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Volume 676, Week 85 - Tuesday, 27 September 2011
Tuesday, 27 September 2011
Hon RICK BARKER (Senior Whip—Labour) : I would like to place on the record of the House the recent and sad passing of security guard Peter Stevenson. All who knew him will know that he was thoroughly professional, courteous, and helpful. His passing was very sudden. I would like the condolences of the House to be noted on the record, and forwarded to his family. Thank you.
Mr SPEAKER: I thank the honourable member.
Provision of Advice to Members—Attorney-General and Gow v Leigh Decision
Mr SPEAKER: I wish to advise the House that, on my own initiative earlier this year, counsel was instructed to address the Supreme Court on any aspects of parliamentary privilege that might arise in an appeal arising from a defamation action between Miss Erin Leigh and the Ministry for the Environment. My intention in instructing counsel was so that a full submission could be provided on the law of parliamentary privilege relevant to the provision of advice by officials and parliamentary staff to members, for the purpose of supporting the effective conduct of the business of the House. The court gave its decision in the case on Friday, 16 September 2011. The court has held that statements made by an official to a Minister for the purpose of replying to questions for oral answer are not themselves parliamentary proceedings. Such statements can, therefore, be the subject of court proceedings as they are not protected by absolute privilege.
I consider that the court’s decision in Attorney-General and Gow v Leigh  NZSC 106 raises serious issues concerning the privileges of the House. Consequently, I have determined that a question of privilege is involved, and therefore the question stands referred to the Privileges Committee.
Business of the House
Hon SIMON POWER (Acting Leader of the House) : Following discussions in the Business Committee about the valedictory statements that have been scheduled over the remaining sitting days, I seek leave for the House to suspend for the dinner break each day, or adjourn if the day is a Thursday, at the conclusion of the valedictory statements.
Mr SPEAKER: Is there any objection to that course of action being followed? There is no objection.
Questions to Ministers
Economy—GDP and International Investment Position
1. NIKKI KAYE (National—Auckland Central) to the Minister of Finance: What recent reports has he received on the economy?
Hon STEVEN JOYCE (Associate Minister of Finance) on behalf of the Minister of Finance: Last week Statistics New Zealand issued gross domestic product data, as well as statistics on New Zealand’s international investment position. Despite considerable global uncertainty, the New Zealand economy grew faster than had been forecast in the first 6 months of this year. An upward revision to the March quarter was balanced with lower than expected growth in the June quarter, which reflected a patchy performance across different sectors. The statistics also confirmed that we are making progress in reducing our net international liabilities, the combined amount that the Government, households, and businesses owe to the rest of the world, although there is still some way to go.
Nikki Kaye: How did economic growth in the first half of 2011 compare with Treasury’s forecasts in the Budget?
Hon STEVEN JOYCE: Gross domestic product increased by 1 percent in the first 6 months of 2011, despite that lower than expected growth in the June quarter. This took annual growth to 1.5 percent. Supported by a strong agricultural sector, this is above Treasury’s Budget forecast of 0.5 percent growth for the first 6 months of this year. There was also further positive news last week, with Fonterra announcing a record payout for 2010-11 of $8.25 a kilogram. This will inject about $10.6 billion into the economy.
Nikki Kaye: What did the latest statistics on New Zealand’s international investment position show?
Hon STEVEN JOYCE: They showed we are making progress, through the Government’s clear plan to reduce New Zealand’s longstanding reliance on foreign debt and build faster growth around savings and exports. As at 30 June, New Zealand’s net international liabilities stood at $140 billion, or 70 percent of GDP, which is the lowest level since 2004. Although this is still quite high, it is certainly better than the peak of almost 86 percent of GDP 2 years ago. The latest figures incorporate some revisions from Statistics New Zealand to include better estimates of New Zealand assets held abroad.
Question No. 2 to Minister
Hon TREVOR MALLARD (Labour—Hutt South) : I raise a point of order, Mr Speaker. Just before we get to this question, I apologise for not getting to your office sooner to give notice of it. This question was originally set down to the Prime Minister. It was transferred, and it is the right of the Government to transfer. But the question was about the Prime Minister’s opinion on the Prime Minister’s statement. My question to you, Mr Speaker, is that in the redrafting, as it went to the Attorney-General, it appears to have been transferred to now seeking the Attorney-General’s opinion on the Prime Minister’s statement, rather than the Attorney-General’s opinion on the Prime Minister’s opinion on the Prime Minister’s statement. I think that quite changes the sense of the question.
Mr SPEAKER: I hear what the member is saying. The question as it is now asks whether the Attorney-General agrees with the Prime Minister’s statement, and the member wanted it to ask whether he agrees with the Prime Minister’s opinion on the Prime Minister’s own statement. The dilemma with trying to construct a question that way is that there is no way the Minister can answer that particular part of it. But given that the substance of this question is asking in how many of these cases the prosecution relies on evidence from warrantless filming, etc., it would seem to me that the substance of this question—and this is why the transfer was allowed—can readily be answered by the Attorney-General. That is why the question was allowed to be transferred.
Hon TREVOR MALLARD (Labour—Hutt South) : Of course, the question was deliberately detailed in order to get that, but I just highlight to you that when questions are transferred, I think it has normally been good practice to consult with the questioner as to whether the questioner is happy, not with the transfer but with the reworded question, when rewording occurs. I do not think that happened on this occasion.
Mr SPEAKER: If that did not happen, I certainly apologise to the member, because I well understand that normal practice.
Video Surveillance—Covert Footage from Private Property
2. Hon DAVID PARKER (Labour) on behalf of Hon PHIL GOFF (Leader of the Opposition) to the Attorney-General: Does he agree with the Prime Minister’s statement that “there are at least 40 trials and 50 investigations where those investigations currently - the video surveillance equipment’s been turned off and yeah I don’t think - that will harm those trials in my view”, and in how many of those cases does the prosecution rely on evidence from warrantless filming from private property without the owner’s consent?
Hon CHRISTOPHER FINLAYSON (Attorney-General) : As to the first part of the question, yes, I agree with the Prime Minister’s full statement. As to the second part of the question, the phrase “evidence from warrantless filming on private property without the owner’s consent” could refer to evidence obtained either by so-called over-the-fence filming from private property into a suspect’s property, or filming carried out on a suspect’s private property without a warrant to enter that property. It is highly unlikely that any of the cases mentioned rely on evidence from warrantless filming from private property without the owner’s consent.
Hon David Parker: Does the Attorney-General know why a response was never forthcoming to the written offer made by Labour in November 2010 to facilitate the passage of the Search and Surveillance Bill, which conferred powers, subject to the better protection of press freedoms and the tidying-up of Serious Fraud Office powers?
Hon CHRISTOPHER FINLAYSON: Yes, I do. I have made very detailed inquiries because I was quite hurt by the statement made by Mr Chauvel on Morning Report that I was lazy and indifferent. The record—
Hon Trevor Mallard: Oh, you sensitive wee flower.
Hon CHRISTOPHER FINLAYSON: I am a sensitive soul, as Mr Mallard says. The letter was actually sent—
Hon Shane Jones: Man up.
Hon CHRISTOPHER FINLAYSON: Man up. The letter was sent to Mr Power. It was copied to Ms Collins and me. It is not customary practice, at least on this side of the House, for those who are sent copies to respond. It was also blind copied to a fellow from the media freedom committee, but Mr Parker inadvertently sent us a copy of that reference as well. The reality of the matter, I say to Mr Parker, is that Mr Power did answer the letter and said he would get back to him.
Hon David Parker: Mr Speaker—
Hon Simon Power: I did. I said I’d got it and I’d get back to you.
Hon David Parker: Get back to me—a year later.
Mr SPEAKER: Will the Hon David Parker please ask his question.
Hon David Parker: What advice, if any, did he give to his ministerial colleagues about the desirability of progressing the Search and Surveillance Bill, which provides the necessary statutory authority for surveillance, rather than letting it languish on the Order Paper for 11 months?
Hon CHRISTOPHER FINLAYSON: My colleague Mr Power has been an excellent Minister of Justice, and we will all greatly miss him.
Hon Trevor Mallard: Blame Simon—he’s going.
Hon CHRISTOPHER FINLAYSON: I am not blaming Simon, at all; I am proud of him. He is a valued friend and parliamentary colleague. The reality of the matter is that until the Supreme Court decision was released there was no appreciation of the issue of lawfulness having been raised, particularly—
Charles Chauvel: That’s nonsense.
Hon CHRISTOPHER FINLAYSON: —I say to Mr Chauvel—given 15 years of Court of Appeal jurisprudence that upheld this particular activity.
Hon David Parker: Given the discretion the court already has to admit illegally obtained evidence in serious cases, will the Attorney-General undertake that he will interfere with the Supreme Court precedent as little as possible, and consider the approach favoured by Labour?
Hon CHRISTOPHER FINLAYSON: I can certainly undertake that what we are doing here is dealing with the issue of lawfulness. Admittedly, an earlier draft that was sent to Mr Chauvel and uploaded 5 seconds later on Red Alert did refer to the issue of reasonableness. What we are dealing with here is that very limited question of lawfulness. It will still be open to people to object under section 30 on the grounds of reasonableness.
Charles Chauvel: Can the Minister confirm the advice of officials this morning that the consultation draft of his Video Camera Surveillance (Temporary Measures) Bill has been substantially redrafted in response to reaction to it; if so, when does he think he will make available a copy so that people can submit intelligently on it at the select committee at 9 a.m. tomorrow?
Hon CHRISTOPHER FINLAYSON: The answer is yes. Last week, which was an adjournment week, quite apart from signing a number of deeds of settlement to advance our excellent progress on Treaty settlements I consulted widely a number of interest groups, including the Human Rights Commission and the Law Society. As a result of that, I did respond. I will talk to the member after question time to facilitate that, provided he gives me an undertaking that he will not upload it on to Red Alert before it is formally tabled in the House tonight.
Mr SPEAKER: Before I call the member, unless I heard totally incorrectly, the question asked was not unreasonable. It contained an allegation that the bill had been redrafted, but asked when a redrafted version might be available. If there is no redrafted version, it would be helpful for the House to know, but it was a fair question. It would be reasonable for the House to be told when the bill might be available.
Hon Simon Power: I raise a point of order, Mr Speaker. Actually, the Attorney-General, unless I completely misheard him, said he was happy to meet with the member after question time and go through the issues with him.
Charles Chauvel: Speaking to the point of order—
Mr SPEAKER: No, I do not think I need any help. This is a matter that I am dealing with. That does not help the House in terms of when the bill might be available. It is certainly a generous offer of the Attorney-General, but this is a matter in which there is significant public interest and it would be helpful for the House to know when a bill, if it has been redrafted—it may not have been redrafted—might be available.
Hon CHRISTOPHER FINLAYSON: There were two parts to the supplementary question. I answered the first part fully. I am not required to answer the second part, but I did say to Mr Chauvel that I will consult him after question time with a view to making a copy of the bill available to him. As I said, my concern is compliance with the Standing Orders and ensuring that they are followed. I make that—
Charles Chauvel: Point of order—
Hon CHRISTOPHER FINLAYSON: Sit down; I have not finished. I am quite happy to make that offer.
Mr SPEAKER: The Hon Chris Finlayson will get to his feet and apologise for that comment. He must not use the point of order procedure to attack the member like that.
Keith Locke: Point of order—
Mr SPEAKER: I am dealing with this first matter.
Hon CHRISTOPHER FINLAYSON: I apologise. But I was not raising a point of order—
Mr SPEAKER: I appreciate the member doing that.
Keith Locke: I raise a point of order, Mr Speaker. I think the Attorney-General has not really addressed your point about when the bill will be made available to the House. There are more parties in the House than Labour and National, and we want to know—and I think the question addressed that—when it will be available to the House.
Mr SPEAKER: I apologise for taking the time of the House on this, but it is a matter of public interest. It seems the Attorney-General has indicated that when the bill is tabled in the House it will be available, and if there is any departure from that, I should stand corrected. It would appear that that is when it will become available to the member.
Charles Chauvel: I raise a point of order, Mr Speaker. This relates to the issue that you raised with the Attorney-General. The select committee is due to meet, as we understand, at 9 a.m. tomorrow. We have learnt from the Attorney-General that a substantially redrafted bill now exists. No one has seen that bill. If you could just hear me out, Mr Speaker. I accept that he answered the first part of my question, as he was required to do, but he chose to go on and address the second part. I think there is a strong public interest in people knowing, given that they will be before a select committee at 9 a.m. tomorrow, what they will be submitting on.
Hon Trevor Mallard: Speaking to the point of order, Mr Speaker.
Mr SPEAKER: I will hear the Hon Trevor Mallard briefly.
Hon Trevor Mallard: I think we run the risk of being tied up in our own rules here. We are aware that there is a high likelihood of the House taking urgency on this legislation at some stage this afternoon or this evening, in order to get the bill on to the Table and off to the select committee. For that reason it cannot be tabled, according to our rules, until urgency is taken. I wonder whether you could ask the Attorney-General whether he would be prepared, either through the National Party website or Red Alert, to—
Mr SPEAKER: The member knows I cannot do that. Further questions can be asked of the Attorney-General about what he might be prepared to do. It was just that on the basis of that supplementary question I wanted to make sure the issue of whether a copy of the bill might be made available to members—that part of the question—could be answered. But the Attorney-General has undoubtedly satisfied that part of the question, and the House should now move on.
Charles Chauvel: Can he confirm the advice of officials this morning that the principal reason for not inserting the relevant safeguard sections from the Search and Surveillance Bill into his temporary measures bill is that the drafting exercise is too complicated to complete in the time available?
Hon CHRISTOPHER FINLAYSON: Yes, I can. It is my understanding that the cross-referencing involved would result in a 20-page bill and I am advised by the officials, including parliamentary counsel, who I do not think spoke to Mr Chauvel and Mr Parker this morning, that that is the case.
Charles Chauvel: Will the Minister seek in any way to prevent the select committee from considering the idea of inserting the relevant safeguard sections of the Search and Surveillance Bill into the temporary measures bill so as to provide a statutory basis for police video surveillance, given that that bill has been through a proper select committee process and has the support of a majority of members of Parliament?
Hon CHRISTOPHER FINLAYSON: With respect, I do not think that is a matter for me; I think that is a matter for the committee.
Charles Chauvel: I raise a point of order, Mr Speaker. The Minister will have carriage of the bill and my question was quite precise: will he do anything to seek to prevent the select committee from considering the issue I raised?
Mr SPEAKER: The Minister in answering said that was a matter for the committee, and that is a reasonable answer. He has indicated he is not going to do anything to interfere with the committee in that regard.
Charles Chauvel: With respect, I am not sure that is an entirely accurate summary of the answer. But I wonder whether I could raise a question of leave of the House. I seek leave to table a Supplementary Order Paper I have drafted that would insert the relevant provisions of the Search and Surveillance Bill into the temporary measures bill. Further, I ask the leave of the House that the Supplementary Order Paper be referred to the Justice and Electoral Committee on the same basis as the temporary measures bill may be referred to it, in light of the Attorney-General’s undertaking to do nothing to obstruct—
Mr SPEAKER: Leave is being sought for two purposes here: first for the tabling of this draft Supplementary Order Paper. Leave is sought for that purpose. Is there any objection to that? There is objection.
Medicines—Access and Funding
3. TIM MACINDOE (National—Hamilton West) to the Minister of Health: What investment has there been in new, and wider access to, medicines for New Zealanders since 2008?
Hon TONY RYALL (Minister of Health) : I am pleased to be able to advise the House that the Government has increased its spending on medicines by $180 million over the last 3 years, fulfilling an important promise that we made in 2008. So far this has resulted in New Zealanders receiving an additional 4.2 million prescriptions and in better access to medicines for around an extra 180,000 people each year. This is part of the $1.5 billion of new funding this Government has put into the public health service since 2008.
Tim Macindoe: How is this investment benefiting New Zealanders?
Hon TONY RYALL: I am advised that in the last 3 years, since the change of Government, Pharmac has funded 59 new medicines and widened access to another 68 medicines. Before this investment, many patients had to pay the full cost of these medicines or go without them. They include new treatments for advanced lung and kidney cancers and for cardiac and respiratory problems, and wider access to medicines for diabetes and high cholesterol. And we cannot forget Herceptin, which the last Government would not commit to funding. More than 750 women have received this publicly funded medicine since 2008. These medicines are making a real impact on the lives of hundreds of thousands of patients.
Economy—Prime Minister’s Statements
4. Hon DAVID CUNLIFFE (Labour—New Lynn) to the Prime Minister: Is it his policy to “muddle through” the current economic uncertainty?
Rt Hon JOHN KEY (Prime Minister) : No, the Government has actively taken a number of steps to ensure New Zealand can minimise any fall-out from global economic events. For example, we have set a faster track back to surplus and we have limited debt to under 30 percent of GDP. We have front-loaded our borrowing programme during favourable market conditions, which will cover the Government’s obligations over coming months should markets show signs of tightening, and the Reserve Bank has ensured it can provide temporary liquidity to sound institutions. It does not mean we are immune to any global events, but we are certainly in a lot better shape than the one we inherited from that hapless Labour Government 3 years ago.
Hon David Cunliffe: Given the answer to the primary question was no, it was not his plan, does he then agree with the sentiments he ascribed to his Minister of Finance this morning that it was sufficient for New Zealand to muddle through the current economic turbulence; or does he aspire to a better plan?
Rt Hon JOHN KEY: I have never said the words in the quote that the member has just said. In fact, I have the quote in front of me. The question from Rachel Smalley was “Do you believe a double-dip recession is on the horizon?”, to which I said “while the atmosphere and the mood is very dark in the United States”—by the way, that is the place where the President has Camp David as a retreat—“and in Europe, … we may just muddle through”, “we” being the world, not New Zealand.
Hon David Cunliffe: I seek leave to table a transcript of the Prime Minister’s response to that question from TV3’s Firstline—
Mr SPEAKER: We do not table transcripts from TV shows.
Hon David Cunliffe: Does he recall the Minister of Finance giving a speech in 2009, wherein he said “we want to do better than just muddle through”; and, 2 years later on, with growth of just 0.1 percent, and 47,000 more people out of work than when he came into office, is it not time he delivered on this aspiration?
Rt Hon JOHN KEY: Yes, I recall that speech. Notwithstanding the earthquakes that have taken place in Christchurch, which have clearly had an impact on the economy, we have grown at 1 percent for the first half of this year. The OECD average has been 0.3 percent for the first quarter, and 0.2 percent for the second quarter. It might be worth thinking about what those quarters looked like in 2008: March was minus 0.2 percent, June was minus 0.6, September was minus 0.6, and December was minus 1.2. That is a remarkable set-up from that hapless Labour Government.
Hon David Cunliffe: I seek leave to table a document. It may assist the Prime Minister’s memory if I were to table this graph of GDP statistics, which shows the change in trend since—
Mr SPEAKER: What is the source of the document?
Hon David Cunliffe: Statistics New Zealand and the Parliamentary Library.
Mr SPEAKER: It is prepared by the Parliamentary Library, is it?
Hon David Cunliffe: The Parliamentary Library and Statistics New Zealand.
Mr SPEAKER: Leave is sought to table that document. Is there any objection? There is objection. [Interruption] A point of order is being dealt with, and it will not be dealt with that way.
Chris Tremain: What economic conditions did the Government inherit in 2008?
Rt Hon JOHN KEY: That is an excellent question. When the Government came into office in late 2008 we inherited the following economic conditions: inflation was 5.1 percent, mortgage interest rates were 10.5 percent, food prices had gone up 11 percent, the economy had gone backwards for four quarters in a row, Treasury was forecasting deficits for ever, and debt was meant to go to 60 percent of GDP and never come back down again. That was the going-away present that Labour delivered an incoming National Government. I am proud to have led a Government that has turned that situation round.
Hon David Cunliffe: When the Prime Minister promised New Zealanders an “aggressive” recovery and that the country would come “roaring” out of recession, did he mean that 3 years later he would be muddling through, and growth would be crawling along at 0.1 percent, well below the rate of population growth?
Rt Hon JOHN KEY: Again, I did not say “roaring”, so the member, if he wants to quote me, should get the facts and read them out properly, as well as the full quote, as he knows well. Relatively speaking, we are doing pretty well—not as well as we would like; of course we would like to do better. I am reasonably confident about quarter three and four growth.
Hon John Boscawen: Has he seen the IMF World Economic Outlook report, projecting New Zealand’s real GDP growth between 2006 and 2016 at just 0.8 percent per annum; if so, rather than muddling through, is he prepared to reconsider his decision to shelve the last two 2025 reports, which outlined a plan for New Zealand to boost its growth?
Rt Hon JOHN KEY: No, I have not seen that report, but what I would say is let us have a little bit of context about the last 3 years, at least. We have had a global financial crisis, which has affected—
Hon David Cunliffe: Oh, it’s always someone else’s fault.
Rt Hon JOHN KEY: Well, if David Cunliffe really thinks New Zealand can be the only country in the entire world that would be immune from the global financial crisis, then I think “Camp David 1” should swap over to “Camp David 2”, because he is clearly not demonstrating any form of leadership. Secondly, if one looks at the earthquakes, and the economic impact of those, which has been enormous on the New Zealand economy, and then within that context one looks at what is happening in New Zealand, I think one can take a view that says we are starting to do better and are improving within that environment. We have grown for eight of the last nine quarters, we will be back in surplus by 2014-15, our debt is one quarter of the OECD average, we have interest rates at a 45-year low, unemployment is starting to fall, we have created 45,000 jobs, and I think in the context of that environment, it is not too bad.
Hon David Cunliffe: Why is the Prime Minister content to roar about the success of the Rugby World Cup and the record dairy payout, outside the Chamber, but barely able to squeak about the performance of his Government—because it is all someone else’s fault, such as the global recession or previous Governments—when he gets into the Chamber?
Rt Hon JOHN KEY: I was actually slightly conscious that I was roaring inside the Chamber, but, for the purposes, let us go through it one more time. We have grown in eight out of the last nine quarters—not bad. We have interest rates at a 45-year low—not bad. Unemployment is starting to fall—not too bad. We are likely to create 170,000 jobs in the next 4 years, we have reformed the Resource Management Act, and, by the way, we are on track to win the Rugby World Cup.
Hon Members: Yay!
Mr SPEAKER: That is enough.
Hon David Cunliffe: I raise a point of order, Mr Speaker. It was a little difficult—
Mr SPEAKER: Now, look. The House will come to order. It has had its fun, and will come to order. The member will resume his seat—
Hon David Cunliffe: It was a little difficult to hear—
Mr SPEAKER: I thank the honourable member; I just want the House to settle down for a moment. Now, it is a point of order the honourable member wishes to raise.
Hon David Cunliffe: It was a little difficult to hear with that background noise, but I was wondering whether I heard the Prime Minister say when he will return to surplus—
Mr SPEAKER: That is not a point of order. The member knows that.
Hon John Boscawen: Does he consider it satisfactory that the International Monetary Fund is projecting a lower 10-year growth rate for New Zealand than for 148 other countries, all of which have been affected by the global financial crisis, including Australia at 1.6 percent per annum and Singapore at 2.6 percent per annum; if not, when can New Zealanders look forward to his Government implementing the recommendations of the 2025 Taskforce?
Rt Hon JOHN KEY: About as soon as we look forward to decriminalising cannabis. I have not seen that particular report, so I cannot tell the member that detail, because the context of it would need to be seen. What I can tell the member is that in the last 6 months—if we just look at the last 6 months as an example—we have grown at double the rate of the OECD average.
Hon John Boscawen: I seek leave to table a graph—
Mr SPEAKER: The House must settle down.
Hon John Boscawen: I seek leave of the House to table a graph prepared by the International Monetary Fund showing projected growth rates over a 10-year period from 2006 to 2016, putting New Zealand at the 148th slot.
Mr SPEAKER: Leave is sought to table that document. Is there any objection? There is no objection.
- Document, by leave, laid on the Table of the House.
Mining in Conservation Areas—Denniston Plateau
5. KEVIN HAGUE (Green) to the Minister of Conservation: Does she have confidence in her Department’s management of the conservation values at risk from the application by Bathurst Resources to mine the Denniston Plateau?
Hon KATE WILKINSON (Minister of Conservation) : Yes. The department is currently assessing the applications of Buller Coal, previously under Bathurst Resources, and will take into account the impact on conservation values in any future decisions.
Kevin Hague: Why did the Department of Conservation play no part at all in advocating for, or even providing information about, the conservation values of the Denniston Plateau in the resource consent hearings?
Hon KATE WILKINSON: The department did submit on some matters but did not engage further, as it considered the environmental issues it is concerned about can best be managed through the access arrangement and concession processes and provisions.
Kevin Hague: Does the Minister agree with the resource consent commissioners when they said “it is abundantly clear that large scale mining is poised to invade the entire Denniston Plateau coal reserves which if unchecked, will totally destroy the ecosystems which are present.”, and does she not believe it is essential that the access agreement that is being applied for is publicly notified?
Hon KATE WILKINSON: In relation to the public notification, I can advise that if the department intends to grant the Denniston concession application, then public submissions will be invited, and the public can be heard again should it reach that stage.
Kevin Hague: Is the Minister concerned that the departmental employee who was leading the work on preparing and implementing the department’s strategy in relation to this application has now been employed by Bathurst Resources?
Hon KATE WILKINSON: I am aware that a Department of Conservation employee has accepted a job with Bathurst Resources. He had no role in processing the applications and was never a decision maker. He also acted entirely appropriately and alerted management to his change of employment, to ensure that any conflict of interest could be avoided.
Kevin Hague: Will the Minister instruct the department to audit the decisions and actions taken in the development of its position on the Bathurst Resources application, to ensure that there has been no conflict of interest—something that the department has refused to do?
Hon KATE WILKINSON: I have no reason to instruct the department or arrange such an audit.
Kevin Hague: Will the Minister instruct the department to restart the process of developing its approach to defending conservation values on the Denniston Plateau, so that Bathurst Resources does not know the entire strategy—something, again, that the department has refused to do?
Hon KATE WILKINSON: I do not believe that that is necessary.
Kevin Hague: How many more gamekeepers should the public expect to become poachers, now that they are losing their jobs as a result of her Government’s savage cuts to funding for conservation?
Hon KATE WILKINSON: I do not accept any of the premises of that question.
Kevin Hague: I seek leave to table the decision of the commissioners appointed by the West Coast Regional Council and Buller District Council dated 26 August 2011 in respect of this application.
Mr SPEAKER: Leave is sought to table that document. Is there any objection? There is no objection.
- Document, by leave, laid on the Table of the House.
Hon Damien O’Connor: Can she give an assurance that the restructuring at the Department of Conservation will enable staff to continue to properly monitor the other 82 mine licences on conservation land on the West Coast—something they do take very seriously in order to protect the environment, and we should applaud them for that—while enabling jobs to continue in the region?
Hon KATE WILKINSON: I am assured that the department can continue to deliver on such work. Can I say I agree with the member when he says we have to be realistic about the way we get to a new, cleaner, greener economy, and it is through the smart, wise use of high-quality hydrocarbons—a very good quote, I say to Mr O’Connor. For the Green Party to oppose every mine is just ridiculous.
Hon Dr Nick Smith: Has the Minister received reports of Labour MP Maryan Street saying Labour is opposed to this mine proceeding, whereas Damien O’Connor has said Labour supports this mine proceeding; if so, do those reports clarify just what that Opposition party’s position is?
Hon Rick Barker: I raise a point of order, Mr Speaker. The Minister has no responsibility whatsoever for any of those matters.
Hon Simon Power: Mr Speaker—[Interruption]
Mr SPEAKER: A point of order is being considered. I will hear the Hon Simon Power.
Hon Simon Power: Unless I heard my colleague incorrectly, he asked whether the Minister had seen any reports that indicated two members’ views on the same issue. She does have responsibility for reports that she may, or may not, have seen.
Mr SPEAKER: Although I acknowledge that the question is clearly constructed to get round the fact that the Minister does not have responsibility for any Opposition views, what troubles me is that it is such an obvious attempt to create for a Minister a responsibility that the Minister definitely does not have. If there was substance in the reports that the Minister was responsible for, then it would be reasonable to allow that question, but I do not think I should allow it. It takes the artificial construction of questions to an unreasonable extreme, and I think the Hon Rick Barker has a valid point.
Hon Simon Power: I raise a point of order, Mr Speaker. That being your ruling in respect of that question, I just ask you not to be too hasty here and to give a bit of thought to the construction of a question to a Minister that asks whether the Minister has seen any reports in respect of a particular issue. You might say, as you did in your ruling, that this is at the margin of ministerial responsibility and Opposition politics, if you like. But in the end a Minister’s responsibility to say whether he or she has seen those reports has been a legitimate way of putting questions to Ministers—for the Opposition, for that matter, as well—in the time I have been in the House. I just ask you to make sure that we do not now find ourselves in a situation where, more broadly, that becomes an issue for the House.
Hon Trevor Mallard: I may find myself losing leave as a result of this, but I concur with the view of the acting Acting Leader of the House, or whatever his current position is. I think we can get too narrow here. There is a long-term tradition of being able to cause trouble, but it is part of the thing in this House that you cannot take the politics out of it. I think you might be trying to do that. I also think it would be just as in order to ask the Minister whether she has seen any reports on the ACT Party’s proposal to use Department of Conservation land for growing Don Brash’s dope on, or something similar.
Mr SPEAKER: I think I have heard sufficient, and I appreciate the contributions of both the Acting Leader of the House and the shadow Leader of the House. This is an important issue, in that we do not want to narrow the scope for questioning Ministers. My trouble with this question is that it was so blatantly constructed to ask the Minister about Opposition policy, which is not the Minister’s responsibility. That is why I have said, on this occasion, I believe it really stretches the Standing Orders too far. But I do not intend to make it out of order to ask Ministers about reports; it is just that sometimes members get away with it by not specifying the reports. One of the dilemmas with this question is that the member who asked the question was very specific about the reports he wanted the Minister to comment on, and that they were clearly to do with Opposition policy. I believe that just takes it too far. I do not want to see us lose the ability to question Ministers through trying to take it too far, and that is why I have ruled the question out.
Hon Gerry Brownlee: I raise a point of order, Mr Speaker. I wonder whether you might furnish the House with a written indication of how you are going to proceed with these things, or how you think they should be proceeded with, from this point. I note that Charles Chauvel’s questioning today, and many of the other questions that have been asked today, referred to Opposition policies and asked Ministers to comment on those policies. That was very evident today in Charles Chauvel’s questioning, so I think to shut this question down, when it might be easily answered—the answer might be something that you shut down, but the question itself should be regarded as perfectly reasonable.
