 90-day period started. We could campaign, and we all did, to a small extent, but there was no other significant campaigning before the 2005 election campaign.
Then, in 2005, campaigning began in April. And it began not in a small way; it began in a very large, expensive, and public way. It was a series of billboards now know generically as the “Iwi/Kiwi” billboards. There were other campaign activities under way at that time as well, but there were none so pronounced as that particular campaign. That meant that one particular party, because it had an ability to make the expenditure—and bless it for that—decided to break the unspoken rule, if you will, that there was not really much point in trying to campaign for more than 3 months, because maybe the public were not interested. National challenged that. It said that it would campaign in April, in May, and in June, that it would campaign hard, and that it would campaign with a lot of expense, because it thought that it could get a gap in the polls that would be sufficient to carry it through.
The other thing that also rather famously happened in the 2005 election, which I have banged on about at length—I will not bang on about it with any anger today, but will simply restate the facts about it—is that one agency, being the Exclusive Brethren, decided to put $2.1 million into the campaign. Was that the correct figure? I think it was $2.1 million; if I have got it wrong, then I apologise. But it was a very substantial amount of money, certainly a very large amount when compared with the cap that large parties such as the National Party or the Labour Party can expend on their party vote campaigns. For us, the expenditure limit is in the order of $2.4 million, yet this similar-sized sum was put up by one third party. It did not argue for a National victory; it argued against a victory by the Labour Party and the Greens. So, in effect, the publicity had the same level of influence. And it was done clandestinely. The question was raised many times about whether the National Party knew about it, a book was written about it, and on the story goes. That was a change in behaviour. It is true that we had the Engineers Union and Federated Farmers doing a little bit of that in earlier times, but it was nothing on this scale.
If we are to go forward as a nation we need to be mindful of that recent history. I commend the current Minister of Justice, Simon Power, for his approach. I think his approach is simply and straightforwardly commendable, and I thank him for that. I hope that the Labour Party will be able to provide good, real, and useful engagement. I look forward to this bill reaching the select committee; whether I am part of the committee remains to be seen. But I think we need to be mindful of our recent history, and we need to be careful that we protect the integrity of our election system for the future, because without it we really have nothing resembling a constitution.
|Ayes 113||New Zealand National 58; New Zealand Labour 43; ACT New Zealand 5; Māori Party 5; Progressive 1; United Future 1.|
|Noes 9||Green Party 9.|
|Bill read a first time.|
Hon SIMON POWER (Minister of Justice) : I move, That the Electoral Amendment Bill be now read a second time. I thank members of the House for their support for the Electoral Amendment Bill, and I am hopeful that this is just a first step in a return to cross-party consensus on electoral law. Even the Green Party members, who have indicated they are to vote against this legislation, have said in their first reading speeches that they wish to participate in the cross-party approach to further discussions on electoral law, and I am pleased that all political parties will be involved in that.
Notwithstanding the complexity of electoral law, the structure of this bill is relatively straightforward, and, as the House is in urgency, I do not intend to speak for long. This bill repeals the Electoral Finance Act 2007 and amends the Electoral Act 1993. The bill establishes an interim electoral finance regime, pending the completion of a comprehensive review of electoral finance law. The interim regime will return to the election expenses provisions that governed previous elections, retain the provisions in the Electoral Finance Act 2007 that relate to donations to political parties and candidates, and reinstate the general rules that governed the publication of campaign advertising as previously known.
The bill contains two parts. Part 1 amends the Electoral Act by inserting new Part 6A into that Act. New Part 6A contains the rules that govern the regulation of election expenses, and donations to political parties and constituency candidates. It appears in the same place in the Electoral Act as the provisions that previously existed. Subparts 1 and 2 will regulate candidate and party election expenses.
As indicated by other speakers, first, those subparts will return to setting a 3-month period prior to polling day during which the election expenditure of political parties and candidates is regulated. The regulated period in the Electoral Finance Act could last up to a year, and that was simply too long a period in which to monitor and potentially restrict people’s rights. Secondly, those subparts will define an election activity, and the election expenses of political parties and constituency candidates.
As I said earlier, the Government recognises that there are some shortcomings in the old rules. One clear example is the problems with regard to the expenses regime that were highlighted by the High Court in its decision in Peters v Clarkson. That focused particularly on the law relating to the apportionment of advertising expenses between constituency candidates and political parties, and the rules for accounting for the commercial value of materials and advertising space. The purpose of the interim regime is to return immediately to a law that is certain and credible. Those shortcomings will be addressed during the development of an enduring electoral finance regime.
Subparts 1 and 2 of Part 1 also set overall expenditure limits for political parties and constituency candidates, as well as specifying the obligation for political parties and constituency candidates to submit expenditure returns.
Subparts 3 to 6 of Part 1 take the provisions from the Electoral Finance Act that the Government has decided to retain and put them into the Electoral Act. Those provisions govern donations to political parties and constituency candidates. In short, those provisions “regulate donations funded through contributions, anonymous donations, and overseas donations”; “establish a procedure enabling donations to be made to political parties via the Electoral Commission so that the identity of the donor is protected from disclosure”; and “specify obligations for political parties and constituency candidates to submit donation returns at specified times”. As I said in my first reading speech, the Government recognises that the donations provisions of the Electoral Finance Act provide greater transparency about donations to political parties. Those provisions are to be retained because of the necessity of maintaining a fair and workable electoral system throughout the entire electoral cycle.
Clauses 7 to 9 reinstate the general rules from Part 7 of the Electoral Act that governed the publication of campaign advertisements that were in force at the 2005 general election, and that were repealed by the Electoral Finance Act 2007.
I draw the attention of the House to a couple of ways in which the Electoral Act provisions differ from those in force in 2005. The first relates to the drafting of those provisions. In parts, the Electoral Act 1993 is somewhat antiquated legislation. Many of the sections of that Act were taken directly from the Electoral Act 1956 or its predecessors, and reflect some obsolete drafting practices. Despite its faults from a policy perspective, the Electoral Finance Act reflects modern drafting techniques, which we generally find easier to understand. For that reason, the language in some sections of the Electoral Act that are being reinstated has been redrafted in a modern style. That is necessary to ensure that the language and structure fit within the modern sections that now sit alongside them in the same part of the same Act.
The second change to the old electoral law relates to compliance and enforcement, as mentioned by previous speakers. The Electoral Finance Act significantly raised the penalty levels for corrupt and illegal practices, and also significantly raised the penalty levels across the board for all electoral finance offences. The Electoral Finance Act also increased the time limit over which prosecutions could be brought for offences relating to the filing of returns, and for corrupt and illegal practice. The time limits in the old Act were problematic, because by the time the offence was discovered the time limit for prosecution might well have expired. That was not in the best interests of anyone, and this bill retains the amendments. The changes are discrete, and had broad cross-party support at the time they were enacted.
Part 2 delivers on the Government’s promise to repeal the Electoral Finance Act. Because the 2008 general election has already been conducted under that Act, transitional provisions are required that will continue any obligations that exist under that Act in respect of that election. In short, the transitional provisions do three things. First, they ensure that political candidates, political parties, and third parties are required to file returns for the 2008 general election. Second, they enable offences committed under the Electoral Finance Act to be investigated and prosecuted until the time limit for those offences has expired. Third, they preserve the procedure established under the Electoral Finance Act for claiming, paying, and disputing election expenses claims. Once those obligations have expired, the Electoral Finance Act will cease to have any effect. We can then turn our minds to the development of an enduring electoral finance regime that enjoys strong cross-party support as well as the confidence of the voting public.
I commend this bill to the House.
Hon DAVID PARKER (Labour) : I rise to, largely, summarise what I said in the first reading debate of the Electoral Amendment Bill. Of course, that reading was on the most recent sitting day of this Parliament, last Thursday, and I do not think I need to repeat my speech in detail. Suffice it to say that the Labour Party does acknowledge that there are imperfections in the law that we passed in the last term, and accordingly we backed the first reading of this bill.
I think the difficulty in terms of reaching a consensus is likely to coalesce around a couple of pretty important issues. The first is something the Minister of Justice has just referred to in his complaint that counting an expense as an electioneering expense from 1 January in the year of an election is too tough. Conversely, as the Hon Pete Hodgson said in his contribution to the first reading debate a few minutes ago, a 3-month period is too short, as we know from the experience of the 2005 election, when a billboard campaign was run at some considerable expense. That was clearly an electioneering activity, but occurred outside of the then rules. The old 3-month rule was not right, either, so there is some discussion to be had around that issue.
The other issue that is, for me, the most difficult to resolve is around third-party expenditure. Although it may not please everyone, I think a compromise is probably possible on the issue of the period of control. But if there is no effort to have some limits or controls around third-party expenditure, there is really no point in having any controls. I invite members to ask whether the previous legislation, which we are reverting to, had the intent of having some control of total expenditure by political parties in order that elections were fought fairly and not won just by the highest bidder spending the greatest amount of money. If we think that that was the ethic that underlay the old Act, and that back in those days people did not try to get round those limits by using devices like the creation of third parties that were notionally different from the political party, but were really just another vehicle for the political party to get round the spending limits, then we see that, obviously, the issue needs to be tidied up. For me, that behaviour would offend the intent of the original law. It is something that does need to be tidied up. It is a bit like tax legislation, which needs to be tidied up periodically because there is always a clever tax accountant who is looking for another way round the rules that are intended to achieve fairness.
The other point is that, quite apart from the fact that political parties can get round the rules unless there is some control on third-party expenditure, I do find it somewhat surprising to hear some of the people who promote freedom of speech without any constraint say they think it should be permissible to have a limit on the amount a political party can spend on advertising and other election activities, but there should be no similar constraint on people who are not in political parties. Taking the example of the Exclusive Brethren, as I have previously said, I will defend the right of the Exclusive Brethren to attack the Labour Party and our policies, and to spend money either promoting the political cause they believe in or attacking political causes they do not believe in. That is the Exclusive Brethren’s right, but I do not think they should be completely unrestricted in the quantity and value of the amount that they spend, just as political parties ought not to be. There are some difficult lines to draw there. Some of these issues are easier to talk about in the abstract rather than to legislate for in a way that actually has practical effect. We have to keep an eye on whether these things are practical and will work, as well.
With those comments, I say I look forward to cooperating throughout this process as we develop more settled electoral law to go forward.
Hon CHRISTOPHER FINLAYSON (Attorney-General) : I thought that was a very careful and analytical speech from Mr Parker, and I think he correctly raised a number of important issues that will need to be addressed in a constructive way by the Justice and Electoral Committee. I can see from that very careful, thoughtful, and intellectual analysis why that member is the shadow Attorney-General, and why other lawyers in his party are not.
The Electoral Finance Act does need to be repealed, for the reasons the Minister of Justice has identified. One has only to look at, for example, the issues relating to candidate and party advertisements to see that. I agree with Mr Parker that the devil is in the detail and in the words. But the problems with regard to those particular sections were there for all to see. Far from being hysterical criticisms, as Mr Chauvel would have had the House believe them to be, my very constructive and measured comments, which tried to address those issues, went unheard at the select committee. Therefore, that is why there was a problem with Mr Rodney Hide’s excellent Brooks Brothers jacket when he tried to put his party’s name on it without an authorisation. That would have constituted an advertisement, which was absurd.
Indeed, when Katherine Rich retired at the end of the last Parliament and was cleaning out her cupboards, she found some National Party socks left over from a fund-raiser a few years back. Those socks would also have breached the Electoral Finance Act, because they had no authorisation on them. Those were the sorts of examples that we tried to bring to the select committee, but no one listened to us.
On the issue of donations, the Minister said that essentially the donations regime has been picked up and put into this bill. I think there does need to be an open and transparent donations regime, and I am sure that we will be able to get something that will be workable and acceptable to the public when the new legislation emerges from the Committee stage. Members can contrast that constructive approach with what happened regarding the Electoral Finance Bill in the select committee. There was no donations regime in the Electoral Finance Bill as introduced. Then, during one morning tea or lunchtime, Lynne Pillay and the troops shot off to get some instructions, and the donations regime was put upon us without any kind of discussion. That is not the way to legislate. That is not the way to move forward in order to get enduring and acceptable electoral legislation.
I am very disappointed in the attitude of the Greens. For Metiria Turei to stand in this House and claim that the Green Party has a record on human rights that is second to none, as I think she has done on a number of occasions, is evidence of a dangerously myopic view of the world. The Green Party voted with Winston Peters and the Labour Government to inflict on us one of the most self-interested and unworkable pieces of legislation in New Zealand’s history. Not only do the Greens refuse to vote to remove that legislation but also they are voting against a donations regime that they agreed with, essentially, when the Electoral Finance Bill was going through the House.
There is only one other point that I wish to make. It is that my careful historical analysis clearly upset Mr Chauvel, but, as usual, his facts were wrong. Many of the administrative problems of the 1978 general election were caused by Labour’s 1975 electoral legislation. Indeed, in the run-up to the 1978 election, Dr Martyn Finlay, a former Labour Attorney-General, admitted that his party’s experimental and radical change to electoral law had given rise to some problems. It was only after the 1978 election that National moved to fix up the situation caused by Labour’s 1975 legislation. That is yet another example of National having to fix up Labour’s sloppy interference in electoral law.
But I really do not want to dwell on Mr Chauvel’s lightweight analysis of the history—and ancient history, at that. Rather, I think it is highly desirable to pick up the statesmanlike tones of Mr Parker and say that efforts should be made to get back to the position that has prevailed throughout history. When all sides are prepared to make concessions to others an acceptable balance of interests is achieved, and enduring legislation is therefore enacted. That is what all parties should be aiming to achieve over the next months.
Moana Mackey: He got a bit closer.
CHARLES CHAUVEL: A bit closer—that is right. I will take just a short call to look forward to what the system might include if we could get it right and, in the words of the previous speaker, Christopher Finlayson, achieve an enduring and acceptable agreement on this important area of law. I think that it is important to reiterate what Mr Parker said in his earlier contribution: we really do need to capture the principle of transparency. That principle needs to embrace the activities of third parties, because—as the United States’ experience with so-called soft money shows—it is all very well to try to regulate the political parties per se, but if one fails to put rules in place as to transparency, disclosure, and what have you in relation to pressure groups, then one achieves nothing. So any attempt going forward really must not only preserve the moves towards transparency relating to political parties—which was achieved, to an extent, by the Electoral Finance Act—but we have to make sure that it applies across the board to all actors in the political sphere; otherwise, democracy is the loser.
There was also some discussion about the donations regime. I must say that the previous speaker must have attended a different select committee from the oneI sat through, because I do not recall the matters to which he adverted. I think we need to go further than simply a donations regime. We have to consider the matter of State funding of political parties. We are one of the few Western democracies that do not do this, and if we think as a Parliament that we are serious about the notion of one person, one vote, rather than one dollar, one vote, then we have to make sure that it is not just the interests of the wealthy that are protected but that all interests in society can be represented in Parliament. Quite clearly, the only way to do that is to do what the 1986 royal commission report originally recommended and go for some sort of system of funding where the parties perhaps get $1 or $2 in respect of the votes cast at the previous election, so that there is a fair funding basis for all the parties contesting an election.
In terms of a further look forward, it would also be very useful to consider the question of participation in the voting system, and I hope the Minister of Justice will be open to this. We have probably had less than desirable turnouts at our last few elections. I am not an advocate of compulsory voting, as our Australian brethren are, but I do think we can do some things to encourage a better turnout than we have at the moment. In this regard it is a shame that Sue Bradford’s initiative last year proposing to extend the franchise to 16-year-olds never really went very far, as far as public debate was concerned. When that proposal was made I welcomed it and said it deserved a proper discussion.
If we look at the historical voting turnout in this country, we see that it has fallen, on a trend-line basis, since we lowered the voting age to 18. That seems counter-intuitive; one would think that it should have gone up. But if we think about what 18-year-olds are generally preoccupied with, we realise that it is actually not much of a surprise. They are flatting and usually leaving one form of education and going to another, or going on to some other form of work, and they have other things on their minds, whereas 16-year-olds might well be quite interested in the matters of civics that they have to consider when thinking about what is going on around them in the body politic. So I am not necessarily saying we should do this, but I am saying we need to have a good debate about it when we look at the options going forward. I am very glad that this legislation is beginning the process that will allow us to do that. Thank you.
Dr RUSSEL NORMAN (Co-Leader—Green) : Greg Palast, one of the great political authors of our time, wrote a book called The Best Democracy Money Can Buy. When we look at the influence of money, particularly in US politics over the last decade or so, we can get a good sense of why the buying of that democracy by big oil and coal interests is one of the key reasons why we have failed to make any serious progress on climate change over the last decade. The involvement of the Republican presidency in the US coal, oil, and auto industries is one of the key reasons we have failed as a planet to make any progress—it is because the US democracy is being deeply undermined by money. Of course, Barack Obama has done something to address that, but only through a massive campaign.
The concern with the influence of money in politics is right around the world. Everywhere around the world we have a major problem with the influence of money in politics, and we need to address it. To start with I will read out a couple of quotes that I thought might interest people. The quote goes like this: “Corporate donations are a major threat to our political and democratic system, whether it be state governments fawning before property developers, the Prime Minister providing ethanol subsidies to a party donor, or the immigration minister using his visa clientele to tap into ethnic money.” Now this quote could be from a hard-left critic of our current system, but in fact this quote is from John Menadue, who was a senior public servant in the Fraser Government and later was the chief executive officer of Qantas. When one of the leaders of one of the largest corporations in Australia is concerned about the impact of money and corporate donations in politics, I think we have reason to be concerned.
Then, from the conservative side of politics, there is John Hewson, the former Liberal Party leader. When he was talking about donations to political parties John Hewson said: “If they were all publicly declared, you would find some corporations behaving differently. … There are a lot”—of corporations—“who give to political parties with the expectation of getting a benefit. If they really believed in strengthening democracy, they wouldn’t do that.” This is a major threat to democracy and freedom across the Western World.
We know that political parties need money to run election campaigns, but that money can be a source of undue influence on our democratic process. We need to do our best to prevent it. As we have seen in this country, non - political party actors can intervene in the political process using their millions of dollars. Undue influence on the democratic process has two dimensions. One dimension is that one side of politics tends to get an awful lot more money than the other side of politics; so the Greens, who rely on small donations from party members and others, do not tend to get as much money as those parties that promote the big wealthy developers. So it means that the electoral field tends to be stacked. The other side is that it gives people who make donations favoured access into Government decision-making. It is undue influence, because the history of the influence of money and politics is that people and corporations who make big donations into political parties tend to get undue access to politicians and Government decision-making.
It is for this reason that the 1986 Royal Commission on the Electoral System wrote, it is “not fair if some in the community use their relative wealth to exercise disproportionate influence in determining who is to govern and what policies are to be pursued.” It is for that reason that over many years we have introduced a series of laws of which the Electoral Finance Act is simply the last one, in an attempt to try to restrict the influence of money in politics.
Now I want to look at donations. The Greens are pleased that the donations regime that we managed to twist Labour’s arm, with some considerable negotiating finesse, to get put into the Electoral Finance Act will be protected in this move, and that those parts—which will go back into the Electoral Act 1993—of the Electoral Finance Act will be retained, which is good. The donations part of this is all incredibly important and I want to quote the royal commission again. The 1986 royal commission said: “Disclosure of donations would give valuable information to the voters about the character of the parties. It would, as well, provide healthy confirmation that political parties are not dominated by big business, unions, or overseas interests. It’s vital to our democratic system that we have a decent donations regime.”
The donations regime that we have in the Electoral Finance Act is still far too weak. There are enormous holes. The Greens were aware of it. We wanted to lower the disclosure, so that instead of a $10,000 donation, it was $1,000 donation, but in our negotiations we were unable to achieve that. Nonetheless, that remains the Greens’ view. We believe, hopefully along with other parties, that any donation over $1,000, should be identified so the public can be sure who is funding political parties.
I want to talk about third parties, which is non - political party involvement in elections, and is, I think, one of the hardest issues in all of this and always will be. I want to quote the royal commission again. The royal commission said in its 1986 report: “It is illogical to limit spending by parties if other interests are not also controlled. Supporters or opponents of a party or candidate should not be able to promote their views without restriction merely by forming campaign organisations unaffiliated to any party; nor should powerful or wealthy interest groups be able to spend without restriction during an election campaign while the parties are restricted.”
The royal commission was very clear that we need a regime—or, rather, a set of rules—around spending by non - political party actors if the caps on spending by political parties are to work. It is essential. There has been an enormous uproar about the set of rules put in around non - political party spending, but it is absolutely essential to protect our democracy.
