Te Hansard (ngā tautohetohe)
Ngā tautohetohe ia rā, ia rā
|Adobe's web site.|
Volume 634, Week 27 - Tuesday, 10 October 2006
Tuesday, 10 October 2006
Madam Speaker took the Chair at 2 p.m.
Scottish Parliament—Minister of Parliamentary Business
Points of Order
Election Advertising—Auditor-General’s Report
GERRY BROWNLEE (Deputy Leader—National) : I raise a point of order, Madam Speaker. You will, of course, be aware that there is a great deal of public interest in the impending report of the Auditor-General and your own response to that report. Can you confirm, Madam Speaker, that it is your intention at this stage to table both of those reports in the House at the appropriate time for the tabling of papers after 2 p.m. on Thursday?
Madam SPEAKER: Yes, Mr Brownlee, I can confirm that.
GERRY BROWNLEE (Deputy Leader—National) : I raise a point of order, Madam Speaker. I wonder whether National members could ask you to reconsider that matter. If you were to persist with that particular course of action, then of course Parliament itself would not be able to express any opinion on those reports until Tuesday of next week, allowing some 5 days to pass in which there could be any amount of consideration by the media, by any other commentators, and, in fact, by individual parties as well, to get their particular point across. This is an issue that reflects upon the integrity of the entire Parliament, not just one or two political parties. I think it would be appropriate if Parliament itself could choose to have an expression of views on those reports much sooner than that date.
I note that tomorrow is a members’ day—a day on which Parliament is in charge of its own time, if one likes—and it seems to me that it would be most appropriate in this week if those reports could be released tomorrow, well ahead of time, in order that such a debate might be facilitated tomorrow afternoon. We note, Madam Speaker, that the information we have received—and you may wish to correct me on this—is that you have had some weeks to consider your response to the report. Therefore, we feel that by Parliament being prevented this week from having a view on it, the integrity of Parliament is left hanging for an entire 5 days. Then, of course, it becomes a matter of whether you would consider it to be of such importance, after such a period of time, for Parliament even to have that debate. You may wish to give us some guidance and consider the request we have made for that early release tomorrow.
Hon Dr MICHAEL CULLEN (Leader of the House) : Clearly, the report and the response are matters of some considerable significance. Therefore, it might be helpful to members if they had some 5 days before making a formal response, instead of, as implied by Mr Brownlee’s argument, responding before they have read the report very carefully. Indeed, the Government itself will have to consider its response to those reports in case there is any need for remedial action.
Gerry Brownlee: Point of order—
Gerry Brownlee: But I think it is reasonable to say that we did ask for it to be released in time for that to be done—
Madam SPEAKER: I understood, and I thank the member for his very full point of order and his statement of his concerns. I assure him that I did not receive the final report until Thursday evening, and I received the direction on Friday. As the member also is aware, the Auditor-General issued an advisory that he and the Speaker had mutually agreed that both reports will be tabled on Thursday.
Questions to Ministers
Taxation—Cost of Business Tax Cuts
1. SHANE JONES (Labour) to the Minister of Finance: What was the cost of the business tax cuts that came into effect on 1 April this year?
Hon Dr MICHAEL CULLEN (Minister of Finance) : The total cost of these tax cuts is over $1.1 billion over 4 years. This represents the largest cut to business taxes since the late 1980s. There were no significant cuts to business taxes in the 1990s.
Shane Jones: What reports has he seen on alternative costings of these tax cuts?
Hon Dr MICHAEL CULLEN: I have seen a report stating: “No, no, no, Labour has not reduced a single tax in 7 years.” Dismissing over $1 billion in tax cuts in this way is rather remarkable for a former Governor of the Reserve Bank.
John Key: Can the Minister confirm that tomorrow the Government will be announcing a record surplus—a surplus that, after accounting changes, will be in excess of $10 billion—and, having now produced surpluses of over $20 billion in the last 3 years alone, can he understand why the public of New Zealand are getting fed up with his excuses for not delivering tax cuts?
Hon Dr MICHAEL CULLEN: The member, who has spent much of the last 2 weeks boasting overseas that he will be the next leader of the National Party, has forgotten that his own leader, only last Friday, talked about incremental tax changes.
Rt Hon Winston Peters: Does the Minister of Finance remember the Budget of 1998, when $1.1 billion of personal taxes were part of that Budget, and does he recall that it was not a National but a New Zealand First Treasurer who did that?
Hon Dr MICHAEL CULLEN: I well recall that fact. I also remember that in 1999 a National Government, without New Zealand First, legislated for tax cuts, then had to cut New Zealand superannuation to pay for them.
Election Advertising—Repayment of Parliamentary Funds
2. Dr DON BRASH (Leader of the Opposition) to the Prime Minister: Does she stand by her statement to the House that “I have made it clear that if spending is within Parliament’s rules, there is no reason to pay it back.”; if so, did she mean that if it is found that spending is not within Parliament’s rules there is reason to pay it back?
Dr Don Brash: Does the Prime Minister maintain the position she has previously expressed in this House that the use of the leader’s budget to fund Labour’s pledge card was parliamentary business and was inside Parliamentary Service rules, or does she now agree with her ministerial colleague Pete Hodgson, who declared the pledge card to be electioneering and said: “If it wasn’t we would put out a pledge card the day after the election not before it.”?
Rt Hon HELEN CLARK: Of course, as Prime Minister I am not responsible in the House for the parliamentary Labour Party budget.
Darren Hughes: What advice has the Prime Minister received on paying back any outstanding amounts owed to broadcasters from the time of the last general election?
Rt Hon HELEN CLARK: I am aware that the National Party owes $118,000, which it refuses to pay back. If it would only agree to pay the $100,000 fine that goes with it, National could clear that debt to broadcasters, who are hanging out for it.
Dr Don Brash: I raise a point of order, Madam Speaker. I seek leave of the House to introduce the bill that now sits in my name in the ballot in order to enable the National Party to legally pay back the bill, noting the fact that the money owed is already sitting in a trust account for the payment of that bill.
Hon Dr Michael Cullen: All that means is that the National Party would not have to pay the fine if it is passed.
Hon Members: Pay the fine!
Madam SPEAKER: I did not hear the comment on the point of order. As it is the first day back, members are reminded that they do not interrupt during points of order. Leave is sought. Is there any objection? There is objection.
Dr Don Brash: Does the Prime Minister stand by the statement she made on 14 August that “Parliamentary Service authorised the spending”; if so, how does she reconcile that statement with the documents now available that show that invoices for the pledge card were forwarded to the Parliamentary Service by her chief of staff, Heather Simpson, and were clearly stamped by Ms Simpson “approved for payment”?
Rt Hon HELEN CLARK: I repeat: as Prime Minister I do not have responsibility in the House for the parliamentary Labour Party.
Dr Don Brash: How does she reconcile her earlier statement that the Parliamentary Service authorised the spending with the letter now publicly available in which her chief of staff, Heather Simpson, instructed the payment of the pledge card invoices she had earlier authorised, directing the Parliamentary Service to “kindly ensure that the payments are made without further delay”?
Rt Hon HELEN CLARK: How asking someone to “kindly ensure” something can be read as a directive beats me.
Dr Don Brash: Can the Prime Minister tell the House how it could possibly be the case that invoices stamped “approved for payment” by her chief of staff, Heather Simpson, and a letter from Ms Simpson to the Parliamentary Service instructing it to pay the bill “without further delay” could possibly be interpreted as suggesting, as she has previously maintained, that the Parliamentary Service authorised the spending?
Rt Hon HELEN CLARK: I repeat: as Prime Minister I have no responsibility in the House for those matters. Dr Brash, however, could authorise payment of $180,000 and pay the $100,000 fine for breaking election spending law.
Dr Don Brash: If the Prime Minister has no responsibility for what her chief of staff does, who authorised Heather Simpson to give those instructions?
Rt Hon HELEN CLARK: Just as I am sure that the Leader of the Opposition does not get involved in the details of administration in his office, nor do I.
Dr Don Brash: Will the Prime Minister and the Labour Party pay back the taxpayers’ money used to fund the pledge card during the 2005 campaign if the Controller and Auditor-General’s report due out later this week finds that such expenditure was outside the rules; if not, why not?
Rt Hon HELEN CLARK: The member is well aware that I do not answer for the Labour Party in the House. He, however, could pay the quarter of a million dollars he owes for the election overspend on broadcasting.
Gerry Brownlee: I raise a point of order, Madam Speaker. Just thinking about the Prime Minister’s answers—or her refusal to answer some of those questions—I wonder whether we could have some clarification of Ms Simpson’s status. Is she employed by the Labour Party—or the Labour Party parliamentary organisation—or is she employed by Ministerial Services as the Prime Minister’s chief of staff?
Hon Dr Michael Cullen: I think that members need to think very carefully about this. There is a distinction between the parliamentary Labour Party and the ministerial role. If that were not so, the Government could ask a string of questions of the Leader of the Opposition about his activities as the leader of the parliamentary National Party—and we would relish the opportunity to do that.
Gerry Brownlee: That is an interesting sort of suggestion from Dr Cullen, but it is somewhat irrelevant. The question here simply is: who does Ms Simpson work for, and in what capacity did she authorise the payment of that money? If it is the case that she works for the Prime Minister as the Prime Minister’s chief of staff—and, therefore, it was a decision made by the Prime Minister—how can the Prime Minister claim that she has no responsibility to answer to this House for this matter?
Madam SPEAKER: In ruling on the point of order, I say it was not a point of order within the terms of the Standing Orders. Of course Ministers are responsible for their staff; the capacity they may work in, however, is a different matter.
Hon Members: What?
Madam SPEAKER: That means that if someone is working as a staff member under ministerial responsibility, then the Minister is responsible. But members also have other capacities and responsibilities that may not fall within the ministerial responsibility. So your question, Mr Brownlee, was an extraordinarily broad one. I am trying to define exactly where the responsibilities lie—whether they are within the ministerial responsibility.
Hon Bill English: I raise a point of order, Madam Speaker. I know that Speakers have not had to give decisions on this matter before, and you may wish to consider what you have just said. We are now in a position in question time where Parliament is expected to accept that a person whose salary is fully appropriated by this Parliament—and it will be a reasonably substantial salary—whose expenses are all paid for by this Parliament, and who appears on the ministerial list as the chief of staff in the Prime Minister’s office is now free from scrutiny by Parliament because, despite her being fully funded by parliamentary appropriation, she is, at times that are selected by the Prime Minister, acting in some other capacity. That does stretch the limits of credibility.
Madam SPEAKER: I am sorry, but that was not the essence of my ruling. If a person is working within a ministerial responsibility and if a staff member is there, then, of course, there is a responsibility.
Hon Bill English: I raise a point of order, Madam Speaker. The Members’ Handbook of Services, which we understand is a Parliamentary Service publication, makes it quite clear—in fact, it has been changed since the last election—that the member of Parliament is responsible for the use of parliamentary funding for parliamentary activity. That is quite clear. There is no dispute about that; that publication is a publication of Parliament and is accepted by all MPs. In the context of this debate, Madam Speaker, you seem to be putting it to Parliament that a person who authorised money spent under an appropriation by this Parliament cannot be held to account or questioned, because that person did so in his or her role as a functionary in the Labour Party.
Madam SPEAKER: No, that is not what I am saying, Mr English. I am saying that if the person works within a ministerial responsibility, then of course he or she is responsible and the Minister is responsible for those actions.
Gerry Brownlee: I raise a point of order, Madam Speaker. Surely that, then, would mean that the Prime Minister should answer the question, because—
Madam SPEAKER: Well, I am not sure what the question is, but if the member wishes to put a supplementary question—
Gerry Brownlee: Madam Speaker, we are on a point of order. The point is that your ruling would now seem to mean that the Prime Minister should have answered that question, which was: “Who authorised the expenditure?”.
Madam SPEAKER: But she addressed the question. If the member wishes to re-put the question, I am perfectly happy with that, in the interests of moving on. I will not take it as an extra question, but the member would please—[Interruption] Supplementary question?
Gerry Brownlee: I raise a point of order, Madam Speaker. The Prime Minister most certainly gave an address to the question, but quite clearly her response was incorrect, according to your ruling. She said she had no responsibility in that matter. Where does that leave the House?
Madam SPEAKER: Thank you. The Prime Minister has responsibility for her office. However, the Prime Minister is not responsible to the House for her actions as leader of the Labour Party and for funding provided through the Parliamentary Service to the parliamentary Labour Party. That is not a line of ministerial responsibility. [Interruption] I am sorry, but that is right. It is a matter I have looked at very carefully. I admit to the member that this matter sometimes highlights the ambiguity of the positions. But that funding goes in that capacity, not in a ministerial capacity.
Climate Change Policies—Greenhouse Gas Emissions
3. NANDOR TANCZOS (Green) to the Minister responsible for Climate Change Issues: Does he stand by his statement that “There is a growing sense of urgency among governments … that action needs to be taken now” on climate change; if so, why will the Government not consider putting in place price-based measures across the economy to reduce greenhouse gas emissions before 2012?
Hon DAVID PARKER (Minister responsible for Climate Change Issues) : Yes. The full quote from my speech on Friday is: “There is a growing sense of urgency among governments and—more recently—citizens that action needs to be taken now”. Growing public support has reached such a level that even climate change naysayer Dr Don Brash has decided his party needs a belated makeover on this issue. In respect of price-based issues, we have already signalled price-based measures for electricity generation for before 2012, and we will be advancing detailed options in respect of those measures with the New Zealand Energy Strategy.
Nandor Tanczos: If there is such a sense of urgency, why is a State-owned enterprise pursuing the commissioning of the proposed Marsden B coal-fired power station, which is projected to emit some 1.8 to 2.17 million tonnes of carbon dioxide per year?
Hon DAVID PARKER: Mighty River Power has pursued a Resource Management Act consent; it has not pursued the commissioning or the re-commissioning of that station. I am aware that Mighty River Power is awaiting the New Zealand Energy Strategy and our proposals in respect of carbon pricing in electricity.
Steve Chadwick: Has the Minister received any reports on a growing consensus on the need to act on climate change?
Hon DAVID PARKER: Yes, I most certainly have received a report that National has had a change of heart on climate change, and I suppose it is better late than never. National now says it supports a “cap and trade” scheme to limit emissions in electricity generation. It says it is interested in joining the Asia-Pacific Partnership on Clean Development and Climate—something the Government is already advancing. National has expressed support for biofuels, building code, and vehicle efficiency measures. These are all Labour-led Government policies. I suppose it was predictable that National would finally want a bob each way, and we hope its votes will now match its new rhetoric.
Hon Dr Nick Smith: Does the Minister accept that his Government’s greenhouse gas policies have failed, as since 1999 coal-fired electricity generation has trebled; major renewable energy projects, like the Aqua and Dobson projects, have been rejected, but new coal, gas, and oil projects—like those at the Marsden B, Huntly ep3, and Whirinaki facilities—have been approved; and when New Zealand emissions have grown at four times the rate of the United States’ and three times the rate of Australia’s; and, if that is not failure, can he explain what failure might be?
Hon DAVID PARKER: New Zealand has not built any coal-fired power stations for a long, long time, connected to the grid. I am glad that member is starting to care about climate change. Since last Friday, I have heard his party variously described as the “Donny come-latlies” or “Climate change fair-weather friends”. None the less, I welcome support for climate change policies and think the sincerity of National’s position really will only be shown by its position in votes in the House.
Gordon Copeland: Does he believe that the Permanent Forest Sink Initiative, whilst aiding New Zealand to meet its climate change goals, will also have wider benefits such as improving water quality and stabilising erosion-prone land—both issues that United Future is currently working closely with the Government on?
Hon DAVID PARKER: I do, and I thank the member and other parties for their support on that bill. It is true that many of the wide range of initiatives that we have with climate change benefits also have other substantial benefits. They achieve things that we would want to do anyway, like improving water quality, improving soil conservation, reducing New Zealanders’ electricity bills, and reducing how much they have to pay when they fill up their car at the petrol pump.
Metiria Turei: Is the Minister genuine about his concern expressed on Friday that, unless the Government changes its policy, transport emissions will increase by 45 percent over the next 25 years; if so, would he now like to retract his rather emphatically made statement to me during a select committee hearing that “there is no connection between roading and climate change.”?
Hon DAVID PARKER: I do not remember making that statement in quite those terms. I do agree—because I have produced and released the document that shows it—that under current policy settings, if we do nothing to change the way in which we go about our lives in New Zealand, transport-related greenhouse gas emissions will increase by 45 percent over the next 25 years, and this Government should not, and will not, let that happen. The measures that are required to achieve change will be a combination of changing fuel sources, to the likes of biofuels and plug-in hybrids, in the future, as well as measures to improve the efficiency of the vehicle fleet, in addition to the sixfold increase already that we have had in public transport funding.
Steve Chadwick: What in the National Party’s announcement last week is different from the Labour-led Government’s climate change policy already under way?
Hon Dr Nick Smith: I raise a point of order, Madam Speaker. I would be delighted to answer, as Minister, questions on National’s climate change policy.
Madam SPEAKER: Yes, I agree.
Hon Dr Nick Smith: I would be happy to seek the leave of the House to table those proposals, given that the Government has so few.
Madam SPEAKER: No.
Hon DAVID PARKER: The question asked what the differences were between that policy and Labour Party policy. That must be within the Standing Orders.
Steve Chadwick: I raise a point of order, Madam Speaker. Could I rephrase the question?
Madam SPEAKER: Please do.
Steve Chadwick: What in previous announcements has been different from this Labour-led Government’s climate change policy that is already under way?
Hon DAVID PARKER: I struggled to find points of new significance in recent announcements, but I did see that National has been calling for a new international negotiation for a post-2012 agreement. It shows that National obviously wants to go and sit in a room and negotiate by itself, because negotiations for post-2012 involving all of the world’s major emitters and New Zealand have been under way for some time. It is actually run by the UN, I say to Dr Smith, which works in a big building in New York, if he wants to go and check.
Hon Dr Nick Smith: Will this Government adopt National’s constructive proposal to “cap and trade” electricity greenhouse emissions now, so as to give an incentive for renewable energy and for forest planting, given the very strong support that this proposal has received from electricity generators, from foresters, and from environmentalists; and how is it possible for him to say that last week’s announcements proposed nothing new, when this is a very significant proposal to address climate change?
Hon DAVID PARKER: Far from being very new and significant, it is but a variant and a narrower version of the carbon tax that National previously opposed. Furthermore, when we announced at the end of last year that we were not proposing to proceed with a broad-based carbon tax, we specifically announced that we were considering the likes of a “cap and trade” scheme in the electricity generation. As I said in response to an earlier question, detailed proposals in respect of that will be released in the next month in the New Zealand Energy Strategy.
Nandor Tanczos: Does the Minister agree that any domestic “cap and trade” system will be effective at reducing greenhouse gas emissions only if the cap is set low and rapidly sinks to the 1990 levels we have committed to under the Kyoto Protocol, and it has to be sufficiently broad to include transport, electricity generation, and agriculture?