Mr SPEAKER: I believe I have dealt with this matter. In the case the member is referring to, the Attorney-General had clear responsibility for the issue relating to the supposed report that Charles Chauvel was referring to. In this case, I do not think that the Hon Kate Wilkinson would claim she has any responsibility whatsoever for what the Hon Maryan Street might have said about an issue. And that is the difference. I think we just have to be careful that by taking this approach too far, we do not spoil it. I think it is important to be able to question Ministers through referring to reports, as the Acting Leader of the House has emphasised today, and as has been supported by the shadow Leader of the House. I think it is important, though, that we do not destroy that ability through taking it to a ridiculous point. On this occasion the Minister clearly has no responsibility whatsoever for the issues contained in any report about what an Opposition member might have said.
Local Authorities—Financial Reporting
6. Hon DAVID PARKER (Labour) to the Minister of Local Government: Does he stand by his statement “We require councils from the next election onwards to put out a financial report in plain English. … I think if we had had that reporting procedure some years back, we might not have got ourselves into some trouble with councils”, in light of the increase in the gross debt of the Auckland City Council during the mayoralty of John Banks?
Hon David Parker: Is the Minister aware that under John Banks, rating increases for the Auckland City Council were held at falsely low levels by the greatest-ever increase in debt—
Hon Gerry Brownlee: I raise a point of order, Mr Speaker. This line of questioning really does cause us, I think, to reflect on your most recent ruling, because there is clearly no point in asking this Minister what he thinks about a mayor’s policy; he has no responsibility for that. If the other question was blatantly trying to get into political point-making, there could be no better example than what we are being given by David Parker at the present time. The question should not be allowed to stand.
Hon David Parker: I raise a point of order, Mr Speaker.
Mr SPEAKER: I will hear briefly from the Hon David Parker.
Hon David Parker: He has not heard the full extent of my question, and it plainly does have ministerial responsibility.
Mr SPEAKER: The Speaker has heard sufficient, and the Minister has no responsibility whatsoever for the actions of the Auckland mayor. He has no responsibility whatsoever. The member will recollect that some actual thought went into the primary question to try to get it in order, and I ask the member, likewise, to try to make sure his supplementary questions are in order.
Hon Trevor Mallard: I raise a point of order, Mr Speaker. With due respect, I know what it is in the end of this question, and you do not. I find it extraordinary that you are ruling out a question from a senior member, who has taken some time to construct a question that goes to ministerial responsibility, before you have heard it.
Mr SPEAKER: I am certainly not going to remove the question from the member. I ask him to repeat his question, but to please make sure it is in order.
Hon David Parker: Is he reinforced in the concern that lay behind his statement given the reality that in New Zealand’s largest city council, Auckland City Council, rates were held at falsely low levels by increasing council debt by the greatest amount ever in New Zealand’s history, from $322 million at 30 June 2008, to $1,149 million at 30 June 2010—an increase of over a billion dollars in 2 years under John Banks?
Hon RODNEY HIDE: No, funnily enough, and the reason is that ahead of the reforms, Treasury functions across the various councils in Auckland were amalgamated, and Auckland City Council took on that role. So it borrowed $416 million, which it then on-lent to other councils, saving them considerable money because we had just one council. The Auckland City Council also borrowed another $215 million on behalf of Metro Water, which the council then on-lent. If that is netted out, we will find that the trend for debt in the Auckland City Council is exactly as predicted. In fact, Auckland City Council, in taking on that function ahead of the amalgamation, saved Auckland ratepayers some considerable money.
Hon David Parker: Does the Minister still hold with his other statement that councils “take on debt largely without the awareness of ratepayers. They can actually delay the … consequences of that debt for some years, and we are now having to deal with some councils that are being forced to put up rates.”, and does he enjoy the irony as much as I do that the worst-ever borrower in the history of local government is now the intended lifesaver for ACT and John Key is telling National voters to vote for him?
Hon RODNEY HIDE: I do stand by that statement. But, actually, as I said—and the member may not have heard my answer—in the case of Auckland City Council, they were borrowing on behalf of all of Auckland and actually lent the money on, again saving the cost of the additional borrowing for those councils. I would have thought that was a good thing and, in fact, a far-sighted move by mayor John Banks.
Hon David Parker: Has the Minister considered allowing councils to fund deficits, like the one created by John Banks, with a tax on cannabis, in keeping with the latest puff of genius from the ACT Party?
Hon RODNEY HIDE: Unfortunately, it is impossible to answer that question without repeating myself, and that shows us the danger of a member preparing his questions ahead of hearing the answers and actually getting caught out with questions that do not bear any resemblance to the Auckland City Council’s final accounts, which showed us that what that member is saying is not true.
Hon David Parker: I seek leave to table a document showing that the Auckland City Council’s debt—
Mr SPEAKER: The source of the document?
Hon David Parker: A concerned ratepayer, drawn from the Auckland City accounts. [Interruption]
Mr SPEAKER: A point of order is being heard.
Hon David Parker: I seek leave to table that document showing council debt increasing from $322 million to $1,149 million over that 2 year period, not all of which is—
Mr SPEAKER: Leave is sought to table that document from a concerned ratepayer. Is there any objection? There is objection.
State Housing, Auckland—Upgrades and New Houses
7. PESETA SAM LOTU-IIGA (National—Maungakiekie) to the Minister of Housing: What plans does the Government have to increase and improve State housing in Auckland?
Hon PHIL HEATLEY (Minister of Housing) : Today I am pleased to announce that over the next 5 years the Housing New Zealand Corporation will build or acquire up to 1,400 additional new homes in Auckland, and we will upgrade 14,500—14,500—existing properties, which is nearly half the current State housing stock in the region.
Peseta Sam Lotu-Iiga: How do these plans impact the Government’s commitment to work with third sector providers of social, affordable, and niche housing?
Hon PHIL HEATLEY: Currently a number of old, cold, and mouldy State homes are sited on large quarter acre sections in Auckland, and they have been for a decade. Where appropriate, the Housing New Zealand Corporation will subdivide these properties to provide a mix of new fit-for-purpose State housing, to work with the third sector to assist it to provide more social and niche housing, and also to increase the supply of land available for home buyers, including first-home buyers.
Rahui Katene: What plans has the Government made to invest in more four-bedroom houses to better reflect the demographic being served in Auckland, which includes more larger Māori and Pacific Island whānau?
Hon PHIL HEATLEY: The State housing stock is overwhelmingly made up of three-bedroom homes, which is the wrong size to meet current need, as the member points out—that need is, basically, one and two-bedroom homes for people who are living alone but also homes with four or more bedrooms for large Māori and Pacific families. The Housing New Zealand Corporation will be building and acquiring homes of those sizes—absolutely. I have also asked the Social Housing Unit to partner with iwi and other third sector providers to provide adequately sized social housing across New Zealand and, of course, across Auckland.
Moana Mackey: When he talks about community housing organisations taking over social housing from the Housing New Zealand Corporation—and, in the case of the Tāmaki Transformation Programme, providing 50 percent of the social housing, with the Housing New Zealand Corporation having the other 50 percent—will those community housing organisations be given the funding for the income-related rent subsidy so that the tenants in those properties do not see their rents going up as he pushes them from a Housing New Zealand Corporation property, where they pay only 25 percent of their income to a community housing sector property where the sector cannot afford to provide that same level of subsidy?
Hon PHIL HEATLEY: I never said a bunch of those things. I said that in places like Tāmaki, where there are large quarter acre sections, we will subdivide, building new State houses perhaps on one half of the section, and selling the other half to a community housing organisation or a first-home buyer to raise funds. That is what I said. On the issue of income-related rents, we have said to social housing providers that we do not intend to transfer income-related rents to them at this time. We may consider that at a later date. I would be interested to see, if Labour does that, where it would get the money from.
Carol Beaumont: Why are the residents of northern Glen Innes who are to be relocated not being given the opportunity to return to their current community once the redevelopment work has been completed, as was the case with the Ladies Mile and Kings Road developments?
Hon PHIL HEATLEY: That is usual across New Zealand when there is a State housing development. It has happened over a number of years, though under the previous Government there was very little redevelopment. Certainly, the option is often given to tenants to either move into alternative State housing permanently or relocate back. Often, they want to go to where they have been relocated because they have settled. Sometimes when they see the new State houses, they want to move back. Usually there is a bunch of options, and I would expect that would happen in this case.
Auckland District Health Board—Te Whetu Tawera Acute Mental Health Unit
8. GRANT ROBERTSON (Labour—Wellington Central) to the Minister of Health: Does he believe Te Whetu Tawera, the acute mental health unit of the Auckland District Health Board, is functioning to a high standard; if so, why?
Hon Dr JONATHAN COLEMAN (Associate Minister of Health) on behalf of the Minister of Health: Yes, because an independent report completed last month on Te Whetu Tawera has found that overall the service is functioning to a high standard. I am also aware that the Mental Health Commission visited the service and agrees with the findings of this independent report.
Grant Robertson: Why did Associate Minister Jonathan Coleman tell the New Zealand Herald that the unit was functioning to a high standard when assaults at the unit tripled between 2009 and 2010, with 213 assaults over the past year, including 131 on staff?
Hon Dr JONATHAN COLEMAN: That is actually a separate issue to the core question of whether the unit is functioning at a high standard. The independent evidence backed up by the Mental Health Commission says that it is, in direct contrast to how it was functioning under the Labour Government.
Grant Robertson: How could Associate Minister Coleman say the unit was operating to a high standard when bed numbers have had to be cut in order to ensure staff safety, and it is not possible to fill staff vacancies, because of fear of safety issues?
Hon Dr JONATHAN COLEMAN: The reason that it has been difficult to recruit staff to that unit is that under the Labour Government morale in that unit plummeted. That is backed up by two reports, in 2007 and 2008, that were very critical of clinical management there and the lack of action of the last Government. This latest independent report shows that there has been a marked improvement in the culture and in the way that patients are managed. Under this Government there has been real improvement at that unit, and the evidence backs that up.
Grant Robertson: Can the Minister really tell the House that there has been improvement under his Government when assaults at the unit tripled between 2009 and 2010, with 213 assaults over the last year, including 131 assaults on staff? How is that a unit functioning at a high standard?
Hon Dr JONATHAN COLEMAN: What I can say is that the independent, objective reports show that there has been dramatic improvement under this Government, in marked contrast to the absolute mess that the Labour Government had left that unit in when we came into Government.
Grant Robertson: I raise a point of order, Mr Speaker. This will be a little bit difficult because that was not a question that I had written down; it was a response to a supplementary answer. I do not believe that the Minister addressed my question, which asked how he could make the statement about the unit operating at a high standard given those statistics.
Mr SPEAKER: The member should just reflect on what he said. He asked the Minister how he could make such a statement. The Minister’s answer was because of this independent report. That is a perfectly legitimate answer to that question. There is not a lot I can do about that.
Video Surveillance—Covert Footage from Private Property
9. KEITH LOCKE (Green) to the Minister of Police: In how many trials completed this year have the Police submitted covert video footage obtained on private property; if any?
Hon CHRISTOPHER FINLAYSON (Attorney-General) on behalf of the Minister of Police: There is a preliminary point I want to make. I note the question refers to evidence submitted, and that will include evidence ruled admissible and also evidence tendered but ruled inadmissible, for example, because of an objection under section 30 of the Evidence Act. I am advised the New Zealand Police do not have that information readily available. There are approximately 2,000 indictable criminal cases heard in the District and High Courts each year, and thousands of summary prosecutions; to provide that answer would require analysis of each of the cases. That is a substantial piece of work and it is outside the scope of parliamentary question time.
Keith Locke: Does the Minister agree with the Attorney-General, who said in response to an earlier question today that before the Supreme Court ruling of 2 September on the unlawfulness of police use of covert video surveillance that there was “no appreciation of the issue of lawfulness having been raised,”?
Hon CHRISTOPHER FINLAYSON: Yes, although if he was to be exact, the Attorney-General could possibly also have referred to comments made in the Law Commission report, but instead he was focusing mainly on the 15 years of Court of Appeal jurisprudence upholding this activity.
Keith Locke: Is the Minister saying that she received no advice from police that there had been a High Court ruling on 7 October 2009 relating to the Operation Eight case that covert video surveillance was unlawful?
Hon CHRISTOPHER FINLAYSON: Yes, she would have received that report. She would also have received a report that the High Court allowed that evidence in under section 30 of the Evidence Act. She would also have received a report of the decision in the Court of Appeal that upheld the lawfulness.
Keith Locke: If she did receive advice that there was a determination of the illegality of covert video surveillance evidence, even if it was allowed in this particular case, what did she do to ensure that the police would not be acting illegally in the future by engaging in covert video surveillance?
Hon CHRISTOPHER FINLAYSON: She would have been relying at all times on the advice of the Crown Law Office, which has had the carriage of this criminal litigation on behalf of the Government. She would also have known that the case was going through other levels of the court system—first, the Court of Appeal and, subsequently, the Supreme Court.
Keith Locke: Does the Minister agree that because the police continued to use covert video surveillance they were essentially flying in the face of court rulings, and does she agree with the Chief Justice’s comment in her operation case ruling on 2 September that there had been “deliberate unlawfulness” by the police in conducting filming and that this “is destructive of an effective system of justice”?
Hon CHRISTOPHER FINLAYSON: I will not answer that question, because it seeks a legal interpretation. I would think it would be very unwise in this place to start commenting on judgments—be they of the Chief Justice, Justice Blanchard, or anyone else.
Education, National Standards—School Charters and English Language Learners
10. SUE MORONEY (Labour) to the Minister of Education: How many letters has the Ministry of Education sent to schools in the past eight weeks requiring a specific statement that refers to National Standards to be included in their charters?
Sue Moroney: How many of those school boards of trustees have submitted their charter along with a statement that they have submitted the required national standards targets under duress?
Hon PAULA BENNETT: I am not sure how many boards have put “under duress” on their charters, but I am advised that of the 1,942 charters that have been analysed, 93 percent are compliant.
Sue Moroney: After much negotiation.
Mr SPEAKER: Order!
Sue Moroney: Did the Ministry of Education’s planned training of limited statutory managers go ahead yesterday; if so, how many people undertook that training?
Hon PAULA BENNETT: I am not sure. I am sorry I cannot answer that question.
Sue Moroney: Does she think that a recent edict from her Ministry of Education that students with English as a second language and those funded by the Ongoing and Reviewable Resourcing Scheme be included in national standards data will make schools more welcoming of those students or more likely to avoid enrolling them?
Hon PAULA BENNETT: I think that schools, boards of trustees, and teachers are all there to try to benefit children and to make sure that they are doing well, whether or not they are under Ongoing and Reviewable Resourcing Scheme funding or have special needs. I am very confident that they see those children as individuals with individual needs.
Sue Moroney: I raise a point of order, Mr Speaker. I specifically asked a question about whether the Minister saw the inclusion of students funded by the Ongoing and Reviewable Resourcing Scheme and those with English as a second language in national standards data as helping schools to make students more welcome or as making schools more likely to avoid enrolling them. The Minister made no reference at all to including them in the national standards data.
Hon Simon Power: Speaking to the point of order.
Mr SPEAKER: I will hear briefly from the Acting Leader of the House.
Hon Simon Power: The Minister did specifically answer the question by saying words to the effect that she would expect them to be welcomed into the school whether or not they are funded by the Ongoing and Reviewable Resourcing Scheme, and that they would be treated as individuals by the boards, staff, and everybody else who is at the school.
Mr SPEAKER: I think that is a fair point. The question asked an opinion, and the Minister gave her opinion, which was pretty close to the question asked.
Sue Moroney: I seek leave to table a letter dated 24 August 2011 from the Ministry of Education to schools stating: “The amendment required to your school charter is to include the following target”.
Mr SPEAKER: Leave is sought to table that document. Is there any objection? There is no objection.
- Document, by leave, laid on the Table of the House.
Sue Moroney: I seek leave to table a letter from the Ministry of Education, from an organisation known as the national standards inquiry team, informing schools of national standards and reporting to parents on the progress and achievement of students who are English language learners.
Mr SPEAKER: Leave is sought to table that document. Is there any objection? There is no objection.
- Document, by leave, laid on the Table of the House.
Primary Growth Partnership—Successful Bids
11. JONATHAN YOUNG (National—New Plymouth) to the Minister of Agriculture: Has he seen any reports on recent initiatives that boost research in the agricultural sector?
Hon DAVID CARTER (Minister of Agriculture) : I have. Last week the latest successful bid for Primary Growth Partnership funding was announced. This is a $19.5 million project funded 50 percent by the Government and 50 percent by a research team led by Ballance Agri-Nutrients. It is hoped that the project will help transform the traditional use of fertiliser. It will have a real focus on minimising the environmental impact of fertiliser applications.
Jonathan Young: How does this initiative build on agricultural sector research?
Hon DAVID CARTER: This initiative brings the total support to agricultural research in the last 2 years through the Primary Growth Partnership to $493 million. Nine different projects, including dairy, forestry, red meat, and aquaculture are now under way. Industry has committed $266 million and the Government has committed $227 million to support these projects. This is the largest-ever injection of research funding into our primary sectors, and it shows that this Government has real, solid commitment to the growth of the New Zealand primary industries.
Income Gap, Parity with Australia—Effect of Labour Market Deregulation
12. DARIEN FENTON (Labour) to the Minister of Labour: By how much, in today’s New Zealand dollar terms, has the wage gap between New Zealand and Australia grown since the Employment Contracts Act 1991 deregulated the labour market?
Hon KATE WILKINSON (Minister of Labour) : I am advised that the calculation that the member asks for is fraught with problems from a mathematical point of view, and that two people working out the same question are likely to come up with two different answers, based on differences in currency, conversion, CPI purchasing power, etc. That said, the Department of Labour has provided some numbers showing that the difference in the wage gap is around $100, in today’s terms, from what it was 20 years ago. It also advises that the largest gap in wages occurred under Labour in 2006.
Darien Fenton: Does she agree with Professor Ray Markey of the Auckland Institute of Technology’s Work and Labour Market Institute, that “There is virtually no evidence in New Zealand, for example, or even overseas that a reduction in the coverage of collective bargaining or in the coverage of unions will improve workplace performance. In fact, there’s some evidence which goes the opposite way.”?
Hon KATE WILKINSON: I neither agree nor disagree with that quote, but can I say that we do appreciate the value of unions in improving the productivity of the workplace; we accept that. But in relation to collective bargaining, what we are trying to do is to focus on a labour market that is flexible and that is conducive to economic growth and to wage growth.
Darien Fenton: Does she agree with Business New Zealand chief executive officer Phil O’Reilly that employment relations need to be flexible in order to drive productivity; if so, why is Australia more productive, and with 30 percent higher wages, despite having a stronger union movement and centralised wage fixing—a system called modern awards?
Hon KATE WILKINSON: Yes, I do agree with that sentiment of Mr O’Reilly from Business New Zealand. Unless the member is totally ignorant of what happens in Australia, she should be aware that they are very rich in minerals.
Darien Fenton: Which factor does she believe has had the most influence on the hundred thousand New Zealanders who have chosen to leave New Zealand for Australia, under her Government—Australia’s higher wages and better holiday conditions, or the Christchurch earthquake and Australia’s different climate, as she suggested on Radio New Zealand this month?
Hon KATE WILKINSON: There are a number of reasons why people are leaving to go to Australia, and there are a number of reasons why people are leaving Australia to come to New Zealand. Some of those reasons do include the earthquake.
Darien Fenton: Does she think, as our Prime Minister does—and as he has said today—that Australia should just give us a coalmine and that would be the answer to the wage gap and the thousands of people who are fleeing to Australia?
Hon KATE WILKINSON: I can say that certainly if we were richer in minerals, then we would have a better economy.
Questions to Members
Railway Workshops, Petition—Request for Submissions
1. CLARE CURRAN (Labour—Dunedin South) to the Chairperson of the Transport and Industrial Relations Committee: Has he requested any written submissions on the petition of George Laird, signed by nearly 14,000 people, calling on the Government to retain the Hillside and Woburn workshops?
Clare Curran: Did he, as chair, put a motion to the committee that a submission be called for from the petitioner or a representative of the petitioner, and did he rule that Michael Woodhouse voted against it?
Mr SPEAKER: This is starting to get into territory that is a matter for the committee. I think that is starting to get into dangerous territory. I will give the member another chance to reword her question, should she wish to.
Clare Curran: Did he, as chair, put a motion to the committee that a submission be called for from the petitioner or a representative of the petitioner?
DAVID BENNETT: What the member may have done as chair is a matter for the committee, and it is not in order to be questioned in the House in that way.
Mr SPEAKER: I will seek some advice on this. I may be wrong, but I thought the second supplementary question asked what the chair had done, not what the committee may or may not have done in relation to a matter. I will just seek advice to make sure I am not wrong in allowing that what the chair may have done could possibly be questioned. My understanding is supported by the advice I have just received. The chair cannot be questioned on what the committee may have decided to do with regard to any motion, but if the chair put a motion to the committee, the chair can be questioned on that because that is an action of the chair. I invite Clare Curran to repeat her question, because I think it was in order.
Clare Curran: Did he, as chair, put a motion to the committee that a submission be called for from the petitioner or a representative of the petitioner?
DAVID BENNETT: Any calls for written submissions are for the committee and are a matter for the committee to decide, not the chair. I have not asked for a written submission from that petitioner.
Hon Trevor Mallard: I raise a point of order, Mr Speaker. I think you ruled that the question was in order, and the question asked whether the chair put a question to the committee.
Mr SPEAKER: A point of order is being considered. We do not get into debate while a point of order is being considered. I think the point of order is a reasonable point of order. I sought advice on whether the question was in order. The question asked the chair whether he had put a submission—or a motion, was it—to the committee that a submission be called for from the petitioner. I do not believe that that has been answered. The chair has told the House he has not called for submissions, but whether the chair put a motion to the committee is a matter the chair is able to answer, and I believe the question deserves to be answered.
DAVID BENNETT: The matter is still in front of the committee and any discussions in the committee are held within the committee until the time it is reported back—
Mr SPEAKER: Had the question asked what the committee had done and what the committee decided in response to any motion of the committee by the chair, then the chair’s response just now would be perfectly correct and proper—that any decisions of the committee are not matters that the chair is responsible for in this House until the committee reports. But whether the chair puts a motion to the committee is an action of the chair; it is not a decision of the committee. If the chair did something on instruction from the committee, that is another matter, perhaps, but if the chair on the chair’s own initiative put a motion to the committee, it seems to me it is in order for that to be answered, and I do not see the big mischief in answering such a question.
DAVID BENNETT: I will have to check that, because I would like to see what was actually said within committee and I do not have that in front of me at the moment.
Hon Trevor Mallard: I raise a point of order, Mr Speaker. Far from me it—far from it—I will start again. I am slightly dumbstruck because this is a matter on which there have been a series of questions as to whether a particular question relating to a member was—
Mr SPEAKER: If a member claims they cannot recollect, which is what the member is telling the House, I have to, as Speaker, accept the member’s word. The House can make its own judgment about what it thinks, but as Speaker I must accept the chair’s word that he cannot recollect with precision. He obviously wishes to make sure he informs the House correctly and I have to respect that answer. But others can interpret it how they like.
Government Superannuation and National Provident Funds, Petition—Request for Submissions
2. GRANT ROBERTSON (Labour—Wellington Central) to the Chairperson of the Commerce Committee: Has she called for submissions on the petition of Allen Hair, on the annuities payable to members of the Government Superannuation Fund and the National Provident Fund; if not, why not?
Hon LIANNE DALZIEL (Chairperson of the Commerce Committee) : Yes, we have asked the petitioner to provide a written submission. We have received four unsolicited submissions from other organisations, three of which have requested to be heard.
Grant Robertson: Did she put a motion to the committee to call for those submissions to be heard before the House rises?
Hon LIANNE DALZIEL: Yes, I did.
Criminal Procedure (Reform and Modernisation) Bill
Hon SIMON POWER (Minister of Justice) : I move, That the Criminal Procedure (Reform and Modernisation) Bill be now read a second time. The Criminal Procedure (Reform and Modernisation) Bill underlines this Government’s commitment to modernise New Zealand’s justice system for the benefit of those who use it and are entitled to depend upon it.
New Zealand’s criminal procedure is outdated and cumbersome. The current system may be working well from the perspective of those who earn a living from it, but it is failing those who find themselves in our courts through no fault of their own. In the words of the late Chief District Court Judge, His Honour Russell Johnson, a lack of teeth in the current law has contributed to “an unacceptable degree of indiscipline, inefficiency, and delay within the criminal justice process, as well as, regrettably, injustice where exhausted witnesses have abandoned cases because of excessive time delays.”
This bill will fundamentally change criminal procedure, making criminal processes much more efficient and accessible. It will deliver timely justice and provide sufficient flexibility to meet contemporary and future expectations of court processes. We can never completely remove the distress and anguish that victims and their families experience as a result of offending against them, but through this legislation we can help them to move on with their lives by reducing and streamlining their exposure to the criminal justice system.
I would like to thank the Justice and Electoral Committee chair, Chester Borrows, for steering the committee through this 600-odd page bill. The Justice and Electoral Committee recommended a number of sensible clarifications and refinements, all of which the Government is adopting. The most significant changes recommended by the committee include widening the grounds for ordering a retrial for a defendant found guilty in their absence, clarifying that the court may not sentence a defendant in his or her absence for imprisonable offences, enabling costs ordered against a party for not complying with procedural requirements to be paid to people connected to the proceedings who incurred additional costs because of the non-compliance, removing the requirement that second appeals to the High Court and Court of Appeal must be on a question of law and providing that leave for appeal may be granted if the appeal is in the interests of justice, removing the reverse onus provisions carried over from previous legislation that the Attorney-General concluded were unjustified under the New Zealand Bill of Rights Act, splitting the bill’s single offence and penalty structure for publishing suppressed information into a two-tiered system to better reflect the levels of culpability relating to those actions, and removing the proposed offence concerning the liability of internet service providers for breaching a suppression order. The committee also recommended a number of minor and technical changes to the bill, which have also been adopted.
In addition to these changes, a number of further amendments have been made to the bill since it was reported back from the select committee. To this end, I would like to thank the ACT Party, United Future, the Māori Party, and Labour for their constructive approach to negotiations since the bill was reported back from select committee in July. Earlier today I tabled a Supplementary Order Paper—actually three, but one in particular—that will give effect to the changes made as a result of those negotiations. I am confident the additional safeguards we have developed strike an appropriate balance between time and cost savings and the defendant’s right to a fair trial.
The main changes contained in Supplementary Order Paper 282 are the removal of the requirement for the defence to identify issues in dispute pre-trial, setting the jury trial threshold at offences carrying a term of 2 years’ imprisonment and above, and amending the clause that gives the courts the ability to proceed in the absence of the defendant, so that the court’s discretion is limited to proceeding in procedural hearings where no determination of guilt or innocence will be made. In respect of substantive hearings, the bill will provide that if the court is satisfied that the defendant has a reasonable excuse for non-attendance, the trial must not proceed in the absence of the defendant unless the court is satisfied the defendant will not be prejudiced by his or her absence.
The bill also amends the reference to costs orders, to make it clear that costs orders against the defence or defence counsel for unreasonable and significant procedural delay are expected to be used rarely and only for significant procedural non-compliance. The bill also removes the word “substantial” from the miscarriage of justice test, and restores the current 6-month limitation period for the least-serious category 1 and 2 offences.
I am pleased to report to the House that, including the changes made in the agreed Supplementary Order Paper, the reforms contained in the bill have the potential to free up up to 9,000 court sitting hours each year by delivering benefits that include approximately 36,650 fewer court events, somewhere between 230 and 450 fewer jury trials, significantly, a 6 to 9-week reduction in the average time to complete a jury trial, and millions of dollars in savings.
In addition to the changes I have outlined, the bill will address concerns about name suppression for so-called celebrities by providing that there is no presumption of extreme hardship solely on the ground that the defendant is well-known or famous, or thinks they are.
I am confident that this bill will ensure more timely justice for victims, witnesses, and defendants, and will provide an enduring legislative framework for criminal procedure, which will ultimately enhance public confidence in the justice system. I would like to conclude by saying that this bill has been 10 years in the making. Various Ministers of Justice and Courts, over a long period of time, have worked on this legislation, and thanks go to them for trying to wrestle with this particular beast, which is not insubstantial in size and content.
In concluding, what we have is a bill that will be broadly acceptable to a vast majority of parties present in the House, and that is the way to move ahead with reform like this type of work. I am quite willing to conclude today by thanking those parties who have been involved in those discussions, and by thanking the Ministry of Justice, and the Law Commission, which acted as an adviser on the bill. I commend this bill to the House.
CHARLES CHAUVEL (Labour) : The Labour Party issued a minority report at the time of the Justice and Electoral Committee reporting back to the House, and we expressed concerns around a number of provisions in the Criminal Procedure (Reform and Modernisation) Bill. We were supportive of the general legislative exercise. As the Minister of Justice noted, we originated the reform process in the Criminal Procedure (Simplification) Project some years ago, and it is appropriate to pay tribute to the Hon Rick Barker as one of the Ministers who had carriage of that project. It is important to ensure that our criminal law is responsive and speedy. It is neither of those things, in its entirety, at the moment, and it is appropriate for Parliament to be acting to try to speed up the process, where it can be sped up.
But that cannot come at the price of the rights of ordinary New Zealanders, and the original proposal in the legislation to move the jury trial threshold, drastically, from 3 months to 3 years was not acceptable, particularly as it involved a proposal to amend the New Zealand Bill of Rights Act in a substantive fashion without appropriate prior consultation.
It was not appropriate to seek to make major inroads into the right to silence by requiring the defence to identify to the Crown in advance the basis on which it would be defending a charge. It is an ancient principle of our system of justice that the job of the prosecution is always to prove all the elements of the offence, and that is how it should be. The State has enormous resources, which it can deploy in the detection and punishment of alleged offences, and when it does so there has to be some balancing against that enormous amount of resources, and the right to silence is one of the most important of those balances.
It was also inappropriate to have a provision in the original legislation, and in the bill as reported back from the select committee, to allow the court to proceed in the absence of the defendant in too wide a series of situations. The ability to deploy costs orders against the defendants or their counsel was of real concern. There were also real concerns about the circumstances in which a retrial could occur: a miscarriage of justice had to be “substantial” in order for there to be a retrial. Well, in our view, a miscarriage of justice is a miscarriage of justice. It should not have to be substantial, at all, to merit the right of citizens to be able to get the case against them re-presented.
So those were concerns that we expressed during the select committee process. We expressed many of them in our minority report, and we expressed them in correspondence to the Minister. I acknowledge the other parties in the House, particularly the ACT Party and the Māori Party, which eventually joined in our expression of concern. They made their own separate representations, but they were along similar lines, and they were right to do so.