The limits on spending in the Electoral Finance Act were probably too low, but we can talk about that. There was enormous complaint about the need to register. But unless we have a register of third-party actors who are involved in the election campaign, how can we have transparency in our electoral system? How can we have transparency in our democracy unless we know who those non - political party actors involved in the election campaign are? So it is an essential part.
The other thing I want to touch on briefly is the regulated period. The Greens always agreed that the regulated period was too long, and we wanted a shorter one. However, it is important to say the 3-month regulated period is not long enough. I quote from Steven Joyce, who was the National Party campaign manager in 2005. Mr Joyce said: “Under MMP the lead-up to the campaign is just as important as the campaign itself. It is imperative that National maintain a high level of activity during the next 2 years”—2 years—“prior to the commencement of the campaign itself.” That is because, Mr Joyce, as campaign manager, understands what all of us in this Chamber understand, which is that the election campaign does not last for 3 months. It goes on for a much longer period than that. It is for that reason that we need a regulated period that is longer than 3 months.
I think that a 1 January start date for the non-regulated period was very problematic, and the Greens were pushing for an April start date. But, certainly, it needs to be longer than 3 months, because 3 months will not work.
I want to pick up on the question of State funding. The Green Party has supported partial State funding for political parties, and, again, the royal commission report is clear. It states: “Moreover, if election and other costs outstrip the capacity of ordinary party members to meet them, parties may be forced to rely on Institutional sources, such as corporations or trade unions, to find their activities. We consider that too great a reliance on such sources would be detrimental to our democracy and might, in the long term lead, to corruption of our political process.” That is why we need an element of State funding—to protect our democracy.
In terms of how we go forward, the Green Party thinks it is essential that we build a system based on the principles of transparency—that is, that one has a right to know where the political funding of parties is going, and who is involved in the election campaign, including non-party actors. We need a level playing field so that the contest is between ideas and not between who has the most money and can buy the most “iwi or Kiwi” billboards. We want to avoid State or corporate dependency. Political parties should not be dependent on the State, nor should they be dependent on corporate donations. Those things are essential. We would once again promote the idea of a citizens’ assembly to inform the process of looking at how we will reform electoral finance laws. The citizens own this democracy; the members in this Parliament do not. It belongs to the people of New Zealand and they should have a say as to what happens.
The Green Party will not be voting for this bill. We do not think it is progress. There is no need to repeal the Electoral Finance Act while we look at what we will do. The National Government is doing it because of an election promise, but there is no need to do it. We can look at what we will replace the Electoral Finance Act with, without repealing the Act. So we will vote against the bill. We think that the principles of the Electoral Finance Act, around making sure that we are clear about the role of money in politics, are sound, and we should deepen those principles in the next round. I welcome the Minister’s comments that he will be consulting with all parties on how we will look at electoral law as we move forward.
JOHN BOSCAWEN (ACT) : I always laugh when politicians talk about the State funding of political parties. I wonder what they think we actually have. We are all here on salaries, so there is massive State funding of political parties—massive State funding—and anyone who suggests anything to the contrary of that has his or her head in the sand.
There should be no misunderstanding whatsoever as to why the Electoral Finance Act was passed. It was passed for one reason and one reason only. It was passed to help re-elect the Labour Party. It helped to re-elect the Labour Party by restricting what people could say about it, and by restricting people’s ability to criticise it and campaign against it. So credit is due to the people who criticised the Act, to the people who rose up and protested against it, and to the media who called the Labour Party to account.
I find it very interesting that most of the divisions in this Chamber are won by 69 votes to 53, but, as I said on Thursday night, the election was actually very close. An extra 10,000 party votes for the New Zealand First Party would have seen six New Zealand First MPs in Parliament. There would not have been a majority of ACT and National MPs, and who knows how the Māori Party would have voted? I suggest to members opposite that they could very well be in Government if it had not been for the Electoral Finance Act.
I would also like to talk about transparency. Everyone talks about transparency, and says how important it is to have transparent donations. The reality is that when the Electoral Finance Bill was introduced into Parliament in July 2007, there were no provisions on anonymous donations. The 600 submissions that were received on the bill were not received on anonymous donations, because there were no such provisions in the bill at that time. They were introduced after the public of New Zealand had had their chance to speak.
I sat in on the select committee when the Chief Human Rights Commissioner, Rosslyn Noonan, said to the committee members: “The commission’s position is and remains that the bill should be withdrawn.” The majority of the members of that select committee voted to ignore the Human Rights Commission. The Chief Human Rights Commissioner also went on to say it would be essential that if the bill was not withdrawn, there be a second round of public consultation. Once again, I always laugh when I hear the Greens talk about citizens’ assemblies and public consultation. When the Human Rights Commission called for a second round of public consultation, who in the committee was to lead the charge against the Human Rights Commission? It was Metiria Turei and David Benson-Pope. I know that, because I was there. I listened to how Metiria Turei tried to undermine the submission of the Chief Human Rights Commissioner. Rosslyn Noonan went to the select committee and said the commission’s first choice was that Labour should withdraw the bill and start again. She said the bill was wrong. Finally, today, 15 months later, the truth has finally been spoken. The Labour Party has acknowledged her.
The Chief Human Rights Commissioner was right when she said the bill should be withdrawn, but, fearing that she would be ignored, she went on to say that if Labour was not going to listen to her, it was essential that Labour changed four things—not one thing, not two things, but four things. The Government moved to change two of those things, but it left in place a regulatory period of 11 months rather than 3 months. The Government voted for restrictions that were three times longer than our Human Rights Commission argued was reasonable. The commission also said that if we were to restrict third parties—and I am not going to have my position misrepresented—it was reasonable to restrict people, and if we were to restrict third parties we should allow them to spend between $250,000 and $300,000. The Electoral Commission and the Human Rights Commission both said the major political parties had $4.8 million each to spend, and if we were to restrict third parties we needed at least to allow them to spend $250,000 to $300,000. What did this Government do? It put on restrictions: a total maximum spend of $120,000, which is 2.5 percent of what the Labour Party was allowed to spend at the last election. The Human Rights Commission was ignored on those two points.
How did we get into this mess? There are protections—Chris Finlayson has referred to them, as has Charles Chauvel—and they are in this document, called the New Zealand Bill of Rights Act 1990. It is a very small Act of about 10 pages, and ironically it was passed by the fourth Labour Government, under Geoffrey Palmer. The New Zealand Bill of Rights Act does not guarantee rights to New Zealanders, but it affirms them. One of the rights that the Act affirms is that of freedom of expression. I will quote: “Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.” The Act affirms the right of New Zealanders to speak out freely and to criticise their democratically elected Government, and in section 7 there is an obligation on the Attorney-General to report any inconsistencies between bills and the New Zealand Bill of Rights Act.
Charles Chauvel referred to the fact that the Attorney-General received an opinion that confirmed the Electoral Finance Bill was not inconsistent with the New Zealand Bill of Rights Act. It is very interesting that Mr Chauvel raised that issue, because I have a copy of that opinion in front of me. It is 19 pages long—a 19-page opinion on the Electoral Finance Bill. I said earlier that there were no provisions on anonymous donations in the bill. The bill was never about election finance; it was about shutting New Zealanders down, it was about censoring New Zealanders, and it was about making it easy for the Labour Party to be re-elected.
What did Val Sim, a counsel in the Crown Law Office, say about the original Electoral Finance Bill? There was no provision to do with anonymous donations. There was a provision in the bill that said every New Zealander who wanted to speak out and criticise his or her Government, as a minimum, had to either sign a piece of paper in front of a justice of the peace or register with the Electoral Commission. What did Val Sim say? I will tell members what she said, as it is only four lines in 19 pages: “The bill requires candidates, parties and third parties to undertake registration and reporting requirements. These impose a procedural constraint on electoral expression but, as they appeared necessary for the administration of the substantive regulation of election advertising, no further issue of justification arises.” Val Sim of the Crown Law Office, the Government’s lawyers, thought the requirement that all New Zealanders who wanted to speak out freely should first have to sign a piece of paper was a procedural requirement.
I heard Mr Chauvel say that the Attorney-General had to form an opinion as to whether the restrictions were justifiable in a free and democratic society. The previous Attorney-General, the Hon Michael Cullen, had an option to override that Crown Law opinion, but he did not. Why not? I can presume only that the Hon Michael Cullen thinks that requiring New Zealanders to sign a piece of paper, as a minimum, if they want to criticise the Government is justifiable in a free and democratic society. That speaks volumes about Michael Cullen—absolute volumes.
It was interesting that Mr Chauvel made the comment that Michael Cullen deserves better. I was very careful in my maiden speech to acknowledge the Hon Michael Cullen in respect of KiwiSaver. I am a convert to compulsory saving. As far as I am concerned, making KiwiSaver compulsory cannot come soon enough. That is one thing I support the Hon Michael Cullen on, but I certainly have no respect whatsoever for the fact that when he acted as one of the safeguards, he used his position as Attorney-General for purely political purposes.
Following that opinion on the Electoral Finance Bill, and following what was obviously going to be the rejection of the Human Rights Commission’s submission, I launched a legal challenge to the Attorney-General. I was joined by the late Graham Stairmand, the previous national president of Grey Power, and by Garth McVicar and Rodney Hide.
Hon Ruth Dyson: Oh, no!
JOHN BOSCAWEN: That is right. I say to Ruth Dyson that she can knock that, but the reality remains that her party and the previous Attorney-General thought it was perfectly acceptable to try to shut New Zealanders down. We sought urgency on that legal challenge. The select committee voted to deny us that chance. That particular case was set down for a hearing on 15 May. The Crown applied to have it struck out, and it was successful. We lodged an appeal in the Court of Appeal, and the court gave its judgment at 11.30 this morning. The court has upheld the striking out of the case. That case, essentially, is going no further than it has gone today. But I say to the Hon Chris Finlayson, the Attorney-General, that he needs to look at the provisions regarding electoral finance in relation to section 7 of the New Zealand Bill of Rights Act.
Hon Dr RICHARD WORTH (Associate Minister of Justice) : I am very pleased to support the second reading of the Electoral Amendment Bill. No tears will be shed over the repeal of the Electoral Finance Act 2007. I wish to make just two comments. The first is that our Government is delivering on its promises. We are committed to working collaboratively with all parties in Parliament to gain broad consensus on electoral reform. The second comment is that it is fair to say that the legacy of the Labour-led Government in the last term was an electoral finance regime that was neither fair nor workable. Opposition members—and good on them—now acknowledge that fault and flaw.
Hon PETE HODGSON (Labour—Dunedin North) : First of all, I want to respond to some of the comments made by the last speaker but one, the ACT member John Boscawen. In his contribution to this debate he became somewhat more shrill and somewhat more strident than had other speakers from all around the House. He has a 19-page legal opinion on something or other, he has a story about a court case about something or other else that finished at 11.30 this morning, and he has clearly spent many long and lonely nights looking hard at this issue. My response to Mr Boscawen is simply to suggest to him that, as we go forward to try to get ourselves what the Attorney-General called a durable solution, he is going to have to learn to give ground like the rest of us. It is important that we try to get ourselves a resolution that will last beyond this Parliament. I say that to Mr Boscawen because the way that he conducted himself in the speech before last did not fill me with a great deal of hope that he will be able to give ground. I acknowledge his considerable energy, his history, his background, and—I have no doubt—his expertise in these matters. None the less, the fact remains that the electoral law is the nearest thing we have to a central constitution and we ought not to kick it around.
I have two other comments to make and I hope I will not take too long. The first is about free speech. Here we are playing a game. Throughout 2008, and also in the House today, some people have said that the Electoral Finance Act is damaging to free speech. It has been said in the press by people other than politicians, and it has been said today also, that the Electoral Finance Act was self-interested legislation put forward by the Labour Government. Let me respond to that. First of all, if the legislation was self-interested—and I am very happy to acknowledge that it did not work well—then the self-interest was to stop the radio waves, the television waves, and the newspaper columns being dominated by paid speech. You see, there is free speech and then there is speech that we pay for. Free speech, I would assert, is untrammelled by the Electoral Finance Act; one can still write a letter to the editor, go on talkback radio, carry a placard down Lambton Quay, or do some skywriting. All of those things are as able to be done now as they ever were.
Tim Macindoe: But you can’t match an MP’s advertising.
Hon PETE HODGSON: Now I am getting an interjection. But if someone wants to do that to an extraordinary extent by paying for it—and the limits may have been set in the wrong place; they may well have been—then I would assert that free speech is damaged, because the free speech of ordinary people would be crowded out. Let us be clear that the Electoral Finance Act did not set out to damage free speech; one could easily argue that it set out to ensure that it would not be crowded out by the paid speech of folk with a lot of money.
The last thing I want to say is that it is time again—other speakers have said it, and I will say it—to put State funding on the agenda. Let us acknowledge that State funding already exists to an extent. Through the broadcasting legislation it is allocated according to law. The law is in reasonable shape—no doubt it can be improved; things can always be improved—but the State funding of political parties beyond that is something we need to actively contemplate.
We have, really, two futures. One is a future in which we do not have State funding beyond that which we already have, in which we do not pay attention to the findings of the 1986 royal commission on electoral reform, in which we do not decide to put taxpayers’ money into registered political parties in a measured amount, and in which we have a donations regime and a series of rules around donations that parties will continue to want to frustrate—to frustrate the will of Parliament—simply because that is the easiest way to get hold of some money.
The second way forward is to have some form of State funding; how the allocation is done, what the formula is, how it is ramped up according to the needs of small parties, etc., are all matters for debate. Then we would have to proscribe the donation of money to political parties, except for trivial amounts—maybe $1,000 or $10,000—so that there was no ability for an individual or a company to give a lot more money. Indeed, we could go a step further and say that companies, or organisations, or trade unions, or associations could not give money at all, only individuals. That is a possibility; it is certainly a possibility. If members go on a tour through democracies, they will find almost every possibility there is in this or that electoral law of this or that jurisdiction.
I am simply saying to the House that the 1986 royal commission provided an opportunity, as did the 1993 legislation that followed. The Electoral Finance Act itself was an opportunity that was not taken up by the then Government—my Government—and now we have another opportunity to engage. We need to do it in a bipartisan way; otherwise, the public will simply trade one for the other. But we need to ask ourselves whether we want a future in which donations are quite tightly proscribed and State funding is used to augment the activities of political parties. The quantity is entirely debatable, but we need to put the issue on the table.
I just say again: if we do not we run the risk, because this has been the history—this is not a threat; it is just the record of history; I am simply consulting history—that in one way or another some party or another in some election or another will find another way round the donations regime of the day. That has been the pattern. Not only that; it has been the pattern in Australian history for decades, and it was resolved only when that country moved to some form of State funding. We do not have to go far to find an example of that. So I ask the House to think of that as an opportunity. It is not something to lay on the Minister. The Minister cannot, by himself, decide whether the nation is going to have State funding.
Hon Simon Power: That’s right. He’s got narrow shoulders.
Hon PETE HODGSON: That is right. The Minister has enough to do. He says his shoulders are not quite as broad as that, but it is something the political parties may want to think about. If we look at the history of electoral financing of political parties in this jurisdiction and in many others, we will find that unless we move to a form of State funding, we will be back here again trying to fix a donations regime that some clever person has managed to frustrate. Will we have the will of Parliament frustrated by ourselves as political parties, or will we decide to put an end to those decades of activity and give ourselves State funding and, attached to that, very strict regulations on who might give what sort of money to any political parties? There are some issues for thought.
LOUISE UPSTON (National—Taupō) : I am delighted to speak in support of the Electoral Amendment Bill. I am speaking in support of a bill that repeals ad hoc, anti-democratic legislation that ironically, I might add, was the responsibility of the previous member for Taupō in his then role of Minister of Justice. While the people of Taupō were concerned and outraged about increasing levels of violence in their town, the then Minister of Justice was busy with the Electoral Finance Act. Instead of progressing laws on gangs and violent crime, the local MP was focusing on the Electoral Finance Act, which was strangling the voice of democracy and stealing the rights of ordinary New Zealanders to fully participate in the democratic process.
Despite grave concerns from the Electoral Commission and the Human Rights Commission, the Electoral Finance Act was rammed through. The result was poor quality law that was unworkable and unintelligible even to the Minister responsible for it. What was the impact of this law? It was a playing field that was so blatantly tipped in favour of the Government it was shocking. It was self-serving, it was created in self-interest, and it was all about self-preservation.
Kiwis value fairness and they saw right through the previous Government’s desperate attempts to cling to power. On election day the message was clear: New Zealanders wanted change, and one of the changes they wanted was the repeal of the Electoral Finance Act. This is what the National Government is delivering on tonight.
The Electoral Finance Act created confusion and chaos, and it was all about protecting the Government. The priority of the Government should have been protecting the public. The Electoral Finance Act was given a higher priority than legislation that would create a safer community, not just for the people of my electorate but for New Zealand.
Let us make a contrast and look at our Minister of Justice, the Hon Simon Power. He has his priorities straight. Within the 100-day window he has introduced legislation to remove the right of the worst repeat violent offenders to be released on parole. He has introduced legislation to clamp down on gangs, toughen bail laws, and require DNA testing for every person arrested for an imprisonable offence. He has also given the police the power to issue on-the-spot protection orders for victims of domestic violence. This Minister has his priorities clear—all this, and he has introduced the Electoral Amendment Bill.
The new National Government will work towards having an enduring legislative framework to guide electoral finance—legislation that will involve all parties in Parliament. This will ensure that the legislation is not only fair but also actually workable, and that the law will ensure democracy in our electoral finance laws.
LYNNE PILLAY (Labour) : I am standing, along with my colleagues, to speak in support of the Electoral Amendment Bill. In doing so, I remind the House of the fundamental principles of our democracy: the transparency, the accountability, and the ability for all New Zealanders to participate in the democratic process, irrespective of their bank balance or their ability to raise funds. We know, sadly, that in practice that did not work. We know that in fact in the last two inquiries into the general election there were concerns. There were concerns around the mockeries of those principles that are part of electoral law. We saw the rorting of the third-party provisions, and the most obvious example, of course, was the exercise undertaken by the Exclusive Brethren. We saw the inadequacies and rorts that happened under the declaration of the donations regime, and the mockery of the 3-month election period—we all know that campaigning starts much earlier than 3 months before the election.
I would be the first to admit that the Electoral Finance Act has been cumbersome, but I also say to the House that we have not seen those rorts under this legislation—
Hon Ruth Dyson: That we know of yet.
LYNNE PILLAY: —or certainly not that we know of yet. I look forward, and in good faith, to National working with all parties in this House to ensure that we have legislation that delivers on those fundamental principles of transparency, accountability, and the ability for all New Zealanders to participate, irrespective of their bank balance. As a member of the Labour caucus, I really look forward to being able to work with all parties on that. It will be a difficult task; we all know that. But I think that with commitment and goodwill, we may well come out with legislation that delivers on those principles, and I know that this is something that probably many, many countries are grappling with. So I join my colleagues in supporting the repeal of the Electoral Finance Act, but with a very strong commitment to ensuring that the new legislation encompasses all principles that we hold dear in democracy. It would be a joke and a farce, and certainly very distressing, if we saw legislation come through where those rorts occurred again. Thank you very much.
TIM MACINDOE (National—Hamilton West) : Eighteen months ago New Zealanders were incensed when a Labour Government and its equally culpable allies were so desperate to cling to office at any cost that they rode roughshod over the longstanding convention that electoral laws were enacted by consensus in our Parliament. It was a Labour-led Parliament that trampled over the precious democratic tradition that our forebears fought for, and in many instances died for, in two world wars. It was an election where non-MP candidates had to play by a much tougher set of rules than did the MPs who had written the rules. That is what we expect in Zimbabwe but not here in New Zealand.
The evidence that the Electoral Finance Act inhibited our democracy was clear every week in local newspapers throughout the country last year. Labour, Progressive, New Zealand First, and Green MPs who had supported the Act effectively prevented candidates outside Parliament from advertising their candidacy for most of the year. There was clear evidence in my city of Hamilton that the impact of the Act was significant. Mid-year I knocked on doors and met many people who did not know that it was an election year, because there had been none of the usual campaign advertising from non-MP candidates at that point. Just a few weeks before the election few voters knew the names of their local candidates, other than sitting MPs, because of the gross imbalance in advertising that the Act enforced. The incumbent Labour MP who was my main opponent was legally entitled to outspend me by more than four to one in the bell-wether Hamilton West electorate throughout 2008. That was outrageous enough, but worse was the fact that the Act so fundamentally suppressed the democratic rights of members of the public, and of an array of lobby groups, that many dared not take advantage of election-year interest to promote their causes and concerns for fear of incurring heavy penalties under the Act.