Hon DAVID PARKER: The Government has not actually made up its mind as to how broad future price-based measures ought to be, post-2012. There are some difficult issues there. National has already made up its mind. National says it should exempt completely its mates in agriculture. We at least have an open mind on the issue. In respect of how low the cap should be, in my opinion it is most important that we curb the marginal growth in emissions. That is the first and easiest step that we should take.
Peter Brown: Will the Minister confirm that carbon taxes were effectively stopped by New Zealand First in its confidence and supply agreement with the Government, the premise being that New Zealanders are already taxed enough, and that given the right guidance the vast majority of them care enough about the environment to work willingly towards addressing greenhouse gas problems?
Hon DAVID PARKER: It is correct that New Zealand First and, indeed, United Future both had as requirements in their agreements with the Government that we review the carbon tax.
Sue Kedgley: Further to his expressed concern about increasing carbon emissions from transport, does he agree that electrifying the remaining sections of the main trunk rail line and encouraging as much freight as possible, as well as passengers, to use it would be one practical way of reducing our transport-related carbon emissions as well as our dependence on oil; if so, will he be encouraging his Government to do this as part of its climate change strategy; if not, why not?
Hon DAVID PARKER: I agree that if that area of rail was electrified it would reduce carbon emissions. That is not to say that it is the most cost-effective carbon-reducing measure that could be taken and I am sure those decisions will be made by the relevant Minister, taking into account climate change considerations.
Hon Dr Nick Smith: I seek the leave of the House to table National’s blue-green vision.
Madam SPEAKER: Leave is sought to table that document. Is there any objection? There is objection.
Election Spending—Law Reform Proposals
4. Hon BILL ENGLISH (National—Clutha-Southland) to the Minister of Justice: What options has the Ministry of Justice proposed in relation to election law reform, and have these been considered by the Cabinet?
Hon MARK BURTON (Minister of Justice) : As I have informed the House on previous occasions, I am undertaking a review of the electoral finance regime, focusing on electoral expenses, advertising, and broadcasting. I have not yet put advice to Cabinet.
Hon Bill English: Is the Minister aware that, regardless of what findings the Auditor-General makes regarding the pledge card funding, the Chief Electoral Officer advised the Labour Party before the election that the pledge card counted as electioneering regardless of who funded it, and, therefore, Labour exceeded the campaign expenses limit set by section 214B of the Electoral Act?
Hon MARK BURTON: As I have previously also informed the House, it would be inappropriate for me to comment on what are any legal interpretations made by the Chief Electoral Officer in the course of his duties under the Electoral Act 1993.
Hon Bill English: Is the Minister aware that his Cabinet colleague the Hon Pete Hodgson agreed with the view held by the Chief Electoral Officer that the pledge card counted as a campaign expense—and therefore Labour exceeded the limit on campaign expenses—when Mr Hodgson said: “the public would say that it is clearly for political purposes … of course it is … If it wasn’t we would put out a pledge card the day after the election not before it.”; and when is his party going to start keeping the law instead of trying to change it?
Hon MARK BURTON: As to the latter, I say to Mr English that it is Parliament that makes and changes law; as to the former, no, I am not aware that that is my colleague Mr Hodgson’s view.
Hon Bill English: Is the Minister concerned that when Pete Hodgson said publicly in the Sunday Star-Times that the pledge card was electioneering, he directly contradicted what Labour Party officials told the police when they said that the pledge card was normal parliamentary activity?
Hon MARK BURTON: I am not aware that the comment the member refers to is an accurate reflection of any comment my colleague made.
Hon Bill English: Can the Minister think of any change to the law that would prevent abuse of it by a Minister who says the pledge card was electioneering, by party officials who told the police the opposite—when they said the pledge card was normal parliamentary activity—and by a governing party that blatantly exceeded the campaign expense limit by almost half a million dollars and seems to feel pleased it got away with it?
Hon MARK BURTON: I can think of a number of things that could be done with electoral law to prevent the hiding and channelling of vast amounts of money through mates’ trust accounts.
Hon Dr Michael Cullen: Has the Minister seen any reports indicating any substantive difference in type and nature between the pledge card put out by Labour and the pledge advertisement put out by the National Party when Bill English was leader—except, of course, that we intended to keep our pledges?
Hon MARK BURTON: Save the fact that, indeed, the Labour Party intended to keep both its pledges and its leader, I can see no real difference.
School Students’ Performance—Reports
5. MOANA MACKEY (Labour) to the Minister of Education: What recent reports has he received on the performance of New Zealand school students?
Hon STEVE MAHAREY (Minister of Education) : Last week I released the 2005 schools report, which shows that, as a result of changes made by the Labour-led Government, we are seeing a steady rise in the proportion of students going directly from school to tertiary education. Fifty-seven percent of students achieved level 2 National Certificate of Educational Achievement or better, which is up from the equivalent of 37 percent in the mid-1990s under the National Government; 32 percent of students gained university entrance or better, which is up from the equivalent of 25 percent under the former National Government; and Kiwi students continue to be the best in the world in reading, mathematics, and science. In other words, it is a very good report card.
Moana Mackey: What does the schools report 2005 show in relation to the financial performance of schools?
Hon STEVE MAHAREY: The report shows that the financial position of almost all New Zealand schools continues to improve. In 2005, 94 percent of schools had a healthy working capital, up from 92 percent in 2004, and 64 percent of schools had an operating surplus, compared with 56 percent in 2004. Those changes are a result of Labour’s $4.5 billion a year investment in schools, which is up from $3 billion in 1999.
Hon Bill English: Can the Minister confirm that the schools report leaves out such negative information as the fact that 27 percent of 15 or 16-year-olds in New Zealand cannot pass a national standard in literacy and numeracy, and that the real information about school performance sits in the SchoolSmart website but he has banned parents from having easy access to it?
Hon STEVE MAHAREY: I can confirm that we have one of the most transparent education systems in the world, and that this is just one of the many sources of information people might like to go to, to learn about their world-class system that Mr English continues to run down. Can I say that any parents listening to this who wish to access SchoolSmart data might like to talk to their schools, which will make that available to them as is appropriate.
Moana Mackey: To what does the Minister attribute the improved level of achievement among New Zealand school students?
Hon STEVE MAHAREY: I would say that over the last 6 years this Government has focused on the quality of learning, rather than on the structure of schooling as National did during the 1990s. In other words, we have invested in foundation skills; doubled funding for early childhood education to $750 million a year; put more than $300 million into information and communications technology; invested $90 million a year in professional development; and focused on assessment for learning, rather than assessment of learning as was the style in the 1990s. In other words, this Government has focused on teaching and learning, rather than playing with the system as National did.
Reserve Bank, Governor—Confidence
6. JOHN KEY (National—Helensville) to the Minister of Finance: Does he have confidence in the Governor of the Reserve Bank; if not, why not?
John Key: When the Minister told Bloomberg and the Financial Times that “Some of the markets outside New Zealand have taken what Alan said as a harder message than was Alan’s actual intention,”, is he telling us that the governor did not accurately communicate that the risk of an interest rate hike in New Zealand had indeed increased?
Hon Dr MICHAEL CULLEN: Overseas markets had read what Dr Bollard said as if a rate rise was imminent, and that clearly was not what Dr Bollard said. I quote what I actually said to Bloomberg—one of the few quotes they have got—“The general consensus is that rates will not be raised, but that the beginning of the easing part of the cycle has been pushed off further into next year, possibly even into early 2008.” That is the general consensus view, which is all I ever say on these matters.
John Key: Does the Minister think it cuts across the independence of the Reserve Bank when he, as Minister of Finance, starts acting as some sort of global interpreter for the Governor of the Reserve Bank; surely in a world where monetary policy is set by the independent Governor of the Reserve Bank, if the governor thinks he is being misinterpreted, would not he go and correct that, or does he send the Minister off as some sort of global interpreter to sort it out?
Hon Dr MICHAEL CULLEN: When somebody puts a question to me offshore that implies that the Governor of the Reserve Bank said that a rates rise is imminent, it is actually incumbent on me as Minister of Finance to correct that person. Unlike that member, I stand for New Zealand manufacturers and New Zealand farmers, not for international money market players.
John Key: Does he think a governor who chooses his every adjective with extreme care would appreciate the Minister going off the cuff with his thoughts about the chances of a Reserve Bank interest rate hike, then declaring “I think that’s really what the bank was saying.”?
Hon Dr MICHAEL CULLEN: The member clearly has not listened to a single answer so far. Questions were put to me that stated quite clearly that the Reserve Bank was about to raise rates at the next, or at least one after, actions. That is clearly not what the Reserve Bank was saying in its last Monetary Policy Statement. As I used to, somewhat unwillingly at times, back up the previous Governor of the Reserve Bank, I do so with the current Governor of the Reserve Bank.
John Key: Were his statements not, in fact, a shot across the bow of the Governor of the Reserve Bank, via Bloomberg and the Financial Times, that he does not want to see an interest rate hike, given that that was exactly the strategy he played 2 years ago when he went offshore and started making declarations about interest rate hikes that time as well?
Hon Dr MICHAEL CULLEN: I will try to explain it again for the poor member. Overseas commentators had interpreted the Reserve Bank’s statement as meaning a rate rise was imminent. To quote again what I said—[Interruption] If the member would just shut up for a minute. Some of the markets outside New Zealand have taken what Alan said as a harder message than was Alan’s actual intention.
Madam SPEAKER: We did have an understanding last time that members would be heard. If they are not heard, then we get reactions like the House has just heard. I ask the Minister to please address the question and for other members to please respect that answer by enabling it to be heard.
Hon Dr MICHAEL CULLEN: I will quote again what I said. Some of the markets outside New Zealand have taken what Alan said as a harder message than was Alan’s actual intention. The ANZ commentary was so prissy that it thought that calling Dr Bollard “Alan” was somehow an entrenchment upon his independence. Well, Don, it is not so.
John Key: How long would inflation have to stay above the 3 percent target—given it has been there for already a year, and given that the Governor of the Reserve Bank said it would be there, in his estimation, for at least a further year—before the Minister of Finance thought that the governor was outside of the policy target agreements?
Hon Dr MICHAEL CULLEN: That is primarily a matter for the Governor of the Reserve Bank and for the board of the Reserve Bank, which, as the member’s leader could instruct him, is responsible for the monitoring of the governor’s performance, and it reports to the Minister of Finance.
North Korean Nuclear Test—New Zealand Response
7. PITA PARAONE (NZ First) to the Minister of Foreign Affairs: What has been New Zealand’s response to reports of North Korea conducting a nuclear test?
Rt Hon WINSTON PETERS (Minister of Foreign Affairs) : Madam Speaker—[Interruption] I raise a point of order, Madam Speaker. I have not even got to start my answer before one or two impertinent members over there call me by my first name, and given how junior they are they should not be doing that—let alone the other Standing Orders we have in this House. Could you possibly ask them to desist, so that we can get on with what is a very serious matter and answer this question?
Madam SPEAKER: Would members please restrain themselves so that we can get through question time with members being heard. I call the Rt Hon Winston Peters.
David Bennett: Spiderman!
Rt Hon WINSTON PETERS: Now the bald one is at it again. Madam Speaker, when you were making that ruling he started again.
Madam SPEAKER: Will the member please be seated. I will just remind members of the rules. In fact, interjections are permitted; barracking is not. Members are to be respected. They are to be heard when they both ask questions and answer questions. Would those members who persistently interject in that way please be on notice that they will be asked to leave the House if that disruptive behaviour continues. Would the Rt Hon Winston Peters please address the question. [Interruption]
Rt Hon WINSTON PETERS: I raise a point of order, Madam Speaker. Now Judith Collins decides she will join this—
Judith Collins: Point of order, Madam Speaker.
Rt Hon WINSTON PETERS: Sit down! I am on my feet.
Madam SPEAKER: Would you both sit down and we will start again. A comment was made by Paula Bennett. I did not hear a comment from Judith Collins. There may have been a mishearing—[Interruption] Yes, I am sorry, Ms Bennett, but you did make a comment—I saw you and I heard you. I ask members for the last time to please put themselves under control so that we can get the Minister to address this question. 
Rt Hon WINSTON PETERS: I raise a point of order, Madam Speaker. There they go again. With respect, this is a serious matter, and I think they should be required not to break the rules of this House. Lockwood Smith is doing it right now—he has no right to be talking when a point of order is being made. If that is going to go on, I do not know why there is seemingly a special set of rules for those members, who speak in unison—at least 10 at a time—when serious questions are being asked and answered in this House. You have already told those members twice, and they started back again—Lockwood Smith in particular, and he cannot deny it. He is meant to be a member who has been around here for a time.
Madam SPEAKER: I do not need any more comment on this. This is becoming—[Interruption] Please be seated! I ask members to please refrain. Mr Peters, members are entitled to interject when questions and answers are being given. They are not, however, entitled ever to use unparliamentary language. I did not hear any unparliamentary language. So would you please—
Nandor Tanczos: Point of order.
Madam SPEAKER: I have not finished. I would now like—unless there is a totally new point of order—the Minister to address the question. We have almost forgotten what the question is. Now, a point of order from Nandor Tanczos—and it had better be a point of order.
Nandor Tanczos: I raise a point of order, Madam Speaker. My point of order is just to ask you to clarify that you will be applying the same rules to Mr Peters, whose interjections I have had since the beginning of the session.
Madam SPEAKER: Yes, of course. So would the Minister please address the question.
Rt Hon WINSTON PETERS: I raise a point of order, Madam Speaker. With respect, if that was the view of the member who has just resumed his seat, then he should have said so then, and not made some contemptible attempt to get even now. That is what the Standing Orders state—raise it at the first instance. Now I will get on to the answer.
Madam SPEAKER: Thank you.
Rt Hon WINSTON PETERS: New Zealand utterly condemns North Korea’s claims of having conducted a nuclear test—[Interruption]
Judith Collins: Oh, come on!
Madam SPEAKER: Would the member please restrain herself. We need the answer to this question. Mr Peters, would you please continue to address the question.
Rt Hon WINSTON PETERS: I raise a point of order, Madam Speaker. I am very happy to continue, but in the way that these members deserve. If they want a free-for-all, they will get it. But we have rules in this House, and those members should be abiding by them.
Madam SPEAKER: They are abiding by them at the moment. But would the member please address the question.
Rt Hon WINSTON PETERS: New Zealand utterly condemns North Korea’s claims of having conducted a nuclear test.
Sandra Goudie: Point of order, Madam Speaker.
Madam SPEAKER: We now have another point of order. I am sorry, Mr Peters, would you please be seated.
Sandra Goudie: I raise a point of order, Madam Speaker. Was this a question for Mr Speakers, Madam Speaker?
Madam SPEAKER: I do not know what the member is saying.
Sandra Goudie: I beg your pardon, Madam Speaker.
Madam SPEAKER: If members want to make interventions, please consider them before speaking. Now would the Rt Hon Winston Peters please address the question.
Rt Hon WINSTON PETERS: That has been the precise origin of the problem! Such action is inconsistent with the behaviour expected of a State seeking security under guarantees from the international community. Overnight, New Zealand’s disarmament ambassador at the UN conveyed those views during the general debate of the UN General Assembly’s first committee on disarmament.
Pita Paraone: What measures might New Zealand take against North Korea?
Rt Hon WINSTON PETERS: We will not be taking National’s traditional measure of sending a boat or a plane—the Carter position, from down south. New Zealand supports a firm international response that addresses North Korea’s unacceptable behaviour while avoiding further deterioration of the situation.
Gerry Brownlee: What does that mean?
Rt Hon WINSTON PETERS: What it means is what I said. If the woodwork teacher could keep quiet for 5 seconds, maybe his colleagues would be better informed. What it means, Mr Brownlee, is that the Government is taking a responsible position and not the five different positions the National Party has had in the last 5 years. [Interruption] We will not have it over by lunchtime— No, it will not be over by lunchtime, but we are working closely with others—
Gerry Brownlee: What about an answer? What does the third position mean?
Madam SPEAKER: Would the member please restrain himself to enable the question to be addressed.
Pita Paraone: Point of order—
Rt Hon WINSTON PETERS: I have heard—
Madam SPEAKER: Would both members please be seated. I am tempted to say: “Let’s go back and start again.” Members, this is an important issue, so please enable the Minister to address the question on what is to be done.
Rt Hon WINSTON PETERS: A firm position is not the shoehorn with which he gets himself into his seat every morning. We are working closely with others to identify actions that will deliver an unequivocal message to North Korea that it must stop its nuclear weapons programme and return to the six-party talks—a position I discussed last night with the Secretary of State from the United States.
Darren Hughes: Has the Minister received any reports or advice on firm positions on nuclear testing from any other organisations in New Zealand?
Rt Hon WINSTON PETERS: Not in the context of political parties, other than to say that it was my understanding that every political party in this country supported New Zealand’s present non-nuclear position, but there is one party that cannot make up its mind and keeps changing it every campaign.
Gerry Brownlee: I raise a point of order, Madam Speaker. The Minister has addressed the question, but he has told us how serious this matter is. Why can he not tell us what he is going to do?
Madam SPEAKER: That is not a point of order.
Elective Surgery—Additional Funding
8. Dr JONATHAN COLEMAN (National—Northcote) on behalf of Hon TONY RYALL (National—Bay of Plenty) to the Minister of Health: What assurances can he give that the Government’s recently announced funding for 10,000 extra elective procedures each year will deliver that extra elective surgery, and why?
Hon PETE HODGSON (Minister of Health) : Before the Government’s announcements, all district health boards were consulted and all indicated that they could perform more surgery if they received more funding. In the coming months district health boards will set targets for increased delivery of elective surgery and we will be able to say what types of surgery will be boosted in what regions.
Dr Jonathan Coleman: Can the Minister confirm that in the first year of the Labour Government 98,000 New Zealanders got elective surgery, but 6 years and $4 billion later just over 95,000 individuals got elective surgery, and what makes him think that $50 million a year will buy more surgery when $4 billion per year bought less?
Hon PETE HODGSON: If the member wishes to compare the last year of his Government with the current year of this Government, he will find that 6,000 more New Zealanders are getting surgery now. When this policy is implemented, 16,000 more New Zealanders will be getting surgery than are getting it now, and that is not counting the so-called non-admitted patient database that we have only just started collecting.
Ann Hartley: What reports has the Minister received on alternative approaches to managing the elective surgical system?
Hon PETE HODGSON: I have seen one report that says that delaying surgery for longer than the Government policy of 6 months will lead to dangerous complications, and that our main concern should be to see “operations performed as soon as possible”. I have seen a second report that the 6-month policy for elective surgery was designed for cynical political purposes and is merely playing with statistics. The first report is from Dr Don Brash and is the stated policy of the National Party. The second report is from National’s health spokesperson, Tony Ryall, who apparently is not yet familiar with his party’s views on this issue.
Barbara Stewart: Can the Minister assure all New Zealanders that the restructuring of pathology services currently being carried out by several district health boards will not result in poorer quality or delayed diagnoses, which in turn would impact on the performance of extra elective surgery?