So it was that we managed, after a period of time and some negotiation and an exchange of letters between the various parties involved and the Minister, to come to the situation that we have today, which is a better bill. It is a bill that now has a jury trial threshold of 2 years, not the 3 months as the law currently is, and not the 3 years that was proposed in the legislation. Now, there is no great science, I have to say, behind the suggested 2 years, but a simple examination of the Crimes Act shows that there are a number of offences where we could draw a line about what is serious and what is not, such as male assaults female, where there will now have to be a jury trial if the defendant so elects. That was not the case under the original proposal. I questioned at the time at the select committee whether we were really getting appropriate analysis from the officials about what savings in time and cost we would actually see by moving the threshold as originally proposed. The Minister has made some estimates in his second reading speech about what savings will now result. We will have to see about that, but I think the threshold is better at 2 years than at 3 months.
I do remain concerned that we do not have a convention in the House around amending the New Zealand Bill of Rights Act. This is only the second time that the Act has been substantively amended during the time that it has been in force. The last time was when we expanded the rights of New Zealanders by adding to the prohibited grounds of discrimination contained in section 19. We are taking away rights through this amendment, and the process still leaves me quite disquieted. We have to do better, and, in fact, what we need to do, I think, as a Parliament is finally bite the bullet and entrench the Act, so that this sort of process—this auction of provisions in the legislation—cannot continue to occur.
I am glad that the infringements concerning the right to silence have been dealt with. I am glad that the court’s ability to proceed in the absence of the defendant has been constrained. I am glad that the use of costs orders has been considerably constrained, and I am glad about the changes to the wording on miscarriages of justice—the requirement that they must be substantial. We do have a better bill as a result of having safeguarded some fundamental rights through the agreed amendments, which the Minister has foreshadowed.
What I want to do is to foreshadow some further amendments. When I communicated to the Minister my caucus’s agreement to the changes that we negotiated, I reserved the right to move some further amendments, and I will be tabling a further Supplementary Order Paper during the Committee stage of the bill. I want to just deal very briefly with what those further amendments will do, and I do this on the basis of encouraging other parties in the House to consider the changes with an open mind.
I do think that there are some provisions that could be strengthened around the trials in absentia issues. I think we could have a better procedure for on-the-spot summonses. I think we could deal in a better way with costs orders and factoring in procedural non-compliance at the sentencing stage, which the Chief Justice was very critical of, and which still survives to an excessive degree, in my view, in the bill. We have a really good system in this country now, but it is an informal system, where a judge can give a sentencing indication. Defendants can say “Well, I quite like the sound of that. I’ll avoid a trial and simply take the sentencing indication.” That saves a lot of court time, but it is an informal system. I think we should put it on a statutory basis. We should probably limit the ability of the prosecution to obtain adjournments in some cases—again, if we want to actually move the system forward on a speedy basis. There probably should be an end to the somewhat dated provisions that we have around when one can and cannot address a judge about the evidence. But those are amendments that I will put forward at the Committee of the whole House stage.
The Minister mentioned that he thought the changes before the House would result in 36,600 fewer court events, a saving of between 6 and 9 weeks in the conclusion of jury trials, and many millions of dollars of savings. He also talked about an enduring settlement around speeding up our criminal law and simplifying it. I am afraid those claims remain to be tested, and I am, unfortunately, a bit sceptical about whether they are right. I think we need to undertake much more thoroughgoing reform in our criminal justice system, starting with updating the now out-of-date substantive statutes from 1957 and 1961, and then dealing with the procedural and evidential issues. But those are questions for another day. It is a better bill than where we started, and on that basis I commend it to the House.
CHESTER BORROWS (National—Whanganui) : I start by congratulating the Justice and Electoral Committee and those members who engaged fully in respect of the consideration of the Criminal Procedure (Reform and Modernisation) Bill, particularly on the way that there was cross-party debate and engagement in respect of these matters by the Labour team, led by Charles Chauvel and supported by Carol Beaumont and Carmel Sepuloni, and the New Zealand Green Party, represented by Dr Kennedy Graham. The National members—the deputy chair, Simon Bridges, Paul Quinn, Kanwal Bakshi, Hekia Parata, and then Amy Adams—contributed well, too. It is great to be part of a committee that has worked well together over 3 years and has processed a large amount of legislation. I think those members can be pleased and satisfied to see their fingerprints all over the various legislation that we have transacted in. It is legislation that is better for the time it has spent before the committee.
I believe that from time to time the law needs reforming and that conventions need questioning. I do not believe we have a situation where the rule of law will stay the rule of law for ever, and it should not, because the circumstances of those appearing before the court, on either side, and of those presiding over the court change. It was interesting to note, for instance, that a submission made by the late Chief District Court Judge was that we should extend the sentence threshold for jury trials to 5 years, which ran at odds with a number of other submissions. Certainly, it was at odds with where the bill has ended up.
There were also speeches given by the judiciary. I am thinking of Justice Bruce Robertson and a speech he made that talked about the need for, and the sensibility of, identifying issues. However, it is a fact, in making criminal law, that there is a need to have some consensus not only because of the numbers in this debating chamber but also because of the need to have an enduring criminal law so that people understand the law they have to live under. It is not a branch of the law that can be chopped and changed with changes in Government. So I am pleased to see that we have come to a place now, after the debate through the committee, the changes made through the committee, and the negotiations that have gone on since then in order to bring the bill to the place where it is today, that has seen some changes and some concessions made by parties on both sides of the House.
Whereas I agree that justice delayed can be justice denied, I do not agree that justice sped up is necessarily any form of justice, at all. I agree with the previous speaker, Charles Chauvel, that we need to ensure that cases are explored and that people are given the opportunity to present cases in the way that they wish to in cases that are fair to them. It is the sad case that quite frequently the question most asked in courts by the defendant of his counsel is in the order of: “What just happened?”. That should not be the case.
But I am pleased to see that a number of these provisions will expedite justice. The bill will ensure that provision is given for cases to be heard, for them to be well considered, and, at the same time, for them to be able to proceed in a timely manner. I commend this bill to the House.
Hon LIANNE DALZIEL (Labour—Christchurch East) : I particularly want to address a matter of process in respect of the Criminal Procedure (Reform and Modernisation) Bill, which is probably not surprising, given that it is a process bill. I think it is important that when we are reforming and modernising criminal procedures, as this legislation does, we are really careful about some of the underlying principles against which we measure our own system of justice. These principles have really stood the test of time. Sometimes I am concerned that there are those of us who have less of a constitutional interest in the law, and we forget the importance of these principles.
I think that the retirement of Sir Geoffrey Palmer as a sitting member of this House marked a transition in our history in that regard. With Sir Geoffrey, we actually had somebody who was incredibly adept and knowledgable about our constitutional framework, and was always alert to these matters. That is why I am so proud that my colleague Charles Chauvel has taken the lead role in justice matters on this side of the House. I believe that the way he has handled this particular matter to ensure that those principles are protected in the legislation going forward—not as reported back from the Justice and Electoral Committee but by way of amendment by a Supplementary Order Paper from the Minister—is something that we owe him considerable thanks for. I want to sort of formally recognise that credit must be given where it is due.
I have in my hand three items of correspondence, which I believe really summarise the fact that this Parliament can do things well when we have a Minister and an Opposition spokesperson who are able to work collaboratively on such issues. The first letter is dated 8 September this year, and it is from the office of the Hon Simon Power, addressed to our spokesperson Charles Chauvel. The second letter is a response from Charles Chauvel, dated 10 September 2011. The final letter is a response from the Minister back to Charles Chauvel, basically setting out the detail of the collaboration that has produced the result we will deal with when we get to the Committee stage of this bill.
The point the Minister made in his letter of 8 September was that he advised Charles Chauvel that, in fact, the Government had the numbers to pass the legislation. But he felt persuaded that it was important to obtain broad-based political support for such a measure, and, therefore, he wanted to respond to the particular issues Charles Chauvel had raised on behalf of the Labour Opposition. I think that is an incredibly powerful message and one that I hope this House takes some recognition of. I have enjoyed a similar working relationship with the Minister in his role as the Minister of Commerce, and I think that this has to be the way of such measures in the future. There is a range of issues on which we ought to be able to work much more collaboratively, rather than leaving it to a negotiated agreement post the report back from a select committee.
Large Supplementary Order Papers are always fraught, as I found out with some of the financial advisers legislation I was responsible for, but I also think that some of the issues that Charles Chauvel has raised, which he will also be introducing by way of Supplementary Order Paper, are important, too. I hope that the Government decides to continue that whole approach on collaboration and looks at some of the issues that Mr Chauvel will raise. The one I wanted to comment on briefly was that of placing the judge’s sentencing indication on a legislative basis. I believe it is much more preferable for the judge’s obligations in that regard to be set out in statute, rather than just relying on a case by case situation.
I have a constituent who felt forced to change his plea to guilty when the judge said that he had no compunction about sending a tetraplegic man in a wheelchair to jail. The judge had made it absolutely clear that he felt that my constituent was guilty. I know the full circumstances of that case. I know that my constituent wanted to plead not guilty and that he had every ground for pleading not guilty, but he felt he had no choice because of the degree of pressure he was placed under.
I think it is important that that kind of issue is placed firmly in the legislative frame, and, therefore, I think we would find fewer difficulties in the future. I hope that the Government looks seriously at the Supplementary Order Paper that Mr Chauvel will put forward on behalf of the Labour Opposition. Certainly, on the basis of the Supplementary Order Paper that the Minister has indicated, which has now been tabled in the House, we will be supporting this bill.
Dr KENNEDY GRAHAM (Green) : Let me begin by commending the Minister of Justice, Mr Power, for his commitment to concluding the 10-year project that this is for reforming the framework governing criminal procedure in this country. It is nothing short of herculean and I salute him for his ability and his determination. His Government will be the poorer for his departure. I pay tribute, in particular, to the substantive changes he has made to the Criminal Procedure (Reform and Modernisation) Bill within the past week. Although these were made to some extent under political duress, as it were, he none the less has shown flexibility and courage in taking this latest initiative. It seems that most of the parties that were earlier concerned with some of the provisions of the bill, and were disposed to oppose the bill as a result, have swung in and indicated their support. We respect their decisions.
For the Green Party, we have studied the changes in the short time permitted and we wish to be positively disposed towards the bill, yet we remain obliged to sift the changes in the context of our stated opposition to the provisions that have given us concern before. We had identified a longer list than the other parties. So let me proceed systematically through our list, but first let me offer some broad philosophical comment, essentially in response to the broad comments made by both the Minister this afternoon and Labour’s Charles Chauvel.
The purpose of this bill is to ensure that criminal prosecutions are conducted fairly and without unnecessary delay or stress for victims and witnesses. The bill thus seeks a balance between efficiency and fairness. Efficiency and fairness are discretely different qualities. The first is instrumental. It is a means to an end. It has to do with the operation of machinery—in this case, the judicial machinery. In terms of morality, it is neutral. History shows that humans can be efficient in doing wrong as well as right. The second is normative. It is the goal itself. It has to do with the purpose that the machinery is designed to serve. In terms of morality, it is positive. History shows that humans are capable of doing right, but only when its component qualities are enshrined in principle and when those principles are protected by safeguards. That is why almost all societies entrench the most fundamental of their cherished principles.
I noted Chester Borrows’ comment a moment ago about the need for the enduring nature of criminal law—that justice sped up is no justice at all. We agree. So when we judge this bill, we may not engage in a free-market trade between efficiency and justice. We can strive to be as efficient in our judicial system as possible, but not at the expense of fairness. We may strive for optimal efficiency within the perimeter of fairness, but we may not breach that perimeter for the sake of any marginal, incremental efficiency. At the perimeter of fairness, the marginal utility of efficiency is zero. Justice is facilitated by efficiency, but it is composed of fairness.
I listened to the Minister this afternoon in his thoughtful introduction of the bill today. He spoke of the unacceptable delays and the exhausted witnesses. We hear the Minister. I noted that his stated aim was to strike an appropriate balance between a reduction in costs and the right to a fair trial, but that balance may be influenced by whether we are focusing on violent crime or civil disobedience. So when the Government extols the merit of ensuring 43,000 fewer court events each year—12,000 fewer jury trials; some 500 fewer cases proceeding to jury trial—the Greens respond that this greater efficiency is laudable only if the principle of fairness remains unsullied.
Now let us consider whether this is the case with the bill as reported back from the Justice and Electoral Committee and as amended by the Minister in the Supplementary Order Papers that he has circulated in recent days. The Minister has made four changes, which we think are generally worthy of support. These are, in respect of the right to silence, dropping the requirement for the defence to identify in advance the issues it intends to dispute; the significant softening on the issue of procedural non-compliance; the softening, in clause 236, of the reference to miscarriage of justice through the deletion of the word “substantial”; and the change in the jury trial threshold to 2 years, which still requires an amendment to the New Zealand Bill of Rights Act.
We note that similar jurisdictions such as Canada have higher thresholds, such as 5 years, so we accept that there is nothing sacrosanct about having 2 years, as such. We note that although many offences carry a 2-year penalty, in practice the election of trial by jury in such cases is rare. I note that the Law Society supports having a 2-year threshold. I further note that the Minister has dropped the reference to exceptional circumstances. We concur with Charles Chauvel this afternoon that the New Zealand Bill of Rights Act should be entrenched.
There remain three issues that the Minister’s recent amendments have not addressed and about which we still have some concerns. First, there is the time extension for laying charges; secondly, there is the issue relating to trials in absentia; and, thirdly, there is the issue of aggravating factors in calculating the sentence. Clause 22 extends the time for laying a charge from 6 months to a year for lesser offences, but people should not be required to find out a year after an incident whether they are to face a charge of drink-driving, a minor assault, or property damage. Not only is it a matter of personal stress but also it would tilt the judicial terrain against the defendant, whose poorer recall of an incident after a year has elapsed would favour the prosecution.
Clause 128 relating to trials in absentia could usefully be revisited. I appreciate that the Minister has moved to modify the original provision, but there remains a problem. We still face the situation that this clause allows when a defendant could have a reasonable excuse for not being present, yet the hearing could continue because the judge believes that the defendant would not be prejudiced.
Clause 431 would still require a judge to take into account some procedural non-compliance behaviour as an aggravating factor in determining the sentence. We recognise that in the Sentencing Act some aggravating factors may already be taken into account. These include the use or threat of violence or a weapon, offending while on bail, particular cruelty, abusing a position of trust, premeditation, and previous convictions. But in the Green Party’s view, procedural non-compliance falls into a different category. It should not be taken into account when a judge is determining a sentence. The defendant should be sentenced solely on the weight of the crime and the related factors I have just identified, which are substantively related to the crime itself. Procedural non-compliance should be dealt with through procedural ways, not through a penal consequence in terms of incarceration.
We shall be submitting our own Supplementary Order Papers on these three issues in order to remove our last issues of concern. We still retain the hope that the Government can enter amendments that would enable us to support the bill in its final stages.
RAHUI KATENE (Māori Party—Te Tai Tonga) : The progress of the Criminal Procedure (Reform and Modernisation) Bill has been a fascinating insight into the politics of compromise. I say from the outset that the purpose of the bill is one with which we in the Māori Party have no argument. The intention of the legislation is to simplify criminal procedure and provide an enduring legislative framework that is fair, reduces unnecessary delay, is flexible, and is able to take advantage of technological developments.
The Māori Party supports having an efficient and effective justice system. By implication, therefore, the party supports the bill’s overall aims of modernising and speeding up the criminal justice system, while ensuring a defendant’s right to a fair trial. This last issue—the right to a fair trial—is where the politics of compromise has come to the fore. I refer to a quote from Gilbert Chesterton: “Compromise used to mean that half a loaf was better than no bread. Among modern statesmen it really seems to mean that half a loaf; is better than a whole loaf.” Unfortunately for Mr Power and his Government, but fortunately for the Māori Party, that is very much the case for this bill—that is, half a loaf is better than the whole loaf.
Mr Power has had to significantly compromise the substance of this bill in the light of concerns raised by the Māori Party, and, of course, by other parties around this House. We want to acknowledge the spirit of cooperation demonstrated by Mr Power in his negotiations with us, and the efforts that he went to in order for this bill to proceed, so we welcome the decision to remove from the bill the requirement for a defendant to identify issues in dispute before the trial—that is, the right to silence provision. The “half-loaf” for Mr Power has meant retaining the right to silence, lowering the threshold for the right to a jury trial from 3 years to 2 years, and making changes to rules about non-attendance in court. That is much better than what was originally conceived, which would have removed the right of an accused to remain silent and not have that held against them.
The Māori Party could not have supported clause 64 of the bill, which would have required criminal defendants to disclose their defence to the prosecution before trial. In making our position clear, we were guided by the United Nations Declaration on the Rights of Indigenous Peoples, particularly article 1: “Indigenous peoples have the right to the full enjoyment, as a collective or as individuals, of all human rights and fundamental freedoms …”. The original form of the bill eroded the right to be silent, and it would have made Aotearoa one of the few nations in the world to take it away.
The other major issue for us was the ability of the court to proceed in the absence of the defendant. Of course, it is much easier to convict someone if that person is not present to defend his or her case. But for us it is a matter of out and out justice: the right to be heard, to defend oneself. It is hard to understand how the Government could expect to gain support for having hearings proceed without the presence of the accused.
The Attorney-General concluded that the particular provisions reversing a person’s right to be present at his or her own trial were inconsistent with the rights affirmed by section 25(e) of the New Zealand Bill of Rights Act. Section 25 relates to the minimum standards of criminal procedure, and it states boldly: “Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights: … (e) the right to be present at the trial and to present a defence:”. Part-way through the negotiations, the Minister of Justice attempted a partial accommodation by seeking to replace the wording “must proceed” in clause 128 with the new wording “may proceed”. The Māori Party was not satisfied that the proposal was sufficient to allay the concerns we had around the trial in absentia proposal, so we advised the Minister that we could not agree to the inclusion of such a contentious proposition. We felt we were on good grounds. I return again to the comment of the Attorney-General: “The right of an accused person to minimum standards of criminal procedure is a fundamental human right recognised by article 14 of the International Covenant on Civil and Political Rights … and affirmed in [section] 25 of the New Zealand Bill of Rights.”
Although, no doubt, the intention of the proposal to minimise delays and reduce inconvenience and stress to victims is one that we can fully understand, it does not justify moving away from the basic human right that defendants need to be present to ensure that they are aware of what the case is against them, for a start, and then know how their case is proceeding. In sum, we have been strongly opposed to the notion of presupposing that a trial can be undertaken without the accused being present. Although we understand and appreciate the frustration of delays caused by defendants failing to attend a court hearing, we believe that the right for a defendant to be present at trial must be protected. There must be other approaches that can be taken to ensure that defendants are in attendance, other than resorting to the most Draconian measure of having a trial proceed without the accused being present. In light of our concerns, we were pleased with the compromise position from Mr Power that will limit the discretion of the court to proceed to procedural hearings only—that is, only those hearings where no determination of guilt or innocence will be made.
Finally, in reference to the punishment of counsel by use of costs orders, we take note of the advice that the court already has some limited discretion to impose court costs on counsel and defendants who fail without reasonable excuse to comply with procedural requirements. We believe that there are sufficient professional avenues in place to ensure that high standards are upheld by defendants and lawyers. We do not support the punitive approach of threatening costs, as we cannot see that such an approach will, in itself, encourage better practice. We do, however, share the concern of the Government that lawyers must be able to be held to account for the services they provide for their clients, but we suggest that the professional associations are the right and proper body to do this. Given that the provisions are already evident, we do not accept that there is any need for the costs order provisions contained in the original bill. However, we have again accepted the compromise put forward by Mr Power, in terms of amending clause 361 to make it clear that such orders are expected to be used rarely and only for significant procedural non-compliance. According to the Minister, this will set a very high test for the judiciary in deciding whether to make a costs order.
The final point of concern is the jury trial threshold. The bill originally sought to raise the threshold at which a defendant could choose a jury trial from offences carrying a penalty of more than 3 months’ imprisonment to offences carrying a penalty of more than 3 years’ imprisonment. It was noted that this one change might result in up to 1,400 fewer cases needing to be designated for trial by jury. Our concern, however, was that best expressed by the Dunedin Community Law Centre, that the removal of the right to trial by jury might mean that some people may think that “justice has not been served and [they] may feel vulnerable having a sole judge grant the power of a prison sentence.” The Minister has removed the exceptional circumstances test and is now proposing to set the jury trial threshold at 2 years, which, although not optimal, is still better than the 3 years originally proposed.
We want to ensure that the reforms will ensure more timely justice for victims, witnesses, defendants, and the community. We are confident that the changes accepted into law—even under compromise—will allow us to support this bill.
SIMON BRIDGES (National—Tauranga) : The Criminal Procedure (Reform and Modernisation) Bill is an excellent bill that will produce an enduring framework for criminal procedure in this country for many years to come. As a former criminal lawyer who has done more jury trials than anyone else in this House, I will make some comments that I hope will be helpful and of some deeper truths.
I have thought a lot about the 3-year threshold for jury trials, which is one of the two or three things that have caused some stir in the media. My view, having thought about this, is that the jury trial is not a fundamental human right, but in fact we, as New Zealanders, do have a fundamental right to a fair trial, and, as in other countries, a judge-alone trial can produce that. I certainly accept that jury trials have a deep history in this country that goes back to the United Kingdom. That history runs very deep, so I accept there is an expectation that for serious criminal cases there will be a trial by one’s peers.
The question then becomes where we should set the threshold. Borne out by the Justice and Electoral Committee, my view is that that is somewhat arbitrary. I have put to the Bar, to members of the legal profession, the question of whether the threshold should be 6 months, 7 months, 8 months, 2 years, or 5 years—and in my view the answer came down to their gut feeling. Certainly, I think most would agree today that 3 months is too low. Some—myself included—might say that 2 years is too low and 5 years is too high, but it is an arbitrary matter. What I would I say, though, is that in matters of criminal justice we want to get beyond platitudes about saying what the threshold must be, and get at the deeper truth about what it is all about. What we are really talking about when we talk about jury trials and the right to having one is the right to having a trial by one’s peers on the most serious of cases—not on the theft of a pencil sharpener, as some would have us believe.
I also think that the lack of a mature debate about other aspects of this bill has been somewhat disappointing, such as the elements in dispute, which other parties have talked about in this House. That has been caricatured as a debate about the right to silence, but in fact the provision in the bill, as modified by the select committee, was to do with elements of the offence. There is no question about the need to give evidence at any stage in the proceeding, yet the debate has been caricatured and reduced to a mantra by some in the Bar, and by some in the Opposition. I hope that when we discuss these kinds of serious issues in the future we might be able to get beyond that, to the deeper truths of what is at stake, because criminal justice and procedure is not, as some at the Bar might think, a game with something to be gamed. It is actually a very serious matter whereby we seek truth and we seek justice. The procedures should be servant to getting to the truth and not just to something to be gamed.
On the whole this is an exceptionally strong bill. I hope that when we discuss these things in the months and years to come, we will be able to look past the mantras to the fundamental truths.
CAROL BEAUMONT (Labour) : I am rising as a member of the Justice and Electoral Committee to speak on the Criminal Procedure (Reform and Modernisation) Bill, which Labour is supporting now to go to the Committee stage. There has been quite significant debate over this bill, and although I agree with Mr Bridges that this is not about a game, I think perhaps that my view on this bill is somewhat different. I think at stake are some fairly fundamental protections for people to ensure that they are treated fairly within the justice system. That is not a minor matter; that is actually a very serious matter, which is why this bill has become so controversial, and why the Government has struggled to get support to move this bill along. I do not think that everybody has been playing a game; I think there have been really fundamental issues at stake.
The bill contains a major overhaul of criminal procedure in New Zealand—there is no question about that—and Labour supports the need for a substantial overhaul of that criminal procedure. In fact, in October 2007 Labour established a review of criminal procedure in New Zealand, which was undertaken by the Ministry of Justice in collaboration with the Law Commission.
We voted for this bill to go to the select committee and gave substantial and serious consideration to its features. It is a substantial bill—526 pages long. As Chester Borrows indicated, the select committee has worked well together, and it has been well chaired by Chester Borrows. But I also note here that Charles Chauvel has played an exceptionally important role in both the select committee process and the hearing of submissions—in teasing out what was being said by the various submitters and in looking in depth at the implications of this bill—and in the role of getting us to the point we are at now, where we still have a bill that we can proceed with. I acknowledge the intellect and integrity with which Charles Chauvel has dealt with this bill.
As I said, the bill was stalled in Parliament because of opposition. That opposition was substantial, and it was not that people were opposing the bill just for the hell of it. The Government could not—and did not, in the end—ignore the substantial opposition to what was controversial. An increasing number of legal experts were indicating concerns about policy, and about the bill as it stood. That included the New Zealand Law Society, the New Zealand Bar Association, and the Criminal Bar Association of New Zealand. That opposition also followed criticism from the Chief Justice and the late Chief District Court Judge on aspects of the bill, so we are talking about a fair weight of opposition to the bill as it was.
We certainly agree that the principal statutes governing criminal procedure are out of date and excessively inflexible; indeed, there are still things to be done in that regard. In my role as Labour’s spokesperson on women’s affairs, I am certainly very mindful of the need for victims of crime not to be unduly disadvantaged by an inflexible, out-of-date, and slow criminal justice system. But we did not believe that the bill as it stood would achieve the intended reforms, and, as indicated, we had serious concerns about the implications of the bill for the public’s access to justice, as it was reported back.
We had quite a substantial minority report that outlined those objections, which included one about the threshold for jury trials. Simon Bridges, in the contribution he just made, seemed to think that that matter was not so significant, but in fact jury trials are a fundamental part of our current system. We cannot start to move the bits without looking at their wider implications, and we had many people come to our select committee and talk about one specific point—the threshold for jury trials. In the end, it is, as one person described it, probably one of the most fundamental parts of our democracy, because it is where—directly—citizens get to have a significant say on what happens to another citizen of this country. The consequences, of course, of going through the criminal justice system can be very severe, both in terms of reputation and also in terms of incarceration—the actual taking away of a person’s liberty. These are fundamentally important things, and the importance of jury trials is a cornerstone of our system as it currently stands.
Our minority report also looked at issues around defence disclosure, cases proceeding in the defendant’s absence, and compliance cost orders. Those were probably the major areas, so we are pleased that at the Committee stage the Government intends to introduce a Supplementary Order Paper that will address those concerns. We look forward to that, and as Charles Chauvel has indicated, we will be putting forward further matters in a Supplementary Order Paper at that point. They will include things like trials in absentia, and sentencing indications, which, as Mr Chauvel mentioned, could perhaps be formalised in some way, because they appear to be working well.
We agree that this legislation was needed, but believe that it did not do the work in a manner that was appropriate. In fact, it led us down the track of some things that even the Attorney-General had quite a scathing report on, in terms of this bill, which said that it quite unjustifiably contravened the New Zealand Bill of Rights Act in a number of ways, including the allowing of criminal trials to proceed without the accused being present, and the allowing of courts to order the retrial of an acquitted defendant if new evidence came to light. These matters, when the Government’s own Attorney-General is quite scathing about them, are serious, so we are glad that we have moved this on to this point.
I look forward to the Committee stage of this bill at some point. But I do think we all need to recognise that there is more that needs to be done if we are seriously going to address the problems with the current criminal procedure system, which are excessive cost, excessive delay, excessive complexity, and an outdated legislative framework. But to deal with those matters, especially that last one—the legal framework—we are getting into the territory of fundamental rights and the very, very serious matters that form the basis of our legal system. We will need to make sure that any reforms adequately take account of those things. Thank you.
Hon JOHN BOSCAWEN (Leader—ACT) : I am particularly proud to stand and take a call this afternoon on the Criminal Procedure (Reform and Modernisation) Bill on behalf of the ACT Party. The reason is that the bill we are debating this afternoon is substantially and fundamentally different from the bill that was reported back from the Justice and Electoral Committee. One party more than any other party in this Parliament has contributed to that, and that is the ACT Party. This afternoon I intend to explain to this House and to New Zealand why that is so.
There is much, much good about the provisions in this bill. Without doubt we acknowledge that we need to deal with excessive delay, we need to deal with excessive cost, and we need to modernise the criminal justice system. There was much in this bill as reported back to the House in July that all parties in the House agreed with. However, there were some fundamental disagreements, and those were ideally set out in the Labour minority report.
We have seen the Minister of Justice this afternoon identify the six major changes he intends to incorporate into the bill by way of Supplementary Order Paper. Although I intend to deal with three of them in some depth, let me just summarise the six key issues that the Minister of Justice advised this House of earlier this afternoon. First, he said that he intended to remove the issues in dispute provisions; secondly, he made a change to the jury trial threshold, from 3 years down to 2 years; thirdly, he changed the procedures that relate to trying a defendant in absentia; fourthly, he made changes to the costs order provisions; fifthly, he changed the basis for a miscarriage of justice from “a substantial miscarriage of justice” to “a miscarriage of justice”; and, finally, he changed the threshold back from 12 months to 6 months in the case of minor offences. He highlighted to the House the six major changes.
What I say to New Zealand this afternoon is that this bill as reported back to this House—all 640 pages—was reported back to the House by the Justice and Electoral Committee with the recommendation that the bill be adopted. As the Leader of the ACT Party, as the leader of the party with which the National Government has a confidence and supply agreement, I was asked by the justice Minister, by Mr Power, in his office to provide him with the five votes needed to pass this bill. On behalf of the ACT Party, I was asked for the ACT Party’s support to pass this bill. I have no doubt that had I given that support in August, this bill would have been passed. It would already have passed through this House, but it would have passed in a substantially different form. Although the Supplementary Order Paper that makes those six major changes is but four or five pages long, the provisions contained in just those four or five pages substantially change what is in the initial 640 pages. I make it absolutely clear to New Zealand that when I took this back to the ACT caucus, ACT’s five MPs were absolutely united that they were not prepared to support this bill in the form in which it was sent back to this House—absolutely united.
I have identified the six major issues that the justice Minister has already mentioned this afternoon and said that he has changed. I will focus on three of those. The first one is the requirement to identify issues in dispute. What does that mean to most New Zealanders? What does it mean to have to identify issues in dispute? I suggest that for probably 99.9 percent of New Zealanders, it means very little, but it actually goes to the heart of our justice system. Most New Zealanders know that when a person is charged with a criminal offence, it is up to the State to prove the case beyond all reasonable doubt—beyond all reasonable doubt. There is a massive mismatch between the resources of the State—the police, the investigating forces, the Crown prosecutor’s office—and a defendant. But it is up to the State to prove the case. The defendant, under our constitutional democracy, is not required to do anything to assist. Under current conventions the defendant is not required to assist in his or her prosecution. The defendant has the fundamental right to remain silent. It is up to the Crown—it is up to the police—to prove the case.
In the bill that was reported back to the House in July, the National Government proposed to change that fundamental right. It proposed to take away one of our most fundamental rights and freedoms. It proposed to take away the right to remain silent and to take away the requirement for the State to prove beyond all reasonable doubt that a case had been found against a defendant.