That is why the Electoral Commission reached the alarming conclusion that the Electoral Finance Act was having “a chilling effect” on participation in our election last year. So I am very proud to be part of a new National-led Government that is determined to restore our democratic tradition. A fair and workable electoral finance regime is a fundamental pillar of any democracy; that is why repeal of this Act is one of our priorities on coming into office, and that is why we will close the book on that sorry chapter in our electoral history and work with all parties in this House to reach a broad consensus on the laws that will replace it.
|Ayes 113||New Zealand National 58; New Zealand Labour 43; ACT New Zealand 5; Māori Party 5; Progressive 1; United Future 1.|
|Noes 9||Green Party 9.|
|Bill read a second time.|
Part 1 Amendments to Electoral Act 1993
|Ayes 113||New Zealand National 58; New Zealand Labour 43; ACT New Zealand 5; Māori Party 5; Progressive 1; United Future 1.|
|Noes 9||Green Party 9.|
|Part 1 agreed to.|
Part 2 Repeal, consequential amendments, and transitional and savings provisions
Hon SIMON POWER (Minister of Justice) : I thank the Committee of the whole House for its support on Part 1, which was staggeringly quick, but I do think it is worth making a comment in respect of Part 2. As Minister in charge of the bill I would be remiss if I did not, at the very least, make two quick points. First, Subpart 2, “Transitional and savings provisions”, outlines obligations regarding the 2008 election expenses and 2008 donations regime, both of which are to continue during the interim period, along with the donations regime for parties from the 2008 regime.
It is worth just notifying the Committee about clause 23, although I am sure many more scholarly than I have spotted the clause, which relates to transitional regulations.
Hon Ruth Dyson: Sorry—what clause again?
Hon SIMON POWER: Clause 23—I say to Miss Dyson. This clause is important because it is a bit odd. It allows regulation for transitional arrangements to be made in the event that a matter is, essentially, not up to scratch. This regulation-making power expires on the close of 1 March 2011 and, on close of that date, is repealed. This is designed to allow the Governor-General from time to time to make regulations prescribing transitional and savings provisions concerning the coming into force of the Act, which may be in addition to or in place of the transitional and savings provisions of this subpart. In other words, it is a kind of regulatory catch-all in case it becomes clear during the transitional period that it is needed. I do not imagine it will occur but in any event the Ministry of Justice and I believed it was probably prudent to just have that regulation-making power sitting there. I do not intend to add anything further on that point.
Chris Tremain: You know you made a mistake.
Hon PETE HODGSON: Thanks for coming, buddy! Clause 23—and I can see why the Minister has had it put in, or officials have advised him to put it in—is a kind of belt and braces thing, and that is OK. It is unusual in electoral law to have that sort of provision.
Hon Simon Power: Yes, it is.
Hon PETE HODGSON: So why do I not just ask the Minister whether he would be happy, by way of an oral undertaking to the Committee, to say that if ever clause 23 were to be used between now and 1 March 2011, he would adopt the practice of circulating the regulation around the parties so that we can all have a bit of a pick at it. If he would be good enough to put that on the record, that would suffice our needs.
The other thing is that I am a bit embarrassed to say this, but I cannot quite get clause 19(1), which states: “A party secretary is not required by section 210 of the principal Act to file by 30 April 2009 an annual return of party donations for the year ending 31 December 2008.” My simplistic question is why the hell not. I perhaps should talk a little longer; it might help the process of advice to the Minister. There is a hint in clause 19(2) that that is somehow a let-out clause where the party secretary is required to fund under—
Hon Simon Power: There is no—
Hon PETE HODGSON: If the Minister is ready to take a call on that, I will happily resume my seat.
Hon SIMON POWER (Minister of Justice) : First, in respect of Mr Hodgson’s query regarding the regulatory power, I give the undertaking to the Committee of the whole House that in the event that that regulation-making power is utilised, I will adopt the methodology that he outlines. Secondly, although I think he got there in the end, I will look at clause 19(2). None of the obligations under the Electoral Finance Act in respect of those party returns would be affected by clause 19(1).
Hon PETE HODGSON (Labour—Dunedin North) : I will not spend much time over this; I promise. It does raise the question as to why clause 19(1) is needed. Is it to avoid a double return? Is that precisely the point? Some people are nodding; they seem to know that.
Hon Simon Power: Yes.
Hon PETE HODGSON: I am satisfied, and I thank you.
JOHN BOSCAWEN (ACT) : I would also like to talk about the donation regime but before I do I would just like to assure the Hon Pete Hodgson that I look forward to being involved in this debate on a multipartisan basis, but he made the comment: “Let us be clear that the Electoral Finance Act did not set out to damage free speech;”. I campaigned against the limit that restricted third parties to spending just one-fortieth of what the Labour Party was allowed to spend. The Human Rights Commission said those parties should be allowed to spend up to $25,000 to $30,000—
Charles Chauvel: I raise a point of order, Mr Chairperson. I am sorry to interrupt a new member, but I think you might like to consider giving some guidance to the member about matters that are relevant to the part that we are actually debating.
The CHAIRPERSON (Eric Roy): I am sorry, I have been reading a note that has been passed to me and I have not been as diligent as I should have been. Part 2 is on page 51 of the bill, so it will be the clause that pertains to that part that the member should address his comments to. I am sorry; I was diverted by another matter.
JOHN BOSCAWEN: Thank you, Mr Chairperson. I will come straight to the point then.
Part 2 deals with donation returns. I say, let us have some honesty about this. As part of my campaign I travelled to Hamilton to talk to Doug Woolerton about this bill. I thought it was a private meeting, but, subsequently, Doug Woolerton discussed it quite openly with members in this Chamber, and it is recorded in Hansard. So I feel no compunction whatsoever to say that one of the first things that Doug Woolerton said to me was that “the Electoral Finance Act doesn’t concern us. It doesn’t concern New Zealand First. We can get our money. It’s not a problem.” That is the reality of it. We talk about transparency but there is absolutely nothing in the Electoral Finance Act that requires a person to make a declaration of a donation that cannot be circumvented. If someone wants to give a large donation to any political party, it can be structured in such a way that it is not disclosed. People can stand in the Chamber and talk about transparency but the reality is that if people want to circumvent these provisions, they can and very easily.
One of the issues that possibly led to New Zealand First’s downfall was the so-called disclosure of donations by Simunovich Fisheries in the late 1990s and early 2000s. That featured in the Dominion Post during the course of the election campaign. I famously gave a speech at the Rotary Club of Newmarket where I said there was nothing that the Dominion Post was disclosing that was illegal in 2000; and Mr Peter’s partner, Jan Trotman, was at that meeting. I said not only was there nothing that was disclosed by the Dominion Post that was illegal in 2000, but nothing in the Electoral Finance Bill, as it was at that time, would require those donations to be disclosed now. The Simunovich family gave a number of donations of $10,000 to New Zealand First, and provided those donations continue to be given by various subsidiaries using their own money, they can continue to do it. All I say is let us be honest with the people of New Zealand. Let us be honest; the transparency that this bill supposedly has is a mirage. Thank you.
|Noes 9||Green Party 9.|
|Part 2 agreed to.|
The CHAIRPERSON (Eric Roy): Is there anyone opposed to the Minister giving the explanation? There being no one opposed, leave is granted.
Hon SIMON POWER: I have just received further advice on the issue raised by Mr Hodgson in respect of clause 19. I want to be absolutely clear so that Committee of the whole House members do not think I have put the wrong thought in their minds. I am advised that clause 19 will prevent political parties from having to file annual donations and returns in 2008-09 under both the Electoral Act and the Electoral Finance Act.
The CHAIRPERSON (Eric Roy): That is not a point of order. I have given leave for the member to make an explanation. The debate has concluded; we have moved on. [Interruption] I am on my feet. The member should seek leave.
Hon DAVID PARKER: I seek leave to make a query arising out of the Minister’s statement, because to my hearing the answer was ambiguous.
The CHAIRPERSON (Eric Roy): Leave is sought to ask the Minister a question. Is anyone opposed to that course of action being taken? There appears to be no one. The member has the right to ask the question.
Hon DAVID PARKER: The Minister said that the effect of clause 19 was that the need to file both a declaration under one piece of legislation and the other was avoided. It left me with the impression that no declaration was required. I understood that the proposition, as Mr Hodgson had put it, was that one declaration would be required. Thank you.
The CHAIRPERSON (Eric Roy): I am not sure whether we need a response to that. Will the nod suffice?
The CHAIRPERSON (Eric Roy): You cannot seek leave for another member. If the Minister does not seek leave, we are moving on. [Interruption] Leave is sought for the Minister to respond. Is there anyone opposed to that course of action being taken? There is not.
Schedule 1 agreed to.
Schedule 2 agreed to.
Clause 1 agreed to.
Clause 2 agreed to.
Clause 3 agreed to.
- Bill reported without amendment.
- Report adopted.
Hon SIMON POWER (Minister of Justice) : I move, That the Electoral Amendment Bill be now read a third time. The House has made excellent progress on this matter this evening—such excellent progress that my third reading speech is still in my office. I conclude these matters by making one or two key points in response to two parties. Firstly, I thank all parties in the House for the constructive approach they have taken to this issue, not only to the repeal of the Electoral Finance Act, which this time 12 months’ ago was inciting a fair bit of activity in this debating chamber when members on that side of the House were on this side and vice versa, but also because I think we have got to the stage where a cross-party approach to try to put into place an enduring legislative framework to deal with future elections is the appropriate vehicle.
I say to Green Party representatives in the House that although they have exercised their right not to vote for this legislation, I acknowledge that according to conversation with their co-leader Dr Russel Norman, the Greens will be participating in the process that will move it forward from here—that is, the cross-party and public discussions about the new, enduring legislative framework—and I thank them for taking that step. Their contribution will be welcomed, as will all parties’ contributions in that discussion.
It is significant that new legislation will be required for the 2011 election, but in the interim, hybrid legislation had to be enacted in the unlikely hypothetical, or theoretical, event that a by-election occurs in the near future.
Charles Chauvel: Or a general election.
Hon SIMON POWER: Good luck with that, I say to Charles! The fact was that we could not have a hiatus where no electoral law was in place, should that event or similar events occur. Participants in the House, through their political parties, and the public will now move to a process designed to involve all of those participants in reaching this far more enduring electoral law. The first step in that process is likely to be an issues document that will give the public and political parties an opportunity to have a say on a raft of issues. Many of them have been raised by members opposite today; some have been raised by the Green Party and the ACT Party representatives who are in the House this evening. When we have that first meeting, I encourage all members to come armed with their parties’ views or suggestions for that issues paper. Subsequent to that, there is likely to be a further opportunity for wider discussion based on a more honed and narrow set of issues, well prior to a bill being drafted and put into the House for the usual 6-monthly period for the select committee process to consider that bill.
In other words, this had to be done at this point in the electoral cycle and as early as this in the life of this Government, so that participants from other parties and the public could have at least two, and hopefully three, opportunities to have input and discussion around what this framework will look like. Although I disagree—obviously, because I scrapped it—with the Greens’ view of the electoral review panel and the citizens’ forum, it is my hope that the many opportunities for public and party input into this process will have a similar broad and encompassing approach to hearing views not only from the participants in this process, but also from participants in elections throughout New Zealand should they choose to take that opportunity.
I conclude there, and I simply finish by saying that I hope this is the first step—although we will not agree on everything—of a process that will see these issues thoroughly debated and the final legislative process put in place in a way that will, hopefully, see this House not have to have this conversation for some time after the legislation is settled. I commend this bill to the House
Hon DAVID PARKER (Labour) : I thank the Minister who just resumed his seat, the Hon Simon Power, for his offers of cooperation around the process of developing the successor to the electoral finance legislation. The test of the Government’s future conduct on this legislation will be whether it sees fit to compromise on these issues. The Government has criticised the prior legislation—the Electoral Finance Act—as being only the vision of those parties that supported it, and it has said that there was an unwillingness on the part of the then Government to compromise in respect of some of the views of the National Party. Maybe the Labour Party made a mistake in respect of the prior legislation—although I have to say that at times we tried to engage with the National Party and found it less than willing to engage on some of the issues. Notwithstanding that—I do not want to be churlish about this—I think the test as to whether National is willing to engage will be whether it is willing to compromise on some of these issues, just as we are being asked to compromise on some of them.
I thank Mr Boscawen for his contribution; I think he made some good points. If regimes are to have the confidence of the people, and are to provide the sorts of frameworks that people can rely upon, then they ought to be meaningful. We ought not to have laws that pretend to control things but, in fact, do not control them. If areas are due for proper control then they ought to be properly controlled. If there are areas where proper control might be desirable but in practice is not possible, then we ought not to pretend otherwise. I thank the member for that contribution. I look forward to the consultation that the Minister of Justice outlined.
Hon CHRISTOPHER FINLAYSON (Attorney-General) : Mr Parker’s generous and statesmanlike contributions remind me of the line from John F Kennedy’s inaugural address that “civility is not a sign of weakness, and sincerity is always subject to proof.” I think that the test of sincerity always being subject to proof applies to all parties in this House as we enact legislation that will sweep away this odious Electoral Finance Act. This legislation provides us all with the opportunity to have a constructive multiparty discussion on this critical matter, but not for ourselves. Sometimes there is an almost holier-than-thou attitude coming through the Greens’ speeches—that all the other parties are really only concerned about themselves. That is wrong. We are all concerned, ultimately, about doing something that is in the public interest.
Thank goodness that as a member of Parliament I can finally move on from this poorly drafted Electoral Finance Act.
Hon Simon Power: Let it go!
Hon CHRISTOPHER FINLAYSON: I have let it go—from the chaotic select committee hearings under the guidance of Lynne Pillay; from the inability of the previous Minister of Justice, Mr Burton, to answer questions on the issue in the House; from the bluster of the former “Minister for Common Sense”, Annette King; from the historical inaccuracies of Mr Chauvel; from the contradictory positions of the Greens; from the failure of the previous Attorney-General to provide a section 7 report; and, above all, from the poisonous atmosphere that infected this House throughout the latter stages of 2007.
All issues are on the table; all issues will be objectively and honestly considered. I believe that if we all work together, then issues like the matter of third parties, which Mr Parker referred to, will be able to be addressed. However, if we are to deal with the notion of third parties, then I hope we have a different name emerging from the select committee. I do not like that term. It suggests that the public are somehow interlopers into the games of politicians, whereas, in actual fact, they are the principals and we are the servants. But if all parties listen to the public—and there will be a real opportunity to do that—and all members of Parliament do their job, then I believe we will be able to enact properly enduring legislation.
CHARLES CHAUVEL (Labour) : I welcome the outline that the Minister of Justice gave in his third reading speech on the Electoral Amendment Bill on the process intended to be adopted in respect of devising new electoral law. As I understood it he said there would be an issues document, there would be a discussion, there would be a draft bill, and there would be a select committee process. I think David Parker’s observation—that some ability and willingness to compromise, and some generosity of spirit from the Government in this area will enable the possibility of some enduring electoral law to emerge—is absolutely right. I would like to repeat what he has urged on the Government: that in order to get something worthwhile out of this exercise it will be important to approach it with an open mind. It would be helpful in that regard if the Minister would ensure that the issues document he referred to embraced as many questions as possible on the electoral system.
It is essential that the issues document should include a continued commitment to a high level of transparency over donations. Surely it must canvass the issue of additional funding for political parties. I refer to Mr Boscawen’s comments in an earlier part of the debate in this regard. He said: “Goodness, do we not think that the political parties are already funded; what is this all about?”. Well, of course, the problem with the existing funding regime includes that it applies only to parties represented in Parliament. And it is an opaque system. Those members who have had any experience of attempting, over the last couple of years, to work with the Parliamentary Service bureaucracy to get spending authorised for, as an example, a simple electorate office ad, will know that we cannot persist with the current system—it is not satisfactory. The public are not clear as to what is or is not included. It is not always clear to members. The point has been fairly made that there is no public funding for candidates or parties not currently represented in Parliament. We need to take a long, hard look at whether all this is a desirable state of affairs if we want this House of Representatives to live up to its name.
Clearly the transparency that the issues paper will have to canvass means that we will need to look at all “actors” in the political process—let us use that term for candidates, political parties, and pressure groups who seek to spend money on media in order to influence a citizen’s most sacred duty and right, the duty and right to vote. Of course, all such groups should be subject to scrutiny and transparency. People should be able to know who is seeking to influence the process. They should be able to know who is spending what and whether that is being done in any sort of collusive arrangement with other “actors” in the system. If we do not have that transparency applying across the board then we do not have a healthy democratic process.
We need to look at limits on donations and spending and at the question of the regulated period. In my personal view, the donation and spending limits must err on the low side as to amounts, and the regulated period needs to err on the high side. The Obama precedent has been quoted in this debate, and surely it is a healthy thing for democracy that a whole lot of small donations are sourced from a large range of people. If political parties and candidates can follow that precedent then they should be able to prove that they have a programme and personalities that attract popular support. That has to be a good thing; that has to be something that our system has to incentivise. We must, if we are to have a discussion of public funding, also get the mix between public funding and spending limits right. We must not go down the road that the Australians went for many years where they had public funding of public parties and that funding formed the floor for the spending of the political parties. Then there was a bidding war amongst corporates and other donors as to where to get all the other money from. That is not a healthy democratic system to have. That striking of the balance must be a question for the issues document that the Minister mentions.
As far as the regulated period is concerned, unless and until we move to a fixed term of Parliament—which in my personal view we should do—there has to be certainty as to what the regulated period is. It should not be a period measured with reference to when the election is called. It should be a certain period that everybody can know, rather than just, say, 3 months, 6 months, or 12 months before the general election, the date of which is known to only one person—that is, the person advising that date to the Governor-General. That is not an ideal situation as we go forward and write the laws anew.
We should also look very closely at the question of the agencies that police our election law. Indeed, the question of whether there should be just one agency, rather than the three that are currently set up to deal with the various questions in this area, needs a careful look. We should have a good look at whether there are sufficient resources for that agency, or for the agencies that exist at the moment, to do the job. There surely ought to be independent forensic, police, and enforcement resources in that agency, rather than it having to rely on the New Zealand Police rationing its scarce resources to chase up allegations of electoral offences, where it does not have the expertise or the time to do that job properly. I mentioned earlier the importance of having a good look at the voting age, because it is appropriate in these times, in my view, to consider whether people who are under the current voting age might well make a good contribution to the system by being enfranchised.
I conclude my remarks by acknowledging that we will not have a utopia come out of this review; clearly there will have to be give and take on all sides, and I hope we see that happen. But we should aspire to the best system and the best set of laws that we possibly can. We have done that in the past, when we led the world in enfranchising all our citizens, and we did it with great success. I hope that this is the beginning of a period when we will do that again. Thank you.
Dr RUSSEL NORMAN (Co-Leader—Green) : I have already spoken a couple of times on the Electoral Amendment Bill, so I will not repeat everything I have said in my previous speeches, but there are a few things that I would like to draw members’ attention to. One is the cap on spending. The cap on spending is probably by far and away one of the best elements of our system. We have only to look across the Tasman at the war that goes on there every year to see who can spend the most money and, therefore, who can be most dependent on corporate donors and give the most favours after the election to the corporates who pay for the parties’ election campaigns. Having an accelerating war over who can spend the most money on election campaigns would be very, very bad for our democracy, so having a cap on spending is absolutely essential.
We also need to give some attention to what kind of spending we want to put a cap on. Previously the focus has very much been on advertising, because that is the most visible part of it. The definition of “spending” broadened with the Electoral Finance Act, and I think that it was actually a good thing to pull in more elements of what really is campaign spending. But the Act still does not cover some key elements. The kind of spending like that on the work that Crosby/Textor does—which is an essential part of the National Party campaign, according to the media—is not currently caught. Unless it is the preparation of an election advert under the Electoral Finance Act, a lot of the spending that goes on around campaigns is not currently caught by the cap, which I think is one of the weaknesses of the law. It also means, of course, that Parliamentary Service money can be spent employing Crosby/Textor. The public never know, because the Parliamentary Service is not covered by the Official Information Act, so the public’s money is spent on the National Party campaign to fund Crosby/Textor. I think that kind of spending should be brought within the cap.
I think the cap needs to increase. The cap is too low. I think that is fair enough; it has not increased over many years. But it needs to cover what is really going on with elections.
The donations regime is a bit of a war and a counter-war—those who seek to get around the law try to figure out new ways to avoid it. The invention of the Waitemata Trust was clearly an attempt by National to avoid the 1993 electoral law. By putting all the money into the trust and then moving the money from the trust to the National Party, nobody knew who was really funding the National Party election campaign. But as Nicky Hager showed in his book The Hollow Men, the board of the National Party was aware of the identity of the donors. Contrary to what Mr Boscawen said, one of the changes in the Electoral Finance Act was basically to make it very difficult to use that mechanism any more. It made it very difficult to launder the money through the trust and then into the party, with the public never knowing the source of the money. That was the real progress with the Electoral Finance Act, and it is something that we should hang on to.