Hon PETE HODGSON: The member should be aware—and I would be happy to give her further detail—that the quality of laboratory services, whether community pathology or hospital pathology, is the bottom line that may not be breached.
Dr Jonathan Coleman: How does the number of New Zealanders promised extra operations through this funding compare with the number of New Zealanders who have already been culled from waiting lists this year?
Hon PETE HODGSON: Just from memory, and just roughly, about 4,000 New Zealanders were returned to general practitioners this year without receiving surgery. A little over 100,000—
Dr Jonathan Coleman: 28,000!
Hon PETE HODGSON: I have the answer. The member asked the question. If the member has the answer, he did not need to bother asking the question, did he? Here comes the answer. Just over 100,000 New Zealanders got surgery. Around 4,000—
Madam SPEAKER: Members will be leaving the Chamber unless members can be heard.
Hon PETE HODGSON: A little over 100,000 New Zealanders received elective surgical services this year—they got their operations. About 4,000 people, or a little over, were returned to their general practitioners without getting their operations, and about 10,000 extra people will be getting their operations from this policy.
Heather Roy: How many of the 10,000 extra operations promised will be allocated for surgery for breast cancer sufferers, when surgery could have been avoided had Pharmac followed the lead of many other OECD countries and funded Herceptin; or are financial considerations the Minister’s No. 1 priority, and alleviating pain and suffering second?
Hon PETE HODGSON: I answer that question gently by saying that it was a number sufficiently small that we did not think it was worth a $30 million per annum investment.
Dr Jonathan Coleman: What has forced the Minister to change his opinion from previous months, when he said: “we have reason to be confident in the overall state of elective surgery.”, and when he called critics of the level of elective surgery “crisis mongers”; is it bad polling, or facing the fact that under his watch 28,000 New Zealanders have been culled from waiting lists?
Hon PETE HODGSON: When people say of the New Zealand health system that it is “rotten to the core” or “fundamentally flawed” or use language of that ilk, I happily respond and defend our health system. However, the point at stake is that we can either provide good services to the population of New Zealand or we can go ahead with reckless tax cuts. We had an election about that a year ago; we won. [Interruption]
Madam SPEAKER: I tell members that comments like that across the Chamber start to cause disorder from both sides. Would members please settle.
Dr Jonathan Coleman: Can the Minister confirm that the health budget increased by $750 million last year, but that the number of patients getting elective surgery actually fell by 2,000 people; would he explain why he thinks spending $50 million will see 10,000 additional people get elective surgery every year?
Hon PETE HODGSON: Because I am buying centrally and because I am paying on delivery.
Dr Jonathan Coleman: What is worse for the Minister—being ridiculed by the doctors because they have lost confidence in him, being ridiculed by the public because they do not believe him, or being ridiculed by his own back-benchers because they no longer respect him?
Hon PETE HODGSON: I might respond by asking when the member stopped beating his wife. The long and short of it is that New Zealand has a very good health system, and under this Government it is getting better.
9. Dr PITA SHARPLES (Co-Leader—Māori Party) to the Minister of Immigration: What is his response to the statement from Sealord’s Chief Executive, Doug McKay, that the Government’s recent proposals to intervene in arrangements with foreign-chartered fishing vessels “will threaten Sealord’s viability, punish the fishing industry in general, and hurt the New Zealand economy”?
Hon RUTH DYSON (Minister of Labour) on behalf of the Minister of Immigration: The Government is aware of the views of the fishing industry, and those views were taken into account by Cabinet in reaching the decision announced yesterday. That decision was that the minimum wage would be paid with no deductions below that level, with increases to that rate over time. There would be a guarantee from a New Zealand company to ensure accountability, employment disputes would be settled in New Zealand, and a mandatory code of practice for minimum working and living conditions would be implemented. The fishing industry is important to our economy, but it cannot be built on the exploitation, mistreatment, underpayment, and abuse of foreign crews. The wage adjustments required under the new rules for foreign fishing crews are modest and will take effect over time.
Dr Pita Sharples: Has the Minister received any advice from iwi that the Government’s proposals will have a disproportionate effect on Māori-owned fisheries quota; if so, what advice has he received from the chairman of Te Ohu Kai Moana, the Māori fisheries commission?
Hon RUTH DYSON: Yes, those views were received, and were considered by Cabinet, but there was no justification at all for making an exception to the requirement, so that iwi-based companies, as opposed to other organisations, could pay foreign crew fishing in New Zealand waters less than the minimum wage.
Georgina Beyer: Why is the Government requiring increases in minimum pay for foreign fishing crew?
Hon RUTH DYSON: Immigration policy requires that all temporary migrant workers in New Zealand are paid market rates for their work, not just the minimum wage. This is to protect New Zealand workers by ensuring that their terms and conditions and employment opportunities are not undercut.
Peter Brown: Noting those answers, can the Minister provide the House with one good, sound reason why he should permit foreign labour to be employed at less than the minimum wage on fishing vessels operating within our economic zone, and not do the same for shore-based industries?
Hon RUTH DYSON: I think the member has made an extremely valid point in his question. There is no justification at all for paying any workers employed in New Zealand situations less than the minimum wage. That is the new requirement and it will be enforced by our Government.
Te Ururoa Flavell: Tēnā koe, Madam Speaker; kia ora tātou. Could the Minister explain which New Zealand companies are not paying the minimum wage to crews on foreign-chartered vessels, and what action is he taking against those companies?
Hon RUTH DYSON: No information has been provided as to abuse of the current requirement to pay the minimum wage, although it is clear from the representations from the industry that the deductions that were made to the pay of foreign crew actually brought their level of payment to below the minimum wage. It is also clear from the information provided by representatives of the fishing industry that the costs that they calculate the new requirements would impose on them can be accurate only if, in fact, they are now paying under the minimum wage, which is not allowed under the current rules.
Dr Pita Sharples: What consultation has been undertaken with the Minister of Māori Affairs, and what has his response been to the claims from Māori involved in the fishing industry that unwarranted Government interference in arrangements with foreign-chartered fishing vessels will render many iwi businesses marginal or uneconomic?
Hon RUTH DYSON: Industry consultation has been ongoing for over 18 months. As I indicated in the answer to a previous supplementary question, the views expressed by the member in his primary question were considered carefully by Cabinet as part of our decision-making process.
Violent Offences—Increase in Number Reported
10. SIMON POWER (National—Rangitikei) to the Minister of Police: Can she confirm that the number of violent offences has increased by one quarter, from 40,090 to 50,644, since 2000?
Hon PHIL GOFF (Minister of Defence) on behalf of the Minister of Police: Yes. Recorded violent offences per 10,000 of population, however, remained relatively static over most of the period—in fact, falling slightly from 2000-01 to 2004-05, but increasing in the 2005-06 year.
Simon Power: How can she claim that an increase, to around 140 violent offences a day, comes down to better reporting, when Detective Inspector Steve Rutherford of Counties-Manukau Police District told the New Zealand Herald last month, “… the reality is [violence] has escalated …”, “Domestics are becoming more violent.”, and the violence inflicted by young offenders has increased as they are more likely to be armed with “… [pieces] of wood, hammers, axes, firearms, knives, baseballs bats”—or does she know better than a front-line officer with 34 years’ experience?
Hon PHIL GOFF: The police advise me that by far the fastest-growing rate of crime is, sadly, in domestic violence. It is growing at twice the rate of other violent crime. But the police have also advised me—and the member can see this himself from the statistics—that there are particular times in our history when domestic violence has surged at remarkable levels, not so much, we think, because there has been an increase in the actual offending but because there has been much better follow-up by the police and much better legislation. [Interruption] The member can say that, but he may recall that in 1993-94, under the last National Government, for 2 years in a row violent crime went up by 25 percent. That was a result, predominantly, of offending in the domestic violence area. Fortunately, today people regard domestic violence as being no less serious than violence in the community. There is better reporting of it and the police have better procedures now to ensure that when crime happens in the home, it is reported.
Jill Pettis: What further reports has the Minister received on the change in overall recorded crime per 10,000 population over the last decade?
Hon PHIL GOFF: Crime over the last decade is set out very clearly in the New Zealand crime statistics. They show that recorded criminal offences over the last decade have declined not only in absolute terms—from 482,000 to 426,000—but even more sharply when calculated, as the member asked, per 10,000 head of population. Overall, per capita reported crime over the last 10 years has, in fact, declined by a remarkable 19 percent—from 1,285 per 10,000 to 1,035 per 10,000. That is a pretty good record.
Heather Roy: How many of the 1,000 extra police promised by this Government will be based in Northland—an area currently with just 3.5 percent of total police officers—to combat violent crime, which has increased by over 24 percent in that region in the last year?
Hon PHIL GOFF: As the member suggests, there will be an additional 1,250 police staff—1,000 of them being front-line officers. That is the biggest increase in police staffing in the history of this country. Of course, the allocation of the police force is not done by politicians; it is done by the Commissioner of Police. It is done on the basis of criteria that place front-line police officers where they are most needed.
Simon Power: How does the Minister reconcile her view that a 6.9 percent increase in overall crime over the past year is due to better reporting with the view of her predecessor, George Hawkins, who last year stated that claims of under-reporting were “intemperate, misleading, and just plain wrong” and who also stated: “The methodology around recording and presenting crime figures is transparent and rigorous.”; who is right: her or Mr Hawkins?
Hon PHIL GOFF: I recall with some amusement that last year, when there was a more than 7 percent decline in the crime rate, National members would not accept the methodology. But whenever crime rates go up, suddenly they do accept the methodology. They should be consistent for one year after the other. [Interruption]
Madam SPEAKER: I do not need any assistance from members. That goes for members on both sides, I must say.
Simon Power: Does the Minister stand by her statement last week that the 6.9 percent increase in recorded offences in the last year had been well signalled and was not a surprise; if so, on what specific occasions has she told the public of New Zealand that crime was increasing on her watch?
Hon PHIL GOFF: She was absolutely right that it was well signalled. Somebody from the police leaked the information to the Sunday Star-Times.
Chester Borrows: Is the Minister at all concerned at a leaked email from Counties-Manukau area commander Steve Shortland to police headquarters that expresses concern about a major build-up of unassigned files, including 900 serious cases, and that states that the police’s ability to respond to the next major event is severely restricted, when in March last year an audit of unassigned files was ordered after the Minister admitted there were 1,134 unassigned cases in Counties-Manukau—or has nothing actually been done about that since then?
Hon PHIL GOFF: The police commissioner assigns staff where the need is greatest, and the police commissioner is very happy that he has 1,000 extra front-line police staff that he will be able to assign. When Chester Borrows was a member of the police force, he will recall that the National Government was planning to cut police numbers by 540, after wasting $100 million on a failed computer scheme.
Ron Mark: Will the Minister not accept that much of the violence that has now been reported in homes is a direct result of drug use, drug abuse, and drugs that have been distributed by gangs, and does he recall that in 1996 both he and Mike Moore said that 80 percent of the illegal drugs in New Zealand were distributed by gangs; if so, can he tell the House what this Government intends to do about gangs in this country?
Hon PHIL GOFF: I have a couple of points. Firstly, if the member reads the police commissioner’s statement, he will see that the drug that most worries the police is the drug called alcohol. That drug is regarded in every district as being the primary factor behind any increase in violence. Secondly, of course the member, and every member in this House, knows that drugs like methamphetamine make people more violent. The member knows full well that there is an increase in the number of clan-lab teams that have been set up—they are being very effective. Indeed, if the member looks at the police statistics for this year, he will see that the police have increased the amount of time spent on drug enforcement by 8 percent. That is a pretty good track record.
Simon Power: Can the Minister confirm that the number of violent offences remained relatively constant from 1997 to 2000—at about the 40,000 mark—but that over the next 5 years, under her stewardship, the number of violent offences increased to over 45,000, and in the last year it has increased to 50,644; does she agree that those statistics reflect a real increase in violent crime, or does she subscribe to the excuse put by assistant commissioner Grant Nicholls on National Radio that it is all because the police have changed their computer?
Hon PHIL GOFF: I need to defend the assistant commissioner.
Simon Power: Someone has to.
Hon PHIL GOFF: Well, it is easy for a member in this House to attack a public servant who cannot answer back. But if the member wants to know the answer rather than to just use political rhetoric, I will tell him. The basis on which the assistant commissioner said that was that a totally new computer system is in place now: the National Intelligence Application, which has replaced the Law Enforcement System. He will note that the bulk of the increase in violent crime came in 1 month: the first month in which the new computer system was set up. On that basis the assistant commissioner made that remark, and I think he was justified in doing so.
Elective Surgery—Access Improvements
11. MARYAN STREET (Labour) to the Minister of Health: What work does the Government have under way to improve access to elective surgery?
Hon PETE HODGSON (Minister of Health) : I announced last week that the Labour-led Government will invest $200 million more over 4 years to provide elective surgery to an additional 10,000 New Zealanders each year. In addition, the Government’s historic health capital investment will see the opening of 22 additional operating theatres over the next 4 years. This sort of investment is possible only when a Government puts the health of families above reckless, unaffordable tax cuts.
Maryan Street: Will more funding alone be adequate to deliver the extra surgery?
Hon PETE HODGSON: No, it will not. That is why this Government is implementing a programme of elective surgery policy reform, alongside its investment of $200 million. These reforms will see district health boards being able to pay general practitioners to perform minor surgery, will mandate the setting of clear targets for increased delivery, and will involve clinicians closely in determining ways to make better use of our operating theatres.
Immigration, Minister—Ministerial Discretion
12. Dr the Hon LOCKWOOD SMITH (National—Rodney) to the Minister of Immigration: Does he stand by his statement in the House on 20 July 2006 that “The Minister of Immigration is accountable for decisions being made when ministerial discretion is being exercised.”?
Dr the Hon Lockwood Smith: Is it correct that the then Minister of Foreign Affairs and Trade, Phil Goff, wrote to the Associate Minister of Immigration in 2004 requesting reconsideration of the case of Mr Thomas Yadegary, an Iranian asylum seeker now imprisoned in Mount Eden Prison without charge for 23 months; if that is so, does he agree with the detailed arguments made by Mr David Cunliffe MP in his three-page letter of November 2004 supporting Mr Goff’s request for reconsideration of the granting of permanent residence to Mr Yadegary; if not, what was wrong with Mr Cunliffe’s detailed arguments?
Hon CLAYTON COSGROVE: I am advised that, as all members make representations on individuals, before becoming Minister of Immigration the member for New Lynn, Mr Cunliffe, made a representation to the then Associate Minister of Immigration, on behalf of Mr Yadegary, based on “the belief Mr Yadegary holds that he will be subject to persecution” if returned to Iran. The then Associate Minister of Immigration made his decision not to intervene, based on all relevant information. I am also in possession of a letter from the member for Rodney, the Dr the Hon Lockwood Smith, who, when Mr Yadegary wrote to Mr Goff seeking his support, which Mr Goff, on advice, declined, also included a copy of the letter from the Dr the Hon Lockwood Smith to Mr Yadegary, where the Dr the Hon Lockwood Smith declined to make representations on Mr Yadegary’s behalf.
Hon Phil Goff: Did the member understand that question to mean that Dr Smith was criticising Mr Goff for taking up a case on behalf of a person referred to Mr Goff by Dr Smith?
Hon CLAYTON COSGROVE: Correct.
Dr the Hon Lockwood Smith: Does he agree with Mr David Cunliffe MP that Thomas Yadegary “has a plausible case”; that he “can expect to face severe repression in Iran”; and that the decision of the Refugee Status Appeals Authority to deny Mr Yadegary refugee status is inconsistent with precedent whereby a refugee status was granted in refugee appeal 72323/00 because the individual in question would not hide his or her religious beliefs; and if he does not agree, what was wrong with Mr Cunliffe’s argument?
Hon CLAYTON COSGROVE: I restate the fact that when Mr Cunliffe wrote that, he was not Minister of Immigration; he took a representation, as all members do, and dealt with it on the basis of that representation. Can I say, for the record in a general sense, that Mr Yadegary has on numerous occasions taken advantage of all New Zealand’s generous processes. Forgive the length of this answer, Madam Speaker. For instance, there have been three refugee status grants appeals, three Refugee Status Appeals Authority appeals, one Removal Review Authority appeal, six ministerial representations, and two High Court judicial reviews. He failed on all counts—
Dr the Hon Lockwood Smith: I raise a point of order, Madam Speaker. Had I asked the Minister what processes Mr Yadegary had gone through, that would have been a perfectly acceptable answer. But I did not; I asked the Minister very specifically what was wrong with the arguments about the Refugee Status Appeals Authority decision that David Cunliffe put to the Minister in 2004.
Madam SPEAKER: The Minister was addressing the question at great length, and I will not ask him to repeat it.
Dr the Hon LOCKWOOD SMITH: Does he agree with Mr David Cunliffe MP that although the Refugee Status Appeals Authority set a precedent in refugee appeal 74549/02, that Muslim converts to Christianity may be deported if they practise their faith in secret and their family will support this secrecy, Mr Thomas Yadegary should be granted permanent residence as an exception to policy, because his own family is hostile to his conversion to Christianity and will not protect him, thereby exposing him to “significant risk of persecution”; and if he does not agree with Mr Cunliffe’s argument, what was wrong with Mr Cunliffe’s argument?
Hon CLAYTON COSGROVE: What I say is that Mr Cunliffe made that representation as a member of Parliament, as we all do, and treated the representation on its merits. New Zealand relies—
Dr the Hon Lockwood Smith: What was wrong with the argument?
Hon CLAYTON COSGROVE: The member wanted an answer; he will get one. New Zealand relies on advice from the United Nations High Commissioner for Refugees in respect of the appropriateness of repatriating foreign nationals to countries. There has been no advice from that organisation indicating that repatriation to Iran is inappropriate. I also quote the words of one Simon Laurent, convenor of the Auckland District Law Society’s immigration refugee committee, who stated in the New Zealand Herald today: “He [Mr Yadegary] has been through the legal process. He has legally exercised his rights. He’s failed. If he chooses to remain, then he has to choose to remain in custody.”
Dr the Hon Lockwood Smith: Does he agree with Mr David Cunliffe MP that the Refugee Status Appeals Authority has been inconsistent not only in not following its own precedent but also in its reasoning, given that it accepted that Mr Yadegary would not hide his religious beliefs, yet it declined his appeal, on the grounds that if no one found out about his conversion to Christianity, including his family, which is already hostile to that conversion, he would avoid the attention of the Iranian authorities; and if he does agree with Mr Cunliffe, will he intervene to grant permanent residence, as was advocated by both Mr Cunliffe and Mr Goff?
Hon CLAYTON COSGROVE: In making these decisions, all representations from all individuals are considered, and the facts, together with the many processes that Mr Yadegary has gone through, together with the advice from the United Nations High Commissioner for Refugees, from which we have received no advice that it is inappropriate to repatriate Iran nationals to Iran. If the member is suggesting that we throw out every transparent process that the department has, put our finger in the air and take a best guess, then he is entitled to that policy position. That is not mine.