When I listened to the comments of Simon Bridges this afternoon—and I am very, very pleased that Carol Beaumont picked up on this point—I almost got the impression that he did not actually understand the bill. If that is the case, it is little wonder that the Justice and Electoral Committee came to the position that it came to in recommending this bill—either that, or Mr Bridges was trying to seriously misrepresent the position as contained in this bill. Mr Bridges said that the arguments against this bill were reduced to a mantra. He argued that the right to remain silent, the requirement to identify issues in dispute, was not actually under debate. Well, if he had listened to the speech of his own justice Minister, Simon Power, he would have heard Mr Power already raise the white flag—“I surrender; I accept I have made a mistake.”
What this bill highlights probably more than any other bill that has come to this Parliament in the last 3 years is the fundamental importance of the ACT Party’s continuing in this Parliament and continuing to grow and to prosper. It is the ACT Party that has upheld those constitutions. One might ask what the issues in dispute are. Well, what this bill required defendants to do was to identify all of the areas that they would challenge and to tell the prosecution in advance what they would rely on, what their alibi was, and how they intended to defend the case against them. That would have allowed the police to train witnesses and to help coach witnesses to present evidence in a particular way that would make it much harder to bring that defence. That would have fundamentally changed the balance.
Another key issue is in clause 376 of the bill, which I will read verbatim. Clause 376, “Proceedings not to be questioned for want of form”, states currently: “No charging document, … conviction, sentence, … may be dismissed, set aside, or held invalid … unless the court is satisfied that there has been a substantial miscarriage of justice.” Well, right now the law provides that the test be a miscarriage of justice, so most New Zealanders would think that if there had been a conviction or a sentence that represented a miscarriage of justice, they would have got off and would have been entitled to a retrial. That is not the case. The Government intended to raise the bar.
Finally, we have heard about jury trials. I campaigned against smacking offences. I campaigned against home invasion. Setting the jury trial limit to 2 years enables a person charged with those sorts of offences to be charged and tried by a jury of their own peers.
The ACT Party supports the bill, and we are very proud of the role that we have played in having it in the form it is in today. Thank you.
CARMEL SEPULONI (Labour) : I will not make this a long speech, because I think that my Labour colleagues who have spoken before me have covered all that needs to be covered. Labour has always been in favour of streamlining New Zealand’s criminal justice system, but we have objected, through the parliamentary process, to the erosion of certain of our fundamental rights. The changes we oppose are set out quite strongly in our minority report. It is pleasing that members of the other parties have now reached a similar position to Labour’s, and as a result the Minister of Justice, Simon Power, has agreed to the deletion of, or substantial modification to, the unacceptable parts of the Criminal Procedure (Reform and Modernisation) Bill.
We have heard a lot today about the unacceptable parts of the bill. I, for the first time today, have heard ACT express concerns about those unacceptable parts of the bill. I find it interesting that Mr John Boscawen is trying to take credit for the Minister of Justice’s decision to remove those unacceptable parts of the bill. I think credit is really due to my fellow member of the Justice and Electoral Committee Charles Chauvel, who did a wonderful job of highlighting the inadequacies and the unacceptable parts of the bill.
I will leave it at that. I just say that Labour supports this bill.
|Ayes 110||New Zealand National 57; New Zealand Labour 42; ACT New Zealand 5; Māori Party 4; Progressive 1; United Future 1.|
|Noes 11||Green Party 9; Mana 1; Independent: Carter C.|
|Question agreed to.|
|Ayes 110||New Zealand National 57; New Zealand Labour 42; ACT New Zealand 5; Māori Party 4; Progressive 1; United Future 1.|
|Noes 11||Green Party 9; Mana 1; Independent: Carter C.|
|Bill read a second time.|
Taxation (Annual Rates, Returns Filing, and Remedial Matters) Bill
Hon PETER DUNNE (Minister of Revenue) : I move, That the Taxation (Annual Rates, Returns Filing, and Remedial Matters) Bill be now read a first time. At the appropriate time, I will be recommending that this bill be referred to the Finance and Expenditure Committee for its consideration. This bill is an omnibus tax bill that proposes some wide-ranging reforms to our tax system. Some of the proposed changes aim for greater efficiency and innovative tax services, some deliver on changes announced in Budget 2011, and others ensure that the current rules continue to work efficiently and with greater fairness.
The centrepiece of the bill proposes a major shift in the way individuals and businesses currently deal with routine tax-return filing and record-keeping requirements, making these processes simpler and easier. These changes have been progressed from the proposals that were outlined in the public consultation paper Making tax easier, which was released by the Government last year. Under the proposed changes, the two main tax forms for individuals, the IR3 and the income statement, will be replaced by one form. The bill will also remove the requirement for taxpayers to file an income tax return merely because of their Working for Families entitlements. These people will, however, still be required to provide their income information to the Inland Revenue Department and to reconcile their Working for Families payments.
To bring greater equity to the returns filing system, the bill will also tighten the rules that currently allow certain salary and wage earners to cherry-pick only the most favourable years in which to square up their tax obligations in order to receive a refund. Instead, the taxpayers who choose to file a tax return will be required to have their tax obligations squared up for each of the previous 4 years as well as the current year. This rule will be phased in over 4 years, beginning from the 2014-15 tax year, and will remove a tax advantage over other taxpayers who are required to file a return every year.
For businesses, the bill simplifies and reduces the costs of record-keeping by removing a number of legal barriers to electronic filing, as the Inland Revenue Department moves away from cumbersome paper-based systems and towards greater use of electronic services. For example, under the changes proposed in the bill, taxpayers or their agents who send electronic returns to the Inland Revenue Department will be able to retain copies in an electronic rather than a paper format, thus reducing their record-keeping costs. Together these measures will make taxpayer filing requirements simpler, easier, and fairer.
As I mentioned earlier, the bill also includes two measures that were foreshadowed in Budget 2011. To encourage a higher level of private savings and make KiwiSaver more financially sustainable, the bill introduces changes to the minimum employee and employer contribution rates, which will increase from 2 percent to 3 percent from April 2013, as previously announced in the Budget.
In the second Budget 2011 - related measure, the bill also gives effect to an increase in the minimum equity requirement for foreign-owned banks operating in New Zealand. From 1 April 2012 the minimum equity rate will rise from 4 percent to 6 percent, and this change is part of the Government’s continuing focus on ensuring that all taxpayers pay their fair share of tax.
The remaining changes in the bill are of a practical nature and ensure that the tax rules are applied consistently, that they are clear, and that they achieve their correct policy purpose. Accordingly, the bill introduces changes in order to give businesses greater certainty over the tax treatment of costs incurred on software development projects. Under this bill a deduction will be allowed for expenditure on an unsuccessful software development project in the year the project is abandoned. This measure addresses the immediate concerns of businesses involved and will help to ensure that the tax rules do not act as a deterrent to investment and innovation.
The bill also contains measures to change the tax treatment of profit distribution plans. Under the changes proposed, shares issued under these schemes will be treated as a taxable dividend, to ensure that the tax treatment is consistent with other similar arrangements such as dividend reinvestment plans. This will ensure that such schemes cannot be used to undermine the imputation credit rules by streaming imputation credits to shareholders who can best use them. The Government is strongly opposed to the misuse of imputation credits in this way, as it undermines the whole basis of the imputation credit system, which is to tax all shareholders evenly on their share of a company’s profit.
In further clarifying the rules for businesses, a number of GST-related changes are included in this bill. These largely deal with technical matters resulting from rules that were introduced last year to prevent phoenix fraud schemes. The changes will ensure that the rules operate as intended, thereby improving their fairness and the overall integrity of the tax system. Other measures in the bill will bring greater certainty to the GST rules more generally. For example, the bill clarifies that late payment fees charged by businesses to customers who are late in paying their accounts are subject to GST. That will resolve any previous uncertainty.
Finally, the bill confirms the annual income tax rates for the 2012-13 tax year and introduces a range of remedial amendments to give greater certainty to taxpayers. They include enhancement to KiwiSaver operational processes, clarifying entitlements to Working for Families tax credits, amendments bedding in the new look-through company rules, adjustments to the binding rulings and depreciation determination regulations, and clarifications to the life insurance transitional rules and the emissions trading rules.
These are the main features of this omnibus bill. Taken together they help strengthen our tax system to make it easier for taxpayers to comply with their obligations, and they are generally more fair for taxpayers overall. With those remarks it gives me great pleasure to commend the bill to the House.
Hon DAVID CUNLIFFE (Labour—New Lynn) : I recognise the member who has just resumed his seat, the Minister of Revenue. He may not be the Minister for much longer, but we will leave the good voters to decide what happens in Ōhariu.
Labour has a number of points of disagreement with matters covered in the Taxation (Annual Rates, Returns Filing, and Remedial Matters) Bill, but we support the bill going to the Finance and Expenditure Committee. This is part of the normal process of remedial legislation, which ensures that our tax system keeps up with necessary changes—partly as private entities try to stay one jump ahead of the law, and partly as issues are uncovered that require a non-policy fix.
The first key provisions of this bill refer to tax rates for the 2012-13 year. It would be utterly remiss of me not to acknowledge the context within which that occurs. National has lowered the top tax rate from 39 percent to 33 percent. That has probably been the single most important—certainly, the single most expensive—economic decision that this Government has made in this term of Parliament. It is a signal transfer of wealth to the wealthiest New Zealanders. One might say that at the expense of the many, the few have benefited. Labour absolutely objects to that realignment of the tax system. Income maldistribution is increasing. The gap between rich and poor is widening, and it benefits no one if National supporters park their Mercedes behind barbed-wire fences and security cameras while others in the rest of the country go around smashing windows, as occurred in London during the riots.
David Bennett: So that’s an excuse for smashing windows—poverty.
Hon DAVID CUNLIFFE: That is why, I tell Mr Bennett, immediately upon taking office, Labour, in its first Budget, will be raising the top tax rate back up to 39 percent above an indexed threshold of $150,000.
Through that and through Labour’s insanely popular capital gains tax package, which has been well received the length and breadth of this country, we will be able to give every New Zealander the first $5,000 of income that they earn tax-free. That includes beneficiaries, it includes superannuitants, and it includes people on all income levels. It could not be fairer. It applies equally to everybody. About 98 percent of taxpayers will be better off because of that tax switch—the capital gains tax in exchange for the lowering of the $5,000 threshold to zero.
Of course, families are under enormous cost of living pressures, and this bill also deals with GST and changes some of the GST provisions applying to late payments. It is a controversial issue and one that we look forward to hearing submissions on at the select committee. The Minister claims to be simply trying to clarify the law around GST on late payments, but tax experts say that late payment fees are neither a good nor a service and therefore are not supported by a first-principles approach to GST. The Government has, if you like, form on GST. It has raised the rate during this term of Parliament from 12.5 percent to 15 percent on all goods and services, despite a clear promise from the current Prime Minister that it would do no such thing if elected. It said there would be no change to GST. Well, here is further change.
Let me again make it clear—Labour will reduce the rate of GST to zero on fresh fruit and vegetables. On the advice of the University of Otago medical school, that will clearly increase the consumption of healthy food to the benefit of children and families—[Interruption] Members opposite are baying like hounds because they do not like to see hungry families feeding their children healthy food. Well, we in Labour do. We visited many families where it is getting harder and harder in the face of inflation, in the face of a tax switch that was not, and in the face of a rampant increase in the cost of living—in the last year, around 7 percent on food prices and 1.9 percent on wages.
If people feel worse off under National, that is because statistically they are. They have gone backwards. National’s tax switch was really a tax swindle. Hard-working Kiwi families have ended up paying more every time they go to the shops, and have seen little in the way of tax cuts. Under Labour they will get a reprieve; they will get the GST off fresh fruit and vegetables, they will see the minimum wage rise immediately from $13 to $15 an hour, and they will see the tax on the first $5,000 of everybody’s income reduced to zero.
The bill raises the employee contribution rate for KiwiSaver from 2 percent to 3 percent. This is somewhat ironic, as it was only a year ago that the Government reduced it from 4 percent to 2 percent. So one of the signal achievements of the current Budget was to undo half of what it did the previous year. The problem is that the chopping and changing around KiwiSaver has really said to New Zealanders that they cannot trust this Government in terms of policies around their long-term savings. New Zealanders are looking for certainty. Very soon, when Labour unveils its, I think, ground-breaking savings policy, they will get certainty, because we are planning for the long term. New Zealanders will be better off with Labour’s savings policy. I know there is a lot of eagerness out there, both in the media and in the electorates, to see the details of that policy. We look forward to bringing that to the country in the very, very near future.
Let me briefly refer to several of the more technical aspects of the bill. Working for Families springs to mind as a thing that the Prime Minister said National would not change. Of course, in this year’s Budget it did—same old, same old. He is the “Minister for Broken Promises”. “Look-through companies” is a euphemism if ever I heard one. Everybody knows that loss attributing qualifying companies attribute losses to the taxpayer but benefits to the directors and shareholders. Look-through companies are a way of preserving some of that entitlement without sounding like they are. The problem with look-through companies is that it is pretty hard to look all the way through to who is actually taking the loot. It is not the taxpayer; it is the person setting up complex tax structures such as look-through companies and trusts.
Many of those issues will be dealt with by Labour’s capital gains tax. In the words of one senior tax expert, it is like playing netball on a court full of potholes. The capital gains tax fills in not all of them but certainly the largest one. That is why it is being advocated by Treasury, by the Reserve Bank, by the OECD, by the International Monetary Fund, and, of course, by all the major newspapers in New Zealand and most major media. It is polling extremely well—I think better than two to one, relative to the Government’s proposal of selling down public equity in State-owned assets like power companies. The public wants to keep them, and it does not want to be sold down the river by tax law that is full of loopholes.
I turn to expenditure on unsuccessful software development. Why, on a first-principles basis, would the Government allow people to write off a failed software project? Why is that distinctly different from any other business proposal? That is one of the issues, like the fifth rules, like the bank thin capitalisation rules, which we support increasing, and other matters in this bill, that we look forward to discussing with the Government at the Finance and Expenditure Committee and in the House. Thank you.
AMY ADAMS (National—Selwyn) : I will take just a brief call on the first reading of the Taxation (Annual Rates, Returns Filing, and Remedial Matters) Bill. I commend to anyone who did not have the opportunity to hear the Minister of Revenue’s introductory speech that they refer back to it as an excellent summary of the operation of the bill and the matters it contains.
In essence, a world-class tax system is a fundamental component of this Government’s growth agenda, and a part of that is making sure that the tax administration system represents both value for money and ease of use for the taxpayer. This bill, in the main, contains steps to continue that reform, making electronic filing in particular far less burdensome for taxpayers and far easier to do. I note, certainly, that the bill removes the requirement to retain paper copies for those who have filed electronically, and on that basis alone I am sure we can look forward to having Green Party support for it.
The bill puts in place Budget changes to KiwiSaver and a number of other matters that previous speakers have referred to, including the thin capitalisation rates, software deductibility, and the like. I look forward to a full discussion of the impact of the bill at the select committee. I commend the bill to the House.
STUART NASH (Labour) : As my colleague the Hon David Cunliffe mentioned, Labour will be supporting the referral of the Taxation (Annual Rates, Returns Filing, and Remedial Matters) Bill to a select committee. We think this bill has some very good aspects, and we look forward to further discussions with officials and with submitters, and around the table.
One of the reasons for this bill, and one of its big parts, is to make tax easier. This is a plan by the Inland Revenue Department to make tax easier. It sounds like a good idea, and Labour is supportive, and always has been supportive, of any legislation that makes it easier to pay one’s tax or makes it easier for taxpayers to comply. It was a good paper, and I think the Inland Revenue Department is making some great progress in this area. As mentioned, I look forward to dialogue with the Inland Revenue Department, with submitters, and with the rest of my colleagues when the bill comes to the select committee.
There are some points that I would like to make, very briefly. Again, as my colleague mentioned, one of the things the bill does is set the tax rate for the next tax year. We are one of the very few countries in the OECD that has cut tax rates for the very wealthy. If I may, I will give an example. With National’s tax cuts we saw those who had a declared income of over a million dollars receiving about $1,000 a week extra in the hand. The Inland Revenue Department has told me that there are about 700 New Zealanders who have a declarable income of over a million dollars. If they earn a million dollars, they received about a $1,000 a week extra. Someone on the median wage in Napier received about $11 a week extra. The question I ask, and the question people ask me, is whether that is fair. Quite simply, it is not fair.
One of the reasons it is not fair, apart from the obvious, is that these tax cuts were paid for by an increase in GST. This bill deals with GST matters, and, again, we are all for anything that makes the system or improves the integrity of the system. But the thing that I have a slight problem with is the fact that Mr John Key, when he was the Leader of the Opposition, stood in front of New Zealanders, looked into the camera, and said: “National will not increase GST.” Yet one of the first things Mr Key did was to increase GST from 12.5 percent to 15 percent. The money that the Government collected from that increase in GST funded the tax cuts of $1,000 a week for those men and women earning over a million dollars a year. Paul Reynolds, who is one of the highest-paid gentlemen in this country, received $4,500 a week extra, in the hand, from the tax cuts. We have to ask whether that is fair, and we do not think it is fair at all.
The other things the bill deals with are Working for Families and KiwiSaver. National went into the 2008 election telling New Zealanders that a National Government would not cut KiwiSaver. Yet in the last Budget KiwiSaver was cut. Many people around the country said that they had a contract with the Government, in the form of KiwiSaver, and the Government reneged when it made cuts to every person’s KiwiSaver account.
Another aspect of this bill is Working for Families. Let me give one example. I come from Hawke’s Bay, and Working for Families contributes about $120 million into the Hawke’s Bay economy. At the moment in the provinces things are a little bit tough. People are working very hard, but things are tough. The cost of living is going through the roof, and the $11 a week that someone on the median wage received in tax cuts is simply not covering it. So when the Government makes cuts to Working for Families, it affects the whole regional economy.
The people who are receiving Working for Families are receiving it because they need the money to raise a family. They spend the money in the local economy, and it creates jobs and creates demand, and it helps those workers who are working in the Hawke’s Bay area. Making cuts to that scheme was detrimental to the whole Hawke’s Bay region and in fact to the whole New Zealand economy.
Someone asked me: “Why does Mr Key hate New Zealanders who are struggling hard to get ahead?”. I am seeing a number of people coming into my office, which is based in Napier, who are working very hard. These are full-time workers, but they are having to make a choice—whether they pay the rent or the mortgage, whether they pay for food, whether they put petrol in the car, whether they pay for electricity, or whether they put clothes on their kids’ backs. They are having to make that choice. I wonder whether this is the sort of country that New Zealanders believe New Zealand should be. People who work very hard are still struggling to make ends meet. That is all I will say on that issue.
But there is one other thing I will bring up, and this is one issue that we will tease out in the select committee. It is something that Mr Cunliffe mentioned. It is the tax treatment of unsuccessful software development. I wonder whether this is a little bit self-serving. The key feature here is that the amendment allows a deduction when a person, or a company, I assume, incurs expenditure on developing software for use in their business and the development of this software is abandoned.
Earlier this year the Inland Revenue Department abandoned a software project in respect of its student loan scheme. The cost of that to the Inland Revenue Department and the taxpayer was about $20 million. That was $20 million of taxpayers’ money that went into a scheme that had the plug pulled out from it. I wonder whether this amendment is slightly self-serving. We are all for economic development and we are all for businesses getting ahead. There is no doubt that increasing productivity is the only way forward for this country, and software systems help that. But when everyone knows that the Inland Revenue Department wrote off $20 million, I wonder whether this is slightly self-serving.
On that note, as mentioned, Labour will be supporting this bill’s referral to the select committee but there are many conversations that have to be had before we will support it all the way through. Thank you very much.
Dr RUSSEL NORMAN (Co-Leader—Green) : I rise to speak on behalf of the Green Party on the Government’s Taxation (Annual Rates, Returns Filing, and Remedial Matters) Bill. This bill, in a way, is a bit of an overview of the Government’s fiscal and taxation strategy. It does not cover all aspects of the tax strategy by any means, but it does give a very clear signal about where the Government is going. Of course, part of what the Government is doing, at a time when around the world we face tremendous pressure on sovereign debt, is driving us further into debt by means of the very, very expensive and significant cuts it has made in income tax rates. This is, of course, the annual rates setting bill, and the cut in income tax that the Government has made has cost the country very large amounts of money.
The Government, at the time, argued that its changes to the income tax rates were fiscally neutral. That was not true at the time; according to the Budget papers, it was going to cost a billion dollars over 4 years. Of course, since then the changes have cost more than that, because the GST take is not at the level that the Government had expected. So the Government’s changes with regard to the taxation system have put the Government books in a worse fiscal position than they would be otherwise. At a time when there is enormous pressure on Governments around the world on government borrowing, why did we make a series of changes to the taxation system that resulted in the Government going further into debt? It was not logical and it was not rational. At the time, the Green Party warned the Government that driving the Government books further into the red was not a very wise fiscal strategy, but the Government took no notice, of course. It carried on regardless and went ahead with the tax cuts. The result has been that it has had to borrow billions of dollars from overseas. That seemed to be OK, but now every day that passes, the pressure on sovereign debt grows and grows.
So developing a strategy that increased Government debt at a time when there is enormous pressure on sovereign debt seems to me to be an extremely dangerous strategy. I think the Government needs to reconsider its general direction with regard to its fiscal and taxation policy, which is basically a “let’s borrow lots of money” taxation policy.
The other measure that the Government has failed to introduce is a broadening of the taxation system. Every report we read about the New Zealand taxation system argues for a broadening of it—that is, to move on to some other bases, rather than relying so heavily on the existing forms of taxation. The most obvious one here is around property: a capital gains tax. The Government, for entirely political and ideological reasons, has not accepted the advice that has come from pretty much every international organisation, as well as numerous New Zealand domestic ones, that we should fill the hole in our taxation system with the missing tax—a capital gains tax—the absence of which distorts the system. This bill, unfortunately, once again fails to address that particular hole in the taxation system—the absence of a capital gains tax—and it misses taking the opportunity that is clearly available to broaden the tax base in New Zealand.
One of the other measures that the OECD has been calling on New Zealand to introduce is a charge on irrigation water. The OECD has said consistently that if we wish to broaden the taxation base, we need to look at levying charges on resource use, and the most obvious one in New Zealand is on irrigation water. Once again the OECD has put forward a very strong case for broadening the taxation base by having a levy on irrigation water, and once again the Government has said no. So one time after another we have seen the Government turn its back on taking opportunities to broaden the taxation base. This bill was yet another opportunity to do so, but in the very large number of remedial changes that the Government makes in this bill, at no point does it attempt to broaden the taxation base, which is what all the international studies have been calling on New Zealand to do.
Of course, the Government is making changes around GST. The increase that the Government introduced in GST has a largely regressive nature, because it tends to affect those on lower incomes more than others. By making sure that GST applies to late payments, which tend to be from people who have trouble meeting their payments, whether it is for their electricity bill or for their phone bill, the Government is saying it will make sure that it gets to those who are on lower incomes—whatever happens, it will make sure that they pay more. The increase in GST was one part of doing that, and, now, extending the GST to late payments is the other part of it.
The other element that is missing in the Government’s taxation system concerns greenhouse gas emissions. If we read the literature—and unfortunately, I guess, the Government does not—we see that there is a vast amount of economic literature about making sure that we do not subsidise greenhouse pollution. In fact, Tim Groser made some very interesting comments recently about not subsidising pollution. He talked about fossil fuel subsidies; he made reference to them in a speech. He said it was terrible that there were all the subsidies around fossil fuels. Well, here we have a tax bill that continues the system whereby we subsidise greenhouse gas emissions, to the tune of about $1.2 billion this year and another $1.2 billion over the next few years. We are in a situation where the Government has made a conscious decision to subsidise greenhouse gas pollution in New Zealand, rather than make polluters pay their way. The taxation system the Government is introducing not only is narrow and fails to broaden the tax base by making sure we actually have taxes in other areas but also continues, through the emissions trading scheme, the subsidies that go towards pollution. Here we have Minister Groser saying we should not subsidise fossil fuel, and on the other hand we have a Government that subsidises greenhouse gas pollution.
If the Government had removed those subsidies, then it would mean that the amount of taxes we need to raise through bills like this one and others would be significantly reduced. We could have either cut the amount of taxes that people pay through other mechanisms or paid off debt faster. At a time when the international markets are looking at countries like New Zealand with growing levels of sovereign debt, having the ability to pay down or reduce debt more quickly is actually a real benefit. So the fact we have these subsidies in place has added to the pressure on New Zealand in the international markets.
The other aspect of this bill that is a bit strange concerns software development. One could well argue that there is a case for the special tax subsidies for unsuccessful software development. But we then have to ask why we do not have an across-the-board research and development taxation support, rather than picking particular kinds of industries for which to provide tax subsidies. Why do we not spread research and development support, if we do it through the taxation system, by having across-the-board research and development tax credits, rather than targeting our tax credits, in this case, at unsuccessful software developers, which is essentially what this bill does? There is a strong case for doing that, because of the positive externalities around research and development. It is very difficult for any particular firm to get the benefits to that particular firm from all of the research and development that it pays for. There are positive externalities with regard to research and development, but it is quite difficult for any individual firm to capture them, which is why Governments around the world subsidise research and development.
We could argue that maybe that is what the Government is trying to do with this particular element of the bill. But then why would we not have an across-the-board, consistent approach to supporting research and development through the taxation system, rather than this ad hoc approach—if we were to be charitable—which is what the Government is doing with the changes around unsuccessful software development? That seems to me to be a much more consistent approach. New Zealand spends about 1.31 percent of GDP on research and development, private and public, which puts us at the very low end of the OECD and well below the OECD average, which is over 2 percent. So the fact that the Government is taking what charitably could be called an ad hoc approach to supporting research and development seems to be very strange. Why does it not take a much more consistent approach?
Finally, one of the issues that has come up, about how to deal with Government deficits, is being widely discussed now in the international media. The most recent Economist addresses exactly this question. The media say we actually need to make sure that the taxation system addresses inequalities. The Economist magazine talks about taxing the rich. Another way to look at it is to make sure that we address inequalities. And one of the things it talks about is making sure that property is taxed properly. What we find in New Zealand, without a proper capital gains tax and without proper taxation of capital gain, particularly in the property sector, is that we do not have proper taxation of the property sector. Completely against the advice of a magazine like the Economist, this Government continues to go down a path where it does not tax properties properly, and it does not broaden the tax base through introducing elements like a capital gains tax and an irrigation levy. This bill demonstrates why the Government has got its fiscal and taxation strategy wrong.
RAHUI KATENE (Māori Party—Te Tai Tonga) : I rise to take a very brief call on the Taxation (Annual Rates, Returns Filing, and Remedial Matters) Bill. This is one of those bills that attempt to take on a broad series of amendments to be introduced to several inland revenue Acts and regulations. The main proposals are simplifying tax filing requirements, including simpler requirements for individuals, and supporting employers in an electronic environment; taxing bonus shares issued by companies under profit distribution plans; deductibility of unsuccessful software development costs; the changes to KiwiSaver contribution rates announced as part of Budget 2011; ensuring that recent GST changes to phoenix fraud schemes and apportionment of input tax deductions operate as intended; and conferring donee status on four overseas charities.
I do not propose to talk in detail about these points, or even to talk about the economy, which other speakers have done today, other than to say that the Māori Party supports an economy of investment, which leads to greater productivity but also is richer because of the tangible difference it makes to well-being. In this context, then, the Māori Party supports the effective administration and collection of taxpayer funds, and, by implication, the party supports less compliance for businesses. We have always seen it as important to incentivise small businesses to grow by reducing unnecessary compliance costs, and the proposals around software development and simplifying the tax filing requirements should be received positively by small-business owners. We believe that these changes will help to ensure that tax law does not discourage investment and innovation.
Finally, the only other point I would make on this bill is regarding Māori authorities’ income tax rates for the 2012-13 tax year being the same as those for the current year—that is, 17.5 percent. This tax rate was lowered last year, which was a positive adjustment.
We are inclined to support this bill, as we believe that the changes will reduce filing requirements for individuals, businesses, and authorities alike, and help to produce a more innovative and efficient tax system. Thank you.
Hon Dr Wayne Mapp: 10 minutes, surely, Shane.
Hon SHANE JONES: —and those legions of Kiwis listening to our speeches here this afternoon, of course. They will be spared the agony of listening to Wayne Mapp into the future as he warbles on, as he writes yet another unreadable contribution about political heritage and political culture. I have it on good authority that he actually worsened the literature of tax when he did his PhD. The thought of Wayne Mapp’s name being linked to a PhD defies logic. However, that might be one of the hidden talents that the man brings to this particular House. He does have a redeeming feature, though: he is married to a woman of Ngāti Hine descent. Unfortunately, she is related to Tau Henare, but, that blemish aside, that is one of his—[Interruption] Well, I will not go quite that far.
We support the Taxation (Annual Rates, Returns Filing, and Remedial Matters) Bill. An area that does require a great deal of additional attention is the propensity of the current Government to continue to change and not so much to make amendments but to show an ideological predisposition to undermine KiwiSaver. We took a very principled stand. We thought, several years ago, that the country needed a source of indigenous savings. By saying indigenous, I am not talking about Hone Harawira; that is to ruin a good word. I am actually talking about New Zealanders building up a reservoir of savings that could operate as an alternative to the constant importation of capital. We all know that if we want to grow a long-term, robust economy, we need a savings scheme capable of sustaining confidence amongst the families who may have only a few pennies under this Government. They do not have cents, because the Government has no sense, so families are reduced to saving a ha’penny or three.
David Bennett: Oh!
Hon SHANE JONES: A ha’penny, when it looks bald, may represent the head of the member from Waikato who is yelling, mooing like one of those half-empty cows that he possibly owns, and which, fortunately, as a consequence of tax changes that are on the way, will not represent a tax write-off.
We are disappointed that this bill represents a further set of unfriendly and ill-conceived changes to KiwiSaver. KiwiSaver is a key institution that we are prepared to fight for, going into the future, and to defend as a part of our political heritage. It is disappointing that members on the other side of the House have not found it possible to enjoy common ground with members on this side of the House, to ensure that a credible, robust scheme—an institution called KiwiSaver—goes into the future, so that each generation will put money aside and reduce the country’s reliance on importing capital. KiwiSaver represents a sustainable basis for investing in our firms, investing in businesses rather than constantly bemoaning the fact that foreign direct investment is undermining our economic security or, indeed, our long-term sovereignty.
Those are the key differences, but we will park up those differences for addressing at the select committee, and what we do not address in the select committee, we will hammer those members on the other side of the House on during the hustings, and we look forward to that. Thank you very much.