The other part about donations that I do not think we have addressed properly is putting a cap on how much any one person or corporation can donate to political parties. It seems to me that the ideal for the funding of political parties is that they are encouraged to maintain large membership bases and to get many small donations from a large group of people. But a party can get around that if it has one donor who gives half a million dollars, in the case of Owen Glenn and the Labour Party. That means that a party does not have to go out to lots of different people, it can just go to its one big wealthy donor and get a big lump of money. It does not have to be dependent on the community; it does not need a big base. I think that we should cap how much any one person or corporation can give to a political party and should force the parties to go more broadly to seek money, and that would be an improvement in the donations regime.
Another part that we never really progressed in the Electoral Finance Act was the use by the Government of the day of Government advertising. One of the things done in Canada, for example, is that every Government ad has to be vetted by the Auditor-General at a subcommittee of the Auditor-General, to see whether in fact it is an election advert. We discussed this matter in some of the discussions that happened around the Electoral Finance Act. Australia is the classic example of the use of such Government advertising. The Liberal Government used millions of taxpayers’ dollars to promote all its programmes, basically as a form of campaigning. It is a problem here in New Zealand, as well.
We need a system like the one the Canadians have, which is that if the Government wants to place an ad, then we have an independent group of experts who ask whether it is a campaign ad and whether the Government should be allowed to spend taxpayers’ money on that ad in an election year or in a regulated period. I really think that we need to introduce that factor into it.
Another part that is missing from all of this, of course, is the lobby groups. Maybe lobbying cannot be pulled within the Electoral Act, but should be more part of an open government package—which, I agree totally with Mr Chauvel, has to include a fixed date for elections—but we do not know what is going on with the lobby groups. What is their influence in politics? Who are they working for? For example, when a lobby group comes to see us we do not know whether it is working for whom it says it is working, or whether it has another client who is paying a lot more money and uses some particular client the public likes as the public face for it. When lobby groups come to see us we do not know what they are up to. We do not know who else they are working for or who else is paying them.
In Canada lobby groups have to register. They have to say who is employing them, what pieces of law they are working on, and what they are lobbying about. It puts transparency around lobbying, which is a key part of the legislative process. Let us be honest about it; the lobby groups play a big role in which laws get passed through this place. I think it is essential that we have transparency around the lobby groups, and I would like to see that brought into an open government package.
One of the things that I think makes transparency around donations particularly important right now is the infrastructure stimulus package. We are about to throw many hundreds of millions of dollars at a whole bunch of contractors. We are going to give them a whole bunch of money. We are giving them a bunch of money to build a whole bunch of roads and various other things. We know that some of those people donate to political parties. The Road Transport Forum declared its donations to Labour and National, because it was forced to due to the 2-week rolling disclosure that the Green Party put into the Electoral Finance Act. The Road Transport Forum put 35 grand into Labour and National.
The issue is that where there are those kinds of connections between contractors who are donating money to political parties and Governments that are allocating hundreds of millions of dollars to contractors, it is essential for both the perception and the reality—for the Government’s sake as much as for anyone else’s sake—that there is maximum transparency around who is funding political parties, so that nobody can go to the governing party and say that it gave a certain contract to such and such a company because that company had given the Government this donation. It all needs to be transparent so that we know who is funding the parties and so that we can also see what contracts are going out.
I think that that should be the normal practice, but it is particularly important in an era where not only our Government but also other Governments are throwing hundreds of millions of dollars at these giant infrastructure projects, many of which are being sped up in their allocation process. A lot of the roading projects are being accelerated during this time and the normal processes are not being applied.
Finally, I will respond to earlier comments about citizens’ assemblies. The thing about a citizens’ assembly is that it is not just about asking the public for submissions. When we ask the public for submissions, we get responses from all the interest groups. All the interest groups come in and make their submissions, and that is good. That is fine, and it is a healthy part of the process, but there is something more than that. Ordinary citizens will have a particular perspective on their democracy, as well as on their justice system, but generally they will not be engaged in the process. They will not make the kinds of submissions the Minister of Justice is talking about. Most people in New Zealand will never make a submission on the Electoral Amendment Bill. They will never have any input into it.
How do we get the perspective of the ordinary citizen of our country on what electoral finance law should look like? The only way is through a jury process, which involves informed decision-making. That is, we get a group of randomly selected people together and give them the information so that they can make a decision from the perspective of the man on the Clapham omnibus—or the ordinary citizen of New Zealand, because he or she will have a very particular perspective on it. We have seen with citizens’ juries in Canada, where they have been used extensively, that we get very highly informed and useful contributions.
I would once again promote citizens’ assemblies as a way for ordinary New Zealanders to have an informed input into this process.
JOHN BOSCAWEN (ACT) : It always fascinates me when members of the Green Party talk about citizens’ assemblies. I was at the hearing of the Justice and Electoral Committee on the Electoral Finance Bill on 18 October 2007 as a member of the public. At that hearing the Chief Human Rights Commissioner said quite clearly and categorically that her preference was—and remains—that the Electoral Finance Bill be withdrawn, and that Parliament start again on electoral finance legislation. She then went on to say: “If that is not going to happen, it will be essential that there be a further round of public consultation. The Labour Party here are playing with electoral law”—and she said to the committee—“you owe it to your fellow New Zealanders to allow them to comment on what you are going to do.” Metiria Turei, the Green representative on that committee, totally ignored that submission. So I always find it fascinating when the Greens talk about citizens’ assemblies, because if the Green Party was really interested in what the people of New Zealand thought, it would have accepted the recommendations of the Chief Human Rights Commissioner.
I would now like to come to the comments of Lynne Pillay. In her speech in the second reading debate on the Electoral Amendment Bill, she talked about the importance of participation, and how it was important that ordinary New Zealanders participated in the election process. I would like to read her a paragraph from the Human Rights Commission’s submission. It is paragraph 10.2 of the conclusion to the commission’s submission dated 7 September 2007. It states: “A human rights approach to democratic government requires genuine participation. Genuine participation, in turn, requires an informed electorate. By limiting freedom of expression and creating a complex regulatory framework in the way it does, the Electoral Finance Bill unduly limits the rights of all New Zealanders to participate in the electoral process. The Commission therefore considers that the Bill is inherently flawed and should be withdrawn.” I say to Lynne Pillay and the Labour members who are concerned about the ordinary New Zealander’s participation in elections that it is a pity they did not actually listen to the Human Rights Commission when it made that submission.
The Labour Government’s behaviour was worse than that, because initially it was very reluctant to have the Human Rights Commission appear as a witness at the hearings. It did not make it easy for the commission. Pete Hodgson has justified the Electoral Finance Act by saying that it does not restrict free speech. I have a very simple answer to that—let the people of New Zealand decide. Let the people of New Zealand form their own opinion. The Human Rights Commission said that if we are going to restrict the right of lobby groups to speak, we need to allow them to spend between $250,000 and $300,000. That is in the context of a political party spending $4.8 million; both the Labour and National Parties, as well as their candidates, were entitled to spend up to $4.8 million. I might add that $1 million of that was given to the Labour Party by way of broadcasting allowance, and $900,000 was given to the National Party by way of broadcasting allowance. So when people say that we must have taxpayer funding of political parties, I say that is a joke, because $1.9 million was spent on broadcasting alone, for just two major parties.
The Human Rights Commission agreed that it is right to restrict people; there is no point in having restrictions on political parties and then letting third parties go unrestricted. But the commission thought it reasonable that third parties should be able to spend up to $250,000 to $300,000. That is one-twentieth. The commission said that, yes, let the political parties get lots of funding. That was fine. But it said we must not drown out small people. The commission said that if a small person could spend just one-twentieth, and if National and Labour were allowed to spend twenty times what a lobby group was allowed, that would be acceptable. But that was not good enough for Labour. It wanted to spend 40 times that figure.
I referred to the International Bill of Human Rights, and to the actions of the previous Attorney-General. For members opposite who are genuinely concerned about electoral law and reform, I say that the actions of the previous Attorney-General, the Hon Dr Michael Cullen, were very, very poor. The reason we have this problem is that he did not exercise his judgment. He used his role for purely political purposes, and he did not stand up and say that the electoral finance legislation was not acceptable. It was not acceptable to make the people of New Zealand come to Parliament, as I came to Parliament, and as Amy Adams came to Parliament; 500 people made submissions to the bill saying they were not prepared to see their freedoms—the freedoms of their parents and grandparents—taken from them. I believe the previous Government was very, very arrogant in the way it treated the people of New Zealand.
I also make a point in my final speech on this debate to acknowledge the courage of the commissioners and staff of the Human Rights Commission. The Chief Human Rights Commissioner is Rosslyn Noonan. She is a former national secretary of the primary teachers union, the New Zealand Educational Institute. She is a trade unionist, and someone who might normally be considered a supporter of the Labour Party. I believe her actions, and those of her colleague Professor Judith McGregor, the Equal Employment Opportunities Commissioner, in speaking out against the electoral finance legislation and in continuing to speak out against it, are courageous and should be acknowledged.
When I had the chance to speak for a few minutes in Thursday night’s debate, I talked about the arrogance of the Labour Government in pushing through the electoral finance legislation. I did so as a warning to the National Government, because when it comes to three terms in Government, and is looking for a fourth, it may want to consider something along the lines of the Electoral Finance Bill. It is not without precedent. I am a member of the ACT Party, and in 1995, Jim Bolger’s National Government passed a law with the support of the Labour Opposition that made it illegal for a political party to purchase advertising. I have said that taxpayers gave the Labour Party $1 million in broadcasting time, the National Party $900,000 in broadcasting time, and the ACT Party $100,000 in broadcasting time. That is fine. The ACT Party does not have a problem with being given $100,000, because at that time it had two members of Parliament. But it was illegal for ACT to purchase broadcasting time. In my consultation with members of the Māori Party on this bill in late 2007, they made the point that when they fought the 2005 election it was also illegal for their party to buy broadcasting time. They very much would have liked to spend the party’s own money broadcasting on Māori and iwi radio stations. It was illegal.
I urge the Minister to review that. If it is done in a truly non-partisan way, then by all means set caps on how much political parties can spend, but let them have the freedom to say how they spend their own money. We do not have a level playing field when the two major political parties can appropriate for themselves—voting together in 1995, as they did under Jim Bolger’s Government—the right to spend taxpayers’ money, and can then deny others the opportunity to raise money to put their message across. I would also like to pay a tribute to members of the media: the ones I work closely with, and the ones I do not know as well. I had a great deal of support in my campaign from Leighton Smith on his Newstalk ZB programme. Leighton spoke at my first protest march on 17 November in Auckland.
- Sitting suspended from 6 p.m. to 7.30 p.m.
JOHN BOSCAWEN: Just before we adjourned for dinner I was acknowledging the courage and professionalism of the commissioners of the Human Rights Commission: Chief Commissioner Rosslyn Noonan, the Equal Employment Opportunities Commissioner, and Sylvia Bell, the chief policy analyst of the Human Rights Commission. In this sorry saga, which is very close to coming to an end, a lot of credit goes to a number of organisations. In the last few minutes available to me I acknowledge the role of the media. It is well known that the New Zealand Herald ran a massive campaign and had an intense look at the Electoral Finance Bill. The New Zealand Herald came under huge criticism from the Labour members of Parliament but with those members finally speaking the truth and acknowledging that what they did was wrong the campaign has been vindicated. What sums up its campaign—and the campaign from the media generally—is the front page of the New Zealand Herald dated Tuesday, 4 December 2007. There the New Zealand Herald states that it was not just them; it was every other major media organisation in this country, and it quotes editorials from the Dominion Post, Christchurch Press, Sunday Star-Times, Waikato Times, and Otago Daily Times. With that I finish my comments on the Electoral Amendment Bill. Thank you very much.
TODD McCLAY (National—Rotorua) : It gives me pleasure to stand up and speak on the Electoral Amendment Bill and, in so doing, to support it. I am encouraged by the common sense that has been shown by most parts of the House in addressing this important issue through the bill’s first reading and in the Committee stage. I congratulate the Minister Simon Power on once again meeting an election promise that the National Party made—a commitment that in the first 100 days of office we would repeal the Electoral Finance Act. This Minister is starting to develop a reputation for action, and it is well deserved. This is yet another commitment made and honoured in 100 days in office. I congratulate him on that.
There has been a lot of intelligent debate around the repeal of this Act. Such intelligent and sensible debate probably could have been shown in 2007 when the House last focused on this issue. It is good to see that the Minister has said that once the Act is repealed, all parties in the House—indeed all stakeholders in New Zealand—will have an opportunity to consider a new bill to provide transparency and openness when it comes to how we govern our elections. Again, it is a shame that this was not a possibility in 2007 when the bill was last considered. The commitment that has been shown, and certainly the well-deserved reputation for action that has been developed over the last 3 months, is diametrically opposed to the previous Government’s first 3 months of office. It did not deserve any such reputation.
This legislation is about common sense. In 2007 we heard a lot in relation to this legislation about the fact that we were governed by common sense. It is quite easy for members opposite to have all the answers today. It was shown just a short few months ago when New Zealand voted that the answers were not there. Labour members were found wanting. I am glad that those members have come around to realising that New Zealand deserves good electoral law. They will have an opportunity to show how reasonable they are and how much common sense can be applied to this issue in the coming months.
The people of New Zealand want their say. Some old ladies in Rotorua came to me during the campaign and said they were concerned about this nasty bill they had heard about that had been passed. They asked why they could not stand up and have their say. They are women who for the previous 20 years had been wearing their pinnies with the National Party badge on them, and they asked why they could not wear them any more. The answer was that those pinnies would be illegal, were they to wear them. I feel for some of those people in Rotorua. It was bad legislation, and the Opposition, I am glad to say, has recognised that.
What were others saying about this legislation 2 years ago and last year during the election campaign? The New Zealand Herald stated that democracy was under attack. Those were the words of the New Zealand Herald: “Democracy under attack”. We also read in the New Zealand Herald that if the law was passed it would be Labour’s epitaph. Well, that has certainly been the case. The Electoral Commission referred to the bill’s “chilling effect”, and the New Zealand Law Society and the Human Rights Commission also condemned the bill. The Listener stated during the course of the debate on the Electoral Finance Bill, when it was first discussed in this Parliament, that it was a “great electoral hijack” and a “dog’s breakfast”. Well, I have canvassed opinion pretty widely and I did not see a single dog that was willing to swallow this legislation, but it was rammed through the House.
I spoke a moment ago about the law of common sense and what was said in this very Chamber. With this legislation the law of common sense applies, as it always does with electoral Acts. Finally, when it comes to electoral law, we have some common sense, and it is the legislation we are debating today—the repeal of the Electoral Finance Act—that is sponsored by the Minister Simon Power. Finally, we can see that there will be some common sense.
What were the problems with this legislation out on the campaign trail? I can say that all parties, on both sides of this House, probably spent much more time than they needed to—far too much time—considering the legal ramifications of legislation that was rammed through the House, rather than being out there having open discussion and debate, promoting democracy, and listening to constituents. That is really what I want to say: elections are about debate, openness, and dialogue, and the Electoral Finance Act did not allow any openness, debate, or real dialogue throughout the width and breadth of this country. In fact, the very way it was adopted in 2007 had little to do with debate, openness, and dialogue in New Zealand.
Many hours were spent considering the Electoral Finance Act. In fact, lawyers told me that they were looking forward to the result of the election and that they thought there would be great income for them in sorting out the many problems the Electoral Finance Act would create once declarations were made. The great news is that the lawyers will not have that work to do, thanks to an outstanding result on the part of the National Party. Without a million people in New Zealand deciding that they did not like the legislation and that they wanted a change, many of us today might still be considering the advice our lawyers have been giving us.
A farmer in Waikite, which is in my electorate of Rotorua, phoned me and said that many years ago he had been a strong supporter of the National Party, and that last year during the election campaign he was again a strong supporter of the National Party. He asked me to tell him about the legislation that was rammed through Parliament without enough consultation. He asked what people could do out there in the rural areas, where they want change, growth, more productivity, and where they want somebody to sit down, listen to them, and represent them. He asked whether he could go out and paint his sheep blue. I said that would be a wonderful thing to do. Would it not be a great thing if all the sheep of New Zealand farmers who supported National were blue? I said that the problem with that was who would authorise the sheep. Members cannot tell me that if a farmer in my electorate wants to paint his sheep blue so that people can see exactly which way he votes, he should then have to consider how he will authorise the sheep. Indeed, why does the Act suggest that an authorisation would be needed? Every member of the House who campaigned last year had to have business cards. Those business cards had to be authorised.
Why was Labour, which was in Government but is now the Opposition, so worried that every small piece of literature—every card I put on a doorstep of the thousands of doors that we knocked on in the Rotorua electorate—had to be authorised and, if not for that, we would be breaking the law and the people of Rotorua could not be trusted to decide what they should be doing?
Hon Dr Michael Cullen: Why doesn’t he authorise the lot, not each one individually?
TODD McCLAY: I remember Dr Cullen voting for this legislation, and I am glad that today he will be supporting its repeal. It will be a great thing that he will be able to apply a little bit of common sense to the debate that will be taking place in the coming months. To have this debate means that we will be able to have good legislation in New Zealand and we will be able to agree on the way that we are elected, not only as constituency members of Parliament but also as list members of Parliament, so that all of us can be considered.
It is a pleasure to stand up and speak on this legislation. I commend it to the House and I am very happy to give my vote to supporting it. I believe that through open Government, consultation with the public, and listening to all of those who want to have a say and be involved in election processes in 2011, we will have a great opportunity to make sure that not only is democracy something that is strong in New Zealand but it is also something that every single New Zealander, should he or she wish, will have an opportunity to take part in and to speak about. On behalf of Rotorua I happily put forward my vote to support this bill and to repeal the Electoral Finance Act. Thank you.
NATHAN GUY (National—Ōtaki) : It is important that I make a contribution to the third reading debate on the Electoral Amendment Bill. I remind all those people who are listening this evening that Labour rammed the Electoral Finance Bill through under urgency with very poor consultation and did not take into account the human rights submissions. It was one of the pieces of legislation that brought down the Labour Government—just one of them. The other, I believe, was the social engineering legislation, and then right across New Zealand the electorates said: “We’ve had enough.”
The electoral finance legislation was a bit like a spider web. It went across everything. It moved the campaign period from 90 days right out to a whole year, and financial agents had to have their own physical address on anything that was promoted. In the past, it has been fine to have PO Box—people could be found—but then the need to have the physical address of the financial agent caused many people to decide that the legislation was not well-thought-through. Many MPs could not find financial agents who wanted to put their name to that legislation because no one actually knew how far reaching it would be. That was the real concern that a whole lot of New Zealanders had. The electoral finance legislation was a spider web. It was suffocating freedom of speech.
I need to acknowledge the good work of the Minister of Justice, Simon Power, who has brought the Electoral Amendment Bill to the House this evening. John Key rightly said it will be very important in terms of getting our democracy right. The most important part, I believe, is covered in the explanatory note, which states: “the Government will undertake a considered process involving all parliamentary parties”—something Labour did not do—“and the public to further examine the reform of the electoral finance law. The stage 2 reforms will be enacted in 2010 for the 2011 general election.”
It is hugely important that this legislation is right, because we will all be elected under it at the next election. That is why this Government is very keen to have open dialogue with all political parties to ensure that we get it right. So, on that note, I stand here to support the third reading of the Electoral Amendment Bill.
MOANA MACKEY (Labour) : I will take a very short call on the third reading of the Electoral Amendment Bill because I know the House is desperate to pass the bill, despite the filibustering from the Government benches. All I will say to the Minister, Simon Power, is that we are only in our fourth week of Parliament, and already Government members are having to filibuster their own legislation because they do not know what they doing. They do not know what we are going to do once we get past this legislation. I say to the Minister that we must make sure that in these cross-party talks we uphold the battle of ideas, not the battle of cheque books—that is, “one person, one vote”, not “one dollar, one vote”. Labour says: “Let’s get on and vote on this now.”
MICHAEL WOODHOUSE (National) : I rise in support of this bill being passed. In doing so, I do not want to repeat the mostly erudite submissions that have been made by colleagues on both sides of the House. I do want to add just a little reflection on the Electoral Finance Act.