Rt Hon Winston Peters: Is the Minister concerned about the implications this may hold for other pending deportation cases—that is, where the proposed deportee refuses to sign an application for a passport—and would that also influence a recent case where somebody is way beyond $2 million of the taxpayer’s money, should it come to the question of an application for a passport?
Hon CLAYTON COSGROVE: Whilst it would not be appropriate for me to comment on the latter part of the question for obvious reasons, yes, I am concerned, because if we do not deal with these cases in the appropriate manner—that is, go through appeals, representations, the Refugee Status Appeals Authority, the Refugee Status Board, ministerial representations, High Court judicial reviews, and, ultimately, also taking the advice of the United Nations High Commissioner for Refugees—and were to move away from that process and simply take a best guess, then, indeed, we could have a proliferation of people who choose to walk around the system, by destroying papers and falsely claiming they may be injured, or worse, if they were repatriated.
Urgent Debates Declined
Conservation, Minister—Whangamata Marina Decision
Madam SPEAKER: I have received a letter from the Hon Dr Nick Smith seeking to debate under Standing Order 380 the decision of the High Court on 18 September 2006 regarding the decision of the Minister of Conservation on 7 March this year to refuse to grant two coastal permits required for the restricted coastal activities for the proposed marina at Whangamata. The Minister’s decision is not a case of recent occurrence. The decision of the High Court is a matter of recent occurrence, but there is no ministerial responsibility for the decision of the High Court. The application is therefore declined.
Hon Dr NICK SMITH (National—Nelson) : I accept your ruling, but it is a very serious matter when the High Court of New Zealand finds that the Minister of Conservation breached process quite seriously, so I wish to seek the leave of the House for a debate in respect of the decision by Judge Fogarty that the decision by Mr Carter was unlawful. My expectation is that the debate would be in terms of the Standing Orders.
Madam SPEAKER: Leave is sought. Is there any objection? There is objection.
Hon Dr NICK SMITH (National—Nelson) : On that basis, I then seek leave to table the decision of Judge Fogarty, which finds that Chris Carter breached the law in the decision he made on the Whangamata marina.
Madam SPEAKER: Leave is sought to table that decision. Is there any objection? There is objection.
Hon CLAYTON COSGROVE (Associate Minister of Justice) : I move, That the Wills Bill be now read a first time. At the appropriate time I intend to move that the Wills Bill be referred to the Justice and Electoral Committee for consideration.
Wills legislation is relevant to all New Zealanders. It is important to anyone who wants to make arrangements for family and property when he or she dies. The Law Commission reviewed the current legislation in 1997 as part of a wider review of succession law. The commission concluded that the current law generally works well and that there is no need for radical change, but it recommended, one, restating the existing legislation in a single statute in plain, contemporary language and, two, modernising certain aspects of it. I am grateful to the Law Commission for its assistance in preparing the Wills Bill for introduction.
As the Prime Minister explained in her formal statement to Parliament on 14 February this year, the Government is committed to giving priority to a number of Law Commission proposals that update key statutes. The Succession (Homicide) Bill and the Arbitration Amendment Bill were introduced into the House at the same time as the Wills Bill, and we are also working on property law reform. These bills will improve the operation of the existing law, and make it easier to understand.
The intention of the Wills Bill is to make the law clearer, ensure that better effect can be given to will-makers’ intentions, and make it easier for people to make wills. The current wills legislation is set out in six statutes. The principal Act is an Imperial Act, dating back to 1837. It is written in the language and style of its time, and must be read in conjunction with the five Wills Amendment Acts. The language is now archaic and the legislation is not easily accessible. The Wills Bill therefore seeks to restate the law in a single statute in plain, modern language.
The Law Commission also highlighted various ways in which the current legislation could usefully be modernised. I will outline some of the key reforms proposed in the bill. Firstly, a will-maker will still have to sign the will and have it witnessed. Those requirements protect against fraud, but non-compliance can invalidate the will and thwart the will-maker’s intentions. That can be upsetting for the will-maker’s family and difficult to resolve, so the bill includes a number of new provisions to mitigate this risk. For example, the bill proposes that it will no longer be necessary to sign at the end of the will. It will be valid regardless of where it is signed, provided that other formalities are also complied with.
The court will also be able to validate an otherwise invalid will if it is satisfied it expresses the deceased’s testamentary intentions. Similarly, a disposition to a witness or his or her partner is ordinarily void, but it will now be saved if all other parties agree or if the court is satisfied the will-maker made the disposition freely. A further problem is that wills are not always as clearly drafted as one might hope, and errors can slip in unnoticed. The court will be able to correct errors in certain cases, and make greater use of external evidence to interpret wills. Overall, these changes will operate to ensure that will-makers’ intentions are upheld and not frustrated by technicalities.
The bill retains and improves existing provisions that allow young people to make wills. Minors aged under 18 who are or have been married, in a civil union, or in a de facto relationship will continue to be able to make wills. The bill will also allow minors to make a will in contemplation of entering into a marriage or a civil union, although it will take effect only when the marriage or civil union actually takes place. Existing rules that allow other minors to seek approval to make wills will be retained and enhanced. There will no longer be a minimum age—currently 16—for seeking approval and the court will be able to grant general approvals to minors to make and revoke wills if it is satisfied the minor understands his or her actions. At present these minors must reapply to the court every time they want to make or revoke a will.
Currently, a pre-existing will is revoked by marriage unless the will was expressly made in contemplation of that marriage, and divorce revokes dispositions to a former spouse, unless a contrary intention is expressed in the will. Both of these provisions will be extended to civil unions and formal separation orders.
The Wills Bill also makes it easier to dispose of property in some situations. For example, at present a gift to an unincorporated society that is not a charity or does not have a charitable function will fail. The Law Commission noted that there are some unincorporated societies with no, or only doubtful, charitable status, such as iwi or hapū. The bill gives will-makers broader powers to make dispositions to unincorporated societies.
Wills are of practical day-to-day significance for all New Zealanders. A will is an instrument that expresses a person’s wishes after he or she dies, and enables that person to take care of his or her loved ones and property and assets. The proposed reforms will improve the legal framework for will-making. They will make the law easier for people to understand, and reduce the risk of a will-maker’s wishes being defeated by a badly drafted or incorrectly executed will, and will also allow better effect to be given to a will-maker’s intentions. I commend this bill to the House.
Dr RICHARD WORTH (National) : The Minister, in his customary way, has given an enlightening view of what this legislation is all about. It is significant, certainly, in some dimensions. I can remember, as a young lawyer, taking wills up to the then Supreme Court in Auckland and having to explain why there were pin marks on the face of a will, which suggested there might have been some document attached to it at an earlier stage that was relevant to the wishes of the testator.
I guess there is a very basic starting point in looking at this legislation, and that is just to reflect for a moment on what a will is. It is a statement by a will-maker—a testator or a testatrix—of how the will-maker wants his or her property to be dealt with when he or she dies. It has traditionally been the legal position that two governing principles hold sway in the area of wills. The first is that it is important that the ascertainable intentions of the will-maker be upheld. That, of course, has been eroded by a number of statutes, of which the Family Protection Act and the Law Reform (Testamentary Promises) Act are two examples. The second is that great care should be taken in determining whether what is claimed to be an expression of a will-maker’s wishes is genuinely so because, of course, a will operates once the testator or the testatrix is dead and he or she is no longer present to be able to speak as to what those particular intentions were.
As a matter of history, and as the previous speaker has noted, the current law is contained in the Wills Act 1837. Of course, we did not have a Parliament in 1837, so the position is that this is old imperial legislation that by dint of the Imperial Laws Act passed into force in New Zealand. If one looks at the Wills Act 1837, one can see that over time there have been desultory amendments. There was an imperial amendment in 1852, a further amendment by the New Zealand Parliament in 1955, and subsequent amendments in 1969 and 1977. So this is hugely old law, on any view of it. Prior to 1837—in fact, until early in the 17th century—the English law was, pretty much, shaped by a sharp divide between the rules relating to land and those governing other types of property, and that was a reflection of the importance of land tenure in the feudal system. But, of course, the Wills Act 1837 made major changes in that area and tried to align the rules governing realty with those of personalty.
I believe that the Law Commission was right in its view that there was no need to radically change the substantive law. This bill is very closely patterned on work of the Law Commission that was done some years back—in fact, in October 1997. There is a clear case for updating the law: firstly, it does need to be restated in language that is more contemporary and plain; and, secondly, there are some minor respects in which the substantive law of wills can be modernised. If one looks at the Wills Act 1837 on that first point, which is concerned with plain English and ready understanding of the law, one can see some good examples in that old legislation of why change is required. The first one I pick up is the actual definition of “will”, which is in section 1: “The word ‘will’ shall extend to a testament, and to a codicil, and to an appointment by will or by writing in the nature of a will in exercise of a power, and also to a disposition by will and testament or devise of the custody and tuition of any child, by virtue of [the Tenures Abolition Act 1660], or by virtue of an Act passed in the Parliament of Ireland in the fourteenth and fifteenth years of the reign of King Charles the Second, intituled ‘An Act for taking away the Court of Wards and Liveries, and tenures in capite and by knight's service’, and to any other testamentary disposition;”. I doubt that even lawyers of today would clearly understand the scope of that particular definition. So we see in clause 8 in the new legislation, simply recorded, that a will includes a codicil and any other testamentary disposition.
One can find a second example in section 13, “Publication of will not requisite”, of the Wills Act 1837. That section simply reads: “Every will executed in manner hereinbefore required shall be valid without any other publication thereof.” Before one can even begin to understand what might lie behind that section, one needs to know that the term “publication” was intended to mean a declaration by the testator to witnesses that the document shown to them was the testator’s will. We now have in clause 12(2) a more simple statement that a will that is executed in accordance with the Act is validly executed, even if a witness to the will did not know that it was a will.
I would now like to talk very briefly about the formalities for making and revoking a will and how they are changed by this legislation. The law has been very clear that for a will to be valid it should be signed in the presence of two witnesses together at the same time, each of whom signs in the presence of the testator. If one looks at a will today, one will actually see that formal obligation in the attestation clause. The reasons for requiring the three players—the testator and the two attesting witnesses—to be together are really these: the first reason is cautionary, so as to help the will-maker appreciate that the document is being solemnly signed; the other reason is probative, so as to ensure that what is put forward after the death of the will-maker is in fact a genuine expression of the testator’s testamentary intention.
When it comes to the testator’s need to sign the will, there are all sorts of subtleties in terms of the law. Words such as “amanuensis” have relevance when, for example, a testator may be illiterate, blind, or under some other form of disability. Those who propound this bill would wish to see some changes there, but these changes are quite limited. It seems to me that there is no reason why the formalities should not be dispensed with if the testator’s intention that the document should operate as a will can be established by other means. Similarly, the court should be able to uphold a disposition to an interested witness if satisfied that the testator intended the provision freely and voluntarily. It was always a trap for young players that if a person who signed the will as a witness was named in the will as a potential beneficiary, then the fact that he or she had acted as a witness disentitled him or her from the benefits the will provided, and there is to be a change in that regard. Finally, if the testator had the necessary will-making intention, it should no longer be essential that his or her signature be at the foot, or end, of the will.
I finish on two points. The first point the Minister similarly noted, and that is that one of the areas of major change in this bill relates to young people and the making, revoking, or changing of a will. There is no longer a minimum age at which a person may make a will, and persons aged under 18 may make a will if they are intending to marry or enter into a civil union. There are, though, control measures, and that is clearly appropriate, because the jurisdiction for approving wills made by young persons has moved from the District Courts and the Public Trust to the Family Courts. The Family Courts have power to give young persons a general, rather than only a specific, approval to make changes.
Finally, I finish with the point that there are provisions for informal wills, particularly those touching servicemen and women. National supports this bill going to a select committee.
LYNNE PILLAY (Labour—Waitakere) : It is a pleasure to stand in support of this bill. The bill is important—it recognises the necessity, the rights, and, in fact, the responsibilities of people to make arrangements for their family, friends, and property when they die. The Wills Bill is not a radical bill, at all. It does not radically reform existing law relating to wills, but makes it easier for people to understand. The aim of the bill is to restate the existing law into a single statute, in plain, modern language that is both clear and accessible.
I know that the Law Commission has been acknowledged but I want to do that again. The background is that in 1997 the Law Commission reviewed the wills legislation, which currently comprises six statutes, as part of a wider review of general succession law. It recommended restating and modernising the law into a single statute, and modernising the law of wills in certain minor respects. The changes to the legislation that have been made from the recommendations bring it up to date with modern New Zealand—if I can use that term—and take into account certain developments, such as de facto and civil union relationships, that have occurred since the report was published in 1997. As the previous speaker said, the bill also removes the minimum age at which a person may make a will, and those aged under 18 will be able to make a will if they are intending to marry or enter a civil union.
I commend the Minister, Clayton Cosgrove, for bringing this bill to the House, and the Law Commission for the work it did. As chair of the Justice and Electoral Committee I look forward to working with the committee and hearing submissions in order to make sure that we return the bill to the House with recommendations so that it is in the best order possible. Thank you.
CHRISTOPHER FINLAYSON (National) : I endorse what my friend Ms Pillay said. As deputy chair of the Justice and Electoral Committee, I am looking forward to going through this bill very carefully. As Dr Worth said, National supports the first reading.
The bill, in my opinion, is well overdue; after all, as Ms Pillay said, the Law Commission presented its report on 23 October 1997. It was a very good report. It reviewed the current legislation as part of its work on succession law, and later today a bill dealing with the effects of homicide on the rights of succession will be introduced, which is another part of the Law Commission’s work.
In my opinion, there really does have to be a better way of dealing with reports of the Law Commission. Although it is very pleasing that several of its reports have been acted on this year—and I understand that the Property Law Reform Bill is shortly to be introduced—it really is in the public interest that the quality work of the Law Commission be acted on earlier. In my opinion, a 9-year gestation period for legislation such as this is too long. Much of the Law Commission’s work could be called lawyers’ law. To the layperson it may appear to be unexciting or even boring, but it is essential work. For example, a functioning civil and criminal justice system requires up-to-date laws of evidence.
Every person needs to have a will. Accordingly, wills legislation, which probably affects everyone as much as tax legislation, needs to be simply and carefully drafted. I strongly endorse the aims of the Law Commission’s succession project, the aim of which was to have new succession legislation drafted in plain language that provides for succession law in fewer statutes, simplifies the law, enables better effect to be given to the intentions of will-makers, and takes into account the diversity of New Zealand’s families.
So what is a will? The term is defined by clause 8 of the bill. It is a statement made by a person who is called either the testator or the testatrix, and it explains how that person wants his or her estate to be dealt with after death. There are two fundamental principles to the law of wills. The first is that the will-maker’s ascertainable intentions should be upheld and the second is that great care should be taken to determine that what is claimed to be an expression of a will-maker’s wishes is genuinely so. The reason for that is obvious: a will comes into effect when a person can no longer speak for himself or herself.
In preparation for my first reading speech, I did quite a bit of research on the history of wills. It seems that wills have literally been with us since the time of Adam. It is said that Adam made a will, and that 70 legions of angels brought sheets of paper and quill pens to Paradise and the Archangel Gabriel acted as a witness. However, there is no credible evidence to justify that. I do not think it is even in Genesis, and I am sure that the probate registrar would not have been impressed.
Apparently, the oldest will was an Egyptian will. The Greeks had wills, and the Romans did as well. They developed the will as it is known today, but they had a major problem with forged wills, so Nero—of all people—introduced the practice of securely fastening them with tape and sealing them, just as many of them are fastened and sealed today.
Going through history, I can tell members that Jonathan Swift’s will was apparently a cracker. It was so popular it was published in London shortly after his death, and sold well. His will, which was written in the Swift style but without the usual sarcasm, includes a gift of a picture “To my dearest friend, Alexander Pope”, as well as the famous legacy for building St Patrick’s Hospital for idiots and lunatics. Then there was Nelson, who gave the order that “England expects every man to do his duty” at Trafalgar. He went down below deck and made a codicil to his will, then promptly came back on deck and was killed. Those were quite dramatic circumstances. The fact that England chose to ignore the wishes expressed in his codicil was also dramatic, because he had included a special plea for the King and country to provide for his mistress, Lady Hamilton. But they didn’t; instead, they imprisoned her for debt, and conspired to drive her out of England.
Finally, in this romp through history, I can tell members that Napoleon made a will. Indeed there were seven codicils, in which, among other things, he blamed everyone else for his failures. I am sure the Prime Minister’s will would be similar. And then there is the will of William Shakespeare—which was comparatively easy to find in the Public Record Office—written by himself, and containing a clause that has mystified all those who have read it since. Why did he give only his second-best bed to his wife? So there we have it—wills have been with us for many years, indeed.
There are certain formal requirements for the making of a will. A will should be signed and acknowledged in the presence of two witnesses together at the same time, and each of those witnesses must sign in the presence of the will-maker. But there are no formal requirements as to the form of the paper. Indeed, I can go back to my trust and equity days and recall a case called Barnes and Barnes, wherethe widow of the deceased arrived in court with a will written on an egg, resting in a box filled with cotton wool. After the case started His Lordship pointed out that the egg had not been witnessed. Apparently the testator was a mariner at sea who was sick of lawyers’ bills, so whilst at sea had drawn up that will in which he left everything to his wife. The evidence and the argument went on for 2 days, and eventually His Lordship condemned the eggshell will. It was certainly a strange case, but nothing as strange as the case where the bill of exchange was endorsed on the side of a living cow that was led into the bank by its owner. Apparently the owner had been having a fight with the inland revenue department in England.
I can also recall reading cases about handwritten wills, which, though uncommon, are actually perfectly valid. I note that clause 11 contains a minor change to the law of wills: the testator’s signature is no longer required to be placed at the end of the will. That does seem to be, in my opinion, a rather odd provision.
Before making preliminary remarks about some of the detail of the bill, I will briefly go through the history of wills legislation. Dr Worth has referred to the position before the 17th century, and I will not repeat that. In 1837 the Wills Act was passed by the Westminster Parliament and, as several speakers have remarked, it remains in force in New Zealand. There have been the occasional amendments to it to accommodate changing social conditions, but essentially the 1837 legislation has been the foundation stone of New Zealand’s law of wills.
As the Law Commission’s report says, the Wills Act sets out principles that are generally understood by people with no legal training, and generally it has worked very well indeed. That must have been the case for it to have lasted this long with only minor amendments. It is for that reason that the Law Commission suggested that fundamental changes to the legislation would be neither necessary nor wise. So why make a change to the law if it is working well? There are two reasons, and those are set out in the explanatory note of the bill. The first reason is to restate the existing law in a single statute that is expressed in plain, common language. That means the law can be more readily understood and applied. Second, the substantive law in a couple of respects can be usefully updated and modified.