DAVID BENNETT (National—Hamilton East) : The Taxation (Annual Rates, Returns Filing, and Remedial Matters) Bill is important because it sets the tax rates for New Zealand as we go forward. Each year we set the tax rates. This is very important, because it is part of the growth plan for New Zealand. We have heard Labour members indicate that they are not very happy with that growth plan. They would much rather have a plan very similar to what the Americans have, with very high taxation leading to no growth. New Zealand has a much better plan, whereby we incentivise people to get out there and make successes of their opportunities and abilities. [Interruption] We hear a few Labour members reacting to those comments, because they know that it is the truth. They know that the US economy is not doing so well, and that their plans would put New Zealand even further into the quandary of the world economic malaise, and would not lead to our getting out of those problems in a quick and successful manner.
The Greens have made comments about debt. It is interesting that when we go to an election candidates meeting, the Green Party candidates stand there and listen and say: “Yes, we will do everything that anybody wants.” So money is no limit to the Green Party. When Green candidates go along to these meetings they have no limit on what they will spend; then they come into this House and say that debt is too high. If we look at Green policies and add them up, we come to some very big debts, and that is the nature of the Green Party.
This bill is important because the National Government is firmly focused on lifting New Zealand’s economic performance. We want to set up for New Zealand citizens these strategies and approaches so that economic performance can lift, and taxation is one of those key elements. There are also a number of other measures in the bill that are important and that people would want to acknowledge, and they are in respect of the handling of tax returns, with the ability to handle those obligations electronically. That is very important in a modern world, where many businesses and individuals use electronic means of communication and accounting records, and if we can simplify the tax filing requirements, it makes sense to do so, because that is good for New Zealanders.
There are also some announcements on software development expenditure. That will now be deductible under this bill. That is very important, because a lot of New Zealand’s high-tech companies engage in software development. It is one of those things where not necessarily every project that is engaged in will be successful. The ability to write off those unsuccessful ventures into software development is important. It means that companies can continue with software development, and will not feel that once they have used their one go at software development, they have compromised their ability to do so and they stop further software developments. It is important for New Zealand’s high-tech industry to maintain and enhance its ability to deliver to the world stage products that have the highest degree of technoho—technological input, especially through software development.
Aaron Gilmore: Ha, ha!
DAVID BENNETT: I know our members may be laughing because of my slip-up in pronunciation.
There are also some measures on KiwiSaver in this bill. Labour members made some comments about KiwiSaver. I think Shane Jones used the words “principled approaches”—I think he said the Labour Party took a principled approach to KiwiSaver. Well, that cannot be further from the truth. The reality is that Labour members used KiwiSaver to buy votes, as they have done in previous elections, and as they have continued to do with other policies. It was merely a vote-buying approach by Labour, and it is not principled in any sense of the imagination. It is very sad to see someone like Shane Jones coming into this House and using those words when he is referring to a policy like that, which was simply there to try to retain power for Labour.
When we look at those changes to KiwiSaver, it is important to look at setting the right signals around retirement, and also at giving New Zealand taxpayers the opportunity to save for their retirement in a way that is a fair but also balanced approach, so that New Zealanders have the opportunity but also are realistic about what those contributions can be, and what they need to be to ensure that that scheme is viable, and that this country as a whole is able to maintain that retirement savings approach through KiwiSaver. So those changes are very important when we look at what is necessary to encourage New Zealanders, and to achieve the purposes we need for New Zealanders going into retirement.
Some changes have also been made in relation to phoenix fraud schemes and GST on those schemes. We have had in this House a number of bills dealing with phoenix transactions and schemes, and this bill is part of that approach. Those bills have really been there to try to put a dampener on the tax evasion that has been occurring through the use of such schemes. This legislation ensures that the recent changes in GST on phoenix fraud schemes and the apportionment of input tax deductions operate as they were intended to. That is an important part of this legislation, as well.
When we look at the legislation, we see there is also some clarification of treatment of GST on late payment fees. There are some changes in relation to fees being charged for binding rulings and depreciation determinations, and some clarification of entitlements to Working for Families tax credits. Basically, the bill has a number of elements that are important for the economy going forward. The first element is those tax rates, which are crucial for setting the economic growth agenda we need for New Zealand, and for sending the right signals and incentives to our citizens as they look forward to what their opportunities are in the economic platform we have created. Only by lifting that economic performance can we create the jobs and opportunities to boost incomes and improve the living standards of our people going forward.
The core part of the bill was setting those tax rates, but, as we said earlier, the bill attends to some other very important issues in relation to software development, the KiwiSaver minimum contribution rates for employees and employers, and the minimum equity holding for foreign-owned banks. The bill also covers some clarification of some minor GST and depreciation determinations. We look forward to this bill passing through the House.
|Ayes 110||New Zealand National 57; New Zealand Labour 42; ACT New Zealand 5; Māori Party 4; United Future 1; Progressive 1.|
|Noes 11||Green Party 9; Mana 1; Independent: Carter C.|
|Bill read a first time.|
|Ayes 110||New Zealand National 57; New Zealand Labour 42; ACT New Zealand 5; Māori Party 4; Progressive 1; United Future 1.|
|Noes 11||Green Party 9; Mana 1; Independent: Carter C.|
|Motion agreed to.|
- Bill referred to the Finance and Expenditure Committee.
Hon SIMON POWER (Acting Leader of the House) : I move, That urgency be accorded the introduction and first reading of the Video Camera Surveillance (Temporary Measures) Bill, the Sleepover Wages (Settlement) Bill, and for Sue Kedgley to give her valedictory statement at 5.45 as determined by the Business Committee. As members will be aware, the recent Supreme Court decision in Hamed and others with regard to the use of video surveillance has serious implications both for current prosecutions in cases already before the courts and ongoing investigations by the police and other law enforcement agencies. The Government has decided it is vital we ensure that the police cameras that are currently switched off are switched back on as soon as possible. Therefore, we intend to introduce the bill and pass it after a brief select committee consideration, to preserve the common law as it has been understood by successive Governments, the police, and the Court of Appeal before the Supreme Court decision of 2 September. The bill is an interim measure and, if Parliament passes it, it will remain in force for no longer than 12 months, to enable a permanent regime to be put in place.
With regard to the Sleepover Wages (Settlement) Bill, it is also the product of a court decision. Following the finding by the Court of Appeal that sleepovers constituted work for the purposes of the Minimum Wage Act 1983, and that the minimum wage applied for each and every hour worked, a settlement was reached between IDEA Services Ltd, Tīmata Hou Ltd, and the Service and Food Workers Union. Cabinet has agreed to the settlement, to which the Crown contributes, and this bill will provide the framework for settlement of these issues. The passage of the Sleepover Wages (Settlement) Bill is required in order to implement this settlement. Both of these bills will be considered by select committees until next Monday.
|Noes 11||Green Party 9; Mana 1; Independent: Carter C.|
|Motion agreed to.|
GARETH HUGHES (Green) : I raise a point of order, Mr Speaker. I just wish to clarify for the House that for Sue Kedgley’s valedictory, approval of the House was given at 2 p.m. today. In voting and opposing the House’s use of urgency, we were not explicitly voting to oppose Sue Kedgley’s valedictory.
Mr DEPUTY SPEAKER: I understand that. That has been clarified by the Acting Leader of the House, so that is fine.
Video Camera Surveillance (Temporary Measures) Bill
Hon CHRISTOPHER FINLAYSON (Attorney-General) : I move, That the Video Camera Surveillance (Temporary Measures) Bill be now read a first time. At the appropriate time I intend to move that the Video Camera Surveillance (Temporary Measures) Bill be considered by the Justice and Electoral Committee, that the committee report to the House on or before 3 October 2011, and that the committee have authority to meet tomorrow and at any time while the House is sitting except during oral questions, during any evening on a day on which there has been a sitting of the House, and on a Friday in a week in which there has been a sitting of the House, despite Standing Orders 187 and 190(1)(b) and (c).
For the last 17 years the police have used covert video surveillance cameras. They have used them to help investigate serious crimes, including drug dealing and organised criminal gangs. They have been used both to gather evidence and to obtain information. On at least six occasions the Court of Appeal has considered the admissibility of evidence obtained by these means. These cases involve video cameras deployed both outside and within the property to be searched, and concealed on an informant transacting drug-dealing business inside the suspect’s home.
On two very recent occasions the Court of Appeal ruled the use of covert filming to be a legitimate component of a power to search pursuant to a warrant. Contrary to some public comment, the police were accordingly justified in their belief that the use of this surveillance in connection with a search warrant was not unlawful. Lawfulness is to be distinguished from unreasonableness—that filming allowed by the Court of Appeal was always subject to a challenge under section 21 of the New Zealand Bill of Rights Act, based on unreasonableness. That situation will not change under this bill.
Last month the Supreme Court retrospectively altered the law. It ruled that in the absence of specific statutory authorisation the use of covert video surveillance amounting to a search, and conducted in tandem with a Summary Proceedings Act search warrant, was unlawful. Although not strictly part of the decision of the court, its reasoning would also apply to searches using that technique from surveillance points outside the target property.
The decision of the court affects approximately 40 criminal cases now before the courts and at least the same number of current police criminal investigations. The bulk of these cases involve serious drug and organised criminal offending. Also affected is the ability of many statutory organisations to carry out their responsibilities.
It is important to note that this bill does not seek to overturn any decision. It temporarily holds the law of New Zealand applying to covert video surveillance to be that laid down by the courts before the Supreme Court in the Hamed case reversed that legal position. The bill accordingly preserves the legal position as it was before 2 September 2011. Because, as it must, the judgment affects all relevant cases and conduct before 2 September, the bill suspends temporarily that effect of the judgment, as well as providing for the period before the bill is enacted.
Clause 3 sets out its purpose—that is, to provide a temporary period to enable Parliament to move with all deliberate speed to pass the Search and Surveillance Bill. That bill, among other things, comprehensively covers the accepted long-term goals of bringing covert video surveillance under the control of carefully scrutinised statutory provisions. As would be expected, that clause also provides that nothing in the bill affects the rights of those persons who have obtained the benefit of the Supreme Court’s judgment in the Hamed case.
Clause 4 sets out the necessary definitions. It is important to note that the bill does not give the police or any other agency the ability to enter on to private property for the purpose only of seeking visual evidence from covert video surveillance. The entry on to private property where covert video surveillance is intended must be pursuant to a warrant issued under section 198 of the Summary Proceedings Act, and that warrant must be issued and executed according to existing law. As I have already noted, surveillance will remain subject to a challenge under section 21 of the New Zealand Bill of Rights Act, based on unreasonableness.
The situation differs from the bill as released for consultation by me last week. Clause 5 declares that post, current, or future searches may not be held to be unlawful only because covert video surveillance was used in connection with a search. As originally drafted, clause 5(2) would have provided that the use of covert video surveillance does not, of itself, render the search unlawful or unreasonable. That would have affected the way in which courts might otherwise in the future apply the right to be free from unreasonable search. I have listened to the criticism of this limitation on the section 21 New Zealand Bill of Rights Act right and have not included that provision in the bill as introduced.
Clause 5(3) is intended to augment clause 5(2). The latter clause deals with the lawfulness of any use of covert video surveillance. Clause 5(3) is essentially an avoidance of doubt provision directed to the essential question of the admissibility of evidence. By way of explanation, if evidence is found to be improperly obtained within the meaning of section 30 of the Evidence Act 2006, it is liable to be excluded unless the result would be disproportionate to the seriousness of the crime.
The intention in the bill is that if the only basis for objecting to the admissibility of the evidence is that covert video surveillance was used, the evidence may not be treated as improperly obtained. Critically, however, because of the matters I have mentioned as to clause 5(2), if for any reason the search is found otherwise unreasonable or, indeed, otherwise unlawful, the evidence may or may not be excluded on the basis of the existing law.
In conclusion can I say that we find ourselves in a difficult legal situation. It is a situation contrary to the public interest and the safety of the public and law enforcement officers. It will be some months before a new Parliament can pass the Search and Surveillance Bill into law. Contrary to some claims I have heard, it would be impossibly complex to enact parts of that law early. I have taken the advice of the Parliamentary Counsel Office on this point, and I agree with it entirely. I understand that my colleague the Minister of Justice is going to say some more about this later in the debate, and I look forward to what Mr Parker will say.
Unless this Parliament takes action now, the police and other statutory agencies will be denied for some time the ability to use a technology that has become an indispensible facility in relation to the safety of police officers and the detection of serious criminal offending. This is not a situation that can stand. I commend the bill to the House.
CHARLES CHAUVEL (Labour) : Thank you for the opportunity to speak to the Video Camera Surveillance (Temporary Measures) Bill. What persons not in the House might not realise is that the bill was placed on the Table of the House about 7 minutes ago, so there is really no opportunity to comment on its provisions. So the traditional first reading speeches will not occur in this debate. It is true that that is a consequence of the House having taken urgency, but it is regrettable that the bill’s sponsor did not seek the leave of the House to release a copy of it in its current form earlier, given that members of the public are expected to front up to a select committee, I understand, tomorrow morning and make submissions on it. That is not a satisfactory process and nobody should be surprised if we do not get a good result out of it.
I am afraid that the sponsoring Minister has simply engaged in brinkmanship on the questions that are raised by the bill and by the Supreme Court decision in the Hamed case. It is quite clear that he does not have any desire or any intention to try to reach any sort of multiparty solution to the problems identified in that case. He simply wants to try to bully other parties in the House and to make it appear as if any party that does not support the legislation demanded by National to be passed is soft on law and order, and that is quite apparent from the way in which John Key, the leader of the National Government, has presented the arguments in favour of the bill to date. I say to the members of National that that will not wash. They will not get, as members of the Government party, a blank cheque from this Parliament to do what they think is necessary, without scrutiny and without a careful testing of the claims that have been made in favour of the legislation. At least there will be some of that testing, however unsatisfactory, because, as I say, there is, I understand, to be a select committee process—however truncated—so that there can be some scrutiny of the bill. It is a small mercy but at least it is happening.
What we see in the approach taken on the questions raised by the Hamed decision is arrogance—arrogance from a Government that thinks it can get its way, no matter what. We saw this arrogance in respect of the Government’s dealings with my colleague the shadow Attorney-General over the question of support for the Search and Surveillance Bill.
One of the things that has to be said right upfront is that Parliament would not be in the position that it is in at the moment—being asked to rush through an emergency fix on police surveillance powers—if Simon Power had responded to David Parker back in November last year. Mr Parker said that we would cooperate to pass the Search and Surveillance Bill—now that it has come out of the select committee, now that it is much improved, now that it actually sets in place limits on what the police can do by way of covert video surveillance, and sets out a regime governing what they should do—if the Government agreed to make three small amendments, the most important of which was about protecting the freedoms of the media from some of the provisions in the Search and Surveillance Bill. Well, we heard Mr Power yell out during question time that he did send a response—he said “I’ll consider it.” We know that Mr Power has 6 days left in this House, so let us hope he does consider it and let us hope we get, finally, a response on the question put to him by Mr Parker.
That sort of arrogance has typified the Government’s approach to the issue of vital police powers. Parliament has been asked to address window-dressing bills like the three-strikes legislation, boot camps, and taking votes away from inmates in prison—all the things that actually make not one jot of difference to people’s safety—while the vital issue of defining and limiting police powers on search and surveillance has been left to languish on the Order Paper. This is not a responsible Government on law and order.
As I said, the bill was tabled a mere matter of minutes ago. There is no point in trying to comment on its text, but what I will say is this: members of the Labour Party have always agreed that there is an issue that needs to be dealt with here, and it goes back way before the Supreme Court case in Hamed. That is why there was a Law Commission reference on the question of general search and surveillance powers by enforcement agencies.
We have known for a long time that the law is not clear and needs clarification. But that clarification has not occurred, so what do we do in the current situation? We say there needs to be a reference of the Government’s proposed fix to a select committee. We at least have some agreement from the National Government that that will occur. Then the question is how broad the fix should be.
What appears to be proposed—although the draft that has been tabled is radically different from the draft that was being consulted on last week—is that the current vague state of the law will be carried on for a year, by reference to the issue of lawful searches in the legislation, which begs the question as to what is a lawful search and what is not. And we are to have retrospective validation of all actions on the part of enforcement agencies that have occurred any time in the past, as well as for a year hence.
We need to test whether that sort of broad taking of powers is an appropriate exercise in the present case. I have big reservations about that; so do many of the respected academic commentators. Their views deserve credit, and we do need to test, as I say, very carefully the claims that are made in favour of this legislation. The scope of the bill must be carefully looked at.
Finally, we have to make sure that there are appropriate safeguards in the legislation. It has been suggested by a number of commentators that what we should do is simply take the regime out of the Search and Surveillance Bill; it has already been through a select committee and agreed by most parties in the House. We could take that regime out and we could put it into the Summary Proceedings Act, so that there is a clear limit on the powers of the police and other enforcement agencies, but a clear definition of what those powers are.
Mr Finlayson said that that was much too difficult for the officials to do in the time available. Well, we have had a go at it. In question time today, I tried to table this Supplementary Order Paper, which would do exactly that. I was prevented by the Leader of the House from doing so. Given that the select committee is to consider these issues again at 9 o’clock tomorrow morning, and given that they will have the bill before them, I would like them to have the Supplementary Order Paper.
So I am concluding by making an application for leave to have the Supplementary Order Paper tabled and to have it referred to the Justice and Electoral Committee, on the same basis that the Minister intends, as he has foreshadowed, to refer the bill itself to that committee.
Mr SPEAKER: I take it that leave is sought for that course of action. Leave is sought for that Supplementary Order Paper to be tabled. Is there any objection? There is objection.
- Debate interrupted.
I am what you might call an accidental MP—someone who ended up in this House by accident, not by design. I casually agreed to put my name on a Green Party list for the 1999 election, at a time when the Green Party was polling at zero percent. The next thing I knew, Jeanette Fitzsimons was on the phone to me telling me that I had just become an MP. So the first few weeks passed in something of a blur, but, even so, I did feel that I was participating in a moment of history in being part of the first group of Green MPs to be elected to Parliament. Jeanette and the late Rod Donald were wonderful mentors to their new and very green MPs. We had then, and still have today, a very supportive and egalitarian culture, which I suspect is rare in the political world. I recall a meeting with Telecom, shortly after we were elected. I felt they were trying to lead us up the garden path, so I gave Rod a gentle kick under the table. I thought afterwards, imagine a newly elected backbencher kicking Helen Clark or John Key under the table. But that was the sort of relationship we had, and still have, in the Green Party.
I did take a while to get the hang of Parliament. I remember nonchalantly deciding one day to vote to change the title of the apprenticeships bill to the modern apprenticeships bill. No sooner had I uttered the words “7 votes in favour” than out of the corner of my eye I saw Trevor Mallard roaring up the House towards me yelling “Get outside!”. I airily refused and wondered what on earth all the fuss was about. It turned out that thousands of copies with the old title had already been printed, and now, thanks to my change of vote, would have to be thrown out.
Another amusing memory was when I persuaded Nandor, at the very last moment, to vote against the microchipping of dogs bill. All hell broke loose, because his was the casting vote that defeated the bill, and no one had warned the Government about his sudden change of heart. An outraged Prime Minister was on the phone, and even the normally serene Jeanette Fitzsimons was apoplectic, but we could hardly conceal our delight that we had spared hundreds of thousands of dogs from being needlessly microchipped.
Shortly after we arrived in Parliament, the Green Party negotiated a moratorium on genetic engineering and a royal commission of inquiry. Jeanette and I spoke at literally hundreds of meetings around the country, and helped organise mass protests and marches. But despite huge public support for the moratorium, the Government lifted it in 2003. I recall the furious reaction when the Green MPs walked out of Parliament in protest. Nevertheless, I am proud of the fact that we helped ensure there are no genetically modified crops growing in New Zealand—so far, at least.
One of my first acts as an MP was to accept an 80,000-signature petition from SAFE—Save Animals from Exploitation—which called for sow stalls to be banned. I climbed into a sow stall to demonstrate how cruel it was, and was ridiculed for doing so, I might add. So it is gratifying that a decade later the Government has finally agreed to get rid of sow crates.
Another early highlight was our successful campaign to save the Overlander. I took the Overlander on what was to have been one of its last journeys, and arranged to collect our Save the Overlander petitions along the way. Everywhere the train stopped there were huge crowds of people clutching petitions. At Ōtorohanga people brought their petitions in a century-old wheelbarrow, and, at Te Awamutu, no sooner had the guard explained over the intercom that we were going through the King Country, which was home to two famous New Zealanders, Jim Bolger and Colin Meads, than there was Colin Meads standing at the station supporting our petition, and the train went wild.
I said in my maiden speech that I wanted to represent people who were fighting for safe food, animal welfare, public transport, natural health, and other green issues. And that is what I have done. I may not have represented a geographic constituency but I have certainly represented an issues-based constituency, and the thousands of people who contact me about food and other issues are testament to that. Some people tell me they see me as their voice in Parliament, and I feel humble to have fulfilled that role.
I have also been a voice for animals in this House, and I am proud to have put food and animal welfare on the political agenda. When I first raised animal welfare issues, MPs cracked jokes and rolled their eyes as if to say “How can you expect us to take such a trivial issue seriously?”. So it is fantastic that it is no longer a laughing matter. But, even so, hundreds of thousands of factory-farmed animals spend their entire lives locked inside cages in conditions of almost unimaginable cruelty. And the Animal Welfare Act still protects the interests of animal owners, not the interests of animals. So it was disappointing that my member’s bill, which would have amended the Act, was defeated in Parliament.
When the Green Party came into Parliament our ideas seemed radical, even loopy, and we were swimming against the tide. But now many of our ideas are widely accepted, and we are swimming with the current. We have even managed to break down the stereotype of morris dancing, mung beans, and sandals—that stereotype—and we have shown that we can bring about change as an independent party, even when we are not part of any formal coalition. And even when we have not succeeded in getting legislation changed, we have helped to change attitudes. My 36,000-signature petition calling for mandatory country-of-origin labelling of food was rejected by Parliament, but it has helped to raise awareness of where our food comes from, and forced supermarkets to introduce voluntary country-of-origin labelling.
Perhaps my greatest frustration as an MP is the fact that this Parliament has no jurisdiction over most aspects of our food. We have handed over control of this vital issue to an Australian-based organisation, Food Standards Australia New Zealand, where we have one vote out of 10. I am all for closer relations with Australia, but, surely, cuddling up to Australia need not involve handing over great chunks of our sovereignty to Australian-dominated organisations, or becoming the seventh state.
But despite such frustrations I have hugely enjoyed my time here, working with MPs from all sides of this House, particularly in select committees. I enjoyed chairing the Health Committee. It was extremely satisfying to have my flexible working hours bill become law, and satisfying to have worked with the Labour Government to secure funding for six successful projects, including an organics advisory service, a $12 million Nutrition Fund, and working on healthy food guidelines for schools—even though these have since been thrown out for no good reason, so as a nation we are doing nothing to improve our eating habits, which are fuelling the epidemics of obesity, type 2 diabetes, and dietary-related diseases. Other highlights include working with the Government on the Natural Health Products Bill, initiating inquiries into ambulance services, natural health, obesity, type 2 diabetes, and the future of bees, and even helping to save Wellington’s trolley buses and the Johnsonville line.
But I would like to devote the rest of my speech not to my own achievements but to some observations about democracy. We tend to be somewhat complacent about democracy, but parliamentary democracy, like everything else, needs constant renewal or it will become stale, and tired, and less and less relevant. There are some days in Parliament when I think it has become all of those things.
In particular, I despair about the polarised and confrontational way that we so often do business in this House. Much of the time it is trench warfare in here. MPs gather for question time as if for a military confrontation. The aim is to do battle, to defeat the enemy on the other side, not to debate or listen. The heavy hitters, the point scorers, the alpha males lead the charge, and hurl abuse at the other side, so question time, which ought to be the showcase of our democracy, routinely degenerates into a pointless scoring match. The rest of us have become so used to this belligerent behaviour that we end up thinking it is normal and acceptable.
But outside of Parliament many people find this behaviour childish and off-putting. A group of 14-year-olds observed question time in 2002 and wrote a report about it. MPs mocked each other, shouted at each other, interrupted each other, and seemed to have no respect for each other or for different opinions, they wrote. There was no sense of working together toward anything. They called on MPs to stop the bullying behaviour, and develop a more cooperative culture instead. Naively, I suggested we set up a cross-party working group to look at their report and ways of improving our working culture, but this went down like a lead balloon, and nothing much has changed since then. So, unfortunately, there seldom is constructive dialogue or really thoughtful debate in this House, and much of the time no one is really even listening to our debates.
On the other hand, away from the cameras, in the select committees a lot of tremendous cross-party work takes place, in a mostly constructive and positive working environment. A total of 106 bills have passed one or more stages under urgency in this Parliament—most of them not urgent, at all—and there is urgency, of course, tomorrow. I think the excessive use of urgency, with the bypassing of select committees and public submissions, undermines our democracy and fuels a growing distrust and disillusionment with politics, which is eroding people’s confidence not just in politicians but in our entire political system.
Not long ago, under first past the post, Parliament often operated as an elected dictatorship, with the executive completely controlling this House and ramming its agenda through Parliament. Thanks to MMP, this is no longer the case. When Governments are forced to negotiate with smaller parties, they cannot completely control this House or the select committees, which now have some measure of power and influence. But, even so, the executive still controls a great deal of what Parliament does, and I believe that the House needs more independence so that it can counterbalance the power of the executive and better hold Governments to account.
Mr Speaker, you have tried to make Ministers answer questions, and to make the Government more accountable, and I congratulate you on that. But I would still like to see more independence for the Speaker, and a rule, such as exists in the UK, that the Speaker is elected by a free vote of Parliament and severs all party affiliations.
MMP has made Parliament far more representative, it has breathed new life into our democracy, and it has brought in new parties, new ideas, and new ways of working. But more changes are still needed, I believe, if we are to make Parliament more modern and more capable of responding to the challenges that confront us. We live in a time of rapid change, yet our Parliament is a 19th century institution, hidebound by rules and conventions, and it still operates quite a lot of the time like an old boys’ club. So I believe that a major overhaul is needed of the way that Parliament works, to make it less remote and more relevant and accessible to ordinary New Zealanders. I believe we owe it to New Zealanders to lift our game, leave behind the tribal warfare and the adversarial way in which we so often do politics, and adopt a more constructive approach.
We live in a time of financial and ecological crisis. The glaciers are melting, bees are disappearing, the oceans are acidifying, and everywhere there are signs of ecological collapse. Our global financial system is teetering on the verge of collapse, too, and our society is growing more unequal by the year. Yet in Parliament far more energy is spent on trying to win the daily media battle than on grappling with the crises that confront us. The media, too, often seem more interested in scandals and the trivia of politics than in serious policy issues or debate. All the focus is on the battle between warring parties—who is winning, who is losing, who is up, who is down—rather than on how we are going to steer ourselves out of the mess that we have created.
The problem is that for a healthy democracy we need an informed electorate. But if there is less and less serious content in the media, people will not be sufficiently informed to make an informed choice at the ballot box. Diverse and independent media are critical for a healthy democracy. Worryingly, we are one of the only countries in the world without mainstream public service television, and even our outstanding public service radio is limping along on the back foot, with its funding frozen indefinitely, forced to sell off its grand pianos to survive. Four overseas-owned companies control most of our media, and we have one of the most deregulated media environments in the world, with no rules around foreign ownership, cross-media ownership, or anything else. So there is actually nothing to stop Rupert Murdoch, or anyone else, from taking over any, or all, media in New Zealand, or setting up a Fox-type television channel that pushes a particular political barrow and does not even pretend to be impartial. I believe we need to review our media ownership rules and set up a strong and more independent media monitor.
The growing influence of corporate lobbyists also concerns me. Lobbyists operate in secret, so it is almost impossible to work out who is lobbying whom in this place, and on whose behalf. In other countries, the activities of lobbyists are publicly disclosed on a register of lobbyists, and I have been seeking to bring transparency to lobbying here, through a member’s bill. Corporate donors and lobbyists have far greater access to Government than ordinary New Zealanders, and some, I believe, are able to exert undue influence on policy and legislation as a result. The problem is that they pursue the vested interests of the corporations they represent, not the public interest, so the growth of lobbying is shifting the political landscape in favour of corporate interests, at the expense of the public interest.
Finally, I want to salute the unseen workers of Parliament: the friendly security guards, the cleaners, the cooks, the Hansard staff, and all the courteous and patient people who keep this institution going. Special thanks to the magnificent librarians, who have provided me with so much invaluable information over many years.
Thanks to all the people from various organisations I have worked closely with over the years, some of whom are here today—SAFE, GE-Free New Zealand, the Soil and Health Association, the Safe Food Campaign, the Nurses Organisation, the Service and Food Workers Union, the Charter of Health Practitioners, Alcohol Action, Grey Power, and many others—I could go on and on. I would have achieved little without their collaboration and support.
Thanks to all my fantastic colleagues and friends in the Green Party caucus. It has been fantastic being with you all for the last 12 years. And thanks to the wonderful and talented Green Party staff, and, in particular, the person I call my secret weapon, Dr Meriel Watts, and—how to describe him—the wonderful Kevin List. Thanks to all my hard-working and supportive executive secretaries, from Dr Sean Weaver, Dr Charlie Chambers, Councillor Iona Pannett, through to Angela McLeod. Thanks to the students who have worked with me as interns over the past decade, to my family—my mother, my late father, my sister and brother, my stepchildren, my extended family—and to my wonderful family of friends, many of whom are here tonight. My greatest support has come from my family, especially my incredibly supportive and political astute husband, Denis Foot, and my awesome son, Zachary Kedgley-Foot, who from a young age has had to put up with a mother who is a politician.
It has been an enormous privilege being a Green MP, and now it is time to hand the baton to another generation. It is incredibly comforting to know that Keith and I, as the last of the original Green MPs, leave the party in such good heart, and that another group of talented and energetic New Zealanders is waiting in the wings for their turn in Parliament. Thank you very much.
- Sitting suspended from 6.05 p.m. to 7.30 p.m.
Video Camera Surveillance (Temporary Measures) Bill
- Debate resumed.
Hon SIMON POWER (Minister of Justice) : I rise to support the first reading of the Video Camera Surveillance (Temporary Measures) Bill. I will use my time to address the suggestion made by members opposite that the alternative to this bill is to cut out the relevant parts of the Search and Surveillance Bill and paste them into a stand-alone bill. Notwithstanding the good intentions behind this suggestion, it does not take account of the fact that the surveillance regime in the Search and Surveillance Bill is part of a complex and integrated scheme for law enforcement search, video surveillance, interception, and tracking powers. In fact, that is the whole intent of the Search and Surveillance Bill: to integrate our laws on search and surveillance. Its effective operation relies on the various definitions and protections provided in other parts of the bill, such as the creation of trained issuing officers, the imposition of reporting obligations, and the protection of professional privilege. I am advised by the Parliamentary Counsel Office and justice officials that the interrelated nature of the bill makes the extraction of the surveillance regime undesirable and extremely complex, and therefore open to oversights.