We have heard a lot that the Act is flawed. It is flawed not only because it was rammed through against the conventions of bipartisanship that underpin electoral law and because it was a handbrake on democracy and freedom of expression but also, in my estimation, because it was a slight on the intelligence of the voting public. It said to the people of New Zealand that they were a bit ignorant and did not actually have the wherewithal to discern the messages being sent to them by political parties, unions, and other people interested in our democracy. I accept that there may need to be a tightening and clarification of the law, but the Electoral Finance Act was so far out of proportion to the problem it attempted to solve that to say it threw the baby out with the bathwater is a huge understatement.
I have a confession to make. I was the recipient of four pairs of National Party - branded socks from former member Katherine Rich, as has been mentioned by the Attorney-General during the second reading debate. They were unauthorised. I wore them nearly every day of the campaign, and I must confess that I probably sat cross-legged, exposing the brand, at the front of campaign debates in Dunedin North. To think that the poor public of Dunedin North were somehow subliminally influenced by such promotion or that I risked breaching the Act over a pair of socks underscores how ridiculous the legislation is.
So I look forward to a new law that has regard for our citizens’ inherent ability to discern the issues and make informed decisions without being treated like children. On the other hand, I would not be at all averse to the replacement legislation, when introduced, containing a provision that prohibits a certain party leader’s yellow jacket. It might be somewhat undemocratic to do so, but it would end the crime against fashion that is being perpetrated against us.
|Ayes 112||New Zealand National 58; New Zealand Labour 43; ACT New Zealand 5; Māori Party 4; Progressive 1; United Future 1.|
|Noes 9||Green Party 9.|
|Bill read a third time.|
Corrections Amendment Bill (No 2)
Part 1 Amendments to Corrections Act 2004
Hon CLAYTON COSGROVE (Labour—Waimakariri) : I do not intend to take a long call on the Corrections Amendment Bill (No 2), for a number of reasons. I will start off by indirectly posing a question through the Chair. It is interesting to note that this bill and the next two bills to be debated tonight under urgency—the Criminal Proceeds (Recovery) Bill, and the Oaths Modernisation Bill—are all previous Labour Government bills in the name of former Labour Ministers.
The bill we are debating now—
Hon Gerry Brownlee: I raise a point of order, Mr Chairperson. I think it is worth noting, for the information of the member, that the House is not in urgency.
The CHAIRPERSON (Eric Roy): The member is correct, but that is not a point of order.
Hon CLAYTON COSGROVE: I am indebted to Mr Brownlee, who, as is apparent from that point of order, is becoming a learned member of the House through his study of the Standing Orders. I appreciate his point of order, and I correct the record. We are not in urgency. I bow to Mr Brownlee’s superior knowledge of the Standing Orders.
Hon Gerry Brownlee: You can say that again.
Hon CLAYTON COSGROVE: I bow to his superior knowledge of the Standing Orders. Not many people, even back at school, have ever accused Gerry of having superior knowledge, but I do it again.
I just note that maybe Mr Brownlee has by accident reconfigured the Order Paper. I am surprised that this bill and the two bills that follow it, all of them previous Labour Government bills in the name of former Labour Ministers—in fact, the Corrections Amendment Bill (No 2) has the name of the former Minister, and now Leader of the Opposition, Phil Goff printed on it—are ahead of all other Government business. Opposition members are gratified at that because, like the Government, we support the bills that Labour, when in Government, put forward. I just wonder whether Mr Brownlee mixed up the batting order, because it is a great honour for the Hon Phil Goff that this bill is one of three pieces of Labour legislation, in the so-called 100 days of manic activity that the National Government is trying to portray to the people of New Zealand, that have been put ahead of all other National Government priorities. I think that is fantastic.
We on this side of the House support this bill. This is serious legislation, and if we look at the opening clauses we see it builds on the history of Labour in Government where, for instance, prison escapes were reduced by 84 percent. The aim of this bill, as seen from the nature of the clauses in Part 1, is obviously to crack down on drug use, eliminate the illicit use of cellphones in prisons, enhance the powers of search in relation to inmates and for those working in prisons, and adopt a zero tolerance towards those nefarious staff members, amongst the generally good and honourable staff, who would pass contraband to prisoners. Penalties will be increased from 3 months to up to 1 year in prison, and the maximum fine will be doubled to $5,000.
We go on to the authorising of the electronic detection and jamming of all cellphones used within prisons. Of course, one of the key drivers for Labour in Government, and for the Hon Phil Goff when he introduced this bill, was the acknowledgment of the huge and fast-moving technological developments that those inside the wire and their supporters outside the wire can use to try to beat and bust the system. The bill also extends prisons’ powers in terms of screening inmates’ mail for unlawful or harmful communications. Mail as well as telecommunications can be subject to surveillance, and of course the bill creates a penalty for publishing unauthorised communications from inmates that prejudice the interests of victims.
It is interesting to note some of the achievements in the track record of the previous Labour Government, which put forward this bill. We made it significantly more difficult for folk to escape from prisons, unlike the large number of escapes from police custody and also from Department of Corrections custody that we have seen in the so-called 100 days of the Minister being in office. We made it more difficult for people to escape from prisons by putting up things like fencing wire, in an extra 17 kilometres of perimeter fences. That is probably a good thing to do, I would have thought, if we want to keep people inside prison—unlike National when it was last in Government. Under Labour, prisoner escapes per 100 prisoners were just one-sixth of those 10 years ago, under the last National Government. As I have said, that means an 84 percent decrease in prison escapes. Drug taking in prisons was less than half what it was when the National Party left office in 1999, and fewer inmates were returning positive drug tests when Labour was in Government.
We support this bill absolutely. I think it allows us to keep pace with, and hopefully jump ahead of, technology. We support the bill.
Hon JUDITH COLLINS (Minister of Corrections) : It was 9 years before Labour could bring itself to put this bill before the House. But having said that, it is a National Government that has to push it through. In response to one of the comments about cellphones made by the member who has just resumed his seat, let me tell members about cellphones in prison.
Many people will have read about the cellphone coverage in Pāremoremo maximum security prison and about the fact that an entire drug-dealing outfit was able to operate from there. Members might well ask how that happened. I have an answer for them. Not only did a Labour Government allow Telecom to put a cellphone tower inside Pāremoremo maximum security prison but it also allowed Vodafone to do the same. That happened under a Labour Government. No wonder it took Labour, when it was in Government, so many years to bring this legislation to the House. How embarrassing can that be?
The first cellphone tower was installed in the year 2000, under a Labour Government. The second one was installed in 2004—yet again, under a Labour Government. Did that Government ever fess up to the public about that? Did it ever confess to the House? Never! There was not a word; nothing. That is why we are having to deal with the issue now.
One of the first things I have had to deal with as Minister of Corrections is cellphone coverage in prisons, and particularly in Pāremoremo maximum security prison. How stupid does someone have to be to allow cellphone towers inside Pāremoremo maximum security prison? One would say that it would have to have happened under a Labour Government.
So when Labour members talk about why, under a Labour Government, people did not escape from prison, we can see why. Why would they need to? They can run all their own crime from inside, run their own cellphones, have underfloor heating, and have plasma screen TVs. In fact, the prisons that were built are so luxurious that, before prisoners were let into Spring Hill prison, the Department of Corrections charged law-abiding people to stay there overnight. As I recall, it was something like $230 per night, and that indicates exactly how luxurious it was. Why would anybody in their right mind want to escape?
Apart from cellphone coverage, one of the other things the Government has had to deal with is the practice of taking property inside prisons in order to cause crime. Just the other day I went to the CB Block in Pāremoremo maximum security prison—
Hon Steve Chadwick: Did they give you a pōwhiri?
Hon JUDITH COLLINS: No, I do not do pōwhiri when I am on Government property, as the member should know.
Hon Steve Chadwick: Ooh!
Hon JUDITH COLLINS: I say to Mrs Chadwick that they showed me that prisoners have access to broken mirrors, which they can then use to attack the guards—they showed me that. A Labour Government allowed that to happen. I can tell Mrs Chadwick that this Government is dealing with it.
The prison guards showed me what else they have to put up with. They put up with prisoners who have access to lighters and paper, who cause fires, and who attack guards with all sorts of implements. The Labour Government could not deal with that. Instead, the only response from Labour, just before the last election, was to bring in a corrections amendment bill.
Prison staff have to deal with very, very difficult situations. They deal with the worst offenders in the country. That is why they are there. One of the things that prison officers have said is that they have felt under siege, not only within the prison but actually from the political correctness they have had to put up with after 9 years of a Labour Government. It is amazing to hear prison staff, union staff, saying that they have a Minister who listens to them, who cares about their safety, and who is prepared to do something about it.
Hon Steve Chadwick: But doesn’t do pōwhiri.
Hon JUDITH COLLINS: I am amazed that the member wants to keep talking about pōwhiri. Actually, that member should spend less time at pōwhiri and more time getting in behind and seeing what happens. That sums up the entire 9 years of the Labour Government.
Labour was always looking at functions and protocols but never looking at what was needed. It never got in behind to find what conditions the staff were working in and what they had to put up with. In fact, I also found out the other day when I was at the prison that kiosks have been built for prisoners, for their rights. The prison staff showed me what happens to these kiosks when the prisoners get to them, attack them, and break them apart. They get glass—or Perspex—out of them. They get iron bars out of them. They get all those weapons, which the previous Government required the Department of Corrections to have in those jails—required it to have.
Apparently, prisoners cannot go along to the library and get a book or a manual to show them what their rights are. Instead, prison staff have been put at risk by 9 years of a Labour Government that did not do anything to address these issues. Instead, all the response it gave was to build more prisons, at $660,000 a bed—$660,000 a bed, and, actually, in most parts of the country that buys two houses—so it could put in underfloor heating and give prisoners everything they could possibly want. Then, of course, under a Labour Government, people were queuing up to get into those prisons—and they certainly did. In answer to that member who sat down before—thankfully—I say that the previous Government has no record to be proud of.
Hon David Carter: Name him and shame him!
Hon JUDITH COLLINS: I say to Mr Clayton Cosgrove that there is no record to be proud of. What there is, is a record of 9 years of shame in the law and order portfolio. All Labour could do was build more prisons. All it could do was waste money, and it did not look after the staff, it did not look after the prison officers, and it did not—
Hon David Parker: I raise a point of order, Mr Chairperson.
The CHAIRPERSON (Eric Roy): I think I know what it is going to be.
Hon David Parker: That foaming exposition of general Department of Corrections policy was in no way related to the Committee stage of this bill. The Minister could, of course, take a call at a later stage—
The CHAIRPERSON (Eric Roy): I am on my feet. Please sit down. I understand the member’s point. I just make the comment that members have got into the habit of slipping a few things into these points of order by inference, insinuation, and things like that. The member was partly responsible for that. I want us to tidy up on that. That is my first point. The second point is that I was going to give a general caution when the Minister finished, because I feel that both the speakers we have had at this point have not immersed themselves in the detail of Part 1. This is not a general debate and I ask members to address Part 1 and the material that is in it.
Hon David Parker: Mr Chairman, were you upholding my point of order?
The CHAIRPERSON (Eric Roy): Yes, I was.
Hon JUDITH COLLINS: Speaking to the point of order—
The CHAIRPERSON (Eric Roy): Does the member have another point of order? I have already ruled on that.
Hon JUDITH COLLINS: Well, Mr Chairman—
The CHAIRPERSON (Eric Roy): I have ruled on it, so you may finish your call.
Hon JUDITH COLLINS: Very generous, Mr Chairman.
The CHAIRPERSON (Eric Roy): Thank you. Is the member going to finish her call?
Hon JUDITH COLLINS: I am all right.
JACINDA ARDERN (Labour) : I acknowledge to members—obviously I am a new member here—that following that intervention from the Minister I despair for the justice sector, and particularly for corrections. That was a very un-ministerial intervention. I would have expected at this stage of the debate to be discussing the substantive issues within the bill. Instead we heard from that Minister a tirade of what I would call half-truths. There were claims that Spring Hill Corrections Facility was charging people to visit the prison. To clarify that I say yes, there was a charge; it was for a charitable event put on by Spring Hill Corrections Facility to raise money for the community, and those who went along to participate described it as a chilling experience.
In dwelling on that issue, I say that the Minister mentioned the escapes from prison under this Government. There were fewer escapes from prison under Labour; we pointed out our record of a reduction of 84 percent in escapes. The Minister claims that was because prison was such a pleasant experience. The new Minister came in and, overnight, prison became a chilling-to-the-core experience, it became a God-awful place, and suddenly prisoners were running for the hills. In fact, they are now escaping because the new Minister is in place—
Paul Quinn: I raise a point of order, Mr Chairperson. As I understood your earlier ruling, you ruled that the Minister was on the edge of speaking to Part 1. We are now, in fact, getting a—
The CHAIRPERSON (Eric Roy): I take the member’s point. In reality, even if one member strays that does not justify another one responding to things that may be irrelevant to the bill. There are ways in which members can make those illustrations, as long as they draw them back to some portion of the part of the bill that is under debate. That does not exclude analogy or comparison. I ask the member to continue.
Hon Clayton Cosgrove: I raise a point of order, Mr Chairperson. Without challenging your ruling, could I seek some clarification? Are you now saying that if a Minister makes, through the Chair, a number of claims that may be incorrect—to be as charitable as one can—there is an inability to rebut those claims within the debate, even though the Minister has brought them into the debate? I am sure my colleague was going to go on to the specific part and clauses of the bill, but she was first addressing things that the Minister had said, which were factually incorrect. I just seek your guidance.
The CHAIRPERSON (Eric Roy): In effect that is right, and I should have moved earlier. It has been a two-way thing, and we are just tightening up on that. It is probably my error that I did not lean on members a little earlier. This debate is specific to Part 1. Members can, as I say, make those comparisons. If there is inaccuracy, a response must be drawn back to the bill.
JACINDA ARDERN: Thank you for that clarification. I do not want to hold up the Committee’s discussion of this bill; obviously on this side of the Chamber we are in agreement with the bill going forward, given it was Mr Goff’s. I want to point out that we are, in fact, debating an amendment bill: an amendment to legislation that was drafted in 2004, again by the Labour Government, despite the claims, again by the Minister, that there were 9 years of inaction by Labour. That is, again, simply a half-truth and an outrage. I am very pleased that we are again able to debate, in this evening’s sector of discussion and debate, another one of Labour’s well-crafted bills.
There are two things that I want to dwell on. The reason for this bill was not to change dramatically what was contained in the original corrections amendment legislation; it was to tighten up, based on technological advancement, provisions that already existed in that legislation. Obviously the Government agrees with that tightening-up, as well. There have been technological advancements and we have, through practice, recognised from the implementation of the original legislation that we could improve certain provisions around contraband.
I want to dwell specifically on some of the outcomes of the Law and Order Committee’s discussion around Part 1 of the bill. The select committee came back to the House on clause 22(5), which stated: “knowingly has in his or her possession any unauthorised item while in prison.” I want to dwell on that. The word “knowingly” was used in that clause. The select committee came back and said that was perhaps too open for debate and was not clear enough for the courts, and, I think, very sensibly recommended that we replace “knowingly” with “without reasonable excuse,”. That shifts the onus from the court having to determine what knowledge was held by the individual or the accused and reduces the likelihood of innocent behaviour being captured. I think that is rightly so. Because the language in that provision has been tightened up, we have seen an increase in penalties attached to that particular provision as well, and that makes absolute sense.
I will not dwell on the other recommendations made by the select committee that roamed across Part 1 because, as members will see from the commentary on the bill, they are quite common-sense ones and merit the support of members of the Committee.
I would like to dwell, though, on one other aspect of Part 1: the discussion around contraband. We have already discussed the issue that we— again, I say “we” because the original bill was drafted by Mr Goff—have tightened up the search and seizure powers, the provisions regarding strip searches, and done a number of things that will enable us to tighten up on the occurrence of contraband. One of the biggest contributors to contraband, however, is the issue of the management of prison numbers and the ability of prison staff to deal with those numbers. I think the Minister has questions to answer on whether she believes the level of the current prison muster, which is set to increase under this Government’s flow of legislation, does anything to prevent offending. It does nothing to address the risks that we know contribute to offending, but rather looks at the other end of offending, around sentencing.
Hon SIMON POWER (Minister of Justice) : I listened with interest to what Jacinda Ardern had to say about various aspects of Part 1 of the Corrections Amendment Bill (No 2). In a former life I was on the Law and Order Committee, which considered this bill. I thought members might be interested in understanding a little more of the background to clause 6, which—interestingly enough—is the clause relating to religious and spiritual needs. This is, by and large, the “Catholic clause”—
Hon Clayton Cosgrove: Careful!
Hon SIMON POWER: I tell Mr Cosgrove that I am not criticising it; I am one of them. At the time we asked the then Minister of Corrections, Damien O’Connor, about it. Going by his surname, one would think he would have a bit of an interest in this clause. Clause 6 is particularly interesting because it amends section 79 of the Corrections Act by adding subsection (3): “Section 129(a)”—which presumably contains a restriction on alcohol in prisons—“does not apply to a prisoner who, during a religious service (whether inside or outside a prison), (a) consumes a small quantity of wine provided at the service by a prison chaplain or minister of religion for the purposes of the Eucharist, Holy Communion, Mass, or Communion, with the express authority of the prison manager or chief executive;”. There was quite a lot of debate in relation to the phrase “whether inside or outside a prison” about why any prisoner would be consuming wine outside a prison, and it was the subject of an interesting discussion.
I recall that the new subsection prompted quite a lengthy discussion at the select committee about other religious affiliations whose followers might want to participate in a particular ritual or ceremony that might or might not involve a small amount of alcohol. Then, from my memory, there was quite a lengthy discussion about whether these prisoners would be able to get hold of large quantities of these particular imbibements—if that is the right word. We had quite a long discussion about how much wine would be consumed while the ceremony was undertaken. More particularly, we discussed what it meant for religious orders that might have another—
Hon Clayton Cosgrove: Did you take a practical test?
Hon SIMON POWER: Well, it was an interesting discussion about whether we were, in effect, allowing prisoners with a religious affiliation that involved consumption of a small amount of wine—whether Catholic or Anglican; I am sorry, but I am not too good at getting past the Catholic rituals; I am not sure what the other rituals involve—to consume alcohol.
As I recall it, a further discussion about how much alcohol was involved became quite interesting and lengthy. We ended up talking—and I am getting to the point—about the reason for paragraph (b) of new subsection (3): “consumes a small quantity of wine or other alcohol provided at the service as part of the ritual of the religion in question, by the person conducting the service,”. The problem was that we had created an exception for people who were being held courtesy of Her Majesty in one of our prisons, but we also had to make an exception in statute in order for the visitors to the prison—the persons conducting the service—to be able to consume as part of the ceremony being undertaken. Once we had sorted out how the inmates could consume a small amount of wine as part of a religious service, we then had quite a lengthy discussion about how the people coming from outside the prison with the alcohol or wine were themselves able to consume it.
Then it got tricky: what if the person conducting the ceremony was an inmate? The question then became: where did that person get the alcohol from? Members can imagine that things moved all over the place in discussion of Part 1, although, as Jacinda Ardern pointed out, we had very straightforward discussions about the search of property, prisoners in cells, and staff lockers. At that time there was quite a concern that prison officials themselves may have been involved in the trafficking of contraband into prisons. There were lengthy discussions around issues relating to telecommunications, and the like. But I can tell the Committee that we spent a comparatively great deal of time on the issue of whether there should be alcohol in prisons, at all.
It took quite a lot of time to craft paragraphs (a) and (b) of new subsection (3). Members will notice that in the original bill there was only the one subsection, which went like this: “does not apply to a prisoner who, during a religious service (whether inside or outside a prison),”—I could never get my head around the “outside a prison” bit—“consumes wine provided at the service by a prison chaplain or minister of religion for the purposes of the Eucharist, Holy Communion, Mass, or Communion.” We had to get rid of that subsection—split it into paragraphs (a) and (b)—to make sure we caught both potential breaches.
There was then a much wider discussion about religious services that did not involve wine. It got trickier, because there was the question of whether inmates were legitimately participating in these ceremonies, or were using them to divorce themselves from the day-to-day running of prison routines—seeing the ceremonies as a way through the process of serving time in prison. I think I recall a discussion about the genuineness of participation in these particular areas. As the Hon Clayton Cosgrove will know, if there is participation, for example, in a Catholic service, certain things need to have occurred during the participant’s life: a first Holy Communion, and—I guess at a later stage—confirmation, although—
Hon Clayton Cosgrove: Baptism comes first.
Hon SIMON POWER: Oh, baptism does come first; Mr Cosgrove is quite right. So members can see that these sorts of bills often appear straightforward at first and as if they are the sort of legislation that could not possibly be opposed—and we do not oppose this; we think that the final realisation by Labour that it had to do something in this area was to be welcomed—but I again draw the Committee’s attention to this point: it is often the smallest clauses in the most effective bills that deserve the most attention.