As to the first point—and this has been touched on by both the Minister and Dr Worth—I say that the general trend of legislation has been to make it as understandable and accessible as practicable. That has been a major aim of the work of the Law Commission over the last 20 years. Clause 8, as Dr Worth said, provides a good illustration of simplification. The term “will”, as it is defined in the bill, is infinitely superior to the complex terminology of the 1837 Act.
The second reason, as I have said, is to modernise aspects of the law of wills, and some speakers have already referred to clause 10, which we will look at in detail later on. There is no longer a minimum age at which a person may make a will. Originally, the minimum age was 21 years. I understand the age was reduced to 18 by a 1969 amendment, and now persons under 18 years may make wills in the circumstances briefly elaborated on by Dr Worth.
Part 1 deals with the preliminary provisions. There are a number of subparts in Part 2 that the select committee will want to pay a lot of attention to, particularly those dealing with administering wills. I am going to take a good look at clauses 31 and 32. There are provisions about the wills of persons, military or seagoing and there are certain transitional provisions.
So, as Ms Pillay said, this is a piece of legislation that need not divide the House. It does, however, require careful analysis, and I join with her and with other members of the Justice and Electoral Committee in looking forward to its coming to that committee so that we can take a good look at it and update the law. Hopefully, that law will be able to stay in place for as long as the 1837 Act has.
R DOUG WOOLERTON (NZ First) : New Zealand First supports the Wills Bill going to a select committee. I am pleased to be following Chris Finlayson. I thought that if anybody could give some elucidation to this matter, and find something of interest, it would be him, and so it proved to be. For a thumbnail sketch of the history of wills I do not think we could have done better, and I congratulate him on his speech. I thought he stretched the point a bit when he said that some people would find it boring. I do not know how he could possibly say that. At times during his speech I actually thought I saw the Minister in charge, Clayton Cosgrove, getting overly excited and that is not a pretty sight.
New Zealand First is in favour of anything that makes the law simpler, more modern, and easier to understand. It comes as much as a surprise to me as it does to anybody else, but I actually have a daughter who is a lawyer—God bless her soul. She is taking a year off at the present time but returning to the law in the new year. She gave me less confidence in the profession when we were talking about a relative’s will, where it may go, and what may happen to it. She said: “Never mind, dad, there’s probably not a will that I couldn’t overturn with a half reasonable excuse.” So my faith in the solemn activity of making out a will just went right down the drain at that point. But at least this bill does something about making wills more modern. It brings into play the new marriage laws and that sort of thing, and New Zealand First is in favour of that.
NANDOR TANCZOS (Green) : On behalf of the Green Party, I rise to also express our support for the Wills Bill. As has been said by previous speakers, the bill will not excite a great deal of controversy or argument, I think, although there may be issues in the bill that I have missed, and I would be interested to hear about them if any do arise. Of course, during the select committee process the bill will be combed through and looked at for unforeseen fish-hooks. As a member of the Justice and Electoral Committee, I have to say I do not face this matter with the same degree of excitement and anticipation as some of the lawyer members of the committee. Nevertheless, I expect it will be quite interesting to get into it, and to look at how the rules currently work and how they should best be enacted in the 21st century.
Certainly the recommendation of the Law Commission that there was a need to restate the law in plain language in a single statute is worth heeding. I note that there is an international campaign, really, for the redrafting of legislation in plain language, and for there to be something that is easy to understand and that is accessible to the ordinary person. I think that that is useful, particularly in the law relating to wills, because a lot of people will make use of it. Wills are an important consideration for a lot of people, and they need to have simple and easy access to the law in a single piece of legislation and in plain language. I am very supportive of the intention of the bill to make the law relating to wills accessible to ordinary people.
I will not go on at great length about the bill, because I think previous speakers have quite thoroughly canvassed the various provisions of the bill, some of the reasons for them, and some of the colourful history of wills internationally. I will draw a couple of items, which have already been mentioned, to the attention of House. The first concerns clause 10, “Persons who may do testamentary actions”. Subclause (1) states: “A natural person of 18 years or over may do all the testamentary actions.” Subclause (2) states: “A natural person under 18 years may do all the testamentary actions if he or she—(a) is married, in a civil union, or in a de facto relationship; or (b) has been married, in a civil union, or in a de facto relationship.” Subclause (3) then states: “A natural person under 18 years may make a will if he or she and another person have agreed to marry each other or enter a civil union with each other.” If none of those conditions apply, then people under the age of 18 need to get the approval of the Family Court.
The issue of age limits is something I have found quite curious in legislation. I remember, when we were going through the Civil Union Bill, finding the quite anomalous age restrictions that apply in different legislation. I am very strongly of the view that legislation should as far as possible be consistent, particularly in matters such as age limits. The laws around age limits are widely varied, and this bill is a good example of that. I for the life of me cannot think why someone who is married, in a de facto relationship, or in a civil union can make a will, but someone who is not in such a relationship has to go to the court to get approval. That seems to be kind of bizarre. If I have shacked up with someone, does that mean that I have suddenly become more mature and more in control of my financial affairs? I do not think so. I think that we should look at that issue during the select committee process. As I say, that provision does mirror provisions in other legislation whereby people who are married, in civil unions, or in de facto relationships are somehow seen to be more mature than other young people. I think we will want to consider and address that.
The other item is in response to Mr Finlayson’s point that wills will no longer need to have a signature at the end. He thought that was a curious measure. Well, it seems to me to be fairly sensible, actually. The idea is that a person can sign anywhere on the document, as long as the signature is that person’s signature and clearly indicates his or her will. A signature at the end clearly indicates the end of the will, so that someone cannot add little bits at the end. I do not see any reason why one should be required to sign a will just at the end, and I do not see why that provision should be viewed as a curious measure.
Apart from that, as I have said, I cannot see any particularly difficult fish-hooks in the first reading of this bill, other than the issue I mentioned in relation to age. We do support the referral of the bill to the select committee, and we look forward to going through the finer details of the bill during that process and coming back to the House for the report back.
Dr PITA SHARPLES (Co-Leader—Māori Party) : One of the most memorable moments in the last few months was the formal raising-up ceremony for Te Arikinui Tuheitia Paki, the Māori King. Cloaked in the kiwi-feathered korowai of the second Māori King, Tāwhiao, the new king was tapped on his head with a Bible by a descendant of Wīremu Tamihana, the first kingmaker. It was the same Bible that had been used to crown the six previous Māori monarchs since the first coronation in 1858. Moments before his ascension, senior Tainui kaumātua Tūi Adams turned to the people and asked whether Tuheitia should be king. “He kingi?” he asked. “Ae.” they replied. “He kingi?”, “Ae.” they repeated. “He kingi?”, “Ae.”, and so it was to be.
With that, the will of the people, the declaration confirming the transfer of political leadership, was complete. It was a formalised and highly public ritual, which enabled effect to be given to the intention of the will-maker, the late Queen, Te Atairangikaahu, in a language that was plain, and that simplified the process. It provides an excellent precedent in which to understand the reform of the Wills Act 1837.
According to the Law Commission’s 1997 report, the two key principles governing the law of wills are that a will-maker’s intentions should be upheld, and also that great care should be taken in determining whether what is claimed to be an expression of the will-maker’s wishes is genuinely so. The process of the performed will or ōhākī, as I have outlined above, is clearly relevant in understanding how tangata whenua—Māori—view the execution of wills. Whilst the Wills Act 1837 from the United Kingdom remains the foundation of New Zealand’s law of wills, for Māori the ōhākī, or the dying declaration of the will-maker, has established a robust model that could assist New Zealand lawmaking.
It is a tradition that has been carefully passed down through generations. For example, in the days leading up to his death in 1894, Tāwhiao, the second Māori King, announced his successor with these words: “Papā te whatitiri, ka puta Uenuku, ka puta Matariki, ko Māhuta te Kīngi—the thunder crashes, Uenuku, the rainbow god, appears, the constellation of Matariki heralding the start of a new year is present, and in its midst we welcome Māhuta, the new king.” Tāwhiao’s dying declaration performed the function of a written will. His intentions are manifest in a public performance of which there are sufficient witnesses to both confirm the event as well as gain tribal support. The action was easily understood, the dying king’s intentions were transparent, and the record shows it to be highly successful, despite the absence of lawyers or the Public Trust Office.
In his 1960 text, Maori Land Law, Smith explains that the strong Māori tradition of ōhākī would be acted on without question by the relatives after death. In 1895, the Māori Appellate Court recognised the custom of ōhākī in respect of Māori customary land, but the Native Land Laws Amendment Act of that same year, 1895, was passed to abrogate by statue what had been passed in law.
I have taken the time to share our customs of ōhākī with this House because in many ways I think tangata whenua had a model to authorise the genuine expression of will-makers’ testamentary intentions, which could well have been useful in this Wills Bill. The customary practice of ōhākī of providing for a bequest escaped the rigidity of turgid legalese of existing laws of wills derived from the 1837 Imperial Act. It was acknowledged and recognised by the people as having great meaning in informing Māori decisions about succession to ancestral property. It was a custom that has been carried out over the generations and over centuries, and still holds value.
Indeed, in 1913, Frank Acheson, judge of the Whanganui—and later the Tai Tokerau divisions of the Native Land Court—analysed in detail Māori land law including that relating to wills. His work has been described as being marked by “a detailed knowledge of Native Land Court practice and by a sophisticated understanding of jurisprudence and international law.” And, importantly, for modern-day Parliament almost a century later, the process of ōhākī still has currency amongst tangata whenua. Members of the House may recall the acknowledgment given to Sir Graham Latimer by the late Dame Whina Cooper not long before her death in 1995. In her last days, she recognised Sir Graham as the person to whom she bequeathed the responsibility to continue the work that she had begun. Sir Graham took this ōhākī and honoured it in a way that was befitting of the person from whom he received this bequest.
The Māori Party believes the existence of the formalised and mostly oral tradition of ōhākī has great interest alongside the bill currently before the House to make the law clearer and more accessible. It makes one wonder at the wisdom of the law-making process that a perfectly appropriate procedure for bequeaths is accepted into law, yet rejected a few months later, and to this day, it still has meaning and relevance for a significant group within our population.
I contrast our customary processes of ōhākī with that of the New Zealand Defence Force and the provision for informal will-making that presently exists in the armed forces. The Wills Bill restates the existing law that allows soldiers and sailors to make informal wills in plain language. There are currently provisions for what is described as a “privileged person” within the armed forces, seafarers at sea, and prisoners of war for informal will-making. In the circumstances of dangerous active service, these persons of privilege are able to make, amend, and revoke a will urgently without satisfying the usual formalities. The question the Māori Party inevitably asks is how tangata whenua achieve the status of a privileged person, in order to have our processes recognised as those personnel are.
Finally, I refer to the disposal of Māori land under a will. Te Ture Whenua Maori Act 1993 provides a further and quite broad exception to the principle that testators should be free to dispose of their interests as they see fit. Succession to Māori land is dealt with under section 108 of that Act. Māori land interests or Māori incorporation shares can only be left to children or descendants, brothers and sisters, anyone else entitled to receive interests by whakapapa or related to the testator by blood who is a member of the hapū associated with the land, other owners of the land who are members of the hapū associated with the land, whāngai—adopted—of the testators or trustees of the above. If Māori land is willed to someone who does not qualify, that part of the will is invalid. The court will then determine who should succeed to the land on the basis of law.
I conclude with one case that puts these principles into practice. The case of Tukua and Maketū C2 B Block, heard in the Māori Land Court and Māori Appellate Court in March 2000, tells the case of a declaration from George Tukua, in a will made in 1993 to leave Maketū C2 B block to his whāngai adopted son from a de facto relationship, Te Kahuhui, in “recognition of his love and support for me.” There was no question that the will was subject to Te Ture Whenua Māori Act. Section 108 of that Act limits the persons to whom Māori freehold land may be left by will. The court was not satisfied that Te Kahuhui possessed a blood or whakapapa relationship with the deceased. It did, however, consider his eligibility to the bequest as a whāngai, which section 3 defines as a person adopted in accordance with tikanga Māori. The court concluded that although custom generally favours a kin-based whāngai relationship, in this specific case, the relationship was compounded by another customary practice—the practice of ōhākī, or bequest. Furthermore, there was evidence of a long and close relationship between the deceased and Te Kahuhui, which was the key factor in this case. The court upheld the bequest.
The issues associated with land, with succession, with bequests, and with death are of huge importance to our whānau. The Māori Party will support the bill to select committee as we support the progress it has made in eliminating the anomalies and anachronisms of the existing laws on wills. We are also pleased that in expressing the law in language that is more contemporary and plain, the legislation should inevitably assist whānau, hapū, and iwi in gaining access to due justice. However, we hope that during the select committee consideration the important issues of whakapapa right to succession, ōhākī, the status of whāngai, and informal will-making are given due consideration.
NICKY WAGNER (National) : The Wills Bill, as we have heard, is designed to replace very old and foreign legislation—the Wills Act, which dates back to 1837 in the UK. Like anything from that distant past, the terminology is rather archaic. That makes it difficult for present day will-makers to create a will that clearly gives effect to their intentions. Although the provisions of the legislation are largely still effective, there are also some anomalies that need to be addressed, so it makes sense to simplify and modernise both the language and some of the law. But let me make it clear that this bill is not a wide-ranging reform. It is a tweaking of the law and the language to make the law more accessible and easy to administer, and that has to be a good thing. I believe that it is comforting to all of us to know that others will conscientiously interpret our intentions accurately when we have passed on and are no longer here to defend our own interests.
Changes in the nature of modern relationships and lifestyles are also recognised in this new bill, with the existing rules being extended to include couples who have entered into civil unions. A few anomalies are also ironed out. Under current legislation, formally separated spouses or civil union partners cannot inherit their estranged spouse’s estate if there is no will, but if there is a valid will at the time of death, they can inherit. Under the new bill, spouses will be unable to inherit if a separation order is in force, regardless of the status of a will. That seems to be a common-sense change.
The Wills Bill reinforces the present law around who can make a will, which is anyone, as of right, who is over 18. It also increases the flexibility for those who are under 18 and want to make a will. Anyone under 18 years can make a will if he or she is, or has been, married, in a civil union, or in a de facto relationship. I refer to the comment made by Nandor Tanczos—I agree with him that just because people are married or in a civil union does not mean that they can manage their financial affairs any better. It is common sense that we have a further provision allowing people under 18 years who want to make a will to go to the Family Court. As long as they understand the nature and effect of their actions, they can get the court’s approval to make a will. That is a substantial change, because previously people had to be 16 before they could even get permission to make a will. The provision is also much more detailed, because it allows the will-maker the flexibility of getting a general exemption rather than having to return to the court every time any change has to be made.
People who have current wills and are still alive to consider the options can rest easy that they will not need to change their wills unless those wills are particularly badly drafted or full of errors—and, let us face it, if that is the case, they might be wise to make changes any way. Under the new bill the High Court has the ability to correct errors. It has a much higher power to correct errors and to use internal evidence to interpret wills for the prime reason of making sure that the will-makers are getting what was intended.
It has already been mentioned by several speakers tonight, but I think it is important to understand, that it is no longer necessary for the testator actually to sign the will. Another person may do that under instruction as long as it is witnessed by two witnesses, who need to be present when the will is made. That also applies to any kind of change or amendment made to the will. Also, some flexibility is allowed for the High Court to validate a will even if it does not meet these formalities.
So National supports the Wills Bill. Simplified and streamlined language and legislation concerning wills can only give the public more certainty and clarity in the writing of wills, and that will mean for them generally a feeling of security that their intentions will be honoured, which has to be a good thing.
- Bill read a first time.
- Bill referred to the Justice and Electoral Committee.referred to Justice and Electoral Committee
Succession (Homicide) Bill
Hon CLAYTON COSGROVE (Associate Minister of Justice) : I move, That the Succession (Homicide) Bill be now read a first time. At the appropriate time I intend to move that the Succession (Homicide) Bill be referred to the Justice and Electoral Committee for consideration.
No one would dispute that it is repugnant to allow a person to benefit financially from his or her criminal activity. That concern is reflected in the general rule that killers cannot benefit from their victim’s estate. The Law Commission reviewed the operation of this judge-made rule in 1997 as part of a wider review of succession law. It recommended enacting legislation to codify and clarify the general rule for the following reasons. Firstly, the general rule is well accepted, but its application to individual cases can be uncertain. Those uncertainties are currently resolved through litigation on a case by case basis but can delay administration of the estate and be costly for modest estates. Secondly, these cases are more common than one would like to think, because a significant proportion of homicides occur in a domestic setting. Finally, legislation would remove any doubts about whether a judge can, as a matter of constitutional law, properly override the statutory provisions concerning the distribution of estates of people who die without making a will.
The bill will make it easier to administer estates, and reduce the number and scope of disputes. I am grateful to the Law Commission once again for its assistance in preparing the Succession (Homicide) Bill for introduction. The bill was introduced into the House at the same time as the Wills Bill that we have just debated, and as the Arbitration Amendment Bill, which we are about to debate. These three bills give effect to useful reforms recommended by the Law Commission. They will improve the operation of existing law and make it easier to understand. I will now outline the key features of the Succession (Homicide) Bill.
Simon Power: Just table it.
Hon CLAYTON COSGROVE: I know that the member is riveted by the legislation. The bill clearly defines when a killer will be prevented from benefiting from his or her victim’s death, and how property should be disposed of in such cases. Administrators need to be able to readily ascertain whether an intended beneficiary is disinherited. So the bill clearly defines when an unlawful killing will prevent a killer from benefiting. Essentially a person who, acting intentionally or recklessly, unlawfully kills another person or an unborn child, will be prevented from benefiting economically from that person’s death. Unlawful killings can arise in an infinite number of scenarios, and society and the courts do not view all killings with equal condemnation. The following types of unlawful killing will therefore not trigger the bar on profiting: negligent killings; infanticide, which is a diminished responsibility offence defined narrowly in the Crimes Act; killing another person pursuant to a suicide pact, which is again narrowly defined in the Crimes Act; and assisted suicide, which is narrowly defined in the bill itself.
The Law Commission noted that sympathy might also be extended to abused partners who deliberately kill their abusers. Under the existing criminal law there is no defence of “battered woman syndrome” as such, but it may be relevant to whether the person acted in self-defence. If the person did act in self-defence, that person will not be guilty of murder or manslaughter. Ultimately the commission followed the status quo in the criminal law and did not recommend specifically excluding the battered person from the legislation. Therefore, unless the battered person was acting in self-defence, that person will be disinherited. However, the same applies to the abuser. Abusers who, acting intentionally or recklessly, unlawfully kill their victims will also be disinherited.