I will also address the claim that the Government should have moved faster to pass the Search and Surveillance Bill. The simple point is that until the Supreme Court decision of 2 September the common law understanding of the lawfulness of covert video surveillance was shared by successive Governments, the police, and the Court of Appeal.
Just for the record, I think it is worth recounting some of the history behind the legislation. Ten months after the Law Commission’s report on search surveillance powers in June 2007 the then Labour Government announced its decision to proceed with a bill in April 2008. At the time justice Minister Annette King noted that the existing legislation “is silent in relation to visual surveillance devices.” Labour introduced the Search and Surveillance Powers Bill on 17 September 2008—notably, the penultimate week before the House rose for the election. In the final sitting week of the House, the then Government used urgency to advance or pass 17 pieces of legislation in the one urgency motion, but the Search and Surveillance Powers Bill was not among them. My point is that although the previous Government anticipated the need to introduce a regime to govern video surveillance, I suggest that no one was advising them they must do so with haste lest current practice be found to be unlawful.
Shortly after I received the warrant as Minister of Justice I was advised that the Search and Surveillance Powers Bill introduced by the previous Government was not sufficiently comprehensive in its coverage. Rather than amend the bill, which, again, would have been an extremely complex task, we had the new Search and Surveillance Bill drafted and introduced in July 2009 before discharging the existing bill.
It is fair to say that that then Search and Surveillance Bill attracted more than a little controversy. The select committee consideration was extended several times while the Justice and Electoral Committee worked out substantial revisions that would provide greater comfort for parties across the House. However, just before it was finally reported back in November last year, an incident involving the Serious Fraud Office’s use of its production and examination powers to obtain information from a journalist opened up a new front for controversy. In a letter to me at the time the Hon David Parker raised this issue and several others as obstacles in the path of further support from Labour, including limiting the existing powers of the Serious Fraud Office by requiring prior judicial approval, raising the threshold for examination orders to offences punishable by 10 years’ imprisonment, and exempting the media from being subject to any production and examination orders, even those—this is as I recall—approved by a judge.
These are complex issues that have merited further consideration. We had to balance this against other Government priorities for what has been a very truncated House timetable this year. Again, of relevance in these considerations was the fact that no one was telling the Government that the current activities of the police were unlawful and therefore had to be remedied with haste. Even if we could have achieved agreement on the Search and Surveillance Bill and passed it by the middle of this year, the Supreme Court decision would have still undoubtedly captured cases where video surveillance was gathered before the bill was passed.
Finally, several other statutes have been amended or enacted by this House since the select committee reported back that would require consideration of whether consequential amendments to the Search and Surveillance Bill are necessary. I therefore support the Video Camera Surveillance (Temporary Measures) Bill as a discrete and time-limited bill to provide a temporary fix. This will enable detailed consideration of the remaining complex issues involved with the Search and Surveillance Bill to ensure that any amendments are a durable solution to this problem. I commend this bill to the House.
Hon DAVID PARKER (Labour) : I acknowledge the Minister’s prior contribution. There are a couple of areas where I disagree. The Minister said there was a risk that the surveillance powers of the police were under threat. Well, that may have been true a year ago, but it certainly was not true when the Tūhoe people started to make their appeals through the courts. At the very least, from the moment the defendants in the Tūhoe cases were making their applications to the court the Government would have been receiving reports that the power of the police to gather surveillance evidence was under question.
I come back to the issue of whether this matter can be fixed in a different way that might be preferable to the way that the Government is proceeding. I have to say it saddens me that today we have heard from two Ministers, and they are saying that, effectively, they will not even consider the alternative methodology that is being proposed by other parties. They hide behind the fiction that it cannot be drafted. I repeat: they hide behind the fiction that it cannot be drafted. I am sure that they were advised by the Parliamentary Counsel Office that it would be difficult to draft in time. I think that is the advice the Attorney-General said he had received, and I accept that he received that advice. Indeed, when we were briefed earlier today by the Solicitor-General he said that he had received that same advice. Labour’s point is that that advice is wrong. We have all but drafted the amendments that are required. Charles Chauvel is doing it, with some assistance from various parliamentary staff, and it is almost there. So it saddens me that the Government is saying “No, we won’t look at that as an option.”, because I think if you did, you might find that you had a bit more support for this Video Camera Surveillance (Temporary Measures) Bill.
Hon Christopher Finlayson: But I have been looking at it.
Hon DAVID PARKER: You have been looking at—
The ASSISTANT SPEAKER (H V Ross Robertson): Order!
Hon DAVID PARKER: Sorry. The member has been looking at the information we have provided?
Hon Christopher Finlayson: Yep.
Hon DAVID PARKER: Well, I hope he lets his members on the Justice and Electoral Committee do so.
There is a very difficult background to this, and it lies behind the nervousness of Māori as a consequence of the Tūhoe raids. We need to be very careful of people’s perceptions in an area like this. It is not just the reality of what needs to be fixed. There is a need to be fixing something here, there is a need for the police to have proper powers of search and surveillance, and Labour has always agreed with that. But we need to recall that, at the time, we had anti-terrorism legislation, effectively, being used. It was subsequently acknowledged that that had been a wrong use of that legislation, and that there were no appropriate charges to be brought under it. We saw on our televisions—and even on television I found it scary—black-clad armed offenders squad members in their masks, with their high-powered rifles, boarding buses that had schoolchildren on them, and using the full force of the law on the people of New Zealand.
Hon Rodney Hide: And a bit more.
Hon DAVID PARKER: Pardon?
Hon Rodney Hide: Full force of the law and a bit more.
Hon DAVID PARKER: The full force of the law and a bit more, as Rodney Hide says. I find it worrisome when that happens, and when it happens inappropriately, even more so. I have to say that irrespective of the niceties of the law here, I do think we have to have a look at the image we present to people when we are enforcing the law. I thought it looked a wee bit over the top in respect of what schoolchildren on a bus heading down the road saw. We must be aware of that.
The next thing we have to do is we must respect our institutions of law. The Supreme Court is the highest court in New Zealand. It is one of the main protectors of New Zealand’s civil liberties. When it says that something is wrong, we should do the minimum to interfere in that decision in order to remedy what might be a consequence that we need to fix. There are some things here that need to be fixed, but we ought to go about it in the way that, for people like the Tūhoe, and other people who are worried about civil liberties, causes the least amount of interference in the decision that the Supreme Court has handed down.
There are a couple of other points to be made. I do not like the Prime Minister saying that this will cause more crime, or implying that somehow there will be more crime in society. There will not be more crime as a consequence of whatever this Parliament does on this; the issue is whether people will be, effectively, prosecuted for their crimes. So let us not frighten people by saying that there will be more crime as a consequence of what is or is not done in this House of Parliament in the next few days; let us focus on whether we will be appropriately empowering the police for the future, and whether we will be letting off people who have previously been convicted of crimes, or have yet to be tried for their crimes, because evidence cannot be admitted.
We should also take considerable heart from the fact that the Supreme Court was actually enforcing an Act of Parliament that we had passed here, and that is the New Zealand Bill of Rights Act, which is meant to protect our citizens from inappropriate search and seizure. Let us remember that. It is another reason to do the minimum here, rather than give carte blanche in the meantime.
Hon Christopher Finlayson: That’s what we are doing.
Hon DAVID PARKER: Well, I do not know that I agree that we are doing the minimum here; that is one of the things we need to check.
The next thing we need to remember is that the New Zealand Bill of Rights Act already specifically says that even if evidence is illegally obtained, the court can admit it at its discretion if it thinks it is reasonable to do so, having regard to the seriousness of the offence—or words to that effect; I might not have used the precise words. Indeed, that very provision is being used in respect of the Tūhoe cases that are proceeding against Tame Iti and some of the other defendants. So we can take heart from that. Can I also gently give a message to the court that, Parliament having given that discretion to the court, we expect it to be used in appropriate cases. I ask the court to actually reflect occasionally on the pressure it causes for inappropriate overreactions by Parliament when it does not exercise its discretion. I should not say “when”, because I am not saying it has done that; I am saying that if it were to be rare in the use of its discretion to admit illegally obtained evidence, then it would create a pressure from the public, and in this Parliament, for retrospective legislation, which would be undesirable.
The Supreme Court does provide us with considerable protection. It has found that the actions of the Crown, through the police, were illegal. I think just about all of us in this House are agreed that the police need powers of surveillance. I was on the Justice and Electoral Committee when it considered the Search and Surveillance Bill, and we reached that conclusion. I think everyone on that committee agreed that the police need powers of surveillance, and we came up with wording that has appropriate protections. It says what the prerequisite level of offending has to be, depending on the sort of search and surveillance. It says that one has to go to a judge.
As for this idea that judges need to undergo some sort of training regime before they can appropriately confer these new warrants—if we did it through picking up the provisions of the Search and Surveillance Bill—which is what both the Attorney-General and the Minister of Justice said, what nonsense that is. The same judges are already giving all the other sorts of warrants under the Summary Proceedings Act. Is it the Summary Proceedings Act or the Summary Offences Act?
Hon Christopher Finlayson: Summary Proceedings Act.
Hon DAVID PARKER: I thank Mr Attorney-General. I do not agree that that is a problem.
In respect of the drafting problem, we have had 3 weeks, and it appears that the Government started drafting in the last day or two. We have had 3 weeks. We are told that the Parliamentary Counsel Office finds it too hard. This has been the most important constitutional issue in New Zealand over the last month, and it cannot be given priority, through the arms of Government, so that someone pulls their finger out and starts drafting the legislation? What sort of Government have we got on the other side? Do the job! In the absence of the Government doing the job, Labour has done most of it for it. We have drafted appropriate amendments that we think do the business in respect of the prospective power that the police do need in respect of search and surveillance. In respect of the issue of retrospectivity, we need to hear from officials their advice as to whether there is a need for a retrospective fix. Until we have heard that evidence, I am not in a position to say whether it is right.
Finally, I point out that the Government has been sitting on the Search and Surveillance Bill since November 2010, when I wrote to the Minister and raised three issues that the Minister has correctly listed: press freedoms; tidying up the Serious Fraud Office powers at the same time as we confer similar powers on the police that are a wee bit more constrained; and another issue in respect of examination orders, where people lose the right to silence, which should be a bit more tightly prescribed. We have not heard back from the Government, in just about a year, on the substance of those issues, and that is part of the problem.
KEITH LOCKE (Green) : The Video Camera Surveillance (Temporary Measures) Bill is one of the worst bills to pass through this Parliament. It is being rushed through completely unnecessarily. It is a retrospective bill that legalises illegal behaviour by the police and other agencies. This Parliament is here to make laws, and people are punished for breaking those laws. In this case we are doing the very opposite.
Parliament has found that the police and people in other State agencies—and the bill does talk about other State agencies; it is important to know that this legislation is not just about the police but it is about other State agencies that have search powers, as well—have been breaking the law by engaging in covert video surveillance without authority. Rather than bringing the police to account or giving them some sort of punishment, what are we doing? We are passing a law in a rush to make that illegal behaviour legal, going way back to the time when video cameras were invented—there is no start date to this bill—and for a year into the future.
I think the essence of this issue is that we are overriding one of the most important laws on our statute book—that is, the New Zealand Bill of Rights Act. Section 21 of the New Zealand Bill of Rights Act protects the public from unreasonable search and seizure by State agencies, including unreasonable surveillance. Chief Justice Sian Elias, in her 2 September judgment, explained this. She said: “Covert surveillance by the police of people who do not know that they are being observed collides with values of freedom and dignity in the same way as search of their correspondence or interception of their conversations. The right to be ‘secure against unreasonable search’ underscores a purpose in allowing citizens to relax vigilance and live their lives with freedom.” That is what the highest judicial officer in the land said. She made it clear in her judgment that the police and other agencies are able to do such covert video surveillance in breach of the New Zealand Bill of Rights Act only with lawful authority.
There has been a lot of talk here about how we did not know that the police were doing wrong. Well, the judgment of Sian Elias said the opposite. She talked about the deliberate breaking of the law by the police in this case. She used the word “deliberate”. She said: “In circumstances where the police officer in charge of the inquiry knew that there was no authority to be obtained for such filmed surveillance, the deliberate unlawfulness of the police conduct in the covert filming, maintained over many entries and over a period of some 10 months, is destructive of an effective and credible system of justice.” She is not pulling punches at all there.
This idea that we all thought it was part of the common law is rubbish. It is wrong, because even in recent times we know that the Law Commission, in its report on search and surveillance, laid out very clearly that there was not lawful authority for covert video surveillance. The report highlighted that, and from that point on, every police officer and every State agency would have known that they were breaking the law.
Then there was the High Court decision in the Operation Eight case on 7 October 2009, which specifically said that it was unlawful to conduct video surveillance. That was what that case was about. Of course, the decision used section 30 of the Evidence Act and said that despite the evidence being unlawfully collected, the court would accept it because the crimes it was talking about were pretty serious. That was its decision. From that High Court decision on 7 October 2009, it was over a year later that the Court of Appeal came down with its judgment, on 17 November 2010. The police should absolutely have been instructed to cease video surveillance. They knew, and that is why Sian Elias, the Chief Justice, said that they were deliberately breaking the law. They knew of that High Court decision and of other decisions like the Gardiner decision, and they consciously broke the law.
This bill here provides for almost all video surveillance, except covert video surveillance involving trespass. It allows, for example, sticking a video camera on a building next door to a place that the police or some other State agency wants to spy on. For a person inside the backyard, bedroom, or living room who is being spied upon, who does not know that he or she is being spied upon—and if it is in a high place, that person would not expect to be spied upon—his or her guarantee under the New Zealand Bill of Rights Act against unreasonable search and surveillance is very much violated. That person would be expecting privacy.
As I said, this applies not just to the police but also to any agency with warranted search powers, which can include the Commerce Commission, the Department of Conservation, the New Zealand Customs Service, the Department of Internal Affairs, and the New Zealand Food Safety Authority—to name a few. They are all to be given carte blanche for all past video surveillance and for any future surveillance for a year.
Why is this bill being rushed? That is what we want to know. It is very rushed. We did not even get a copy of this bill until the first speaker, the Attorney-General, started his speech. It is impossible to have a proper process when speakers in the first reading have had virtually only a few minutes in which to absorb the bill. It is important in the first reading to give the public and any submitters to the select committee process a bit of a steer by the different parties putting in their considered views. That has not been able to happen in this case. I have heard that there will be a select committee tomorrow morning at 9 o’clock. Somebody said that. I do not know whether that is the case. I have heard reports that it will be a very rushed process, particularly for voluntary groups like the New Zealand Council for Civil Liberties, the Human Rights Foundation, or any groups like that, which do not have full-time staff and are not full-time lawyers, etc., to really contribute to such a rushed select committee. That is important if we are to get the right determination here.
Why is there all of this rush? Would it not be much easier to wait just a month or two down the track, until the next Parliament, to pass the Search and Surveillance Bill? The Green Party would support giving priority to that bill. It is important, because complex issues are involved here, which is why the Justice and Electoral Committee—upon which I sat for the Green Party on the Search and Surveillance Bill—spent 2 years discussing all the complex constraints and procedures around search and surveillance. Since then that bill has been waiting in the parliamentary hopper for the second reading. When we discussed that bill in the select committee, we actually went back—unusually for any bill—to submitters for a second round, because it was very complicated and we wanted to get it right.
The Greens think there are a lot of good things in the Search and Surveillance Bill, although we are critical of some elements of it, which is why we have not been supporting it as a whole. We do not want a provision in there for covert video surveillance involving trespass. We are very much against that.
What is the argument for haste for the Video Camera Surveillance (Temporary Measures) Bill? There are 40 current trials and 50 police investigations that might be compromised, but are we really sure about those figures? I asked a question today about how many trials involving this form of surveillance have been completed in just this last year, and I was not given a figure, at all. It was too hard to even work out a figure, apparently, so I do not necessarily trust those figures of 40 trials and 50 police investigations.
There are two other things. Most trials and investigations involve a lot of other evidence. How do we know that the covert video evidence is critical? In any case, section 30 of the Evidence Act allows illegally obtained evidence to be accepted in a court case if the case is serious enough.
I do not see that more than one or two criminals would get off if we left it for a month or two until the next Parliament. That can be the price of civil liberties. The price of civil liberties is that some criminals actually get off. That is the price of civil liberties. All we are talking about here is a temporary period.
Thinking back years ago there has been a whole tradition in the protection of privacy. I will perhaps finish on one good quote, which is from former Prime Minister William Pitt, or Pitt the Elder, who said: “The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail—its roof may shake—the wind may blow through it—the storm may enter—the rain may enter—but the King of England cannot enter—”. I think the essence of that quote is that we should very jealously protect our privacy from unreasonable surveillance by State forces. Thank you.
Hon RODNEY HIDE (Minister of Local Government) : I thank the Attorney-General for agreeing to send this very important bill, the Video Camera Surveillance (Temporary Measures) Bill, to a select committee for a few days in order for the public to have a say and for this Parliament to hear from experts.
We have a simple parliamentary system here. It has been called “unbridled power” before. There are very few checks and balances on the power of this Parliament. One of the checks is select committee scrutiny, which allows ordinary citizens to have their say and for official advice to be contested. Now one of the checks is that usually not one party can muster the numbers on its own to ram through legislation. That is as it was in this case, because it is very clear that National wanted to move this bill straight through under urgency and to pass it into law. The ACT Party believes that that would have been a very serious mistake.
There is a lot at stake. Let me walk people through it. The first thing is that people say it is very odd for ACT to be the law and order party and to be standing up on behalf of the rights of, shall we say, suspected criminals or criminals. That is because if we are to have law and order, the critical bit is that the police operate within the law. If the police do not operate within the law, then there will not be any order. That is why we require and hold our police to operate within the laws that this Parliament makes. It is a very serious issue indeed if the police, when going about their business and with a good purpose to put away bad people, are not worrying about operating outside the law. We would not actually have a lawful society and we would not have the order that we expect in a civil society. That is why we set the bar so high for our police, and justly so.
The second thing is that this bill deals with a very, very important issue: covert surveillance by the police. In other jurisdictions the police, as arms of the State, can surveil who they like, covertly, and they routinely do that, for all sorts of untoward purposes. We correctly call such States police States, and New Zealanders do not want anything to do with them. We want our police operating within the rules set by the people’s representatives, voted here by the people, in this Parliament. We do not want our police to go about secretly surveilling law-abiding citizens without the proper checks and balances that a civil society has. We have to say that this is a very, very important issue; it is not a technicality, indeed.
In fact, it surprised me to learn that the procedures were set up in 1957, before we had the technical ability to do covert surveillance, I guess. This law is so outdated that the police have found themselves in this predicament. The police officer in charge of this inquiry told the High Court that he knew they were operating outside the law with their covert surveillance. Rather than the Police Association ringing around MPs to try to get them to support this legislation under urgency—retrospectively—why was the Police Association not running around this Parliament to get the proper laws updated and passed so that the police could do their job within the law, rather than operating, as they knew they were, outside the law? Covert surveillance by the police is a big deal for any civil society.
The other point is that we are dealing with a Supreme Court decision. It should not escape members in this House that the Supreme Court is the highest court in New Zealand. We say that Parliament is the highest court—
Hon Shane Jones: Rodney, Parliament is the highest court.
Hon RODNEY HIDE: Look, we say that Parliament is the highest court, but it is not. Parliament is not a court. Parliament is the highest court in the sense that it is the place where we have the debate and we make the laws. It is the court’s job to decide and to interpret those laws. We keep in a civil society, in which we bridle power, a clear distinction between the courts and this Parliament, and rightly so. We should ask ourselves what sort of banana republic is it if the Government of the day comes along and says: “Oh, we don’t like that decision of the courts. Let’s change the law.” Well, that is OK! “But let’s change the law retrospectively because we don’t agree with the implications of that decision, on what it means for New Zealand.” That is the definition of a banana republic. Why would we invest in a country where if we end up taking the Crown to court and it does not like the result, it just changes the law, backwards? We saw that with the foreshore and seabed, and we knew then it was a mistake. This is, likewise, potentially a similar mistake, which needs very careful examination.
The next thing we can say is this: we are attempting a so-called fix of the Supreme Court decision, under urgency. The proposal was to do so without the bill going to a select committee. We would have had this: the Government of the day getting official advice—the only advice it would get; there would be no contest—
Hon David Parker: From the police.
Hon RODNEY HIDE: —from the police and from the Solicitor-General, who was advising them in the court case that they lost, to say: “Oh, the Supreme Court got it wrong. Change it. We will just pretend the Supreme Court did not make that decision. In fact, we will scrub it out of the books—scrub it out of the books.” To do that under urgency makes it worse. So at the very least we have the bill going to a select committee. Then not only that, but to do so retrospectively! What that would be doing is making lawful what the police knew back in the day was unlawful. Parliament is the only place that can do that. Something was done unlawfully some years ago, and this Parliament will come along and say: “Oh, that’s OK. The police were operating unlawfully. They knew they were operating unlawfully. We knew that they were doing covert surveillance unlawfully. We’ll come along and make lawful what was unlawful.” That is Alice-in-Wonderland stuff. I do not mean to pick on Labour, but it made a similar mistake with the foreshore and seabed. The best thing this Parliament can do is hold its fire, listen to what the courts have to say, and make the law, not become the court of this country.
We are going off to a select committee. I can tell members of this House that I do not know what the answer is. I will be very interested in the submissions the select committee hears on this bill and what suggestions we hear on this bill. I am very interested in what Labour has offered. But here are the things: first of all, it seems to me that we do want the police to be able to undertake covert surveillance, but we want them to do it under the law, with proper checks and balances. I do not see that in this bill. I do not see it in this bill. It cannot be beyond the wit of us to produce it. Second of all, I have a grave concern about retrospectivity. We have been told about all the cases before the courts that will fail. I asked the Solicitor-General about that. He said: “Well actually, I don’t really know. I just emailed all the Crown solicitors and said ‘How many cases have you got that could be affected?’.” He said that it worked out to about 40. Let us get to the bottom of how many cases are affected before we run off and commit what is a constitutional outrage. We would need a pretty good reason for committing such a constitutional outrage.
Let us also do this. The argument is that there are all these bad people locked up, and now we have the Supreme Court’s decision. Actually, it is not the Supreme Court’s decision; it is the failure of this Parliament and successive Governments that is the issue. It is our failure to update our search and surveillance laws and our laws for search and seizure, so that the police can act in a way that people think is reasonable. It is not the failure of the Supreme Court, it is the failure of this Parliament. Let us test the evidence and find out how many people now inside are truly at risk of being let out and having an appeal under the law, as the Supreme Court has it. I suspect there will not be very many.
TE URUROA FLAVELL (Māori Party—Waiariki) : Tēnā koe, Mr Assistant Speaker Robertson. Kia ora tātou e te Whare kua hui mai i tēnei pō. I will start by saying to the Hon Rodney Hide that his speech was pretty much right on the money in respect of the Māori Party’s concerns about the Video Camera Surveillance (Temporary Measures) Bill, in all aspects of his kōrero. I do not wish to go back over it because, along with other speakers, he has placed the issues fairly and squarely in front of the Parliament of this land. What I do want to do, though, is add to the theme, in a sense, around the police.
As a young fellow growing up I was always brought up to understand and believe that if we need a hand, we should go to the police; that if we need some guidance, we should head to the police; and that we should give them the respect that they are due. I have been out on the road a couple of times with the police, and I give them full respect for the mahi that they have to do. I have been out at night-time and in daytime on shifts, and I do not envy their tasks at times. There are those in the field who are doing a great job of keeping the country going in a lawful way. There have been a few times when I have doubted the responsibility of policemen and policewomen throughout the country. One of them was a few years ago when a young boy, by the name of Rāwiri Falwasser, I believe, was held by the police in Whakatāne. There was a big court case. It was found, unfortunately, that a number of police members had dealt to that young man in a way that should never have happened. The second time—to cut out a long period of time—was basically the result of that one day that is well written into New Zealand history in respect of the arrival of the police in the Ruātoki Valley.
Following that day, I was fortunate to be able to go with a colleague of mine, Mr Hone Harawira, to the streets of Whakatāne one day when people organised a hīkoi through Whakatāne. I heard from nannies with their tamariki who were still shaking after that moment in time—and we are talking about a week or so after it. They were crying and showing their anger and despair at what had happened. I was with the people in Whakatāne on that hīkoi. I have heard a draft report back from the Human Rights Commission. I have been at the Tūhoe Ahurea, which is the biggest festival gathering of Tūhoe people in the Ruātoki Valley, on at least two occasions—because it is run every two years. I have heard haka; I have heard poi. I have heard whaikōrero, or speech-making, on the marae, which concluded absolutely that Tūhoe would never ever forget that occasion. I know that Tūhoe, even their young people, as recently as about two months or a month ago, at their competitions had that day in mind when they did their haka.
I know that Tūhoe talk about the confiscation line. I know that Tūhoe talk about the invasion of Maungapōhatu. I remember, and was there, on the day that the Waitangi Tribunal arrived at the Ruātoki Valley on the back of a cart, when there were about 20 young men on horses, at least, and at every point and stop all the way in to the Ruātoki Valley, the tribunal was reminded about what Tūhoe believe is their history and what has happened to them—things such as confiscation and invasion. So there is a history of mistrust of the police by the Tūhoe people, not just on the back of one occasion, but—on the back of the State, I suppose, in a sense—on the back of a number of occasions over time.
What is worse is that since that time those people still hang in limbo—not the ones who are in court, necessarily, or those who have been released or otherwise, but the people who actually had their doors either smashed open or knocked on, the families who had their tamariki strip-searched, and the families who had members taken to other areas of the Bay of Plenty and outside the region. I will not talk about the Auckland ones, because I did not hear anything from them; I heard from the Tūhoe people. I have not heard anyone say “I am sorry.” I have not heard anybody say “We got it wrong.” I am talking about the people who were hurt on that day, the ones who had nothing, absolutely nothing, to do with it, but who still suffer 4 years down the line. Those are the ones whom I feel sorry for. They are the ones whom I think about. Even the ones who lived in Whakatāne said the police came around, and now people do not talk to them. It is down to that sort of detail that people still hurt about what happened there. There are those who are still waiting to go to court. Sure, one or two have taken some liberties by going overseas—good on them—but for the rest, I just want to make a plea that tonight in this Parliament we think about those people.
Against all that background of waiting for 4 years and of what happened, one would understand that for the people of Tūhoe, as I say, their feelings about the police are not very great. Finally, to find out, about a month or so ago, that a number of them have got off their charges—10 to 12 of them got off—because the evidence did not stack up or whatever, would have had some people laughing. To finally get the outcome of the Supreme Court ruling really, in a sense, rubbed salt into the wound, especially when we had a statement from a judge of the court, Chief Justice Sian Elias, that said this: “Parliament has provided many statutory powers of entry, search and seizure, including for the interception of conversations. It has not however provided any authority for secret surveillance of the type undertaken here, despite having had the absence of such powers drawn to its attention”—a point made by Mr Hide, in terms of successive Parliaments—“by the Court of Appeal and the Law Commission.” That is what she said. She continued on: “I consider that the police act unlawfully if they do not have specific statutory authority for intruding upon personal freedom. That conclusion is compelled in my view both by the common law and by the terms of the New Zealand Bill of Rights Act. It also meets rule of law values of certainty and predictability.”
So against all of that, one would understand that not just Tūhoe but indeed Māori across the country are looking sideways now at the whole relationship in respect of the police, and indeed wondering about how it could be that the police, of all people, could go ahead into an action that was unlawful, as Mr Hide said.
This bill, I think, cuts to the very core of some deeply held concerns within our community. Mr Hide outlined most of them, but we are talking about transparency, we are talking about accountability, we are definitely talking about trust, and ultimately maybe even about the notion of corruption. What really worried me was an interview with the Police Association in which the head of the association said something along the lines of “It wasn’t written down that we couldn’t do it, so we did it.” I mean, we are talking about the head of the Police Association, and if that is the rationale for going ahead with actions by the police, we have some serious problems—we have some serious problems. So I agree absolutely with Mr Hide on all the points about retrospectivity, looking back, and the whole notion of the short time frames. We would have liked to have a little more time to work things out, because clearly it has been identified that there is an issue there. But, under the circumstances, clearly it is not going to happen.
I can say, and this will not be too much news to anybody, that the Māori Party will be voting against this legislation. We are going too fast. We have to take our time to get it right. I understood from discussions with various people that there is a worry about those people who are still out there and what happens with regard to them. As I understand it—and I tried to get some clarity around this—the police simply need to go to court to get permission to be able to go about the work that still lies there. I think the Minister, in this afternoon’s question time, outlined the difference between the two terms, which were—
Hon Christopher Finlayson: Unlawfulness and unreasonableness.
TE URUROA FLAVELL: I thank the member. I am not a lawyer, but I like to think that that authority should still stay within the court.
Finally, there is the question of whether people will get off. There are four people still held under charges at this point in time, so that might suggest that those people can still be held over, and indeed those other people charged with crimes. The issue is not going to go away. We will fight this legislation all the way through. Kia ora.
Hon JUDITH COLLINS (Minister of Police) : I will speak to some of the practical aspects of policing covered by the Video Camera Surveillance (Temporary Measures) Bill. Covert video camera surveillance is used in a wide range of criminal investigations to record activity at, or comings and goings from, a particular location. Principally, it is used to gather intelligence in support of criminal investigations, including support for applications for interception of private communications; to gather evidence for crime, including recording unlawful activity; identifying persons to link to other evidence, for instance intercepted voices; to corroborate testimony of witnesses, for example undercover agents and others, including informers; and to guide decision making.
It is also used to facilitate the safety of police officers and others, for example undercover operatives, informers, and other people present in premises, such as children in a meth cook area, and to protect police officers and witnesses who have been the subject of serious threats.
It is also used to facilitate the safety of police officers and assistants lawfully entering addresses and localities pursuant to their lawful duties, such as the armed offenders squad or termination teams, investigators, or technicians entering cannabis plots. In the event of an armed siege it might be used to view a suspect address to monitor the activity of a suspect, in situations such as the Napier siege following the murder of Senior Constable Len Snee, and to provide the operation commander with the best intelligence they can get. An application in writing has to be made on oath to a District Court judge, JP, community magistrate, or registrar for a search warrant, and there must be reasonable grounds to believe that an offence punishable by imprisonment is involved. That is what is being received in all of these cases—search warrants have been granted, and they have been asked for.
On occasion, the police install covert video cameras after obtaining permission of the owners of the land. For example, cameras have been installed on private property with the permission of the owners to record unlawful activity on the land, such as people trespassing on their land in order to cultivate cannabis. In other cases owners have given the police permission to install covert cameras on their land to record activity on adjacent public land, or on a nearby suspect address. In the latter case, this is now unlawful following the Supreme Court decision.