DAVID GARRETT (ACT) : I will follow on from the Minister’s comments here, and say that this legislation points to how misguided the members of the Committee can be. This bill, the Corrections Amendment Bill (No 2), amends the Corrections Act, which is yet another example of misconceived legislation, in the same way the Sentencing Act is. In the ACT Party’s view, the ideal would be to scrub both of them and start again. They are both predicated on similar notions. In the case of the Sentencing Act it is that no one should be locked up unless he or she absolutely has to be, and in the case of the Corrections Act, which this bill amends, it is that the poor prisoners must have all their rights intact, aside from their right to liberty. I thought that right included the right to vote, but apparently a prisoner has to be fairly bad to lose that right.
I noted, too, on looking through the bill—I am a new member and had not seen it originally—this “Religious and spiritual needs” clause, clause 6. I was brought up a Catholic, and I am assuming—
Hon Clayton Cosgrove: Oh, lapsed?
DAVID GARRETT: —oh, well and truly lapsed, I tell Mr Cosgrove—that Mr Cosgrove was, too. But, from memory, I think that wine was only ever produced on extremely special occasions. They used to carry around some big frame thing, I think, but at most Communions, when I was dragged along as a child, we had the little piece of ice-cream cone and that was that. So the fact that there was any debate, at all, about introducing alcohol into prisons really demonstrates how utterly, utterly naive these members of the previous Government were. They assumed that the prisoners who had miraculous conversions to Christianity absolutely needed to have Communion. Those converted prisoners could not function without it; their spiritual soul would die. Their new-found religion would wither on the vine unless it was nurtured by the blood of Christ, in prison. Well, what utter nonsense! That assumes that they were not going to steal it; not misappropriate it in some other way, and not hoard or misuse it. It is utterly, utterly absurd.
But it all comes back to the assumption—in my view a totally ridiculous assumption—that prisoners should have the same rights as the rest of us. A person becomes a prisoner only if he or she has broken society’s norms. We talked about gang members in the last session. Gang members are outlaws—and I saw Mr Cosgrove listening with some interest, I think—who have proudly said: “We’re 1 percent, bro! We’re the ones who take no notice of the rest of you. You’re all just a pack of w٭٭٭٭٭٭.” Members can fill in the asterisks for themselves. But we bend over backwards to give gang members these rights. Why? It is totally absurd. These people are criminals.
I was in Arizona a couple of years ago, where there is no problem at all with saying that when people have committed offences and been convicted, they automatically that day lose the right to privacy. Their faces, their charges, and their sentences go up on the Internet. They do not have the right to wear what they like. They do not have the right to wear the sort of haircuts they like. They do not have the right to have salt. They do not have the right to smoke. They do not have the right to have sugar in coffee. And people see that as totally sensible. But here we are still debating whether prisoners should have Communion wine, and, if so, under what circumstances. Well, how silly—how utterly silly!
But having said all of that, I tell the Committee that obviously ACT will support the bill, because it is too big a task, frankly, at this point to rewrite the Parole Act and the Sentencing Act. We have to start somewhere, so I suppose we can pass small steps. What do people say? The longest journey starts with a small step. But I believe that clause 6, which amends section 79, really does say it all about the utter naivety of the previous Government.
SIMON BRIDGES (National—Tauranga) : It is good to speak to Part 1 of the Corrections Amendment Bill (No 2), and I must say I have been very interested in the content of the debate, at least in respect of clause 6, “Religious and spiritual needs”. I was very interested to hear what the Hon Simon Power had to say. It is obviously an interesting and important clause, which, as he says, attracted a lot of attention in the Law and Order Committee. For my part, as an Anglican, I want to say that the emphasis on Catholicism is not necessarily apt. Clause 6 is open to interpretation and could well cause the courts some problems. In subclause 3(a) the words “consumes a small quantity of wine” are open to interpretation. What to one person is a small quantity, to another may well be quite a lot. In the Anglican Church there are two ways to take Communion: one can dip a tablet in the wine or take hold of the cup. I suspect that taking hold of the cup could well fall foul of the law, whereas dipping the tablet in the wine would not. It will be interesting to see how the courts interpret that provision.
But, more broadly, Part 1 is the lion’s share of what is a very good bill. Its theme and contents are in Part 1. It is good that the Labour Government introduced this bill. It is a shame it did not ever get around to passing it, and doing something about the problems in the corrections system, which this bill will address.
David Garrett: It had only 4 years!
SIMON BRIDGES: That is right. It is a ridiculous situation where criminals find it as easy to get drugs and to do drugs inside prison as outside prison. Part 1 speaks to that, as well as to a number of other issues. It is a situation we have been faced with for 9 years under the Labour Government but which it did nothing about. Drugs get into prisons it seems, at alarmingly high rates. Part 1 also addresses the use of cellphones, which allows communications with the outside world, and, indeed, criminal conspiracies to occur from inside prison. It deals with drugs coming in and cellphone communications going out that, effectively, as has happened in the past, allow criminals to keep on going as they always have, whether they are inside or outside prison. There are many practical consequences from Part 1. It will clamp down on cellphone use, clamp down on drug use, and, interestingly, clamp down on mail going in and out of prison. It gives prison authorities the right to deal with mail in a much more discriminating fashion. That is for the good. I have certainly been involved in cases where mail coming in and out has caused problems. For example, mail has been sent out from prison to potential witnesses in trials telling them what to say at court, intimidating them, and causing them all manner of troubles. That is just the mail that is intercepted, and that is not good enough. Part 1 does something about that.
But it is not just the practical consequences of the bill that are worthy of comment. Fundamentally, it sticks in the throat of ordinary, decent Kiwis, of which there are many, many in my electorate of Tauranga, that drugs go into prisons, that prisoners can keep on doing drugs with impunity, that cellphones go into prisons, and that prisoners can keep on making calls to the outside world whilst in prison. Essentially, under Labour they could keep on doing in prison what they had always done on the outside. As I say, that is not just wrong, or something that has stuck in the throat of ordinary Kiwis; it is repugnant.
|Ayes 112||New Zealand National 58; New Zealand Labour 43; ACT New Zealand 5; Māori Party 4; Progressive 1; United Future 1.|
|Noes 9||Green Party 9.|
|Part 1 agreed to.|
Part 2 Amendments to other enactments
Hon SIMON POWER (Minister of Justice) : I will take just a quick call on Part 2, and, in particular, clause 32(2)(b), which relates to matters of interception of a private communication and proposes an amendment to the Crimes Act 1961 by further amendment of section 216B(4). I think it would be worth the Minister in the chair, the Hon Judith Collins, giving the Committee a bit of a guide on this issue of interception of communication, and, in particular, how crucial that form of surveillance will be. Members will note that my request is in direct reference to those matters as they relate to the Crimes Act. This is, from memory of what was said at the Law and Order Committee, a very complex matter that involves both Vodafone and Telecom having agreements of understanding—or something like that—with the Department of Corrections.
The other interesting thing, as I understand it, is that no one technology around a cell tower will work necessarily at all prisons. Different types of technologies have to be used in different types of prisons, depending on their configuration, and, obviously their location. For example, at the old Mount Eden Prison, my understanding from the select committee, was that should those towers close to Mount Eden be blocked for the purposes of cellphone use within that prison—of course it begs the question why inmates have cellphones in the first place—there may be a risk that that will affect the wider population. So different technologies are used. I know that the Minister in the chair has a particular interest in this matter because I heard her discuss it briefly in Part 1. But I think that in reference to the Crimes Act and the amendment to that enactment, it would be worth the Committee getting a bit of further information from the Minister.
Hon JUDITH COLLINS (Minister of Corrections) : I thank the member who has just resumed his seat, the Hon Simon Power, for that very helpful contribution to Part 2. He is quite right: there is very, very involved technology in terms of this area. The reason for that is the topography of the area, and what else is involved around Mount Eden Prison. It is in an extremely built-up area; the motorway is right beside the prison. There are all sorts of issues, but I can tell the Minister that the Department of Corrections has made very good progress in that regard, and we are getting far better cooperation from the other agencies that need to be involved in this issue than we had before the election. Certainly, since the election the department seems to have realised that this is an extraordinarily important issue.
As that member has referred to, this issue is very important going forward. I have certainly been appalled by the knowledge that in the Operation Web case there was so much use of cellphones in and from Pāremoremo maximum security prison, including all sorts of guises used in order to access it. Then we found out that it was our own department, under a Labour Government, that not only allowed this to happen but also entered into signed contracts between the Department of Corrections, Vodafone, and Telecom to have cellphone towers placed inside Pāremoremo maximum security prison. That was one of the stunning results of my asking questions about what was really holding up this issue.
Of course, the department is taking this extremely seriously now. Its staff are working very well with Telecom and Vodafone to address it. As the member quite rightly said, it is very difficult to address the issue of cellphones cited inside the prison, because blocking mechanisms have to be used to stop cellphone access from within the prison. At the same time, cellphone access needs to be allowed for the legitimate users around the area of Pāremoremo. From what the Department of Corrections has said in its reports to me, it looks like that is now progressing.
We had some issues with some of the providers, and one in particular that needed to have some discussions about just how serious this issue is. We cannot have our prisons, particularly our maximum security prisons, being used as a base for major drug-dealing as they were under the previous Government. It is extremely important that we give the Department of Corrections the power and ability to deal with this.
I heard all sorts of excuses about the fact that cellphones did not used to be as small as that back then, so nobody thought about the possibility. Frankly, that is just rubbish. Many of us had very small cellphones in the late 1990s, in 2000, and in 2004. SIM cards have been around for a very long time, too—particularly for those who use the Vodafone network. We understand that. There have been all sorts of excuses handed up, and none of them have been acceptable. At the end of the day, we did not see the previous Minister getting excited about this, and we did not see ministerial involvement until the change of Government. That is one of the jobs that Ministers have to do: they have to provide leadership, they have to say that standards are going to be expected, and they have to be held to account.
Certainly, it is incredibly important that this legislation goes through, and that is why we are very supportive of it. I am sorry to hear that the Greens are not supporting it. I do not know why they would not want to have this provision dealt with. I am pleased that Labour finally brought this legislation to Parliament before it was thrown out of Government, and we are very happy to help get it through the House.
|Ayes 112||New Zealand National 58; New Zealand Labour 43; ACT New Zealand 5; Māori Party 4; Progressive 1; United Future 1.|
|Noes 9||Green Party 9.|
|Part 2 agreed to.|
Clauses 1 to 3
NATHAN GUY (National—Ōtaki) : It is worthwhile making a contribution, particularly on clauses 1, 2, and 3, including the title. I can think of a whole lot of names for this bill: the “Corrections Amendment Bill (No. 2)”, or the “Labour Sitting on its Hands and Doing Nothing Bill”, and the list could go on. Fortunately, this is a Government that is keen to progress things and get on top of this legislation. It is important to realise the parameters of this bill. We have had some very good contributions from the Committee this evening, and I thought it worthwhile summarising this bill and what it captures. It captures a lot, and it has gone through a very robust select committee process. It will toughen up what happens at the moment in the Department of Corrections, and I believe that it is very important that we do more. The Minister, Judith Collins, made a very good contribution, talking about the cellphone towers and the current plans the Minister has lined up in that regard. They are simple little things like extending the powers for searches, which one would presume was common sense. This is making another important step progressing towards that.
In regard to toughening up on contraband—we all know that this stuff is smuggled through; it is thrown over the fence. Things have to improve in that regard. We have heard the Minister talk about prohibiting communication. These prisoners are very shrewd. They can get on the cellphone or the landline and have coded conversations. Some of them can run gangs from inside the prison fence. This bill goes quite a long way towards toughening up the law in that regard.
We had very good contributions from other members on this side of the Chamber this evening. Simon Power talked about the special contribution made through the select committee process. All in all, this bill is a step in the right direction, and I commend the Minister for bringing it forward to the Chamber this evening. This is a very, very busy Government. We are getting on, and we are trying to make our communities safer.
METIRIA TUREI (Green) : I will make a very brief contribution to this debate about the Green Party’s opposition to the Corrections Amendment Bill (No 2). My former colleague Nandor Tanczos spoke on the bill’s first reading and was involved when this bill was at the Law and Order Committee. He opposed this legislation at the first reading on behalf of the Greens, and none of the concerns that he raised in the earlier stages have been dealt with.
I note that the Minister of Corrections spent quite some time at the beginning of the Committee stage of this bill talking about how dangerous it was for staff in prisons, but this legislation actually attacks staff in prisons. The Minister herself has displayed contempt for staff in prisons in the past, and she did so again most recently today, with her failure to show any support for the head of the Department of Corrections.
It is a bit difficult to take the Minister’s concern for prison staff seriously when she is passing legislation that will increase the powers of search in non-prisoner accessible areas, thereby increasing the level of surveillance on staff at a time when staff are under siege—that is absolutely true—when the political environment for Department of Corrections staff is extremely difficult, and when the financial support for prison staff in terms of the resources they need to manage the culture inside prisons is very difficult for them to access. What do we do? We end up passing legislation in this Chamber that makes it even more difficult for staff to feel confident that they have the confidence of this Parliament and of the community to do the job that is so important—that is, to protect the community and keep the community safe. The Green Party will not support this legislation.
CHESTER BORROWS (National—Whanganui) : I rise to add a voice in support of the Corrections Amendment Bill (No 2), in its closing stage. A lot has been made by members on the other side of the Chamber about the reduction in the number of prison escapes during the tenure of the last Government, in comparison to the number of escapes that occurred before then. The point needs to be made that people liked being in jail when Labour was in charge. We need to make another point—if prisoners do vote, they tend to vote Labour. If they take the time to vote—and they do have the opportunity to vote—it is the natural assumption one can make from looking at the demographics of those who are in jail. If people know anything about the nature of law and order issues and who is committing offences—or at least who is getting caught, why they are getting caught, and who is getting banged up; I am prepared to accept that—they tend to come from the demographic in society who vote Labour. That is just the way it is. It is stating a fact, and members opposite should not take umbrage.
This bill complements recent security and surveillance improvements, such as the new fences that the Hon Clayton Cosgrove mentioned, cameras, motion detectors, which sounds a bit messy but I guess they are there, microwave sensors, and expanded drug-dog teams. The point is that over the time of the last Government, technology increased to such a degree that it was easier to import contraband into prisons.
There has been growth in the gang population in prisons and in their ability to continue to do business there, and technology has advanced such that cellphones have become smaller and smaller, so they can be hidden in the smallest of dark and inaccessible places. The National Party was accused of having done nothing about cellphone carriage in those dark and moist places when it was previously in Government, but the fact is that the last time National was in Government cellphones were the size of a brick. It was a hell of a lot more uncomfortable then to carry one of those around, hidden on one’s person.
Over the last 9 years National has consistently highlighted the unacceptable levels of contraband within prisons. It was interesting to note, for instance, that Rachealle Nāmana, the killer of 23-month old Lillybing, who was released from prison, claimed that while she was in prison she had access to a range of drugs, including P, and she downloaded pornography on to a cellphone. In 2006 a prostitute was found on site, in the prison. An inmate had placed an order by cellphone for a prostitute to come to the prison. Again in 2006 an inmate of Christchurch Men’s Prison was sending obscene text messages to women. Of course we know that inmates have been able to intimidate witnesses and staff members, and have been able to use contraband to further their exploits while they are in prison.
It is timely that this legislation is coming through. It is an indictment on the previous Labour Government that it was unable to move forward its own legislation. It was so besotted with trying to move legislation such as the Electoral Finance Act, and the emissions trading scheme, through the House that this slipped right past. I am very pleased to be part of a Government that is moving forward with these very necessary legislative devices to be able to control behaviour in prisons. To pick up on the point made by the previous speaker from the Green Party, I say that we are very much concerned about the safety of prisoners. None of us would like to be in jail, and none of us would like our family members to be there, but the fact is that prisoners are at risk when they are in jail and they need to be kept safe. That is the nature of holding people in custody.
But we also need to be very concerned about the ability to intimidate and to assault people who are employed within the corrections system. We know that people have been intimidated. Staff members have been contacted at home, and the heavy has been put on them to carry contraband into prisons. We notice too, with the proclivity of gang involvement in prisons and around prison areas, that they have access almost whenever they want it to get contraband in and out of jails, one way or another, using mules to carry it. It is interesting to note, too, the ability of gangs to intimidate people who live in State houses, as reported on the front page of the Dominion Post last week. Of course, this occurred at Pōmare, which is not very far at all from Rimutaka Prison. Those gang members who have taken over a whole neighbourhood are very much in danger of taking over whole prisons. This legislation is a timely antidote for the suppurating mess that our prisons have become under the previous Government.
|Noes 9||Green Party 9.|
|Clause 1 agreed to.|
|Noes 9||Green Party 9.|
|Clause 2 agreed to.|
|Noes 9||Green Party 9.|
|Clause 3 agreed to.|
- Bill reported without amendment.
- Report adopted.
Criminal Proceeds (Recovery) Bill
Hon SIMON POWER (Minister of Justice) : I move, That the Criminal Proceeds (Recovery) Bill be now read a second time. I thank the Law and Order Committee, of which I was a member, for its careful consideration of the bill. I am confident that the amendments recommended by the committee will improve the operation of the legislation, but I need to alert the House that there will be a further Supplementary Order Paper to consider in the Committee stage.
The committee listened to 14 submitters and received 26 submissions while considering the bill. There was a range of views on different aspects of the bill, but in general submitters supported the bill’s aim of preventing criminals from profiting from crime. The unfortunate reality is that crime really does pay. Too many criminals are able to retain property and income acquired through criminal offending by distancing themselves from those committing the crimes. This weakness in the existing criminal forfeiture regime enables gangs and career criminals to amass more money to fund more crime. The current legislation, the Proceeds of Crime Act 1991, did not provide enough of a disincentive to deter crime. This bill seeks to remedy the problem by introducing a new civil forfeiture regime under which assets and profit gained from crime can be confiscated without a conviction. It will be sufficient to prove, on the balance of probabilities, that a person has benefited from significant criminal activity.
This bill was introduced by the previous Labour Government. At the 2005 election it promised to pass into law a civil forfeiture regime to allow gangs to be stripped of the proceeds of crime. That never occurred. It surprised me, because this bill was on the Order Paper for quite a considerable period of time before the House lifted, going into the general election. A number of law and order bills were sitting there waiting to go, and would have been supported by the then National Party had they been included in the former Government’s final urgency motion, which they were not. One can assume only that it was not a lack of will that saw this particular set of circumstances transpire, but rather the arrangements that Labour had with its support parties, because those urgency motions in Labour’s last weeks as a Government simply did not allow it to proceed with this legislation.
Hon David Parker: Your opposition to the urgency motions.
Hon SIMON POWER: Well, we were actually in favour of this legislation, and had agreed to support it for quite some time, I say to Mr Parker.
Hon David Parker: Not the urgency motion.
Hon SIMON POWER: No, we did not support the urgency motion, but that was not our issue. The then Government was left at a distinct disadvantage on the platform during the election campaign, when it could have progressed this legislation rather than some less significant legislation that I recall was progressed at that time.
This measure should improve the level of compliance with international obligations to combat money-laundering and terrorist financing. Creating a civil forfeiture regime strengthens our mutual legal assistance framework, enabling New Zealand to assist other countries more effectively in recovering the proceeds of crime. The speed and ease with which funds can be transferred internationally make it imperative that countries cooperate to ensure that criminal proceeds transferred offshore can be seized and returned to their country of origin. I want to be clear, however, that it will still be necessary to obtain a criminal conviction before property used to commit crimes can be confiscated.
I now turn to the changes to the bill recommended by the Law and Order Committee. Part 1 contains interpretations of terms used in the bill. The main substantive change, which I support, is the specification that the New Zealand Police will be the agency responsible for civil forfeiture. This was a matter of some discussion and some controversy at the select committee. My recollection is that originally the then Government had intended the Serious Fraud Office to hold that role, but the select committee formed the view that the New Zealand Police would be the most appropriate agency. This change will provide the public with clarity and certainty about where the responsibility lies, and it will empower the Independent Police Conduct Authority to hear related complaints, which may address concerns raised in public submissions about the potential for the misuse of civil forfeiture powers. Having carefully considered advice from the New Zealand Police on proposals to establish an independent specialist group to undertake the new civil recovery functions, the committee recommended changes to the bill that would afford police operational flexibility while ensuring the head of the new group would be directly responsible to the Commissioner of Police. This was an extremely important point, and, on my thinking back, it seemed really complicated at the time we were discussing it in the committee; when I just say it out loud in the House now, it seems to make perfect sense.