The bill prevents killers inheriting from their victim’s estate. However, certain property interests do not fall into a person’s estate when that person dies. The bill calls these the “non-probate assets” and they include things like joint tenancies or certain trusts settled by the victim that he or she could have revoked while still alive, and gifts made by the victim in contemplation of death. The bill also prevents the killer from receiving any of these. The property will be distributed as if the killer had died before the victim. So, for example, if the killer and victim own property as joint tenants, the killer will lose his or her interest altogether. With joint tenancies, two or more people jointly own property and when one dies their share automatically passes to the surviving joint tenant or tenants. It would be unfair for a killer to inherit the victim’s share in that way. So a person who kills a fellow joint tenant will be treated as dying before the victim and will forfeit his or her interest. However, the bill otherwise generally recognises that a killer should not be deprived of pre-existing interests like a valid prior claim under the Property (Relationships) Act provided that those property interests should not be made any more valuable, immediate, or certain as a result of the unlawful killing.
Finally, a practical problem for administrators in these cases is establishing whether an intended beneficiary killed the deceased, because under current law a criminal conviction is not conclusive evidence in civil proceedings of criminal responsibility for the victim’s death. The bill therefore provides that a conviction in New Zealand is conclusive evidence that a killer was in fact criminally responsible for the victim’s death for the purposes of these inheritance provisions. In some cases an alleged killer may not have been prosecuted in New Zealand at all. The death may have occurred overseas or the alleged killer may have subsequently died or become unfit to stand trial. The court will therefore be able to determine on the balance of probabilities whether, if the person had been prosecuted here, he or she would be guilty. The finding will impact on inheritance rights only; it will not result in a conviction or sentence.
The bill, which has been developed on the basis of the Law Commission’s recommendations, provides welcome clarification of the law. It will allow estates to be administered more efficiently while still registering society’s objection to the possibility of criminals benefiting from their actions. I commend the bill to the House.
SIMON POWER (National—Rangitikei) : This will be one of the rare occasions when Clayton Cosgrove and I agree. The National Party will be supporting the Succession (Homicide) Bill through its first reading and its referral to a select committee. But it would be wrong for the House to assume that this matter is straightforward or simple, because actually it is not.
The Minister raised in his speech a number of issues, which I stand to be corrected on if I heard him incorrectly. It seems to me that a number of issues remain outstanding in respect of this bill. One relates to the situation the Minister described of the effect of somebody who, acting in self-defence, kills another human being, and whether that individual would be considered to be a killer for the purposes of this legislation. Although members would agree that killers should not benefit from their actions in respect of any inheritance they may gain, it is important that the rights of certain individuals—in terms of their classification as killers—are made clear during the select committee process. If a woman, acting in self-defence in a very violent relationship, killed another human being, was considered to be a killer for the purposes of this legislation, and then found herself without recourse to the deceased’s estate, I would have difficulty with that.
There is also a further interesting question—and I certainly look forward to taking part in the select committee process, if I am able to do so—around the Minister’s comments regarding joint tenants. Unless I heard the Minister incorrectly, which is always a possibility, it seems to me that in the event of one joint tenant killing the other joint tenant, and the killer joint tenant being considered to be deceased prior to the victim’s death, under the law of joint tenancies, he or she does not automatically inherit the victim’s property. The question for the Minister and for the select committee is whether the killer joint tenant’s heirs and successors have any ability to access the estate of the joint tenant who was killed during that particular exchange.
Although at first glance the legislation seems to make sense and to be sensible, having listened to the Minister, I find there are a number of complex issues that indicate to me that this bill will require some work. For example, I ask the Minister at what point the killer, as defined in this legislation, is disinherited, as it were. Is it at the point when all appeals have been exhausted, or is it at a defined point along the road of appeals? For example, if the killer disputes the circumstances surrounding the death of another human being, is it then that the decision is taken—at that time; at the point of first conviction—that that individual is no longer entitled to inherit? What if, for example, Arthur Allan Thomas had, under legislation like this, been considered to be disinherited, but, subsequent to a series of appeals having been exhausted, a royal commission or the like found that that individual was, in fact, not the killer in question? You see, that issue might be solved by way of compensation at that point, but would that compensation have to take into account the lost opportunities that such an individual would otherwise have had if he or she had legitimately inherited the goods and property of the person who was then deceased?
So although at first glance the bill makes some sense and National will support its referral to a select committee, I say—through you, Madam Assistant Speaker, to the Minister—that these issues are complex. It seems to me that some other parties in this Parliament will need to give some pretty clear thought to some of the issues. We need to be sure, at the point when guilt is aligned with an individual and the circumstances surrounding the crime are established, that defences have been exhausted. For example, if an individual kills another human being and is found guilty but insane, is it then the case—in the case of joint tenants—that that individual’s heirs and successors have no claim at all on the other tenant’s property and other estate?
I note that the bill addresses the issue of assisted suicide, and knowing Peter Brown’s interest in matters relating to euthanasia, I am sure he and his colleagues will need to be reassured in regard to that issue.
I do not want to say much more than that. I thought at first glance that this bill was relatively straightforward. The more I think about it—and I do thank the Hon Clayton Cosgrove for his opening remarks, because members often tend to listen to a Minister’s first reading speech and think that the officials did a good job of putting the speech together—the more I think that a number of issues arose in the Minister’s opening statements that National will need some clarification on. Firstly, I think that the issue of the killer—the issue of someone who has acted like an automaton or in self-defence, or who has been found guilty by reason of insanity—is one that needs to be addressed. Secondly, I think that the appeal process and the point of defining guilt are important, particularly if we use, say, the Arthur Allan Thomas case to highlight that issue. Thirdly, I think that the issues around the joint tenancy problem—in particular, the rights of the heirs and successors of the killer joint tenant, for want of a less clumsy phrase—need to be clarified for the sake of certainty at the point of the select committee’s consideration of the bill.
There is no doubt that New Zealanders and the National Party believe that those who break the law should not benefit from the breaking of that law—curious, in the current political environment. But the point is that the law around homicide is complex. I look forward to seeking the permission of National’s whip to attend the Justice and Electoral Committee in order to debate these issues further and to listen to the submissions on the bill. We will support this bill at its first reading and the sending of the bill to the select committee.
CHARLES CHAUVEL (Labour) : I rise briefly to support the first reading of the Succession (Homicide) Bill. As has been said, the bill is based on the principle that no one should profit from his or her own wrongdoing. That is a settled principle of New Zealand law. It is a principle that the bill will follow and that, in my view, deserves support. Obviously, despite that principle—as the previous speaker mentioned—there can be uncertainties as to how the principle ought to be applied in certain cases. We have seen numerous examples through the courts of time-wasting, time-consuming, and costly litigation as a result of uncertainties around the application of the principle.
As the Minister said, numerous homicide cases are domestic—I think that the figure was up to about half of them. So the issue of profiting through murder—for example, through inheritance—is very pertinent. The bill seeks to codify the law that prevents a killer from inheriting his or her victim’s estate. This will reduce the number and scope of disputes over victims’ estates, and that principle deserves support.
I just want to add one other matter. I attended the Law Commission’s 20th anniversary seminar on 25 August. One of the matters raised there was the need for the Law Commission’s recommendations and reports not to be ignored by this House, or by Parliament itself in general. The point was made that often—as Mr Finlayson has said in respect of an earlier bill—law reform matters are seen as lawyers’ law. They do not grab headlines. They are not something that often the general public is drawn to consider, but the draft bills appended to Law Commission reports are usually important technical legislation. They almost invariably follow a long and considered process whereby experts in the area consider the issues at stake and come to a considered view as to what the law should be.
It is good, in my view, to see that Law Commission proposals are now being advanced through Parliament. This bill is one, as the Minister mentioned earlier. The Law Commission has been consulted extensively over the provisions of this bill, and the earlier bill to which the Minister referred is also the product of a Law Commission recommendation. It is a good thing from the point of view of our democracy and our constitution that we make proper use of the Law Commission and its considered law reform processes, and that we advance recommendations through Parliament in an orderly way. It is a good thing to hear that this bill may well have, at least in principle, bipartisan support. That is the sort of support that usually ought to be accorded measures on which the Law Commission has been consulted. I commend the bill and the process.
KATE WILKINSON (National) : In speaking in support of the first reading of the Succession (Homicide) Bill and its referral to select committee scrutiny—and I would emphasise that we do believe that it should be properly scrutinised by the select committee—it is interesting to delve back into history and into the Law Commission report issued in 1997. It is now 9 years after that report, and it recommended back then that our homicidal heirs laws should be codified. Very simply, this bill is based on—and it has been said before—the principle that nobody may profit from his or her wrongful conduct, that a killer should not take any benefit under a victim’s will, and that a killer should not benefit economically as a result of the death of the person he or she killed. It all sounds very, very reasonable. But then, as is often the case, there is some devil in the detail, and my colleague Mr Power has already explained some of the concerns he has about this bill.
If I can just go back, a “killer” is defined in clause 4 as “a person who kills a person or child who has not become a person in any manner and in such circumstances that the person is guilty, … of the homicide … or would be so guilty if the killing had been done in New Zealand”. To carry that further, “homicide” is defined in clause 4 as including “… intentionally or recklessly” killing “by any means that would be an offence under New Zealand law, …”, but excludes certain killings, namely: “(a) a killing caused by negligent act or omission; or (b) infanticide under … the Crimes Act; or (c) a killing … in pursuance of a suicide pact; or (d) an assisted suicide”. Those are the exemptions provided in this bill.
It is possible, however, that a husband driving recklessly with his loving wife might have a car crash. His wife is, unfortunately, killed. He loses, under this bill, not only his wife but also any entitlement to his bequests and legacies under her will. She may have wanted him to inherit, even if he was reckless and even if he did cause her death, but does this all equate to a killing by homicide? Under this bill it would appear that it does, and under this bill the reckless husband—the reckless widower—would be disinherited.
Even the Law Commission report itself referred to a similar scenario. It stated: “The unhappy husband who, by his negligentdriving of the family car, kills his wife in the seat beside him should not be treated in the same way as such a cold-blooded murderer as Crippen. The abhorrence attaching to profiting from intentional killing does not extend to accidental killing; as the adjective ‘negligent’ suggests, the law of succession, whatever its terms, can provide no conceivable incentive for killings by negligent (rather than conscious) act or omission.” Similarities and parallels can be drawn with Mr Power’s reference to self-defence.
Going back to the unhappy husband, the unhappy husband is indeed reckless. The homicide under this bill, however, does not have to be intentional and reckless to exclude him from inheriting; the homicide can be intentional or reckless. Yet, under this bill, such reckless driving causing death would or may exclude the unhappy, albeit reckless, husband from inheriting from his deceased wife.
I think that when the bill reaches the select committee stage, the committee will need to consider what is really intended by this bill. It may be difficult to prove how wrongful a wrongful killing must be before the bar on profiting shall apply. That is our role as legislators, and it is certainly the role of the select committee, in scrutinising the bill.
One has to look at the scenario of the deceased wife killed in the car accident as the result of her reckless husband’s actions. If she would still have wanted her reckless husband to inherit, then should not her wishes be respected and be abided by and not overruled by heavy-handed legislation?
The bill also provides that if no criminal prosecution has taken place, if any party alleges that another is guilty of the homicide of a person, and the person who is alleged to be guilty of homicide has not been prosecuted, then a court, in civil proceedings—not criminal proceedings—may decide whether that alleged killer would be guilty of homicide if that person had been prosecuted. What concerns me about this is that the test for this provision is not the usual criminal test of beyond reasonable doubt. It is the civil test of on the balance of probabilities. I believe that the select committee needs to look at the different onus and different tests and at whether the balance of probabilities is appropriate in this unusual homicide criminal situation.
Another issue I think needs some mention and is of concern, is timing; and, again, my colleague Mr Power alluded to this. How long will it take to establish that the killer is guilty of homicide beyond reasonable doubt in the criminal jurisdiction, or on the balance of probabilities in the civil jurisdiction? We already know that at present the longest waiting time for a District Court jury in Auckland is 1,179 days. The median time is about 1 year. We have to ask whether the poor residuary beneficiaries of the will are expected to sit and bide time for between 1 and 3 years before a decision can be made over whether a killing by way of homicide has occurred and, therefore, who is entitled to inherit under the will of the poor victim.
It is not only that, but under estate administration rules, partners and spouses have 6 months in which to make an election under the will over whether to take proceedings under the will or under the property relationships legislation. What I would like the select committee to scrutinise, and the Minister to consider, is how a lengthy delay in the District Court in Auckland, for example, while waiting to decide whether a homicide has occurred and, if so, by whom, will interface with the existing rules of estate administration. Or is this just another unintended consequence—another example, perhaps, of justice delayed being justice denied?
The Law Commission report itself referred to two cases involving homicidal heirs, where around 4 years elapsed between the killing and the courts giving judgment. Delay has been given as one of the mischiefs that this bill is intended to remedy. If one has to wait 1,179 days for a hearing date in the Auckland District Court, one still has the delay. If one has to wait the median time for a trial in the High Court in Christchurch of 203 days, then justice is delayed. If one has to wait 262 days in Gisborne, then justice is delayed.
I have to say that although the Succession (Homicide) Bill is well intentioned, it is still one part of the jigsaw puzzle. Unless the court waiting-times issue is seriously addressed, this bill has every opportunity of merely illustrating more delaying of justice, more denial of justice, and less access to justice.
We all know that criminals should not benefit from their crimes, and it is about time, 9 years after the Law Commission report, that killers’ rights and disentitlements in relation to succession should indeed be clarified and codified. But we also need to make sure that the rules are clarified, not confused; that there is certainty, not confusion; and that access to justice is expedited, not delayed. This bill is a start; National supports it going to the Justice and Electoral Committee, but it needs serious select committee scrutiny.
RON MARK (NZ First) : I rise to take a call on behalf of New Zealand First, and to say that New Zealand First will likewise be supporting the Succession (Homicide) Bill through its first reading and on to the Justice and Electoral Committee. We point out that we do not have a representative on the Justice and Electoral Committee, so we will be reliant upon the people who sit on that committee to produce a clear report.
In acknowledging all of the concerns raised by previous speakers, we wish to point out a couple of things. We point out that report No. 38 from the Law Commission, Succession Law: Homicidal Heirs, was produced in 1997. I have just sat and listened to a speech that said we need to expedite matters. How expeditious, one would ask, has it been to have legislation sitting on the shelves of the House and gathering dust for coming up to 10 years, and to not have moved it? I take note of Mr Power’s speech in the House, but I say that report was produced for the then Minister of Justice, the Hon Doug Graham—a National Minister. One could rightfully ask the previous National speakers what the heck their members of Parliament and Ministers were doing at that time. What did they do subsequent to receiving the report? Why did they sit on it for so long? If the issues are of such concern, why was the bill not progressed before now? We have seen the bill languish again for a further 6 or 7 years, and now we are talking about being cautious and taking our time.
I understand the concerns expressed by members who were formerly in the legal fraternity, but let me point to page 2 of the Law Commission’s report: “Homicidal heirs cases arise more often than may at first be thought.” Members should bear in mind that the report was written in 1997. It continues: “From 1982 to 1992 the number of culpable homicides and attempted homicides almost doubled, from 53 to 103, and about half of these occurred in a domestic setting. Culpable homicide that was murder increased steadily in New Zealand between 1960 and 1985: from an average of six per year between 1960 and 1964, to an average of 27 per year”—am I right that that is an increase of 800 percent; I would have thought that that would have been a concern some time ago—“between 1980 and 1984. The Public Trust Office alone identified eight estates it had administered involving problems of homicidal heirs in the last 10 years or so.” Again, I ask members to remember that this report was written in 1997 for the Hon Doug Graham. The report continues: “Even over the brief period from November 1996 to March 1997”—what are we talking about there; 5 months?—“two current High Court proceedings involving homicidal heirs problems were made known to the Commission.”
Well, if ever there was a message that said we should hurry up and catch up because we have a looming problem, that would be it. Yet nothing happened between 1997 and 1999, when there was a change of Government, and nothing has happened since then, until now. Now we have speakers who are standing up and saying we have to be cautious and know what we are doing and study this bill carefully. I would have thought 10 years of study would have been ample. I would have thought 10 years of examination of the Law Commission’s report and its recommendations by the legal fraternity would have been ample.
But we are tolerant people in New Zealand First. We will watch the select committee do its work. We do not expect to see an undue extension of the report-back time of this bill. The fact is that politicians around the country rattle on about crime and how we must clamp down on violent crime, and rattle on about how they want to quickly and expeditiously pass laws to confiscate the assets of criminals who gain monetarily through their illegal activities. We have had legislation put before the House in respect of the confiscation of assets. This bill is but another tool in the weapons against crime, another tool to deter crime, and another tool to stop criminals from profiteering from their criminal acts. And here we are saying we should be careful about the legislation! Quite frankly, some of us get tired of hearing that sort of thing. We want to see some work done on the issue, and New Zealand First would have thought that 10 years on the waiting train was perfectly long enough for that. People who are members of the Law Society and the legal community know full well what is needed to be done in this legislation. After all, they made the submissions to the Law Commission, did they not?
NANDOR TANCZOS (Green) : I think Mr Mark is perhaps being a little bit unkind to suggest that a desire to look carefully at the legislation, and to make sure we are enacting legislation that works and does not have various unintended consequences, is unnecessarily delaying. It is important that the Justice and Electoral Committee takes the time needed to comb through the legislation and to make sure that it does what Parliament intends it to do. There are some difficult issues in the legislation, as there are in some of the other matters that the member raises, such as the proceeds of crime legislation, which I know that the Government has mooted. Although there is a concern to make sure that people do not derive benefit from criminal activities, there is also a valid point in ensuring that the right people are being targeted and that we do not introduce legislation that is so draconian as to punish people unfairly. So it is important that we take the time necessary to look at this issue carefully.
Having said that, I point out that the Green Party certainly supports this bill going to the select committee and, I would imagine, through the various stages, as long as some of the difficult issues can be teased out and properly sorted out. We support the bill because in principle, of course, it is right. Other members have said before me that it is repugnant that someone should kill a person, then benefit from the act by getting access to that person’s estate or property. The point has been made, quite properly, that this matter is reasonably settled in law but that some specific applications are uncertain and therefore need to be clarified in order to reduce court time and make things move more speedily. So it is useful for Parliament to be addressing this legislation.
One of the benefits of having a Government that is a bit hamstrung on the numbers, is that there is much less on the legislative agenda and therefore the House has the opportunity to go back through these Law Commission reports. The commission does an enormous amount of good work in making all these recommendations, and they are often ignored for decade after decade. It is only when we have a hamstrung Government that we able to bring this stuff to the House and get it through. This is not sexy legislation but is important law reform. Indeed, that is the role of the Law Commission. So I say: “Yay for the MMP environment!”.
I thank Mr Power for making a number of good points, which were backed up by Kate Wilkinson. Although the bill looks quite straightforward on the face of it, it has some difficult, knotty issues. It has complexities that we need to work through.