In these cases where surveillance from adjacent land is needed, it is far safer for the owners or occupiers for video surveillance to be conducted, rather than to have surveillance by officers present on the land. There is far less chance of detection or suspicion falling on them. Criminals can be very hard on those whom they perceive to be assisting police.
The use of covert video camera surveillance involving entry on to private property as part of the exercise of a search warrant has now been declared to be unlawful by the courts. The police are therefore not able to lawfully undertake any further covert surveillance involving trespass, as there is nothing in statute to authorise it, and where this surveillance is critical to obtaining crucial evidence of offending, the police are now hamstrung in their attempts to prosecute such offending.
Covert video camera surveillance of private land from public land, or from private land with the consent of the owner, is likely to be an unreasonable search in breach of section 21 of the New Zealand Bill of Rights Act, following this decision. This will put in significant doubt the admissibility of evidence obtained from these types of surveillance, as it will have been improperly obtained in terms of section 30 of the Evidence Act, and the courts will allow it to be admitted only if there are strong counter-arguments in the interests of justice for it not to be excluded. This will be particularly important when surveillance evidence is crucial to the Crown case.
As a result of the Supreme Court decision 47 operations, including 229 accused, currently before the court are potentially at risk. Over the last year there have been, on average, operations involving 47 camera installations per month. Because of the nature of some of the installations, some will not fall foul of the law, but others will. It can be expected that a number of operations may not be initiated, because of the Supreme Court judgment. Following the Supreme Court judgment the police do not believe they can continue to use surveillance equipment in the way they have for at least the last 15 years.
Over recent years traditional surveillance involving a person watching people or suspect addresses from an adjacent place has been replaced by the use of modern technology. Even criminals have taken to the use of covert cameras to safeguard themselves from the police. The police have adapted modern technology, including the use of covert video cameras, to facilitate investigation of serious crime for many reasons. In some situations it is not physically possible to conceal a person, including in urban and residential areas where police activity would stand out, or where the locals are hostile to the police or sympathetic to the criminal subjects. Some operations go for lengthy periods and require changes of staff, supply of food, and other logistical issues. Installation of a covert camera can limit these issues. In remote or country areas, unusual activity or strangers stand out, and might alert the criminal organisation. Experience shows that many methamphetamine labs are located in the backblocks, away from prying eyes.
Use of video surveillance reduces the risk to the police and members of the public. The risk to the safety of police staff is very high in some organised crime operations. By using cameras we are able to safely and responsibly mitigate that risk. That is also true for members of the public, who give the police access to their homes to conduct surveillance on criminal suspects and addresses. Surveillance work is extremely dangerous. I think of the murder of Sergeant Don Wilkinson, murdered when placing a surveillance tool.
This bill is necessary, and the Chief Justice, in particular, has invited Parliament to regularise the situation. This bill is necessary, and it is urgent.
Hon SHANE JONES (Labour) : Kia ora anō tātou. This, arguably, is one of the most vexing issues that Māori parliamentarians can stand and speak upon during their parade into the world of parliamentary politics. Firstly, on behalf of my party, I would like to have it recorded that I support the referral of the Video Camera Surveillance (Temporary Measures) Bill to the Justice and Electoral Committee, but with reservations.
Dover Samuels, that rather colourful colleague of ours in times gone by, 48 hours after the so-called Tūhoe raids, went to Tūhoe. He had no compunction. He suffered no doubts about going there, despite the encouragement of our then leader, Helen Clark, that it possibly was not the most judicious of things to do. He had family connections there, and he went there to assure the Māori members of the Labour Party that, whatever had happened up there, there might have been a criminal element but it did not represent a level of egregious offending akin to international terrorism. He came back and told us that, yes, there were dramas, or raruraru as we say in Māori, up in that part of the country, but he saw no evidence that there was a well-conceived, executable strategy to destroy the nation state of New Zealand.
He did not gain very many fans or friends—not that that ever bothered him in the life of the Labour Party, in times gone by—but from that small incident I as a Māori parliamentarian learnt an important lesson. The lesson is this. When many of our young Māori say that the largest gang in New Zealand is the police, I tend to pooh-pooh that idea, because I, rightly or wrongly, believe in the notion that the constabulary are there to effect public safety, and that they do operate within the confines of the law. When we feel that our rights have been infringed or that the law may have been broken, we are the first to call either those of the Māori folk we know in the police force, or the local policeman. But let history record that in this particular incident, where a group of New Zealand’s trusted officials, called the police, decided to don garb akin to that of the SAS operating in Afghanistan, and move into the sleepy valleys of Tūhoe to arrest possible developments that belong in the mythology and the stories of al-Qaeda, the police made an egregious error on that day.
The courts may show that Tame Iti and others deserve to be charged and eventually convicted, but we leave that for the courts. The key point that a Māori parliamentarian is entitled to make about this issue is that we trusted the police. We trusted the most powerful policeman in the country, Howard Broad, and we were prepared to rely on his judgment. It is wrong for any Government, irrespective of the flavour of its Māori presence, to politicise the police force. God knows, there are many opportunities where a politician or a Minister might be tempted to tell a regulator: “Can you taihoa?”. This party did not put that pressure on Howard Broad when he and his officials—in particular, a unit located in Auckland—became possessed of the view that elements from the Pākehā community, possibly the greenie community, and hapū of Tūhoe were conceiving a plot to destroy the nation state of New Zealand. That particular act must not go unchallenged.
We come this evening to what we are to do. The highest court in the land, as Rodney Hide has correctly pointed out, is the Supreme Court. The actual legislature you and I, Mr Assistant Speaker Robertson, populate. We are the legislature. The judiciary construes the law that we make, and we rely upon the bureaucracy, or the executive, to execute the law. We have almost an existential tension. The highest court in the land has said that the police have consistently, in this case, behaved in a way that is illegal. But there are cases where the quality of life of New Zealanders could actually be worsened if we do not enable the police to effectively prosecute these villains and criminals.
I have taken the effort to find the New Zealand Bill of Rights Act, in this bill—the New Zealand Bill of Rights Act, passed by Geoffrey Palmer in his time. The New Zealand Bill of Rights Act is something worth fighting for as a parliamentarian. It is a clarion call that those of us who are parliamentarians, we place at the point of primacy the liberties, the freedoms, and the interests of citizens, and it is nothing—and it brings us into disrepute—if we are incapable of calling the police to operate under the same standards.
We want this bill to go to the select committee, but let no New Zealander think that any parliamentarian—I am prepared to say even those on the other side of the House—wants to hand over a blank cheque or unfettered authority to the police force. It has a difficult job to do, but we also have an arduous task before us. The courts already have enough discretion. The courts already have enough authority to make a call as to whether evidence in particularly gross cases can be admitted to effect a successful prosecution. When the courts have that level of discretion, it is not unreasonable for a parliamentarian to expect the judge of a court to exercise it.
We may not like the results that are delivered from the exercising of it. I was not a parliamentarian at the time, but I was quite surprised at the vigour with which the Chief Justice of the Supreme Court delivered her seabed and foreshore—takutai moana—judgment. I raise that issue only because there are certain resonances between that decision a year or two prior to the 2005 election and this decision quite close to the 2011 election. It focuses our attention on what is worth defending. It is worth defending. If the Government of the day wants to pass law that has retrospective impact, that does potentially curb the rights and freedoms and liberties of citizens, we should stand up to that. After all, these are the characters who actually vote for us. The institution of the police force does not vote for us. The police may as citizens, but their advocates—Mr O’Connor and others—have a different agenda. So this bill ought to go to the select committee.
It may come to pass that something can be cobbled together, because at the end of the day it will be between the two major parties to develop a “sustainable deal”. Whether it is them or us, someone will have to fix this problem. But there are some deep principles that are worth fighting for here. No group in New Zealand ought to feel either that they are above the law or that, having not operated within the law, they can usher an agenda into our legislature and have it limply passed.
The role of an Opposition is to hold the Ministers and the Government to account, and, indeed, the police. They must justify why they want retrospective power. If it passes the court of public opinion, and if it passes our threshold of tolerance, then it enjoys the broad support of this legislature. That is something worth fighting for, and what better time to debate it, what better time to distil the essential arguments, than 9 to 10 weeks from an election?
So Labour will support this particular bill. I am confident that, with the spirit of goodwill, we will find a balance between what the State needs to effect its enforcement powers and what the legislature needs in order to be a credible House of Representatives. I look forward to hearing what submitters may say, but, more important, to enjoying the experience of seeing a commingling of goodwill on the other side of the House and within Labour to effect a sustainable outcome for this very sad episode. A number of people have been through hell. Most of them have been released. The remaining number, four or five, unfortunately for them will have to face the music, and only the facts will liberate them. But we must not deprive individual citizens of further liberty through the unfortunate passage of poor legislation. Kia ora tātou.
Hon Dr WAYNE MAPP (Minister of Defence) : I open my remarks by noting that the Video Camera Surveillance (Temporary Measures) Bill proposed will not actually affect the parties in the Supreme Court case. They will—all of them—have the fruit of the result. But the Supreme Court decision raised wider questions, which the bill has to deal with. One of the questions that has been raised in the House today is the issue of retrospectivity. The bill provides that video surveillance, pursuant to a warrant, on private property is lawful—future surveillance but also previous surveillance. To that extent the bill negates the finding of the Supreme Court. For some commentators and, indeed, some members of the House such legislation—even if it were not retrospective—would, in any event, be wrong. However, the Supreme Court itself has conceded that such surveillance would be legal, provided that it had specific statutory authority. The Supreme Court, in essence, invited this House to pass such legislation.
Of course, any such legislation will always be subject to the section 21 test of the New Zealand Bill of Rights Act. In other words, such surveillance has to be reasonable. Presumably, therefore, what Mr Price and others are really concerned about is the fact that past surveillance will be deemed to be lawful, and that is actually the essence of the retrospective issue.
There are, essentially, two questions here. First, what is the legitimacy of retrospective legislation? In short, can any form of retrospective legislation have legal and moral legitimacy? Second, does this particular bill pass such a test? Is it a reasonable use of retrospective legislation? For many people it is axiomatic that all retrospective legislation is bad. The reason is simple: retrospective legislation typically makes something unlawful that previously was lawful. But there are degrees of retrospective legislation, and this distinction is made by Burrows and Carter in Statute Law in New Zealand, page 588. They say this: “In essence, retrospective legislation is only objectionable if it takes away existing rights or defences, makes unlawful things that were lawful when they were done, or attaches a tax or other liability to something done in the past.”
In short, in respect of bad retrospective legislation, people’s rights are being removed in a way that they could not have anticipated. That has been a common feature of tax law. People have legal arrangements, Parliament then passes law that makes such arrangements unlawful, and of course it is regarded as objectionable, because people cannot change their circumstances. How could they do so? They would in fact have to be time travellers to unravel what they had done in order to make it lawful.
One of the fundamental tests, therefore, of any law is that it has to be predictable and certain. Retrospective legislation—the bad kind—offends against that principle, because citizens cannot know whether their currently lawful actions will be rendered unlawful ex post facto by legislation passed by a future Parliament. Ironically, in this case it is the Supreme Court that has passed a retrospective decision. It has rendered unlawful what was previously considered by the courts—a number of courts, in fact—to be lawful. The police use of surveillance was undertaken on the basis of Court of Appeal decisions in 1997—R v Gardiner and R v Fraser. In both of those Court of Appeal decisions video surveillance evidence had been allowed because it was deemed not to be unlawful. So the intent of this bill is, essentially, to restore the status quo ante. It is to make lawful today what had previously always been considered to be lawful until the Supreme Court decision. Therefore, it actually meets the test laid down by Burrows and Carter, and that is—
Hone Harawira: It was unlawful then; it’s unlawful now.
Hon Dr WAYNE MAPP: I say to Mr Harawira that in addition to that, any such video surveillance evidence has to satisfy a test of reasonableness. In short, any evidence that comes before the court as a result of video surveillance still has to be considered by the courts pursuant to section 21 of the New Zealand Bill of Rights Act. New Zealanders still have that fundamental protection. It has not been altered in any way by this legislation. What we are doing today is allowing video surveillance on private land, pursuant to a warrant. Such a warrant has to be granted judicially, and that is what it allows. Then that evidence gained has to be tested as to whether it was reasonably gained. In that case the courts will be applying section 21 of the New Zealand Bill of Rights Act. There is substantial law on that issue as to what constitutes a reasonable search.
In that sense, the bill proposed does not change the requirement for a reasonable search pursuant to section 21 of the New Zealand Bill of Rights Act, and that, ultimately, is the key issue in this bill. Under this bill any video evidence will be assessed by the courts. They will apply a test of reasonableness to it; whether gained in the future or in the past, they will apply the New Zealand Bill of Rights protections. That is why, in fact, there is no New Zealand Bill of Rights Act statement by the Solicitor-General. It actually meets the New Zealand Bill of Rights Act tests. The New Zealand Bill of Rights Act still fully applies to any video surveillance evidence gathered pursuant to this legislation. That is an extremely important point that members of this House and, perhaps more important, members of the public should understand—that they have all of their protections, and all of those issues will be raised by them and their counsel and the various courts.
Can I also say that the Attorney-General has taken substantial trouble to get this bill right. Members of the House will know that the bill presented today is different from what was proposed a few days ago. In short, we have ensured that lawfulness is the test and that reasonableness still continues, pursuant to the New Zealand Bill of Rights Act. I say to members on the other side of the House that that fundamental protection has been preserved by this legislation, and that is something that the select committee will need to analyse carefully.
Hon NANAIA MAHUTA (Labour—Hauraki-Waikato) : Tēnā koe, Mr Assistant Speaker. We have heard in this debate on the Video Camera Surveillance (Temporary Measures) Bill Minister after Minister after Minister justify why it is necessary. They have not justified to members of the House why they are rushing it through. They have not justified to the Kiwis who are listening to this debate who feel concerned about civil liberties why this type of legislation is being rushed through. And, to put a fine point on it, members of Parliament received this bill only just before the dinner break—incredible. Even though we are told there have been many iterations of the bill, members of Parliament received it only just before the dinner break and we are concerned. True to form, Mr Mapp gave a very precise legal rationale for why the bill is being introduced, but Kiwis out there who are listening to the debate are wondering how their civil liberties are being affected and they have some real concerns. The concerns we are raising in the House are the types of issues that I think we should continue to ensure are heard by the public on such an important bill.
Labour believes we need to test the extent of the Government’s call to introduce retrospective legislation—precisely, the extent to which retrospective powers apply. On principle, I believe that a very high threshold must be passed if retrospective legislation can even be entertained. I am not convinced by any argument that has been raised by Government members in the House as to what that is. We do not know how many cases we are talking about.
Hon Dr Wayne Mapp: She told you, 39.
Hon NANAIA MAHUTA: That might be the case, but members have asked time and time again and we need to know the exact reasons for why retrospective legislation should be introduced.
The other point I might make, by the way, is that this is a temporary measure. So, if it is such an important bill, why do we not look for a type of solution that has broad parliamentary consensus, that is not a temporary bill, and that cuts to some of the core issues? We need to test the extent of the Government’s call to introduce retrospective legislation. We need to test the Government’s assertion about the existing cases that will be released if these law changes do not go ahead. We need to challenge the rushed manner in which the Government is proposing to push through these law changes. I say again that on principle I believe that retrospective legislation to sanction the long arm of the law is not good lawmaking in itself and must be scrutinised thoroughly by Parliament. It concerns me that members across the rest of the House have not only unanimously expressed their concerns but also expressed their opposition to what the Government is trying to do today.
When all is said and done, people listening to the debate need to be aware that the bill we are discussing was tabled just before the dinner break tonight. It is important for the bill to go through a select committee process to ensure transparent and public scrutiny on the issues being raised in the House tonight. There is nothing to gain if the bill falls victim to political spin-doctoring by the Government, which wedges good lawmaking and means more criminals in the public domain. If that is the wedge that this Government is spinning to rush this law through, then it does not give the public confidence and it certainly does not give me confidence. Every politician in this House advocates very strongly for safer communities, but we cannot fudge political judgment with good lawmaking and good law enforcement to achieve that outcome. There is a clear misfit with those objectives in this bill.
Political parties across the House have highlighted several deficiencies in the Government’s argument. I am concerned about the lack of public transparency and accountability on such an important issue as the search and surveillance powers of the police. The public and Māori are all the more wary of police powers because of the excessive manner in which the Tūhoe raids were carried out. New Zealand is a small country made up of small communities of people who, by and large, want to lead safe and peaceful lives. They trust the police to do their job and carry out their responsibilities with the support of the law. Kiwis are concerned if Parliament seeks to change the law retrospectively to sanction unlawful actions of the police. Yes, it is a matter of trusting our law enforcers; yes, it is a matter of civil liberties of Kiwi citizens; and it is about lawmaking. It is not about rushing through our parliamentary process the types of proposals that the Government is making tonight. Yes, for very good reasons Labour wants the bill to go to a select committee. I am pleased that Labour has not given the Government a free pass to ram through legislation, in order to ensure that the public has a say on this very important matter. I am concerned—like Green Party members, actually—that the haste in progressing this matter through a select committee process will not build public confidence in the lawmaking process, and the Government needs to carry the entire burden of that criticism.
I have also heard arguments from Government members that by not making the change now more crimes will be committed. I doubt very much whether that will be the case, and the Government is not in a position to prove that statement. So the Government should not make those types of statements to fearmonger people into supporting its position. I have also heard from the Government that criminals currently in jail are the real targets for the proposed changes. It is my strong view that rather than fearmongering the good citizens of New Zealand, the Government should clarify the extent, as I said before, to which retrospective powers are necessary—if at all. I am very concerned about this single issue. Parliamentarians do not have any detailed information about how many cases require the types of changes that are being called for.
In part, a select committee process will be an opportunity to penetrate the legislative motivations for law changes, like the ones being proposed tonight. Labour has played a constructive role in the Search and Surveillance Bill, which has not been given any priority by the Government on the Order Paper. Both my colleagues Charles Chauvel and David Parker have outlined the starting point to work through some of those issues, but let us be under no shadow of a doubt that we in Labour favour a thorough select committee process where the public have an opportunity to consider any proposed law change of this significance. I am concerned, like many others, that a rushed law is a bad law. This is an important issue that intersects with civil liberties and the extent of lawful actions of the police. The Government should consider the timing of this legislation. Rather than driving a wedge against every political party in this House, the Government should seek a broader consensus that tackles the issues Labour has put centre and front before the Government tonight.
I do not support the bill in its current form. I have some very severe reservations. I am wary of a rushed process. I am challenged by any argument that proposes retrospective law changes to police powers, because my gut tells me to think again. But through all of that I do have faith in the public scrutiny of the select committee process, common sense, and ensuring that time plays its part. There were members in the House who made the comment that the perception of this law being rushed through in such a manner is targeted to one specific event. My main concern is that, perceptions aside, the Government takes heed of all the concerns that have been raised by members of Parliament, because we reflect not the legal minds in the House but the public sentiment and will of people—normal people—in our communities. Those people who suffered the long arm of the law when powers were used at an excessive level—out there in Tūhoe—I think deserve our erring on the side of caution to ensure that, firstly, at the forefront of any decision making we are trying to address tonight in relation to the powers of the police, the retrospective powers are a matter of such significant issue that we are not going to treat it lightly and ram them through the House; secondly, that there is greater information to the public about the reasoning and justifications of the Government for trying to propose anything; but, thirdly and most important, that we look for a long-term solution and not a temporary measure. Thank you.
SIMON BRIDGES (National—Tauranga) : I have listened very carefully to the debate and take seriously the concerns I have heard from Nanaia Mahuta, Rodney Hide, Keith Locke, and Shane Jones. The police should not be able to do as they like. They should be held to high standards. But as I read the Video Camera Surveillance (Temporary Measures) Bill, it is a fair and modest bill. Defence counsel in this country will be free to pursue any pre-trial argument they like, to take the police on in terms of irregularities, illegalities, and improprieties, and to attempt to have evidence thrown out, and if they are successful and significant enough evidence is thrown out, to have the charges dismissed. I say again that this is, in my view, a modest bill. It does one thing: it says that covert video surveillance is not unlawful in and of itself.
In the case of trespass, bad faith, trickery, irregularities of any kind, people—through their lawyers or, indeed, in person—will be able to make applications to the court, but video surveillance in and of itself is not the problem. Given what I have heard from other members—that, indeed, they do not believe that covert video surveillance in and of itself should be a problem, that they believe that it should be permissible in this country—I suggest that many should be supporting this bill when it comes back to this Parliament.
I want to very briefly give a practitioner’s viewpoint, having argued in many, many cases the admissibility of evidence, and to say that, frankly, from my view and from the view of other practitioners I have talked to, to the Supreme Court’s decision has changed the commonly understood position in regard to covert video surveillance in this country. I mean absolutely no criticism whatsoever of the Supreme Court and its decision, but as a practitioner, and from talking to very experienced practitioners, I know that there is some confusion about whether the decision—or decisions, I should properly say, because there are a number from the Supreme Court, from differing judges—is restrictive; whether all it is saying is that where there is trespassory covert video surveillance, the evidence is out, or whether it is much more expansive than that, as perhaps some of the comments from the Chief Justice would indicate, and evidence from covert video surveillance is always out. That confusion among very experienced practitioners in this country is reason enough for quick clarification of this legislation to be required—so that we know, so that practitioners know, and so that accused know that covert video surveillance in and of itself will not be illegal.
I say to this House that Supreme Court cases, this case, and this bill before the House need to be put into a proper context. Covert video surveillance has long been a critical tool for law enforcement agencies, particularly regarding serious drug cases. There is no question that in Auckland—and probably in the rest of the country, but certainly in Auckland—enforcement agencies have been using covert video surveillance in ongoing criminal investigations, and that prosecutors are relying on it in current large-scale commercial drug cases involving cannabis or methamphetamine. I say to this House, and I do not say it in an overly emotional way, that the kind of havoc that large-scale methamphetamine operations wreak in this country in terms of the potential dangers to those involved from explosions, to the police, and to the people who have to go in, but also in terms of the misery peddled on our streets, should be taken into account when we consider this issue. Those sorts of cases are predominantly the cases we are concerned with when we talk about covert video surveillance and its day-to-day use in this country.
I say again that, in practice, counsel and accused will be able to argue evidence in or out on the basis of, as Wayne Mapp has said, the New Zealand Bill of Rights Act but also section 30 of the Evidence Act. Judges will be enjoined to balance factors, to take into account what has happened, to go into a quite detailed and unique, case-by-case, factual analysis of the circumstances, before they decide whether evidence is in or out. That is not for us to adjudicate on. The courts can, and will, do that. But I offer this: it may well be that in cannabis cases with a 7-year maximum term of imprisonment—of all cannabis offending, the most serious—where the evidence has come from covert video surveillance, where it has been obtained by trespass, that evidence ultimately is held to be inadmissible by a court. It may also be that in more serious cases—methamphetamine cases, large-scale commercial ones where the maximum term of imprisonment is life—in that sort of scenario, on considering the New Zealand Bill of Rights Act and section 30, and weighing up all matters, the evidence may well, in the public interest, stay in. Those are matters for judges, but this bill is modest and fair. It simply says one thing: in and of itself covert video surveillance evidence can be admissible.
Mr DEPUTY SPEAKER: This debate has concluded. [Interruption] Is this a point of order?
Hone Harawira: No, no. I would like to speak to this bill, Mr Deputy Speaker.
Mr DEPUTY SPEAKER: I am sorry; the debate has concluded. All 12 speeches have been taken; the debate is concluded.
Hone Harawira: Well, I would like to seek the leave of the House. Could I seek the leave of the House to speak on this issue?
Mr DEPUTY SPEAKER: Leave is sought for the member to make a speech. Is there any objection? There is objection.
|Ayes 106||New Zealand National 57; New Zealand Labour 42; ACT New Zealand 5; Progressive 1; United Future 1.|
|Noes 15||Green Party 9; Māori Party 4; Mana 1; Independent: Carter C.|
|Bill read a first time.|
Hon CHRISTOPHER FINLAYSON (Attorney-General) : I move, That the Justice and Electoral Committeeconsider the Video Camera Surveillance (Temporary Measures) Bill, that the committee report finally to the House on or before 3 October 2011, and that the committee have authority to meet tomorrow and at any time while the House is sitting (except during oral questions), during any evening on a day on which there has been a sitting of the House, and on a Friday in a week in which there has been a sitting of the House, despite Standing Orders 187 and 190(1)(b) and (c).
- Motion agreed to.
Sleepover Wages (Settlement) Bill
Hon KATE WILKINSON (Minister of Labour) on behalf of the Minister of Health: I move, That the Sleepover Wages (Settlement) Bill be now read a first time. At the appropriate time I intend to move that the Sleepover Wages (Settlement) Bill be considered by the Health Committee, that the committee report finally to the House on or before 3 October 2011, and that the committee have authority to meet tomorrow and at any time while the House is sitting except during oral questions, and during any evening on a day on which there has been a sitting of the House, and on a Friday in a week in which there has been a sitting of the House, despite Standing Orders 187 and 190(1)(b) and (c).
The bill resolves a court dispute that dates from 2007, and addresses recent decisions made by the Court of Appeal and the Employment Court in relation to IDEA Services Ltd and Phillip William Dickson. The bill sets in place a responsible and sustainable framework to remedy the sleepovers issue between Crown-funded employers and their employees. Specifically, the bill will implement a settlement agreement between the Crown, IDEA Services Ltd, Tīmata Hou Ltd, and the Service and Food Workers Union for the payment of wages to their employees who are employed to sleep overnight at their workplace whilst on duty. The settlement agreement includes the payment of back-pay for certain sleepovers, and the staged progression of payments for sleepovers towards the hourly rate under the Minimum Wage Act 1983.
The Crown has negotiated this settlement in good faith with employers and employee representatives, and I acknowledge all parties involved. It is a fair settlement, and one that balances the interests of employers, employees, and the Government. For the Government, it ensures that services continue to be delivered to this vulnerable group of people, and it allows the effective management of fiscal risk. For employees, it provides for significant back wages to be paid to those who are eligible, and for a graduated movement to the minimum wage for sleepovers. For employers, it enables them to continue operating, while also requiring them to contribute to the back wages that are payable.
In addition to implementing the settlement between the Crown, IDEA Services Ltd, Tīmata Hou Ltd, and the Service and Food Workers Union, the bill also establishes a framework for the settlement of other sleepovers for other health and disability employers funded through Vote Health, and potentially for other employers funded by the Crown. This will be done through an Order in Council mechanism. The Government is committing $27.5 million to assist Crown-funded employers in the health and disability sector to settle valid back-wage claims, and up to $90 million over 3 years to support employers to phase in the minimum wage. This will enable vital services to continue to be delivered in an affordable manner, whilst securing the phasing in of the minimum wage for employees. Under the bill there are strong incentives for health and disability - funded employers to reach a settlement, because they will become eligible for contributory funding from the Crown to reduce backdated liabilities and to support the phasing in of the minimum wage. Eligible employees stand to gain access to back wages that the employer may not otherwise have been able to fund, and they will enjoy more certain access to higher future wages.
This bill is a priority for this Government. It is important legislation that will ensure that some of the most vulnerable people continue to receive quality care in our community. The bill has been consulted on within the sector and has the support of the parties to the agreement. Passing the bill before the House rises will mean that eligible IDEA Services employees will be able to receive their back-pay before Christmas. I am pleased to be able to present this bill here today, and I commend it to the House.
DARIEN FENTON (Labour) : I am very pleased to support the Sleepover Wages (Settlement) Bill, of which I have only just seen a copy. I will start my contribution tonight by honouring the hard work and commitment of the workers in this sector, including those of the Service and Food Workers Union, Ngā Ringa Tōtā, who, along with the Public Service Association, have pursued this matter over 4 years and through three court cases and the recent threat of a Supreme Court appeal. I also acknowledge Phil Dickson, the IDEA Services worker, who, along with his union, has tested the provision in law that relates to his being paid as little as $3.77 an hour for sleeping overnight on the premises of his employer. I know the work of people like Phil Dickson; I represented them in the past before I became an MP. My sister, in fact, is one of them. She works for IDEA Services. I know the dedication they have and the efforts they go to in order to help the people to whom we as a society have decided to give a fair go. I am talking about Phil Dickson and thousands of other workers who work as disability support workers, who sleep on the premises but are frequently woken and disturbed, and, as numerous courts have said, who have significant and weighty responsibilities in caring for our most vulnerable citizens.
Labour has long advocated for the rights of disability support workers to be paid fairly, not only during the day but throughout the night when they are required to be alert and responsive to the complex needs of those in their care. For far too long they have been expected to work at night for less than the minimum wage. As a society, we have determined that those who have intellectual and mental disabilities should, as far as possible, live in our communities. I think that that is the right approach, and I think that the Government agrees with that. In saying that, I acknowledge tonight Ros Noonan, the outgoing Chief Human Rights Commissioner, whom we farewelled tonight. She has been staunch in her support for the rights of those with disabilities and for the importance of the Government providing support for those people.
I am pleased that Parliament appears to have reached agreement on this long-running dispute, and I give credit to the unions that this is happening. If they had not pushed, if they had not persisted, this bill would not be here before us tonight.
The truth is that what we are doing tonight is advocating a settlement at the 11th hour of the 2008 Parliament. We urged Tony Ryall way back to negotiate with the unions involved because we always knew that the unions involved would be reasonable and fair, and, actually, they have been. If we look at the settlement, we see that they have been extremely reasonable and fair. It is a shame that they have had to wait so long.
I am pleased that this bill represents a negotiated settlement and that the Government intends to pass this legislation before the House rises at the end of next week, so that these workers, who have been waiting a very long time, can get their back-pay. I am also pleased that the Government has heeded the call from unions and Labour that this matter be put to rest. These workers should get their back-pay before Christmas and they should start on the path to getting the minimum wage.
It is a significant concession from the unions involved. They have agreed to forgo the entitlement that three courts have said were theirs—that is, the basic right to be paid the minimum wage for all hours worked, including so-called sleepovers. I find it fairly ironical that the Government has sacrificed other minimum rights for workers, introducing the 90-day trial period, without those workers having the right to ask why and challenge that decision. Yet here we are accepting, finally, that Phil Dickson and his workmates have been prepared to negotiate in good faith and, as this bill reveals, make concessions. It is a shame also that this Government put them through unnecessary battles. It is unworthy that we have a Government that tries to pretend that it cares about the most vulnerable in our society and those who are employed to care for them.