The changes to the bill include replacing references to a recovery body and its director with references to the Commissioner of Police. I am confident that the New Zealand Police is the agency best placed to assume this new role and carry it out effectively and efficiently. The bill targets organised crime, and the police have the knowledge and expertise to investigate and take proceedings effectively in respect of gangs. Civil forfeiture complements existing policing roles and related crime prevention initiatives. The New Zealand Police will be able to maximise efficiencies by leveraging existing operational infrastructure, policies, and procedures, such as information sharing with other agencies.
Part 2 of the bill sets out the investigative powers under the new regime. It provides for search warrants and production orders, both of which can be issued only by judicial officers. The bill would also have introduced examination and production notice powers, which could have been issued by the Commissioner of Police, but the notice powers were a concern for some submitters on the bill, who considered that such powers could be subject to abuse because of the lack of judicial oversight of their use. These matters have been widely canvassed by the Law Commission in its report on search and surveillance powers. The commission recommended against the provision of notice powers for criminal investigative purposes. Although it is possible to draw a distinction between civil and criminal forfeiture investigations, the committee considered that, on balance, some of the concerns raised in submissions were equally applicable to civil forfeiture investigations, and that there was no compelling reason to diverge from the Law Commission’s recommendation. Accordingly, the committee has recommended amendments to remove the production notice power and replace the examination notice with an examination order power. The committee has also recommended changes that would reduce the duration period for production orders from 3 months. I am confident this change will not impair the police’s ability.
Part 2 also provides for information to be shared with the Inland Revenue Department, as a result of submissions from the Institute of Chartered Accountants and concerns raised by the Inland Revenue Department. The committee has recommended the insertion of new clause 167A, which creates a privilege for tax advisers that is similar to professional privilege for lawyers. It is also consistent with the privilege available to tax advisers. The committee has also recommended a number of technical amendments to the information-sharing provisions for clarity and workability.
As I said earlier, I signal my intention to put forward a Supplementary Order Paper. As a result of cases heard since the bill was referred to the select committee, some problems have been identified with the mutual assistance provisions in the bill as reported back to the House.
I thank all members of the Law and Order Committee, and in particular Martin Gallagher, who chaired that committee in a gentlemanly, gentle, and laid-back way, but who retained a certain control which was very elusive and hard to pin down. The Criminal Proceeds (Recovery) Bill will greatly enhance the police’s crime-fighting capability, and will enable New Zealand to better meet its obligations in the international arena. I commend this bill to the House.
Hon LIANNE DALZIEL (Labour—Christchurch East) : I am very pleased to see that the Government has seen the error of its ways and decided to progress this very, very good bill in its 100 days of action. I thank the Government for including the Criminal Proceeds (Recovery) Bill in its 100 days of action. It has turbocharged the bill; it is just great to see that.
I am glad to see that this Government rates this bill as more worthy than the measures it has been talking about in the media over the last couple of days, measures that it has signalled are scheduled for debate tomorrow under urgency. Apparently we are getting boot camps, and apparently we are getting the “three strikes and you’re out” rule, but not for a very long time. I think that one has a 20-year implementation period.
Chris Hipkins: But not for Gerry Brownlee.
Hon LIANNE DALZIEL: I think Gerry Brownlee is on more than his three strikes. I do not know how many strikes the Government will allow Gerry Brownlee, but it is definitely more than three.
Chris Hipkins: Boot camp!
Hon LIANNE DALZIEL: He might be at boot camp as we speak, or at least applying for it as he works studiously at his table across the Chamber. The point I want to make is that the Government has at least brought forward a positive measure, because we know that those two measures that I have mentioned already, the boot camps and the “three strikes and you’re out” rule, are internationally condemned as failed models—absolutely condemned. So it is great to see that legislation introduced by the very good Labour-led former Government is now proceeding through the House at a reasonable pace.
I say to the Minister, Simon Power, that if he would like to include this bill in the urgency motion tomorrow, then we could get it through the rest of its stages and it could be implemented very, very quickly. That might make us think that the Government really is committed to 100 days of action, rather than to smoke and mirrors and the implementation of populist ideas that everyone in this House knows do not work anywhere in the world. But this idea does work in many places in the world. I understand that Australia, Ireland, and the UK have all passed similar laws in respect of the proceeds of crime, allowing the Crown or the State to confiscate the profit made from a crime after someone is convicted of a crime and that profit has been spread around others who have not been convicted. I guess that is what makes organised gangs the target of this bill.
The bill is very much based on the principle that crime should not pay. I will tell an anecdote to the House. I remember my husband having a conversation with a relatively well-known person of disrepute in my patch in Christchurch. My husband went to his house—it was a very good house, an amazing house; it was stunning—and said to the guy: “Gee, you’ve got an amazing house here.” This guy said: “Well, who, who, who would say that crime d-d-does not pay?”. He has a stutter. Now everyone in Christchurch knows exactly whom I am talking about.
But the point is that crime must not pay. This is actually where deterrence works. It is not only the risk of getting caught but also the consequences of getting caught that determine the behaviour of those involved in criminal activities in the drug-related area and also in white-collar crime. This is an area where deterrence does work. Addressing the ability of anyone to profit from the proceeds of crime acts as a deterrent.
We can go much further than just the confiscation of property associated with direct criminal activity. This legislation gives the Crown the power to confiscate profits and assets obtained through criminal activity, but instead of basing that power purely on the criminal standard of “beyond reasonable doubt”, which is required for conviction itself, it bases that power on the civil standard of proof, which is “the balance of probabilities”. That means that this bill will allow the Government to tackle gang leaders who do not like getting their own hands dirty but certainly enjoy the benefits of their fellow gang members’ illegal activity. This bill finds an appropriate balance between targeting the proceeds of crime and protecting personal and property rights.
As I said earlier, this legislation appears in other jurisdictions, so New Zealand’s adoption of this approach shows that it is an effective mechanism, and one that produces real results.
Looking at the Law and Order Committee report on the bill we see that it spent a considerable amount of time talking about where the recovery body might be located. In fact, the bill, as introduced, talked about a recovery body rather than about the police or the then Serious Fraud Office. There was some debate about where it would be appropriate to locate the recovery body. Members of the House may recall that we had a debate as to whether the Serious Fraud Office should be relocated within the New Zealand Police, and the former Government subsequently decided to do that. The incoming Government has decided to overturn that decision, so it is probably a jolly good thing that the select committee decided to include references to the New Zealand Police, because that removes all doubt as to where the body should lie.
I think the committee did a very good job on this bill. Actually, I do not know who chaired that committee.
Lynne Pillay: Martin Gallagher.
Hon LIANNE DALZIEL: Was it Martin Gallagher? Well, I am sure that Martin Gallagher is tuned into the House tonight, and I congratulate him for an excellent piece of work in considering this particular bill. The reason the bill is good is because, by having the police take up the responsibility for enforcement, we already have in place the protection of an independent complaints regime through the Independent Police Conduct Authority. That is an excellent consideration by the committee, in terms of ensuring that the authority could respond to other issues that were raised in submissions.
A serious issue raised in submissions was whether there would be sufficient oversight, essentially because of the change of the onus of proof and of spreading the net a little wider, as it were, in terms of recovering criminal proceeds.
Another issue dealt with in the select committee was the whole question of restraining orders. I think the select committee also tidied up that issue to make it clear that the type of property in question could be restrained only by the operation of an earlier restraining order if that order explicitly applied to subsequently acquired property. I know that that sounds like a relatively technical detail, but I think the select committee again got it right in the recommendations it made.
The final thing I will refer to is the question of professional privilege. This is a serious matter. The question relates to the recommendation of the select committee to insert new clause 167A “to protect tax advisors with a form of professional privilege similar to that available under the bill for the legal profession.” The select committee considered “that this privilege should be similar to that afforded by the Tax Administration Act, whereby an advisor must be subject to a code of conduct and disciplinary process and belong to an approved advisory group, which is defined in the Act. Since New Zealand’s tax system is one of voluntary compliance, we recommend protecting tax advisors to maintain their good cooperation.”
Again, that is very helpful, because the question of the proceeds of crime is integrally linked to the amount of money a person actually had, compared with the amount he or she declared for tax purposes. That is often the way of resolving the question of what the proceeds of crime are.
I feel that the select committee has done excellent work on this bill. Again, I pay tribute to the Government for picking up and progressing this excellent legislation, and I encourage it to pick up the bill again tomorrow under the urgency motion and pass it through its remaining stages so it can take effect as soon as possible.
CHESTER BORROWS (National—Whanganui) : It is a privilege to be able to speak on the Criminal Proceeds (Recovery) Bill, which, of course, the new Government has brought on, and which languished for a long time under the stewardship of the previous Government. That was a shame, because it showed that the previous Labour Government took its foot off the throat of gangs in this country. There were a number of indicators of that. One of those indicators was the expiration of the 2004 Organised Crime Strategy, which was never replaced by the Labour Government until the death of Jhia Te Tutua. I look forward to the sentencing of the murderers of that wee child on Friday. That brought into the public consciousness the scourge that is gangs. In actual fact what had happened was that the executive had just patted gangs on the head and let them get on with business. Gangs were not coming to the attention of the police or the public very often at all, because it was bad for business. Then there was a turf war. It happened to be in Wanganui. A number of incidents went on for about 18 months and resulted in the tragedy of the death of Jhia Te Tutua. Thankfully, the Government of the day then shook itself off, woke up, and started implementing some legislation, including bringing this bill before the House. It had been sitting around for a long time doing absolutely nothing.
The new Government has given this bill legislative priority because we are committed to clamping down on gangs and disrupting their behaviour. We need to hit gangs in the pocket, because money is the lifeblood of gangs, just as it is the lifeblood of the rest of us who try to operate within society. We need to compare and contrast the new Government’s record on gangs with that of the Labour Government. In addition to this bill, the new Government has introduced legislation that provides for tougher penalties for membership of criminal gangs, expands police surveillance powers in respect of gang communications, and provides greater powers to remove gang fortifications—all within the first 100 days of office—and we have only just finished debating another bill, the Corrections Amendment Bill (No 2), which will also deal with the criminal activities of gangs in jail.
In Government, Labour failed to deliver on its 2005 election promise to hit gangs where it hurts by removing the proceeds of crime. In the 2005 election, Labour made all the promises to introduce legislation but then pulled the bill in July 2006, when the bill was dumped without being debated. Nothing more was heard of it until May 2007, 18 months after the election, when the Labour Government introduced the Criminal Proceeds (Recovery) Bill. The bill then languished on the order paper for another 18 months, awaiting its second reading. If the Labour Government saw the bill as such a huge priority, I ask why the bill sat there doing nothing. Silence. There is no answer. It sat there doing nothing, initially for 18 months while it waited for something to happen; then the bill was introduced and the Government sat there for another 18 months, knowing that it had support within the Law and Order Committee.
I was very pleased to be part of the select committee that considered this bill. We were under the chairmanship of the very able Martin Gallagher, with strings being operated by Jill Pettis, who unfortunately is long departed. We know that there are a number of strategies within the bill. The Hon Phil Goff said at the time of the introduction of the Criminal Proceeds and Instruments Bill: “The Bill will have an immediate impact on becoming law”. He also said that millions of dollars a year would be confiscated from gangs. They might be under this Government when we finally get this bill passed. But the Labour Government was so besotted with the Electoral Finance Bill and the emissions trading scheme that it forgot all about this stuff.
This kind of legislation is the nuts and bolts of Government. The first priority of Government is to keep members of its society safe, and Labour abrogated that responsibility by walking away from it. Time and again, Labour promised long but delivered short on promises to attack gangs. It is clear that Labour’s priorities were never—and never will be—to make hard decisions to tackle gangs. They put gangs in the too-hard basket and have left the new Government to clean up that mess. We are quite happy to grab hold of the issue, to get our hands around the throats of gangs, and to deal with them, because they are an insidious blight on our society. When one lives in communities that are being controlled by gangs—as I have—one understands just how deep and intense the hold of gangs is on local communities. We saw on the front page of the Dominion Post last week about the activity around Farmer Crescent at Pōmare, the inability of the police to be able to get in there and make those people safe, and the fear that the other residents in that community have in coming forward and exposing the sort of pressure and intimidation that is heaped upon them. Every other provincial city in this country has pockets of gang activity where members of those little groups dig in and have little potholes of gang heat within those communities that are very, very difficult to police. One cannot blame the police for staying away in their ones and their twos from those sorts of areas and strongholds until they are able to be there in number.
It is interesting to note, too, that this legislation created some difficulties for the way in which those accused of being the recipients of the proceeds of crime were able to access legal representation. For instance, one point the committee debated at some length was the fairness or otherwise of a person who has the ownership of land or property being able to use that as security to raise a loan to represent him or her. What this, in effect, did was take away a property right before an order had been made within the court—the property right to borrow against land for the purposes of mounting a defence to a claim before the court. The committee was divided on that. Some of the committee believed that people should be able to use the security of property to provide money to mount a defence, and some did not see that as an issue. But we were assured by advisers that, in fact, those people would be entitled to legal aid, so a defence would be able to be provided.
This legislation expands the ability of the authorities to confiscate property of gangs, gang members, associates, and other criminals, and places an onus of proof onto the defendants to prove the legitimacy of the ownership and their holding of that property. In shifting that onus of proof—it is a fairly rare situation where that onus is laid upon the respondent and does not rest on the prosecutor—the offenders may be liable to a cause of action under both the criminal law and the civil law, as the criminal and civil liability legs stand independently. There has been argument from some quarters that it is a sort of double jeopardy situation, but it is not. One is dealing with charges that are brought against the person; the other is dealing with an action that is attacking the property. Those who want to get involved in a criminal lifestyle and who want to reap the profits—for instance, in drug dealing, to deal and gain money from the curse that is put on other people, the recipients of their drug dealing—should be ready to do the time if they have been found to have done the crime.
The objects of the bill are fourfold. The first is to confiscate property from persons who have engaged in or profited from significant criminal activity. The second is to reduce the rewards of crime for the individual. The third is to reduce the attraction of crime for potential offenders. The deterrents contained within this bill are many and they will certainly spread further than just to those caught for the immediate crime of committing criminal offending, because we all know that within gang situations it is those more vulnerable associates of gangs—prospects or junior members of gangs—who are forced to commit crime in order to be promoted up the ladder. The fourth benefit is that the policy objectives of this bill are to reduce the resources that could potentially be used for criminal activity. We know that once the snowball of criminal activity gets rolling it generates wealth for those who are the taggers-on, and those who are at the hub of the planning and execution of crime are then further and further away from those committing it and those who find themselves before the court on criminal charges.
LYNNE PILLAY (Labour) : It is a pleasure to stand in support of the Criminal Proceeds (Recovery) Bill, which, of course, is a Labour bill. I think it is really good that the National Government, in its 100 days of action, has at last introduced a bill that has real teeth and that will do a considerable bit, in terms of addressing issues in this country.
This bill is based on the principle that crime does not pay. We know that is the case, because Labour spent a lot of time preparing this bill. The bill is not window dressing; it is a bill with teeth. I hope that Martin Gallagher, who chaired the Law and Order Committee, is at home tonight watching television—
Grant Robertson: He will be.
LYNNE PILLAY: He will be watching television. I hope he is watching Parliament TV, because I think he will be as amazed as we are that in these 100 days of action National has chosen this bill. It puts its other bills to shame. I really have nothing else to say, other than that I agree with the eloquent speech of Chester Borrows and that I commend this bill to the House. Thank you.
METIRIA TUREI (Green) : The Green Party considers the Criminal Proceeds (Recovery) Bill to be an outrage. It is an attack on the citizenry. It is unbelievable that the public are not aware, I think, of how significant this legislation is and what an attack on their rights as citizens it is. People going about their ordinary business could be subject to, perhaps, overzealous police interest or even prejudicial police interest and could find themselves at the blunt end of the justice system, having their property confiscated, not on a criminal proof but on a civil-based proof, without there being any conviction. They do not even need to be charged with any crime; there simply needs to be an accusation and an attack by a State service, whether it is the police or the justice system, and those people can have their property taken from them. The previous legislation, which at least required a conviction, was based on some kind of additional layer of proof that a crime had been committed. This legislation does not require any crime to be committed; none the less, people can have their homes taken from them by the State.
My former colleague Nandor Tanczos, our justice spokesperson for a number of years, went to the UK to talk to officials over there about very similar legislation that they had—legislation on which this bill is based. They could give him no evidence whatsoever that the legislation like this in their jurisdiction had any impact at all on offending. There was no evidence that it deterred offenders from offending. What they did say was that it acquired for the State millions and millions of dollars—that it was a massive income-generating operation by law against the citizens of that country.
Now we will have that same law in our country. The State will be able to strip citizens of their property on a burden of civil proof, where there is no conviction or even any charge laid, but simply on the accusation of an overzealous police force. This is a form of double jeopardy, indeed. Those who have been charged but acquitted, or those who have been convicted but then had their convictions quashed, will none the less still face the very severe penalty of having their property taken from them and from their families, even when there is no evidence that a crime has been committed or when they have been acquitted of any crimes that they were accused of.
It does raise the question of who the victims of this legislation will be. Will casinos—and this is an example that was raised in the past—be subject to this legislation? Given that there are reports that 45 percent of those who gamble at casinos commit crimes in order to find the money to fund their gambling addiction, will casinos be considered to be acquiring property through crime? Probably not, because this kind of law does not attack corporations. Lianne Dalziel mentioned white-collar criminals, but they have mechanisms for protecting their assets that keep them safe for them and their families for the future. They are not the ones who will be suffering from this legislation.
The example from England shows that low-income people are the ones who suffer from this sort of law. They are the ones who are targeted by enforcement agencies, because they are easy to get to. Their property is property that they have fought for desperately and worked for desperately. They do not necessarily have any kind of conviction, and they have not necessarily committed a criminal offence in order to get that property, yet the State can take it from them. The poorest people in our community will be the ones who suffer from this legislation, because they have the least protection via other mechanisms that the State provides. Those who benefit the most will be the ones who get away, because this law is not directed at those people and law enforcement is not concerned about those people.
This legislation is a serious attack on the rights of New Zealanders as citizens in this country. The Green Party will not support this law.
JOHN BOSCAWEN (ACT) : I will take a short call on this bill. I would like to make a couple of comments on the speeches that I have heard this evening. I find it rather ironic that Metiria Turei has just said that this bill is a serious attack on the citizens of New Zealand. I remind her that a far greater attack on the citizens of New Zealand is the Electoral Finance Act, which was repealed earlier this evening. There can be no greater attack on the people of New Zealand than restricting their right to speak out and to criticise, and to campaign against their Government. I was also interested in the comments of Lianne Dalziel earlier this evening. I am not sure whether she understands ACT’s “three strikes” rule or whether she is deliberately trying to mislead fellow members and members of the public.
Hon Dr Michael Cullen: That’s your industrial relations policy.
JOHN BOSCAWEN: Let me explain to the Hon Dr Cullen and Lianne Dalziel and her colleagues. Let me explain to them about ACT’s “three strikes” bill. The most important thing to highlight—
Hon Steve Chadwick: I raise a point of order, Mr Speaker. This is not the “three strikes” bill. I thought we were speaking on the Criminal Proceeds (Recovery) Bill.
JOHN BOSCAWEN: Speaking to the point of order, I point out that Lianne Dalziel made references to, and criticisms of, ACT’s “three strikes” proposal and I am addressing those.
Mr DEPUTY SPEAKER: This is not a debating point. Continue with your speech.
JOHN BOSCAWEN: Let me explain to Lianne Dalziel that the “three strikes” proposal that ACT is putting forward in the bill coming before the House tomorrow relates only to serious violent crime. We are not talking petty shoplifting, graffiti, or vandalism; we are talking about serious violent crime. We are talking about people who commit murder, rape, and manslaughter. We are talking about people who go into a bank armed with a gun and try to steal and inflict pain on people. Ms Dalziel may wish to misrepresent the bill to the public, and she may try to misrepresent the position of the ACT Party, but I want to correct her on that.
I notice also that Lynne Pillay talked about criminals needing to know the consequences of their actions. Criminals need to know that their actions have consequences. One of the consequences of implementing ACT’s proposals on “three strikes” is that when criminals are convicted and sentenced on their second serious violent crime, they will be advised by the judge that if they come back before the court and are convicted of a third serious violent crime they will be sent away for 25 years to life.
Finally, let me come back to Metiria Turei’s point. She talked about the victims of the legislation before the House right now. Well, I would like to talk about the beneficiaries. Who will actually benefit from passing laws that catch and punish criminals and try to prevent crime? They are the people of New Zealand, and in particular, I say to Metiria Turei, they are the poorest people in our society. They are the people who cannot afford to put fences around their properties or have security patrols. I and the ACT Party will be supporting this bill.