I would like to touch on a couple of points raised by Mr Power. The first is whether the bill would apply where a person kills someone in self-defence. The way I read the bill, I would have thought that it would not apply. Perhaps I misunderstood what is meant by “homicide”. I would have thought that someone using the defence of “self-defence” would be found not guilty. It raises another question around the interpretation of self-defence, particularly in cases raised by Mr Power of domestic violence and longstanding abuse. I know of difficulty and uncertainty in the courts around the interpretation of self-defence where a person does not kill someone in the heat of the moment when under attack, but after perhaps decades of oppression and abuse, one day that person snaps and kills another person. I understand there have been cases of that nature where there has not been a finding of self-defence. I think many members would have a great deal of empathy with that sort of case. There are difficult issues around self-defence that we need to work through.
Another issue raised by Mr Power, and also by Ms Wilkinson, related to timing when someone is found guilty and, ultimately, the conviction is quashed, as provided for in clause 13(1), but that applies after considerable time. That raises difficult issues in terms of the restitution that will go to people who have been unfairly deprived of a benefit, possibly a substantial benefit, through no wrongdoing of their own.
The fact of people being wrongfully found guilty is a live issue in this country. A number of cases concern those of us who are worried about the state of the criminal justice system. A number of people in jail have convictions that raise concern among members of the public, and some members of this House. The proposal for an independent body to review cases for possible miscarriages of justice is an idea whose time has come. That issue relates to the bill, as well.
Mr Power raised the question of insanity, but I think he is wrong. From my reading of clause 14, I think that concern is addressed. He wondered what happens when a person kills someone and is found to have been insane at the time. I think clause 14 is quite clear. Although we could argue about the policy intent, I do not think there is any confusion.
The only other issue I would like to raise on behalf of the Green Party at this stage, was also raised by Kate Wilkinson. If someone is alleged to be guilty of the homicide of a person but has not been prosecuted in New Zealand, this bill would allow a court, in hearing the proceedings, to decide, for the purposes of this legislation, whether the killing of a person or a child who has not become a person has taken place; if so, if the alleged killer had been prosecuted in New Zealand, that person would have been found guilty of the homicide of that person, or been found not guilty by reason of insanity. The point that concerns me, and was raised by Ms Wilkinson, was that the decision would be based on the balance of probabilities. That is a concern, because it seems to produce a real anomaly within the justice system whereby if a person is going to be criminally prosecuted it must be beyond reasonable doubt, but for the purposes of this bill it would be on the balance of probabilities.
That is a real concern, and particularly in light of increasing reliance of the test of balance of probabilities into areas where it does not rightly belong. Again I refer to the Proceeds of Crime Act that Mr Mark mentioned, and although the legislation has not yet been introduced to the House, we know the Government has announced a policy intention of saying that people will have their property confiscated on the basis of a balance of probabilities test. Even if a person has been acquitted in this country, under that proposed legislation property could still be confiscated on the balance of probabilities if the person is assumed to have committed an offence.
This bill is simply a part of that broader package of the extension of the balance of probabilities test into areas that really lie on the border between civil and criminal proceedings, and in areas where they do not rightly belong. Even if a person has not been found guilty of a homicide, if he or she is found, on that basis, to have killed someone wrongfully, then the effect on the person’s reputation will be considerable. These are very real issues, but, nevertheless, the Green Party supports the bill to the select committee and looks forward to dealing with these questions in more detail at that stage.
HONE HARAWIRA (Māori Party—Te Tai Tokerau) : Tēnā koe, Mr Speaker. Tēnā tātou te Whare. I would like to start my kōrero today by referring to some comments made by both the Labour Party and National Party speakers on this bill, all of whom referred to the “settled principle” or the “established and accepted practice” that people should not be able to profit from their wrongdoings. I have to ask, if that is so, then how come Governments in the 21st century in this country are still making millions and millions of dollars off the resources that have been stolen from Māori people for the last 180 years, continuing with the foreshore and seabed and are likely to continue with the theft of the water, as well? I think if we are going to start throwing out those kinds of phrases, then perhaps people need to be thinking about making them stick to reality in this House.
The Succession (Homicide) Bill brings with it a heavy burden for the Māori Party, because of the huge and gut-wrenching impact homicide—murder—has on Māori. Murder breaks the sanctity of whakapapa, which is one of the foundation blocks of a healthy Māori society. Everything has a mauri, a life essence, and every human life is a precious and revered gift. So homicide is the severing of whakapapa. It is more than just the destruction of an individual; it is also about the shattering of whānau, of hapū, and of iwi. I regret to add that recent studies confirm that those adults most at risk from homicide are Māori men aged 20 to 24. Even more alarming is the fact that those most at risk from child homicide are Māori baby boys.
This bill is supposed to stop people who kill somebody from benefiting from their victim’s death, whether it is through insurance, inheritance, or other means. In general terms I can say that the Māori Party supports the intention of this bill to clarify the law preventing murderers from benefiting from their victim’s death, to reduce the number of disputes referred to the courts, which is often costly, complex, and lengthy, and to clarify the principle that nobody should profit from the murder of another or from their own wrongdoing.
As we debate this issue, I note that there are still many other major questions about the trends in homicide that warrant further inquiry. One of the most obvious is that while most of the other rich nations have reduced their child homicide rate over the last 20 years, New Zealand’s has increased. I am not trying to score points; this is too serious for that. But in the whole of the OECD New Zealand is the third-worst for child homicide, and, within that, Māori children are twice as likely to be killed as any other. It seems that for all our good intentions we are failing ourselves, and even more important, we are failing our future generations.
There are heaps of theories about why homicide is on the rise in Aotearoa. Professor Eru Pōmare in his 1995 report, Hauora: Maori Standards of Health, said that increasing homicide rates amongst Māori “indicate a classic pattern of a population undergoing an upturn in unemployment and hardship”. His statement is backed up by the US experience, which shows that a 1 percent rise in unemployment leads to a 6 percent rise in homicide rates.
Another explanation for rising homicide trends is the impact of alcohol. In Australia homicide rates have gone up in line with higher per capita alcohol consumption, and in New Zealand alcohol abuse has also been identified as one of the major risk factors in our annual average of 71 homicides. Again, drawing on international experience and our own statistics, we see that domestic violence and homicides are increasingly associated with problem gambling. Studies show that many gamblers are becoming even more reliant on loan sharks, and more desperate to keep their heads above water—and, indeed, on their own shoulders. In this week, Mental Health Awareness Week, I would just like to point out that contrary to popular misconception, only a small number of homicides are committed by people with severe mental illnesses.
I do not mention these arguments to detract in any way from the brutality of murder or to try to lessen the numbing sense of loss for those families who have suffered a loss by homicide. I raise them because they highlight a number of areas where we as a nation can and should be taking concrete steps to reduce our murder statistics. Most murders in Aotearoa are committed by people who are closely related to the victim, but perhaps the most chilling analysis applies to child homicide, which shows that nearly every child killed is killed by someone within his or her immediate family circle. Our kids are being killed by parents, step-parents, grandparents, de facto partners, brothers, sisters, or other relatives. Our kids are being killed by us, and for me the most chilling aspect of that analysis is that nearly half of those kids are being killed by Māori.
I said earlier that the Māori Party was apprehensive about this bill because Māori live every day with the profile of those who die from homicide; indeed, we live with the profile of those who commit homicide as well, for both the perpetrators and the victims are disproportionately Māori. It is because of that and because of our knowledge of the impact that this bill will have on future generations that I signal here a number of concerns about the effect this bill may have on denying a person’s whakapapa because of an act they will regret for the rest of their life, the possibility of denying a person’s descendants their inheritance, and the ready acceptance by society of a Māori profile when homicides are committed but the denial of tikanga Māori as a way of dealing with many of the factors that lead to homicide. The Māori Party will be watching carefully to ensure that convicting someone of homicide does not disenfranchise his or her mokopuna from their rights to their whakapapa, their whānau, and their whenua.
We also notice that there are still some critical issues that need to be defined in this bill, in terms of how we deal with people who, whether intentionally or recklessly, unlawfully kill another person. These are questions like: if the person who kills is prevented from receiving property, then who should receive it? What if all parties affected by a homicide feel that denial of inheritance should not apply? What about the succession to and disposal of Māori land, which is dealt with under the Te Ture Whenua Maori Act of 1993, if the bill details only the relationship of the Land Transfer Act? What about the provisions regarding Māori freehold land or Māori land interests that are not properly covered by this bill but that have huge implications for Māori?
I return to some of the key issues I raised during this kōrero. Of course, there is already a huge body of research about many of the factors critical to the understanding of homicide, such as alcohol consumption, the availability of weapons, gambling, poverty, stress, unemployment, and hardship. We know that most of these factors can be positively addressed through well-understood and clearly targeted policy intervention. That they are not suggests a massive and abysmal failure in the Government’s ability to manage the transition between hard data, positive policy-making, and effective intervention. This bill may be specific to one aspect of homicide, but any time is a good time to speak to the factors contributing to this problem and what value we truly place on the right to life, liberty, and security.
In closing I wish to mention something my co-leader is noted for having said about the death of the Kāhui twins. When asked whether they looked peaceful, he said: “No, they looked dead.” We need to restore hope and pride in the people of this nation. Just as we as a Māori people need to look beyond the beauty, the traditions, and the highlights of our own history, and take up the challenge of dealing with the unacceptable levels of murder within our own whānau, hapū, and iwi, so too do we as a nation need to look beyond the romanticism of death, and deal with the reality of homicide and the factors that contribute to this blight on our society. Kia ora, Mr Speaker.
CHESTER BORROWS (National—Whanganui) : With the expected caveat of the comments made by the previous speaker, Hone Harawira, in relation to our colonial history, it has long been a tenet of criminal law in New Zealand that an offender does not benefit from his or her crime. I am pleased that he spent some time talking about the murder statistics within this country. As this country unfortunately has a well-deserved reputation and an abysmal record in relation to murder, I do not think we should consider legislation that contains in its title the word “homicide” without stopping to think about our statistics in relation to that.
To our shame, the New Zealanders killed by homicide—that being the killing of one person by another—whether through murder, manslaughter, infanticide, or some other culpable killing, number about 100 people a year. If we killed at the same rate as that of the United Kingdom, it would be only 25 people a year. I say “only” advisedly, because even 25 is too many. The fact is that I do not believe for a moment that enough consideration is given to why that actually happens. Any one of us probably stops and thinks for a few moments about why that may be happening, but it does not seem that a heck of a lot of people think seriously about why it is the case, and what we can do to change that. As has already been alluded to, we know a lot of the demographics of the people who are involved, either as victims or offenders. We do know that it happens principally within our families, and we do know that it is a disgraceful record.
So the challenge is a real one. We in this House need to grab hold of the challenge and do something with it, rather than refer to it from time to time, just as I am doing now and just as I did in my maiden speech—as I am sure all members will remember. This tenet is applied to the lesser crimes of theft, robbery, or burglary: a person does not profit from his or her own crime. A convicted accused who does not cough up as to where the stolen items or money are will receive a more serious sentence than people who do. In order to take account of the fact that the accused knows where the profits of his or her crime are but has not disclosed that, the accused will receive a stiffer penalty than if he or she had led the police to the stash and made it available for return. National will support this bill, because it is fair and just that a murderer who has killed—one way or another—a person from whom he or she would inherit is prevented from inheriting, even if the profit was to come by way of a non-testamentary bequest like an insurance policy or payout, or of an appropriation of property jointly owned and tenanted.
The question was raised by my colleague Simon Power as to just when the offender is deemed to be guilty: is it after the defended hearing, is it on conviction, is it after a subsequent appeal or some supplementary appeal on top of that—say, the Supreme Court—or is it at the end of some sort of commission of inquiry? That is unclear and needs to be made clear.
I have some objection too to the circumstances of assisted suicide. Why should one sibling be able to profit from the assisted suicide of, for example, a sick parent, when that action may be a decision taken by the sibling of the now deceased parent? For instance, a parent who is very sick may be incapable of making a reasonable, rational decision, or may not be soberly situated so as to be able to make such a decision. One member of a family could have a discussion and maybe arrange for an assisted suicide—maybe as a result of a long discussion, or as a result of manipulation. That would be a situation of an assisted suicide occurring without any prior knowledge by the other siblings. The other siblings could have some real concerns about the brother or sister who aided the suicide benefiting from the homicidal act. We have seen that situation arise, significantly, in our media—and in that situation, of course, the person was convicted of manslaughter.
In a slightly lesser category of assisted suicide—and that was, more or less, the defence run in the case I mentioned—we are left with the circumstance of a homicide by way of an assisted suicide, however that may have been accomplished, whereby the other beneficiaries of the estate, the siblings, the grandchildren, or maybe the partner, may have had no input into the decision of the deceased to take his or her life. Maybe it has been done in secret, maybe the deceased was not capable of conveying the decision, or maybe the other beneficiaries did not even know that such a discussion was being held. At the end of it, the person who assisted in the suicide may be a beneficiary of the will, or at least of part of the estate. I think the courts should not assist a person like that to profit from that situation. It does not appear that that concern has been relatively well canvassed or considered by those who have prepared this legislation.
Another concern I have is about who will monitor the applications. Who will watch just who is making applications for probate? If we take a situation like the scenario outlined by my colleague Kate Wilkinson—the situation of the reckless-driving husband—we can imagine a scenario whereby mum and dad have their wills with a local law firm, each is named as an executor of the other’s will, and their common solicitor is part of that, as well. If mum is killed in the crash caused by the reckless-driving husband, who is left? The bill quite clearly says that the husband cannot be an executor or have rights of administration over the will, but it is the duty of the solicitor to act in the best interests of his client—and the surviving client, of course, is the husband. I have some concerns around that issue.
The bill also amends the Sentencing Act 2002 by inserting section 146A, which states that a certificate of conviction can be issued by the court on application by an informant. I wonder who is expected to be the informant in that situation. Maybe we are making the assumption that members of the public or other beneficiaries will be watching on. In the scenario Kate Wilkinson laid before the House, the only other beneficiaries may be the couple’s children. Who will intervene on behalf of them? Surely there should be some sort of Government agency to look after that. It could not be expected that the police should follow that issue through after, for instance, the court case around the car crash and the subsequent coroner’s hearing. There is no obligation on the police at the moment to follow through and to monitor subsequent civil actions in respect of an estate.
So those are a couple of issues that I have highlighted. I hope that they will be covered during the course of select committee debate and that those concerns will be laid to rest.
- Bill read a first time.
- Bill referred to the Justice and Electoral Committee.referred to Justice and Electoral Committee
Arbitration Amendment Bill
Hon CLAYTON COSGROVE (Associate Minister of Justice) : I move, That the Arbitration Amendment Bill be now read a first time. At the appropriate time I intend to move that the Arbitration Amendment Bill be referred to the Justice and Electoral Committee for consideration. This bill is the result of a review—again, by the Law Commission—of the Arbitration Act 1996. I thank the Law Commission for its hard work and effort in reviewing this important legislation. The Arbitration Amendment Bill is accompanied by two other bills that seek to give effect to the recommendations of the Law Commission, as we have discussed this afternoon—the Wills Bill and the Succession (Homicide) Bill, both of which have been recently introduced.
Alternative dispute resolution is a growing trend in New Zealand, and one that this Government supports. Alternative dispute resolution provides disputants with options other than litigation to resolve their disputes, which may better suit their individual situation. In New Zealand the two main forms of alternative dispute resolution are mediation and arbitration. For some industries, arbitration has become the main form of dispute resolution. This is particularly true for commercial contracts, and property and contractual disputes. Arbitration can be the best option for these kinds of disputes because it offers the benefit of disputants having the ability, by mutual agreement, to select an arbitrator. The selection is usually based on the technical skill and expertise that the arbitrator can bring to the dispute. In addition, many of the kinds of disputes that head to arbitration involve ongoing relationships. Arbitration provides a forum that is less adversarial than traditional litigation, so the ongoing relationship is less likely to break down.
In 1996 New Zealand’s arbitration system, which we inherited from England, was overhauled and updated. The resulting 1996 Arbitration Act reflected the model law on international commercial arbitration, adopted by the United Nations Commission on International Trade Law in 1985. The Act is a complete code, applying to both domestic and international arbitrations. Since its enactment, we have been able to observe how the Act has worked in practice, and to consider what improvements, if any, it may need.
In 2003 the Law Commission reported on its review of the 1996 Act. The commission concluded that the Act was working well. It did, however, recommend some amendments to improve the operation of the Act.
The bill, which is divided into two parts, reflects the Law Commission’s recommendations. The first part amends the Arbitration Act, and the second part amends the Disputes Tribunals Act 1988. Many of the amendments are relatively small and technical—for instance, to clarify the operation of a provision or definition. One of the more significant changes is contained in clause 6 and relates to the confidentiality of arbitral proceedings. There is a presumption that proceedings are closed and confidential. The Act contains an absolute prohibition on disclosure of information related to arbitral proceedings. The confidentiality that applies to those proceedings is a major attraction for many parties to arbitration.
The confidentiality enjoyed by parties to arbitration, however, does not apply to subsequent court proceedings. Although the Act is silent as to whether the confidentiality provisions apply to subsequent court proceedings, the New Zealand courts have decided that any subsequent court proceedings remain open. If, for example, a party to an arbitral proceeding appealed the decision to the court, the court proceedings would be open to the public.
In addition, the Act currently has only two narrow exceptions to the prohibition against disclosing information. The first exception is where the parties otherwise agree. The second exception permits disclosure of such information to a professional or other adviser of any party, if the publication of the disclosure of communication is contemplated by the Act. The bill provides a more balanced approach to confidentiality issues, which better recognises party autonomy and the private nature of arbitration proceedings. The bill clarifies that, as a general rule, arbitral proceedings are private and confidential, whilst court proceedings are to be conducted in public.
The current exceptions to this general rule are widened and clarified. For example, parties will be able to apply to the court, seeking to have all parts of the proceedings conducted in private. The amendment sets out the matters a court must consider when a party makes such an application.
A related amendment has the clarification of what is meant by “a question of law”. Arbitration decisions can be challenged only on points of law. The bill does not seek to amend that provision, because to question the determination of an arbitrator on facts would undermine the confidence the parties have placed in the arbitrator. Parties choose an arbitrator based on his or her technical skill and experience in a particular field. However, the bill does clarify what is meant by a question of law, because it is not defined in the Act. The amendment clarifies that a question of law does not include perverse findings of fact.
One of the significant New Zealand departures from the provision of the UN model law is that the Arbitration Act is not restricted to commercial disputes; it also applies to consumers. Current provisions in the Act require a consumer to agree to arbitration as a means of dispute resolution prior to a dispute arising. In entering contracts, consumers do not think about which dispute resolution process they would most prefer. Normally, the trader says: “Sign here, and here, and here.”, and the consumer does so. This approach does not provide sufficient safeguards for consumers. Arbitration works best when both parties are satisfied that it is the most appropriate dispute resolution forum.
Under the bill, consumer arbitration agreements will take effect only if arbitration has been agreed to as a method of dispute resolution after the dispute has arisen. When a consumer and a trader agree on arbitration, the agreement will oust the jurisdiction of the disputes tribunal. Arbitration encourages the private resolution of disputes in a less adversarial manner, thereby enabling the resumption of commercial and other contractual arrangements. The purpose of the reforms is to improve the operation of the Act and, as a result, to enhance arbitration as a means of private dispute resolution in New Zealand. I commend the bill to the House.