In 2010 the Minister was still considering whether to change the Minimum Wage Act along the lines that were being run in court at the time. In the court at the time the Government joined with IHC to argue that the minimum wage should apply as an average across a working week or fortnight. That could have meant that multitudes of New Zealand workers would find themselves disadvantaged. When we tried to find out information about that, the Government blocked all requests. Through earlier Official Information Act requests we asked the Minister of Labour for more information about it, but she withheld 10 documents in full, including Cabinet papers. That meant that a whole range of wage and salary workers could not find out exactly what was being considered. So when the Court of Appeal decision came through recently, Labour called for the Government to meet with stakeholders a bit earlier in the year. We called on the Government to meet with stakeholders in the disability support sector, including the union, to negotiate a durable and long-term solution. That was in February this year, I think, so here we are on the eve of Parliament rising—we are finally getting around to it—and finally the Government has agreed. I acknowledge that this bill represents countless hours and sacrifices in pay and justice by a category of workers who work caring for the most vulnerable in our community.
While this has been going on there has been the most bizarre stuff happening as well in this industry. It is no wonder that it has been hard for IHC and other disability support providers to find New Zealand workers who are prepared to work for $3.77 an hour, which is what these workers are being paid. I have met many overseas workers who have come to me—and I am sure they have been to other MPs—to say that they are doing this work, to ask why they cannot continue to do the work, and to ask for a work permit, and so on. But the Government, on the one hand, has continued to insist that those workers, because there was a court case, must be paid minimum wage but at the same time has denied that minimum wage to its own workers. So I found that really interesting and also very difficult. The industry is so low-paid—and I think we are seeing a plan from the Government to fill up all the caring industries with overseas workers, because they are prepared to do work that New Zealanders will not do—and I think that is a real pity. I am not saying that those workers were any less committed than New Zealand workers, but they got sent home while the Department of Labour and the Attorney-General continued to argue during the stand-off that we have had for several years on this issue. The Attorney-General joined the Court of Appeal’s decision to argue that IDEA Services was complying with the Minimum Wage Act, because the Minimum Wage Act enabled averaging. So we had a bizarre situation where one arm of the Department of Labour was arguing about the Minimum Wage Act and the other arm of the Department of Labour, concerning immigration, was saying something different.
There was a long period where the Government did nothing. I think that it is shameful that IHC was forced to waste hundreds of thousands of dollars on a fruitless legal quest. The Government wasted money as well by joining those various court appeals to argue that what they finally agreed was right was wrong at the time. I think it thought that the disability support workers would give up. They did not—and good on them. It was really awful in July when the Minister of Health attacked workers, saying that because of a legal technicality they were now expecting to be paid the minimum wage for sleeping, and retrospectively paid from that point. Then he went on to lecture the unions about the country borrowing millions and how the Government could not afford it.
This bill is a triumph. We support it. We are glad that it is going to a select committee. The sooner it gets back to the House, the better. These workers deserve their back-pay. They have made a significant concession. Let us face it: they have accepted half of the back-pay, and it will take to 2013 to get paid the minimum wage. It is a shame that it has taken years to get there, but Labour is supporting it because it is time for these workers to be paid their just desserts.
Dr PAUL HUTCHISON (National—Hunua) : It is a pleasure to speak on the Sleepover Wages (Settlement) Bill. This bill is about the National Government seeking and finding a practical solution to ensure that caregivers for the disabled who sleep overnight are reasonably compensated for their work. The National Government has worked extremely hard and well with IDEA Services, Tīmata Hou, and the Service and Foodworkers Union to ensure that this will happen. It is a win-win solution for the caregivers, for their union, and for the taxpayers and their Government. Added to that, the caregivers will receive due back-pay prior to Christmas, and by July 2013 minimum wages will have been phased in.
Darien Fenton can certainly not claim the high ground on this issue. For 9 long years these workers have been under those conditions, but it was not until 2007 that the initial court case was taken. In many respects the disability sector is a Cinderella part of society. It is one of our most vulnerable parts, and often its advocacy powers are not as strong as many others. I think we should all recognise this. It is not a great situation for the sector to be in.
There are in the order of 30,000 or more caregivers around New Zealand. I understand there are about 3,700 caregivers in this particular group who are involved in sleepovers. It was the Levin disability worker who sparked the 4-year legal battle over pay. Mr Phillip William Dickson is to be admired for his tenacity and courage. About 6 months ago in my electorate I had about 10 workers come to me. They pointed out just how arduous and how challenging their jobs can be, with separation from their families overnight; at times there are highly complex cases without back-up; and, of course, at times they assist with toileting, etc.
I will make one note: Mr Paul Quinn has up in the gallery one of his constituents, a caregiver who came to him. I must say that it is through their continuous and determined efforts that we finally have arrived at this bill tonight, which has sought a practical solution. I am very glad to say that the bill will be at a select committee tomorrow. We will hopefully be hearing submissions and we will bring it back to the House next week.
GRANT ROBERTSON (Labour—Wellington Central) : I am pleased to rise to support the Sleepover Wages (Settlement) Bill, because, as my colleague Darien Fenton said, this bill is about a group of vulnerable workers, who look after vulnerable people, getting a fair deal. It is a fair deal that has been a long time coming. It has been a very long time coming.
I pay tribute to all of the workers—all 30,000 of them—around this country who provide support in our communities for some of the most vulnerable people in our communities. This is the kind of work that gives people dignity and respect in their lives, and we owe dignity and respect to the people who deliver these services and to the people who receive these services. Finally, tonight we are making some progress on getting there. I pay tribute to Phil Dickson, in whose name the case was taken. I also pay tribute to the other workers, whom I also met along with many other MPs, who told me about the work that they do.
I have always felt that it was wrong in many ways to call this a sleepover case, because actually a sleepover sounds like the kind of thing that Paul Quinn does when he goes to Simon Bridges’ house at the weekend, and they have a slumber party and a sleepover. Well, that is not what this is at all; this is work. These are people going to work who deserve to be paid fairly for being at work. There is no way that being paid the equivalent of $3.77 an hour, which is the situation as it stands today, is fair pay for the work that is being done. It is not a sleepover; it is people being interrupted in the middle of the night to toilet, to turn people over, to actually be there as carers. These people are providing a lifeline. They are providing dignity, they are providing respect, and they are at work. And that is why they deserve to be paid the minimum wage. In fact, in my opinion, I would like to see care workers and community support workers in New Zealand paid a lot more than the minimum wage if we can make that happen, because they play such an important part in making sure that vulnerable people and elderly New Zealanders get the support and care that they need. They are an important part of what gives our society some morality, in terms of how we look after people who are in their old age or are vulnerable.
In addition to paying tribute to Phil Dickson and the other community support workers, I pay tribute to the Service and Food Workers Union, which is the union from which Darien Fenton came before she came to Parliament. I pay tribute to them because it is their stickability that has meant this case has gone through. This is a triumph for unions. This is a triumph for collective action in the workplace. It is the actions and the stickability of the Service and Food Workers Union that means this is here tonight. It is not Dr Hutchison who should be taking credit; it is the Service and Food Workers Union and the workers it represents who take the credit for tonight. They stuck at it as the Government pushed through the Court of Appeal—it appealed again and again—to stop people getting what they deserve, to stop people getting fair wages for a fair night’s pay.
So the people who are to be congratulated here are the workers and their union, and it shows to me that in New Zealand society strong unions are important, because in this case strong unions have delivered to us good outcomes. It is a good outcome for these workers. It is the workers and the unions who have done that. On this side of the House we are proud that we stand up every single day for the rights of working people and for unions. That is what we do on this side of the House
On the other side of the House, Government members denigrate unions on a daily basis. We sat in this House and heard people on that side of the House call unions “Hobbit haters”. Well, tonight I want to hear from some National MPs some congratulations to the Service and Food Workers Union on standing up for their members, on standing up for what was right, rather than the usual diatribe we get from National that unions are the harbingers of evil. Well this is proof positive tonight that in this House we can stand up and support unions for what they have done, to make sure that workers get a fair deal, that workers get fair pay for their work.
I am proud to support this bill. I am proud to say that at the end of this process, people who look after some of the most vulnerable people in our community will be paid fairly. When Labour is elected to Government, they will be getting $15 an hour, not just $13 an hour, and that will be a great step forward for them. I look forward to seeing this bill come to the Health Committee. We know that at the end of this we will make sure that people who have looked after the vulnerable members of our community get some back-pay—as Darien Fenton said, it is not as much as they might have liked, but it is a good amount of back-pay—and some certainty going forward that they get fair pay. That is the right thing to do.
CATHERINE DELAHUNTY (Green) : Tēnā koe, Mr Deputy Speaker. Tēnā koutou e te Whare. The Green Party is very happy to support the passage of the Sleepover Wages (Settlement) Bill. We congratulate the Service and Food Workers Union—Ngā Ringa Tōtā—in particular, the Public Service Association (PSA), and Mr Phillip William Dickson on their perseverance in a just cause. We also acknowledge the Government for finally making an agreement that may not be perfect but does address the two fundamental issues of back-pay and a process towards the minimum wage for these workers.
The Green Party would be a lot happier if the minimum wage payment started now rather than being phased in by 25 December 2012, but we recognise that a deal has been struck and that this legislation will facilitate the back-pay to 30,000 workers who badly need it before this Christmas. The Green Party understands why the Government needed to intervene and assist with the back-pay. This has been a longstanding, anomalous injustice that may have overwhelmed IDEA Services if it had to pay back the full pay and the minimum wage immediately.
But how on earth was it possible that people at work were not being paid the minimum wage for so many years? Did this happen to the firefighters, ambulance officers, and resident doctors who also have to sleep over, as it is called? Of course not. The reason this was allowed to happen is not pretty. It reflects the values of a society that is rife with prejudice against people with disabilities and towards carers as a profession. It is treated as a low-status job, working with even lower-status people who need and receive skilled and practical support that has been barely valued.
When I read what the job involved, it sounded suspiciously like what was once called “women’s work”—all that meal provision, bathing, clothing residents, doctors’ appointments, personal care, and all that hard, sensitive, intelligent, and often physical work. The sleepover, as Grant Robertson has just said, was not popcorn; it was about being exploited for doing something important—something that I doubt most people in this House could do. And at night the job does not stop. People with a range of disabilities or mental health issues need supervision, medication, and support 24 hours a day. That is their human right.
I would like to see people like myself cope with the complexity of this work 24 hours a day for less than the minimum wage for half of the time. And less than the minimum wage was $3.77 an hour—pocket money, tokenism, and an insult to both their work and their responsibilities. And this is for the vital care of citizens whose human rights require us to make sure they have an independent life. So thanks to the advocacy and determination of the unions since 2007 and two legal decisions by the Employment Relations Authority and the Court of Appeal, the legal justification for not paying sleepover workers the minimum wage disappeared.
The Green Party is happy to see the Government doing the right thing by the Court of Appeal judgment, unlike with the other piece of legislation we have had before the House where the Government is seeking to undermine the Supreme Court judgment in the video surveillance monitoring debacle. So now the 5,000 cases filed by the Service and Food Workers Union and the PSA can be properly addressed.
This law creates a staged progression towards full compliance with the Minimum Wage Act 1983. It has a formula for this progression, which starts at 50 percent of the minimum wage from now until 30 June 2012; 75 percent from 1 July 2012 to 24 December 2012; and 100 percent of the minimum wage from 25 December 2012 to 30 June 2013. Then an employer must pay an employee for each hour of the sleepover performed by the employee at not less than the rate of the minimum hourly wage rate under the Minimum Wage Act—and that will be about time.
The Green Party believes we should lift the minimum wage to $15 an hour immediately, and then make it two-thirds of the average wage within 4 years, and it would be great if these workers who have already been discriminated against could have the benefit of a lift in the minimum wage right now. The back-pay for these workers who have performed sleepover, as it is called, for the last 6 years has been calculated by a formula described in the bill as (((a × 9) - b) + c) × 0.50 = d. What does it actually mean? I have absolutely no idea. It is interesting to read it in the bill because one wonders who made it up. Is it to help people understand the issues?
I have no idea what on earth that formula means in mathematical terms, but I do have faith that if the Service and Food Workers Union, the PSA, and the workers agree that it is a reasonable way to calculate the back-pay under the current constraints they are working with, in a very conciliatory and practical way, then the Greens will not disagree with them about this incomprehensible formula that the Government has written into this necessary legislation.
Sometimes there is really no good excuse for an employer or the Ministry of Health to keep behaving badly. Even though it will cost money—as in $27.5 million back-pay and up to $90 million in lifting up the wages to the minimum wage over time, and it is far too much time, in my view—they cannot sustain the pretence, failed argument, or denial that what people are doing is actually work.
It pains me that the resistance of IDEA Services and the Crown has wasted money in the court that was badly needed to pay these people the minimum wage now. I do not see this work as minimum wage work. It is far too hard, it is far too demanding, and it is far too skilled. Any job that involves nights away from home is hard work, but it is especially hard work when one has broken sleep, responsibility for vulnerable people in unpredictable circumstances, and disruptions to family life under those circumstances. None of that is yet remotely acknowledged or compensated for by the Court of Appeal settlement or this bill. We have just got to first base. I am hopeful that we can do a whole lot better than just get to first base in our treatment of workers in the next Parliament, should we be lucky enough to be there.
Really, I celebrate the achievement, but there are so many caveats, These people are still not getting the deal they should be getting. We first have to acknowledge that these people have been working all the time. We then need to pay them what they are worth and pay them back what they were worth. None of that will happen. Eventually, they will get the minimum wage. If members have spent any time with people in residential care who are vulnerable, they will know how complex the job is for those workers.
If one has family members who are cared for by workers who have this kind of job and give that kind of support—as I have—it is somewhat obscene to know that the minimum wage is all they will get paid. National members stand here in this House and say that eventually those workers will get the minimum wage. Well, whoopee! We know what the minimum wage will cover these days. It will not cover those workers’ costs, it will not cover their living expenses, and it will not cover the dedication of these workers to the communities who have a right to residential care and independence. They also need to be respected, as do the workers.
I believe that the lack of respect for persons with disabilities and the lack of respect for carers is perhaps one of the most obscene aspects of the 21st century in this country. We are still fighting for recognition that caring for people is actually as valuable, if not more valuable, than being a banker and giving oneself a big fat bonus for playing with other people’s money. That is what this should be about—recognising the people with the skill and capacity to care for others. I think Rodney Hide told me that those who do special education work are saints and that they do not need a pay rise. I do not believe that saints do not eat. I do not even think these people would appreciate being called saints. They would like to be called workers who are entitled to a wage that reflects the capacity that they show in looking after people in the community whom we need help to support.
Let this be the beginning of an uplifting of their role, their money, their back-pay, and all the rest of it. I am glad we have got here. I am glad we have got here before Christmas. It is really, really important that these people wait no longer. This bill is a good reason for urgency. Unlike the Video Camera Surveillance (Temporary Measures) Bill, which is a shame, a disgrace, and an abuse of power, this is a good reason for urgency. It is urgent. Justice is urgent, so let us have justice. Thank you very much.
TE URUROA FLAVELL (Māori Party—Waiariki) : Tēnā koe, Mr Deputy Speaker,kia ora tātou katoa. Mō taku hē, mō taku hē, ina tata nei i a au e kōrero ana mō tērā atu pire, i kite atu i te kāhui ariki, a Nanaia Mahuta, i wareware i a au ki te tuku mihi ki a ia mō te āhuatanga o tērā o ngā pāpā, a Whatumoana, kua riro ki tua o te pae o maumahara. Nō reira, ahakoa kāre a ia i konei i tēnei wā, ka nui te aroha ki a ia. Ko ia tērā e noho nei i raro i te kapua pōuri mō tōna pāpā, otirā, te pāpā o te Kīngi Māori, a Kīngi Tūheitia, o Tainui Waka tonu, o te iwi Māori tonu. Nō reira waiho ia kia okioki, kia moe. Anei tātou i tēnei pō te hunga ora huri noa i tō tātou Whare, tēnā koutou, kia ora tātou katoa.
[Thank you, Mr Deputy Speaker, and greetings to us all. About my oversight and fault while addressing the other bill just a moment ago: I noted the presence of the aristocrat the Hon Nanaia Mahuta while I was doing that, but forgot to express my condolences to her in regard to that father of all fathers, Whatumoana Paki, who has departed beyond the horizon of remembrance. And although she is not amongst us at this moment, there is much sympathy for her. She is the one under a cloud of remorse for her fatherly figure, and indeed the fatherly figure of the Māori King, King Tūheitia, the Tainui Canoe, and indeed the Māori people. Allow him to rest and sleep there. So salutations and greetings to us, the living, throughout our House tonight.]
The Māori Party is proud to support the Sleepover Wages (Settlement) Bill as an important recognition of the vital work that is done in supporting some of our most vulnerable people. As a bottom line, we say it will ensure that people will continue to receive quality care overnight, while at the same time help to ensure a better future for those who work sleepovers.
As others have said, the bill arises out of the finding of the Court of Appeal that sleepover care and disability support services are work, for the purposes of the Minimum Wage Act, and that the minimum wage should be payable for each and every hour that sleepovers are worked. Although this is a recent decision, the issue of how we appropriately recognise the value of support offered by those who work sleepovers dates back a few years, of course. Although many of us sleep through the night, those compassionate, committed caregivers are on hand to look after those who need it most. It is not easy work, I am sure, and it is often really demanding.
I come to the bill with some personal experience about this particular issue, in the sense that I had responsibility for my late sister, Hine, who passed away some 4 years ago. In the Māori world view, at least, we are influenced and inspired by fundamental values, which we call kaupapa tuku iho. These are values that are often expressed by the Māori Party in this House—manaakitanga, the generosity of spirit towards others; whanaungatanga, the care and welfare of whānau; and kaitiakitanga, the care and protection of our most precious resource, in this case our people.
I saw these values being demonstrated in our own home, in the protection of my sister Hine. Towards the last years of her life my sister battled. I think she had about three strokes and came through all of them, but it became too much of a burden at the end. I think she lived with what health professionals might call “compromised health”. My wife Erana took responsibility for her day-to-day care, while I was sometimes involved in Parliament. Although my intentions were to help out, to all intents and purposes it was my wife who was there for my sister during the long nights when she was unwell and when her needs seemed uppermost in all of our minds.
So I understand just how important the work of carers is in allowing people to live the independent lives they might not otherwise be able to. We fully support the commitment of those who work the sleepover shifts to be paid the minimum wage, rather than a $34 shift allowance. We place immense responsibility with these people to care for the people they look after and to deal with any problems that arise, and we should pay them accordingly.
In preparing for this debate the Māori Party approached a number of key stakeholders in the disability support area for their advice and guidance on this bill. We thank them all for responding so graciously, despite the fact that we are under urgency. One of the insights we gained was from a woman named Tania Kingi, the group manager of Te Roopū Waiora Trust, who told us she was in favour of the decision to pay kaimahi support payments, because it was the fair and just thing to do. She said they should never have been underpaid in the first instance. She raised a point that I thought was really interesting, and I would be keen to hear the views of others on this issue, even if we understand that it is such a truncated process and we are reducing the select committee process to only a few days. Mrs Kingi provided us with the following comment: “Another reason that paying a real wage for sleepover support workers is important is the different needs to the different parts of the disability sector. The needs of a tetraplegic are as different to the needs of a paraplegic as the needs of an able-bodied person are to a paraplegic, yet that difference is not recognised.” She continued: “I can remember a particular case where a tetraplegic man was not getting adequate care because the funding was not in place for him to pay for two 4-hour shift workers. Instead, he was forced to hire one person for an 8-hour shift.” She wrapped it up by saying: “What happened? The worker kept falling asleep, and the man was not able to be rolled over during the night, which resulted in breathing difficulties. Proper funding is important.” She finished her statement there. I thought that was a really interesting comment about whether the higher wages that will be paid to those who take on a sleepover role will also take into account a different rate of pay for the different needs of care.
Another view put forward by Mrs Kingi was that we need to consider whether the cost of extra wages will come at the expense of whānau involvement. That brings us to another very significant issue—that is, being able to recognise the important work that whānau caregivers—family carers—do as carers of their loved ones, and whether the Government will be prepared to resource that appropriately. The Ministry of Health has a view that whānau are not eligible for carer payments, and I think we need to take a critical look at this particular policy if we are really committed towards whānau ora. It would seem to me entirely contradictory that on one hand we want to reduce reliance on the State and increase whānau self-development and independence, yet on the other hand we refuse to give them the resources they need to do the job.
In the whānau ora world we need to both respect and resource appropriately our Māori and Pasifika whānau who have a cultural obligation to care for their own. They are doing so, and have done so forever, without being resourced. As I explained, that was the nature of our commitment as a whānau to looking after my sister. This issue needs serious consideration, and that, again, has been a part of the many submissions that we have received.
Finally, I congratulate the Minister of Health and also my colleague the Minister for Disability Issues, Tariana Turia, on the brave step forward they have taken today in bringing this bill to the House. I have come to understand from my reading around this bill that an approximately $150 million settlement between IHC, the Government, and unions will benefit some 3,700 disability support workers. The incremental movement from 50 percent of the minimum wage, about $60 a sleepover, gradually increasing to the full minimum wage by July 2013, will allow both the Government and the providers sufficient lead-in time to allocate the appropriate resources. We agree with the Ministers that this represents steady progress towards recognising and bridging the gap and at least coming towards some full recompense. We are pleased to support this bill.
Dr JACKIE BLUE (National) : I am very pleased to take a short call on the first reading of the Sleepover Wages (Settlement) Bill. The issue came into the spotlight early this year when the Court of Appeal upheld the Employment Court decision that disability support workers should be paid the minimum wage for sleepover shifts.
The issue had its origins in 2007 when a claim was lodged by an employee of IDEA Services—which is owned by IHC—with the Employment Relations Authority regarding payment for sleepovers. In July 2009 the Employment Court ruled that sleep constituted work, and that the minimum wage should be applied for each and every hour of work. The Court of Appeal upheld the decision earlier this year.
This decision from the Court of Appeal is extremely significant for public health services and it is important that the issue is resolved for people with disabilities and their families. Providing quality support is a priority for this Government, and it is crucial that the issue was resolved to the satisfaction of everyone. It has been a top priority. This new legislation supports the agreement to bring sleepover wages up to the minimum wage. The practice of workers being paid just the standard rate while sleeping will no longer apply. I commend this bill to the House.
CARMEL SEPULONI (Labour) : I really want to refer back to Te Ururoa Flavell’s speech on the Sleepover Wages (Settlement) Bill. I enjoyed his words; there were words of compassion for those who require the carers and for those who are in the workforce. But I have to ask where the Māori Party was when the picket lines were out there. Where was the Māori Party when the discussions were taking place between the workers and the unions? Where was the Māori Party when the issue was going through the courts? There was silence from the Māori Party. We heard Mr Flavell congratulate Tariana Turia, who is supposed to be our Minister for Disability Issues, but unfortunately we heard nothing from her on this very important issue.
As Labour’s spokesperson on disability issues, it gives me great pleasure to speak on a bill that Labour indeed supports. National has dragged its heels, along with its coalition partners the Māori Party and the ACT Party, on this payout for far too long, and now, unless it is treated with urgency, disability support workers may need to wait until next year for much-needed compensation. We applaud the workers and unions in the sector for the persistence and patience—incredible patience—that they have exhibited, which has led to this court ruling and subsequent Government payout. I call the Māori Party out on this matter. Having done work on the non-regulated health workforce, I know that a lot of these carers are Māori, are Pacific, and are new migrants, and many of them are women. They are women who have families to look after and women who are on the minimum wage, and in this case they are not even on the minimum wage. They are women who are attempting to look after their families, but who are unable to do so because they are paid so poorly. So I do call the Māori Party out on this matter. It should have been much more vocal at the time when this case was going through, rather than waiting until now, when the fight has finally been won.
Labour supports this bill, as it provides disability support workers with fair pay and compensation for the essential services they provide to the most vulnerable people in our communities. The settlement reached will entitle disability workers in New Zealand to the full minimum wage for sleepover work, compared with $3.77 an hour at present—$3.77 at present. Looking at that rate of pay, I say it is no wonder that this ruling has been upheld by the courts whilst the National Government unnecessarily continued to stall the process of reaching a just outcome. The abysmal rates of pay for sleepover claimants mean that of those seeking compensation, many will receive between $7,000 and $10,000 in back-pay for sleepover work carried out in the last 5 years. That money will mean a lot to those workers. To many people in the House tonight that is not a lot of money, but to these particular workers it is a lot of money. It will mean not only a lot to them but also a lot to their families.
Labour applauds the workers and unions in the sector for their persistence and patience, which has led to the ruling that sleepovers are work. As my colleague Mr Grant Robertson said earlier, it really is not accurate to describe this as a sleepover, when at any time during the night these workers can be called upon to have to assist in some way or another. They have to have one eye open while they are undertaking this work, and there is a sense of responsibility and accountability—a high level of responsibility and accountability—shown by these workers.
We support ensuring that all working New Zealanders receive a fair working wage, and this settlement will rectify the situation that these workers have found themselves in for now. What we do need to look at is actually increasing the minimum wage, so that they are not on an abysmal $13 an hour and they can actually go up to at least a $15 an hour minimum wage—and Labour has promised that it will do that. Not only is a commitment to fair pay a boost for workers but it will provide people with disabilities and their families with the assurance that they will keep receiving good quality care from qualified and experienced staff—a repercussion that the Government seemed to neglect when calculating the cost of stalling. I have met with a number of people and organisations impacted by the Government’s inaction, and I can say this bill will help to ease their extreme anxiousness and fear surrounding the care of their children and the retention of quality workers in the disability sector.
As I said before, the Government has already dragged its heels on the settlement for far too long and wasted valuable time and resources on fighting workers’ claims in both the Court of Appeal and the Supreme Court. It was fighting their claims, fighting just claims. Just a year ago Tony Ryall was ruling out any back-pay for workers, stating that the liability rested with the employer. Tony Ryall’s former excuse that a settlement would cost the Government $500 million has been shown to have been scaremongering, as the compromise settlement is costing the Government a reasonable $120 million. [Interruption] Absolutely, as Darien Fenton has said, that is only because the workers and the unions are being reasonable. The Government was willing to pull out all the stops for multinational Warner Bros, so why was it so reluctant to give workers fair pay for a fair day’s work?
We are grateful that National has finally heeded Labour’s call to treat this legislation with urgency and pass it before the House rises. This sector does essential work for our most vulnerable citizens, and the way in which we treat our disability support workers reflects the value that the National Government places on those whom they care for. The Government’s reluctance to properly pay health and disability workers for the essential services they provide is symptomatic of the wider underfunding of the health sector. Although a compromise has now been negotiated, it is more in line with National’s interests in election year than it is with the needs of disability support workers. Thank you.
NICKY WAGNER (National) : I am very pleased to support the Sleepover Wages (Settlement) Bill at its first reading. This has been a very controversial issue for several years, and it is very good that we finally have a solution.
I have met with many of these workers who will be affected by this bill, and from the descriptions of their work I can say only that this payment is well-deserved. This solution will ensure that people with disabilities are provided with the best-quality support at all times, day and night.
It would have been impossible for providers to pay these amounts without Government support. Under this agreement the Government will pay $90 million over 3 years towards a phase-in of the minimum wage, and $27.5 million toward the back-pay liabilities of the providers. But IDEA Services and other providers are also putting in money to contribute to the backdated liabilities.
This bill relates only to the agreement between IDEA Services and Tīmata Hou Services, a subsidiary of IDEA Services. They are the main providers of these services. The rest of the providers can access the framework of the bill, including the back-pay and the progression to minimum pay process, but only through an Order in Council. Other providers have a maximum of 5 years to take up the settlement offered in the framework, but the bill extinguishes any further claims. It is a full and final settlement.
I know that the workers I have met were extremely frustrated that this issue has dragged on since 2007 under Labour, and they will be delighted with this outcome. Health and disability support workers have a tough job, and from what I see, many of them love their job, are devoted to the people they care for, and really go the extra mile. We want to keep these dedicated workers in the system, and this settlement will help.
Hon STEVE CHADWICK (Labour) : It was interesting to hear the Government take all the praise, cynically, for bringing the Sleepover Wages (Settlement) Bill before the House just before it rises for this term in Government. It will not get this Government any points at all out there with this sector. It has taken 5 years and numerous court cases, which could not be afforded at all, and which wasted money that should have gone into the pockets of the workers—and National claims success for this bill. That is outrageous. To hear the Māori Party say this is a brave move by the Government, when the Māori Party has stood under the skirts of this National Government, which has tried to destroy the workers’ right to receive fair pay for a fair day’s work, was simply disgraceful. That has not escaped the attention of the workers in the sector, either. Where have the Māori Party members been while this battle has gone on for 5 years? Noticeably absent.
I congratulate the Service and Food Workers Union, the PSA, and Phil Dickson, who has taken this issue to court and stayed persistently with the case through several iterations before the courts. They are to be congratulated on getting recognition. The issue is not about the dollar value; it is about getting recognition that those employees work during a sleepover when they are looking after the vulnerable and people with disabilities. We have mentioned that at the moment they get $3.77 per hour. Members of the Government can sit there in the House and say how wonderful they are, when they have given tax breaks to the wealthiest people in this country and ignored these people at the bottom, treating them with absolute disdain. So we are rather cynical about that Government’s support for the workers in the health sector.
This bill takes the workers up to only $13 per hour. We believe the rate should be $15 per hour, and we will bring in a minimum wage of $15 per hour.
Chester Borrows: And how will you pay for it?
Hon STEVE CHADWICK: That is how we will start to leverage up, in order to get quality in the sector. How does one pay for it? One does not give tax cuts to the wealthy; that is how one pays for things like this. One redistributes money from those on fairly taxed salaries to those who need it the most. That is not those at the top of the bracket.
This is a wonderful battle that has been won, and it has been won by the workers. It has been won by the workers because they are organised, because they are in unions, and try as the Government will to destroy the unions, the unions will remain there, working for the underdogs who work for the vulnerable people in our society. I am proud of them for doing that. This bill is only the right thing to do, it is not the brave thing to do. We are proud in Labour to support this bill. It is sensible that we are in urgency for this bill. It certainly was not sensible when we were forced into urgency for the sake of Warner Bros, which treated workers in the film and entertainment industry with disdain. Tonight is a victory for those in the disability sector. I am proud to support this bill.
- Bill read a first time.
Hon KATE WILKINSON (Minister of Labour) on behalf of the Minister of Health: I move, That the Health Committeeconsider the Sleepover Wages (Settlement) Bill, that the committee report finally to the House on or before 3 October 2011, and that the committee have authority to meet tomorrow and at any time while the House is sitting (except during oral questions), during any evening on a day on which there has been a sitting of the House, and on a Friday in a week in which there has been a sitting of the House, despite Standing Orders 187 and 190(1)(b) and (c).
- Motion agreed to.
Sittings of the House
Mr DEPUTY SPEAKER: Leave is sought for that purpose. Is there any objection? There is no objection.
- The House adjourned at 9.58 p.m.