TE URUROA FLAVELL (Māori Party—Waiariki) : Tēnā koe, Mr Deputy Speaker. Kia ora tātou i te Whare. It is one of those ironies that we are here tonight considering the Criminal Proceeds (Recovery) Bill, legislation to radically reform the existing regime relating to criminal proceeds and recovery, while a funding crisis is confronting the 27 community law centres. What does that have to do with criminal proceeds? It is very simple. The bill vests the recovery body and the police with the powers to target people and confiscate property under suspicion. There is that element of discretion and flexibility.
This time last week we were in the midst of a debate about new, tougher, and leaner measures to control gangs. I spoke then about the pitfalls of discretion—the dangers of institutional bias, racism, and prejudice—and about the disproportionate toll on Māori. But here we go again. This bill introduces changes whereby the confiscation of property can now occur without a prior conviction. Instead of a single criminal standard of proof—the “beyond reasonable doubt” standard—there will be a new civil standard of proof based on the balance of probabilities. That is a much weaker test. In a nutshell, the New Zealand Police will have greater powers. There will be a far lower standard regarding the need for evidence.
To compound matters further, even more issues will come out of the fact that a 44 percent funding cut is to affect the Coalition of Community Law Centres of Aotearoa. We know that legal aid funding is already woefully inadequate and cannot cover the full cost of preparation that lawyers might reasonably expect to put into these sorts of cases. The immediate impact of the recession is that it is likely to significantly affect the free services that are currently available, potentially forcing some centres to close. That, from our perspective, would be a tragedy. So once again the Māori Party is coming to this House and putting out the call to ensure that whānau, hapū, iwi, and all New Zealanders can continue to have due access to justice. The question for us is how we can be sure that Māori will gain access to the quality legal advice and representation that will be needed.
The Dunedin Community Law Centre, I understand, said in its submission that the bill will be used primarily to target petty criminals, and it is in that light that we are concerned that the criminal law protections for defendants will be reduced by the lower civil law standards. We have concerns about who may be targeted, about innocent parties, and about the adequacy of legal aid and legal funding, and we are concerned about the breach of human rights such as the breach of minimum trial rights: the presumption of innocence until one is proven to be guilty.
We absolutely agree with the submission from the Human Rights Commission that measures must be put in place to deter criminal activity. The question is whether the extreme measures proposed in this bill are the only means of achieving these changes. The challenge that the Human Rights Commission lays down is one that I think the House must give consideration to. Is it worth sacrificing the principles of justice to recover criminal assets? In other words, does the end justify the means?
The Māori Party cannot, by any stretch of the imagination, accept that it is acceptable for any legislation to be inconsistent with our international commitments and human rights laws, which this legislation is. Let no one in this House forget that New Zealand, as an international State, faces the shame of having breached a raft of international treaties in the enactment of the foreshore and seabed legislation. Let no one in this House forget that the trauma of Operation Eight, resulting from the attack in the Ureweras during 2008, drew international condemnation for the way in which it universally stigmatised the people of the Tūhoe nation as terrorists. Let no one in this House forget that only four countries in the world voted against the United Nations Declaration on the Rights of Indigenous Peoples—a declaration affecting over 350 million indigenous peoples globally.
We have a chance to put things right regarding that declaration. The Māori Party is aware that both Australia and the United States have already indicated a willingness to reconsider their negative vote against the declaration, and with a new Government in place here, a Government that is committed to mana maintenance and enhancement, we are in a strong position to live up to our international commitments, to demonstrate leadership in acknowledging the human rights of indigenous people, and to adopt that declaration. But in the meantime, while that process is in flow, we must not as a Parliament continue to sit by and allow the fundamental principles of justice to be blatantly disregarded. A couple of barristers who attended the select committee, namely Rob Weir and Dr Donald Stevens, were quite clear that the bill breaches the entitlement under the New Zealand Bill of Rights Act to a fair hearing, and that needs to be noted.
There is one very significant issue that we will want to raise at the Committee stage. It is the issue concerning the right to appeal forfeiture order decisions. We believe there is inadequate provision for people to be able to appeal forfeiture order decisions. The bill will confiscate property from persons engaging in, or profiting from, “significant criminal activity” via forfeiture orders. The new measures introduced in the bill propose that confiscation of property or the assessed value of criminal proceeds can occur without a prior conviction. Where this becomes a particular threat for many of the constituents that I have is that, for example, a whānau could potentially lose their ancestral land if another person has been growing cannabis on their farm without their consent or knowledge. We are therefore of the view that in the bill there should be some specific exclusion of Māori customary land, Māori freehold land, Māori freehold land declared to be general land pursuant to section 6 in Part I of the Maori Affairs Amendment Act 1967, and any lands returned to iwi under deeds and settlement legislation. We are very concerned about any threat to our whenua, so we will be providing a Supplementary Order Paper that addresses our concerns.
We are very concerned about the potential for huge unfairness with the precarious nature of the civil balance of probabilities test, and in particular with there being no opportunities for a fair review of the decision. We are concerned that those accused may be unable to properly defend themselves. We are concerned that this bill may see New Zealand breach its international obligations regarding the right to legal representation in the International Covenant on Civil and Political Rights, to which New Zealand is a party. We are concerned about the breach of a number of human rights and freedoms contained in the New Zealand Bill of Rights Act 1990, including the right to be secure against unreasonable search and seizure. We are also concerned about the possibility of double jeopardy, as mentioned by my colleague Metiria Turei, and about the fact that the bill is incompatible with a human rights approach to the development of policy.
There is one glimmer of hope embedded in the bill. It is the fact that the bill may provide an opportunity to introduce a liability for casino and pokie-machine operators when profiting from the criminal offending of their customers. At present, even when problem gamblers are convicted of theft or fraud, there is no ability to recover the moneys from gambling operators. However, although we as a party are totally committed to eliminating the social hazard that we recognise in gambling, that one issue simply is not sufficient to be able to turn our minds away from the human rights breaches and infringements that are associated with this bill. Having regard to that, I say the Māori Party will not support this bill.
Hon Dr RICHARD WORTH (Associate Minister of Justice) : I was particularly interested in the comment of a former member of the Government who is now, of course, a member of the Labour Opposition, that the Criminal Proceeds (Recovery) Bill was a Labour bill. That seemed an intriguing proposition because it is partly right; on 20 March 2007, this bill was the subject of a first reading. It was then referred to the Law and Order Committee, where it languished for a considerable period of time. It then came back to the House as recently as 2008—in fact, on 25 July 2008.
I have been intrigued by the comments that Labour members have made about the incredible output of Martin Gallagher, and I would like to join for a moment in a short encomium to the work that he did. Unfortunately, he is no longer with us, but he was very much an exemplar of industry and an exemplar of competence. I think one of his great strengths was that he had the ability to identify issues that turned out not to be issues at all, but he was sufficiently persistent to run with them. I would like to place on record the contribution that he made, as the member for Hamilton West, in what was a very extended period of service to the House.
In connection with criminal proceeds recovery issues generally, organised crime has changed hugely in New Zealand. We can think back 10 years to when we had jacketed thugs in New Zealand and see that there were significant problems as organised crime developed insidiously. But it is all so different now, because today’s criminals in the organised crime sector are not wearing patches. Their tattoos, if they have them, are concealed by black pinstripe suits. The whole deal has changed hugely. In fact, if we look at the international brotherhood of criminal activity—and I single out Hell’s Angels as a really good example of that—we see that we need only to reflect on the motto of Hell’s Angels when its members say that “Three can keep a secret when two are dead.” to realise the pernicious and insidious nature of organised crime. The Hell’s Angels organisation is actually a bit of a study in itself, because its innovation seems to have no bounds. As members may well know, one of the things it has done is set up a Hell’s Angels church in Los Angeles, and its licensed parsons and vicars—by dint of their clerical association—can gain access to jails and collaborate with those who are behind bars. That is why I think this legislation is incredibly important, and it was so disappointing that Labour did not see that there was a mischief to be cured and that expedition to advance this bill to its final stages was so important.
So Labour’s good ideas fizzed and spluttered; they needed to be relaunched and revived under this National Government—and is this not just the reality of the situation that the Government has come to? We are doing that. When we look at the purposes of the Criminal Proceeds (Recovery) Bill, we see that they are to reform the existing criminal proceeds recovery regime and to repeal the Proceeds of Crime Act 1991. Others have mentioned—but, it seemed to me, in a very fleeting way—that under the current Act, property that either represents the profits of criminal offending or is used to facilitate the commission of a crime can be confiscated once a criminal conviction is secured. That is clearly an unsatisfactory threshold position. The major change proposed by this bill is to provide that a criminal conviction would no longer be required for property representing the proceeds of crime or the value of unlawfully derived income to be confiscated.
I want to add—at a high level; a macro-perspective, if I can put it that way—just what this bill is about in the context of the policy of the bill as I have just sought to explain it. We are replacing the bill with a conviction-based forfeiture regime limited to the instruments of crime, and—significantly, I would say—a non - conviction-based regime to deal with all other property representing the proceeds of crime or assessed to be the value of a person’s unlawfully derived income.
When we look around the world at this issue—and I am speaking to members opposite—we see what has gone on in Australia. We tend to take a lot of inspiration from our Australian colleagues as they have had huge success with these types of regime in Western Australia, but in other parts of Australia they have not been so successful. Certainly, in the past I have argued in this House at this time of night that we should be looking at something more patterned on the Western Australian model than some of the other models that are available.
If we look for a moment at the non - conviction-based regime that, as I said, is going to operate independently of any criminal proceedings, we see the situation where the same person may be the subject of both criminal prosecution and confiscation action under the civil process. Property acquired as a result of unlawful activity could be targeted, even though it may not be possible to prove beyond reasonable doubt that the owner has committed a specific criminal offence. When we think about it, we realise that is fair enough, because when the police burst into a gang fortification and find substantial assets scattered around—or, in many cases, hidden away—it is very hard to determine in what circumstances a particular item has been acquired by the gang members involved. The beauty of this regime is that we do not need to get involved in that exercise. The umbrella of the Criminal Proceeds (Recovery) Bill picks up those issues in a neat and clean way, and it will not involve those issues of proof that can be incredibly burdensome in this particular field of criminal law. I say this to members opposite, as well. There is also provision for a restraining order on property while the Crown gathers evidence to support its case for forfeiture. There can be a move in and action taken, then the passage of time for the further orders that are necessary to support the forfeiture case.
It is right, of course, to say in the context of this bill that the property must come from significant criminal activity. That has been defined in this bill—appropriately, I think—as either an offence punishable by at least 5 years imprisonment or an activity that has generated profits of at least $30,000. I suppose there could be an argument raised by cynics as to whether that threshold of $30,000 is appropriate. Why was $30,000 chosen and not some higher number? I hope that, when this bill is enacted, an opportunity may be taken at a later date to make a judgment as to whether that threshold figure of $30,000 is appropriate. We could argue that a higher threshold number could more readily have been chosen, but in the context of getting the legislation through we have decided not to change that number. We will run with $30,000 and, perhaps, at a later stage, look at it again.
I was interested when Chester Borrows, who was here a moment ago, talked not so much about the policy of the bill in a broad way, but about some of the more specific aspects. If I noted them correctly, he identified four. The first was to confiscate property from persons who had engaged in, or profited from, significant criminal activity. There were three others: to reduce the rewards of crime for the individual, to reduce the attraction of crime for potential offenders, and to reduce the resources that could potentially be used for criminal activity. We need to get very serious about dealing with gangs; I think that that is one of the lamentable failures of the previous and failed Government.
CHRIS HIPKINS (Labour—Rimutaka) : For the people at home who listened to that last speech, I tell them that that was the Hon Dr Richard Worth, the new Minister of Internal Affairs, filibustering on one of the Government’s own bills, because the Government is so desperate not to get to the next bill on the Order Paper, which is the Oaths Modernisation Bill. Which Minister is in charge of the Oaths Modernisation Bill? Could that be Dr Worth himself? I am staggered that Dr Worth does not want to get to the Oaths Modernisation Bill. Perhaps that could be because of some of the comments he made on that bill last time it came before the House.
I am happy to take this call on the Criminal Proceeds (Recovery) Bill, which was introduced by the previous Labour Government. The bill is based on the principle that crime must not pay, and Labour believes that this legislation will uphold that precious principle. It will allow us to tackle gang leaders who do not get their own hands dirty but who enjoy the benefits of their fellow gang members’ illegal activity.
I noticed Chester Borrows speaking earlier about the recent raids that took place last week in Pōmare, which is a State housing estate in my electorate. I want to know how the National Government thinks that stripping policing resources out of Upper Hutt to send them to South Auckland will help the police with situations like that in Pōmare.
Paul Quinn: Rubbish! Rubbish!
CHRIS HIPKINS: Paul Quinn thinks that is rubbish, yet his Government wants to take police away from Upper Hutt by merging the Upper Hutt and Lower Hutt policing districts. The Government wants to take police out of Upper Hutt. It wants to remove police without telling the community about it. The community found out about that only because somebody in the police leaked it. Otherwise, we would never have found out about it. Is it not an outrage that this Government, which promised to increase police numbers, wants to take police away from Upper Hutt? Chester Borrows did not mention that in his speech when he talked about the gang raids in Pōmare. He did not mention that at all, because the Criminal Proceeds (Recovery) Bill requires the New Zealand Police to be the recovery body. How will the Police be able to be the recovery body if resources are taken away from it?
I can tell members, on behalf of the community of Upper Hutt, that that community is very concerned about this National Government’s proposal to strip away its policing, and to strip away its level of community safety, as part of the Government’s 100-day action plan. That proposal was certainly not on the 100-day action plan that National put to people before the election. This is a whole new thing that the National Government has introduced—to take police out of Upper Hutt and move them to South Auckland. So much for democracy!
We know a little bit about law and order in Upper Hutt, as it is the home of Rimutaka Prison. Is it not interesting that National wants to lock up more people in Rimutaka Prison and strip the policing resources out of Upper Hutt at the same time? I can tell the House that the people of Upper Hutt will not stand for that. The people of Upper Hutt will not stand by while the National Government steals their police resources to send police to other parts of the country in order to meet the Government’s manifesto commitments, which it did not cost properly and which it has no idea how to pay for. Now the Government is raiding police resources in Upper Hutt so that it can meet those commitments, and I tell members that we will not stand for that.
I come back to the Criminal Proceeds (Recovery) Bill. Labour believes that this bill finds an appropriate balance between targeting the proceeds of crime and protecting personal property rights. Australia, Ireland, and the United Kingdom have passed similar laws—
Paul Quinn: It’s your bill.
CHRIS HIPKINS: That is right, and it is a good bill, too. I will keep my contribution to this short, though, because I am looking forward to the debate on the Oaths Modernisation Bill, as part of the Government’s 100-day action plan agenda. So I will end with that. I commend this bill to the House. It is a good bill. It was introduced by the previous Labour Government but it is being pushed through by the National Government because it does not have any bills of its own.
SIMON BRIDGES (National—Tauranga) : It is a great pleasure to take a call in this debate on the Criminal Proceeds (Recovery) Bill, and it is also a great pleasure to have listened to the previous speaker, Chris Hipkins. Some say there is not much in the way of mutual respect across the Chamber, but I like what I have seen of Chris Hipkins. He is one of the few Labour MPs in the House who has won an electorate. There is another one over there—two of them! Chris Hipkins had a few good things to say in this debate, and that is good.
I also enjoyed listening to the Hon Dr Richard Worth, who spoke in this debate. Admittedly, he spoke in a rather wide-ranging way. He ranged from the Hell’s Angels of California to the pinstripes of Ōtaki, but it was a good speech. I agree with his comments about Martin Gallagher, a former MP who seems to have done a very good job in guiding this important bill through the select committee process. I say good on Martin Gallagher. We all hope he is watching tonight and has some sort of moral reward, at least, that this bill—finally—is back in the House under a National-led, not Labour, Government.
Really, if we were to sum up this bill in a sentence, it would be that crime should not pay. Crime should not pay, but it did pay under Labour. Crime paid under 9 long years of a Labour Government. I have seen gang members in greater Tauranga and in the Bay of Plenty who own mansions and businesses. Metiria Turei said this bill affects only the poor. Well, mansions have been built in Tauranga, not to mention in Auckland and in Wellington—and, no doubt, in Rimutaka, I say to Chris Hipkins. Mansions have been built on the ill-gotten proceeds of crime. Many a Harley Davidson motorbike, a boat, a yacht, you name it, has been bought that way. Some have been seized in Tauranga, I have to say, but this legislation will go a long, long way towards seizing more and to doing a better job of seizing them.
Make no mistake, criminals have become fat and prosperous under Labour. We were losing the war on crime under Labour. Criminals were getting fat; they had to expand their belts. National has come into office and there has been a flurry of legislation. It was needed in order to do something about the fact we were losing the war on crime. There has been a lot of talk, of course, from Labour members—[Interruption] There has been a lot of talk, just like we are hearing right now. A lot of hot air has been expelled over crime. But Labour was busy passing measures like the Electoral Finance Act, which it now wants to do away with. It spent time passing laws like that for no good reason other than to screw the scrum, it seems, and criminal legislation was left on the shelf. Under 9 long, hard years of a Labour Government the criminals were winning.
Peseta Sam Lotu-Iiga: Hard labour.
SIMON BRIDGES: That is absolutely correct. Criminals were getting fat.
Make no mistake. Huge amounts of money are involved when we are talking about crime. Millions and millions of dollars are involved. Take Mount Maunganui, where I live. Over the Christmas period the police went into a factory and seized, on their estimate, millions of dollars worth of chemicals intended for the illicit, illegal manufacture of the nasty, pernicious drug P. Let us think about that. If they had not seized those chemicals—and let us face it; they are not seizing all of them—then many millions dollars of ill-gotten gains would have gone to precisely the wrong people. We have seen 9 years of that under Labour. We have seen the police knowing where the mansions are, knowing where the Harley Davidsons are, and knowing that they are the proceeds of crime, but because the Proceeds of Crime Act 1991 is not doing its job adequately and is not fit for purpose, those criminals have got away not only with, shall I say, literally murder but also with the ill-gotten gains of their crimes. Indeed, it is good that National is finally bringing this legislation to the House, and we will see those criminals who are caught up with the ill-gotten gains of crime finally taken care of.
I ask members who crime is paying. It is paying the gangs. I agree with something the Hon Dr Richard Worth said in this House—that it is no longer just the Mongrel Mob, Black Power, and the gang members with patches and tattoos on their faces who are making money. That is perhaps what some in this House who are voting against this bill would say. Under Labour, gangs became seriously sophisticated, and that is why this law is needed in order to make a change. Gang members are no longer in gang patches. They are in suits, they have mansions, and their tools are not crowbars and weaponry but emails and cellphones. With the increase in sophistication of criminals and gang members, we need to move with the times. I commend Labour for starting the process, even if it had other things like the now-deceased Electoral Finance Act to get on with. It did not seem too worried about the criminal laws on its shelves. We have got on with it, we are passing this important law, and now the police will have many more tools with better onuses to deal with crime.
I also agree with something else Richard Worth said. It was a perceptive point. He said that the people peddling P are now in pinstripes—not like the Hon Dr Richard Worth; he was wearing a very nice pinstripe suit. We have other members on both sides of the House who wear pinstripes. Nevertheless, those criminals have cellphones and laptops, and they are in pinstripes. We are moving with the times.
We get to this bill’s purpose. I think the recovery of criminal proceeds has traditionally been viewed by many people as an under-rated poor cousin in the criminal justice arena. But I say to this House that it is a fundamental and exceptionally important tool in the armoury of the police, because it hits gangs in the pocket. It takes their mansions, their Harley Davidsons, and their boats.
From my experience, I have observed that seizing the proceeds of crime drives criminals apoplectic. It is funny; when criminals are fighting their charges and fighting the seizure of their Harley Davidsons, it is the seizure of the Harley Davidsons they get really upset about. When they have been caught for a crime and go through trial and sentence, they know they have been caught. But when their Harley Davidsons or their speedboats have been seized, they get really angry. I have a theory that criminals think they have earned the Harley Davidson, even though they have earned it through illegal dealings, intimidation, and peddling misery, and they fight hard, dirty, and deviously for it. Therefore, this bill has had to do something about that. We are curing that mischief and are making sure that the tests and the onuses are lowered, and not before time, because we have been losing the war.
This bill is part of the raft of legislation being passed by National. It is a suite—
Peseta Sam Lotu-Iiga: A rolling maul.
SIMON BRIDGES: —a rolling maul of legislation being passed by the National Government, including tougher penalties and so on, that will deal to criminals.
- Debate interrupted.
- The House adjourned at 10 p.m.