Darren Hughes: What a greaser.
Dr RICHARD WORTH: Without wanting to be critical of what he has said, and prompted by the young, immature junior whip of the Labour Government, I simply note that his pronunciation of “arbitral” perhaps requires some further practice.
Hon Clayton Cosgrove: I didn’t go to the right school, obviously.
Dr RICHARD WORTH: It is not a question of not going to the right school, and I am not certain what the right school is. I think the problem that the Minister confronts is that these are not issues on which he has any real knowledge, at all.
I think it is also important to note, in the comments I make at this stage of the bill, that this legislation has not been given any degree of urgency by the Government. As the previous speaker has said, it was patterned on Law Commission report No. 83, Improving the Arbitration Act 1996, and when the Government responded to that Law Commission report—as it was obliged to do—it made it very clear that these issues did not need to be accorded any degree of urgency.
Although National supports the passage of this bill to the select committee, we do so subject to some reservations that some of the changes that are proposed may in fact not be necessary. I just flag that as a possibility, and the select committee that looks at this legislation will have to form a view on the merits of the proposed changes.
There are, of course, a number of ways of resolving disputes without resorting to fisticuffs and warfare. One could broadly say that those possibilities, in a regulated, civil society, include conciliation, mediation, arbitration, and, finally, resolution by the courts. Conciliation, of course, means what it says. Mediation as a concept does not carry with it the consequence that if rulings are made, views are expressed, or positions are reached, they will be binding on the parties. That is seen in many cases as a significant disadvantage. In the case of arbitration we are talking about a process that is consensual, in that the parties come to it of their own free accord. But, more important, they accept the ruling of the arbitrator as being binding, subject to some very limited avenues for appeal to the courts. It is interesting that although arbitration is seen as a method of resolution outside the normal legal system, it is nevertheless regulated by that system in terms of limited rights of appeal and other interlocutory orders that can be made in the course of an arbitration process.
It is probably also worthwhile reflecting that the Arbitration Act itself had its origin in initiatives taken by Peter Hilt, a former member of this House, who in 1996 introduced the Arbitration Bill, which was based on a report prepared by the then Law Commission. As the previous speaker said, the Act repealed and replaced the Arbitration Act 1908—that Act having been modelled on English arbitration procedures. The new model that was picked up—reflecting the international aspect of arbitration—was based on the model developed by the United Nations Commission on International Trade Law.
The general policy statement in the explanatory note of the bill asserts the underlying themes of the Arbitration Act 1996 as including party autonomy, reduced judicial involvement in the arbitral process, consistency with laws in other jurisdictions, and increased powers for the arbitral tribunal. That is not necessarily an accurate or an appropriate statement as to what those themes were, because it is only partly true to talk about party autonomy as being an essential hallmark of arbitration. The reality is that, with the complexity of many arbitrations these days and, often, their international aspects, the arbitrator stands firmly in the path of the resolution process, directing and encouraging the parties, by various orders, to advance their causes, identifying clearly the issues, and seeking to limit aspects of delay.
It is right to say that there is reduced judicial involvement in the arbitral process, but there is some involvement. Consistency with laws in other jurisdictions is asserted as a theme of the Arbitration Act 1996; I do not really think that is correct. Increased powers for the arbitral tribunal is also a problematic assertion, because, of course, it has always been for the parties to assert the rules of procedure that they would like to govern the particular arbitration that faces them.
I commend the Government for one aspect of this bill, and hope it might be seen to be a practice to be followed in the future. In the explanatory note there is both a regulatory impact statement, however inadequate it might be, and a business compliance cost statement. Those requirements or concepts have their base in the step-by-step Cabinet guide, and too often, it seems to me, it is the case that the Government seeks to rely on the many exceptions that are in existence to require that neither of those statements be made. It should surely be the case that the Cabinet guide is amended so that there is, on a case by case basis, an examination in terms of both the regulatory impact of a provision and also the business compliance cost implications. We are faced, I would say, with a Government that too often pursues its ideological policy positions without consideration of what the impact of the law will be—that is, the proposed law that is before Parliament in the form of a bill—and, particularly, of what its fiscal consequences, not only for the State but for the parties who are impacted by the legislation, might be.
So what of this legislation itself? As the Minister has said, it is in two parts: some technical amendments to the Arbitration Act 1996, and some changes to be made to the Disputes Tribunals Act 1988. I would say in reference to just the first part—the amendments to the Arbitration Act—that some of the issues identified are also somewhat problematical. The reality is that in the market place there may often not be equality of bargaining power in the buyer-seller relationship, and I am speaking particularly of consumer protection provisions, which are the subject of some tinkering by this legislation. It is said that the bill improves the level of protection provided to consumers who enter into consumer arbitration agreements. Those agreements will no longer need to be signed at the same time as entering into a contract with a business. Of course, they do not need to be signed now, so exactly what the purport of that change is is not completely clear. But the bill proposes that an arbitration agreement between a consumer and a business takes effect only if arbitration has been specifically agreed to as a means of resolving a dispute, after the dispute has arisen.
There are changes around the question of disclosure of confidential information. If anything is a hallmark of the arbitration process, it is the confidentiality of that process. It is often said that, as a result of the increasing trend towards arbitration, there is a limited flow of published legal principle of decided cases, because the parties have taken the position that they would much prefer to see their issues resolved by arbitration, not through the greater openness of the court process.
So it is not the case that National commends this legislation; it is that we are happy for it to take a further step down the parliamentary path.
CHRISTOPHER FINLAYSON (National) : As Dr Worth said, National will support this first reading of the bill, and support it to a select committee. I certainly look forward to working on the bill with my colleagues on the Justice and Electoral Committee, particularly on the issues arising in clause 6 that deal with the important issue of confidentiality, and it is on confidentiality that I want to direct the major portion of my speech this afternoon.
But I shall first refer to a few general principles. As is well known, arbitration is a consensual method of dispute resolution. It enables parties to identify parameters to determine the rules that they wish to apply to the resolution of the dispute, and fundamental to an arbitral process is the agreement to appoint a private judge to adjudicate and then make a binding decision. So, for example, it is increasingly common for retired High Court judges to be appointed as arbitrators. The Minister, in his first reading speech, observed that it is perhaps a less adversarial method; that has certainly not always been my experience in arbitrations.
Arbitration is one of a number of systems of alternative dispute resolution that have become increasingly popular in recent years. Others are mediation, which like arbitration has a neutral intervener, but unlike arbitration the intervener facilitates but does not impose the result. Less common forms of alternative dispute resolution are the mini-trial and, in the United States, there is also the development of a new form of alternative dispute resolution called “med-arb”, which is where the mediation turns into an arbitration and where the referee can, indeed, impose a result.
More and more parties refer to arbitration and prefer arbitration to court proceedings. Why? Despite what the Minister for Courts says in this House from time to time, the New Zealand court system is not working properly, and large corporations are abandoning the court system for alternative dispute resolution, especially arbitration, which is all very well if one can afford it, too bad if one cannot. That is not a good state of affairs for the poor of this land.
I want to say something about the enactment of the Arbitration Act 1996. As Dr Worth observed, it was the result of a member’s bill by Mr Peter Hilt, formerly of this place, and it repealed and replaced the Arbitration Act 1908. The 1908 Act had been modelled on English arbitration procedures, whereas the 1996 Act was based on an international model developed by the United Nations Commission on International Trade Law. As both the Minister and Dr Worth observed, the Act appears to be working very well.
In 2003 the Law Commission published a report entitled Improving the Arbitration Act 1996. One key issue that report dealt with was the issue of confidentiality. I am going to repeat what the Law Commission said, because I think the paper crystallised the issues very well. The Law Commission report stated that the key issues were, firstly, whether section 14 of the Act dealt adequately with issues of confidentiality, and, if not, how the Act should be amended to deal adequately with the issue. Secondly, when it is necessary for parties to an arbitration to have recourse to courts of general jurisdiction, should the otherwise confidential nature of the arbitral process yield to principles of open justice, which of course apply in courts of general jurisdiction? That really is what clause 6 deals with, because that amends the former section 14 of the Act and imposes a regime that generally, I think, is an improvement.
If one looks at section 14 of the Act as it is currently framed, one can see that, with two stated exceptions only, section 14 contains an absolute prohibition on disclosure of information relating to arbitral proceedings and awards. The first exception is where the parties otherwise agree and the second exception, set out in section 14, permits disclosure of such information to a professional or any other adviser of any party or otherwise, if the publication, disclosure, or communication is contemplated by the Act. But it does not deal with the question of disclosure to interested parties, for example a regulatory body or an insurer, it does not deal with disclosures required by law but not contemplated by the Act, and it does not deal with disclosures for other legitimate reasons—for example, those needed to defend a proceeding in court. So there are some real problems with the legislation, and that is why we need to take a look at it.
On the second issue of the open justice question about when proceedings go from an arbitration into the general court process, some important issues arise. There is this very important open justice issue. It is a difficult issue and one that has been before our courts before. I refer to what Justice Robertson said in Television New Zealand Ltd v Langley Productions. He said that a clear and unambiguous determination of Parliament should be required for the cloak of confidentiality that attaches to the arbitral process to apply to subsequent proceedings in the High Court. That is really the issue that the Law Commission was required to deal with, and it is that issue that is reflected in the work done on clause 6 of the bill.
It is important to make a few statements about the open justice principle. In general terms it can be summarised in this way: the courts should conduct their processes openly unless to do so would frustrate the administration of justice. That open justice principle reflects an underlying philosophy that justice should not only be done but—in the words of the Law Lords in the case Scott v Scott—be seen to be done. And therefore it is better to refer to the desirability of open justice as a principle rather than as a rule.
Some statutes modify the open justice principle. So, for example, proceedings that are conducted before a disputes tribunal are conducted in private. Another example would be when a complainant giving evidence in a criminal case of a sexual nature may not need to have the evidence heard in open court but only before a limited number of witnesses. Judges, of course, can sometimes sit in chambers, and very exceptionally the court, in the exercise of its inherent jurisdiction, is entitled to receive certain evidence in confidence—what is called in camera. But I have to say, in 25 years’ practice in the courts of our land, I can recall this happening on one occasion in a case in which I was involved. That was in the context of a case involving Her Majesty’s Attorney-General for England and Wales—a case about a confidentiality contract sought to be enforced in New Zealand against a former member of the UK SAS.
So the issue is what should happen if parties to an arbitration want to have recourse to the courts of general jurisdiction: should the confidential nature of the arbitration yield to principles of open justice that apply to the courts? This bill seeks to deal with those issues, and I refer members to clauses 14F to 14I. The general principle is that if one moves to the court system from an arbitration the general principle of open justice will apply unless one can come within the exceptions set out in those clauses. I think that is the right balance. I am very much looking forward to going through those clauses in detail in the select committee and then we can discuss them when the bill comes back to the House.
There are a couple of other points that the select committee will need to look at. The first is set out in clause 8 and deals with the recognition and enforcement of arbitral awards. I do not think there is anything too magical about that clause—there are no real changes other than a more up-to-date form of English and also reference to the District Court because not all awards need be enforced through the High Court. Finally, clause 9 outlines improvements to the appointment of the arbitrator.
I join with other colleagues in supporting the bill through its first reading and for reference to the Justice and Electoral Committee. As I have said, I am particularly interested in those issues of confidentiality and I look forward to working on this bill.
CHARLES CHAUVEL (Labour) : Like the previous speaker, I rise to support the introduction of the Arbitration Amendment Bill and its referral to the Justice and Electoral Committee. As we have heard, the Arbitration Act, which was passed in 1996, was a significant overhaul of the arbitration system. The move of the system so that it should reflect the model law on international commercial arbitration adopted by the United Nations Commission on International Trade Law was a very positive thing from the point of view of harmonising New Zealand’s business law with that of the international community—a trend that ought to continue, and is continuing in other areas.
As we have heard, in 2003 the Law Commission reviewed the Act and, as I said in respect of a previous bill, a very positive feature of this legislation and two other bills that have been introduced today is that they remedy the regrettable trend of allowing Law Commission reports to moulder on the shelves. As I said earlier, the existence of the Law Commission is something that New Zealand is very fortunate to have in its system. It allows for considered law reform rather than, perhaps, the more hasty process that can occur in this House. It allows for consideration by experts and it allows “lawyers’ law” to proceed toward reform in a technical fashion until the right solutions are found.
The review of the Arbitration Act in 2003 was conducted in a measured way by the Law Commission and the bill that is before the House today effectively implements the recommendations of the Law Commission. Again, we should be pleased that the Government is bringing forward the programme of reform that has been recommended by the commission and is advancing it through the House. There is no great political gain in doing that for any Government but it is a good and right thing to do, and it is to be noted and commended.
The bill is divided into two parts, obviously. The first amends the Arbitration Act, the second amends the Disputes Tribunals Act. Many features of the bill are technical and, as the previous speaker, Chris Finlayson, said, simply allow for clarification of matters such as definition and bringing other matters up to date. It is a timely reform as one would expect from the commission.
The most significant change obviously comes in clause 6, where the total confidentiality of arbitral procedures, with a few well-defined exceptions, is allowed for. I would have thought, given the comments of the last speaker, that if that makes arbitration more attractive—as it probably will to commercial parties, in particular—then it is a good thing as far as relieving pressure on the general court system is concerned. The openness of justice principle is preserved by new sections 14F to 14I in that if the parties do have recourse to the ordinary court system, then the principle of open justice more or less applies unless there is a very good reason to persuade a judge that the reverse position should apply in whole or in part.
Unlike the UN model—this is a significant point—New Zealand allows arbitration in consumer disputes. It seems to me there is no logical reason why these alternative dispute resolution provisions should not apply across the board. That is what will happen here in respect of the Disputes Tribunals Act. That is a good thing because it means there will be comprehensive reform in this area, which is recommended by an expert body and which is needed.
- Sitting suspended from 6 p.m. to 7.30 p.m.
- Debate interrupted.
Amended Answers to Oral Questions
Question No. 9 to Minister
Hon RUTH DYSON (Minister of Labour) : In answer to a supplementary question on question No. 9 from Pita Sharples, I inadvertently implied that I may have received advice on the fisheries issue from the chairman of Te Ohu Kai Moana. The question was in two parts: the first related to representation from iwi, and the second related to representation from the chairman. I answered “Yes”. Therefore, my answer may have inadvertently implied that I had received representation from the chairman. That is not correct. Neither I nor my other colleagues received any representation from the chairman. The representation we received was, in fact, from the general manager, policy and operations from Te Ohu Kai Moana.
The ASSISTANT SPEAKER (H V Ross Robertson): I thank the honourable member for the correction.
Arbitration Amendment Bill
- Debate resumed.
HONE HARAWIRA (Māori Party—Te Tai Tokerau) : Tēnā koe, Mr Assistant Speaker, tēnā tātou te Whare. I understand that the object of this bill is to make the Arbitration Act work better, to make it easier for people to use arbitration to resolve disputes. As a member of the Māori Party I am glad to say that, at first glance at least, the bill seems to have some significant advantages over the current Act. One of those is in the area of consumer protection, where until now, consumer protection guarantees could take effect only when both the consumer and the business agreed to it. The bill now enables parties in dispute to appoint an arbitrator, and that cannot be a bad idea. Then there is the matter of confidentiality, where the bill now allows all information to be kept confidential unless decided by a court order or by agreement. A big plus from our point of view is that without the formal direction of court protocols, arbitration can allow for the greater recognition and use of tikanga Māori in dispute resolution processes. So that is a good start from our point of view.
But in order to see whether the legislation may work, we need to look back at the Māori experience with regard to arbitration, which, in fact, has been experienced by Māori ever since the signing of the nation’s foundation document, the Treaty of Waitangi. Given the location of this debate and, indeed, Parliament itself, it is appropriate that we look at Wai 145, Te Whanga-nui-a-Tara me ōna Taki report, for a context of Crown-Māori experiences of arbitration. That story begins in August 1840, with arbitration between the New Zealand Company and those purporting to represent Port Nicholson Māori. The case involved a dispute between the land claims commissioner of that time, Mr Spain, and Māori of Port Nicholson. Commissioner Spain, it seems, was anxious to finish a land inquiry under the terms of the Land Claims Ordinance of 1841, so he recommended that Māori simply be paid—and I quote, and I would like everybody to take note of this one—“the amount of compensation that I may declare them entitled to receive”.
So naturally, in contemporary times the Wellington Tenths Trust said that the Crown had favoured settlers over Māori in connection with land disputes at Port Nicholson. And just as unsurprisingly, the Waitangi Tribunal found that the Crown had imposed an arbitration regime that was intended to extinguish any Māori claims to title without an inquiry into whether a valid sale had occurred. The Waitangi Tribunal further found that the Crown had breached Treaty principles by, one, failing to properly consult with Māori before switching from the inquiry to a form of arbitration, two, using an arbitration process without Māori’s informed consent, and, three, failing to ensure a fair process was used by the arbitrator. That culminated in the view that Māori were ripped off by the arbitration proceedings.
I know that other parties do not always appreciate the Māori Party’s passion for mentioning past New Zealand experiences as a way of helping us to understand where we may be headed in the future, so I thought I would throw in a comment from the Spanish author of Reason in Common Sense, George Santayana, who gave us that great quote: “Those who cannot learn from history are doomed to repeat it.” In the Māori world we have many such sayings that remind us that we know our future because we understand our past. In other words, we learn by experience. Me titiro whakamuri kia mārama ai te haere ō mua. “Look back to the past and get a clear vision for the future.”
Our brief look into that snapshot of the history of Te Whanga-nui-a-Tara—and there are many, many other such examples in Aotearoa—teaches us to be wary of any traps we may encounter in arbitration today. Arbitration is supposed to be about resolving disputes by common agreement. That means, of course, that both parties should also have the opportunity to properly determine the rules for that arbitration. But if Māori have learnt anything from the Port Nicholson experience, it is that regardless of the promise, history has proven that arbitration is often driven by one party, and disputes, far from being resolved, end up being magnified. We also know that of the 1,274 unfiled disputes noted in the Ministry of Justice’s 2004 report, arbitration was used in only 6 percent of the cases. Such is the background that sets the stage for creating new processes to make arbitration work.
Because of the wisdom that comes from that experience, the Māori Party intends to introduce an amendment to this bill specifically to deal with any disputes over Māori land, which we believe should be dealt with in the Māori Land Court rather than by arbitration. There are already precedents for moving Māori land disputes out of the general courts, and I cite issues arising from both the Fencing Act and the Property Law Act. We know that arbitration is sometimes used by Māori to deal with lease rental disputes on Māori land, but we believe that the Māori Land Court will deal far more effectively with Māori land disputes in a more user-friendly way, because of the court’s awareness of tikanga Māori and how that tikanga affects Māori attitudes towards land. The current process is weighed down by having too many lawyers involved and by the cost of having to bring in hotshot arbitrators, both of which make it a decidedly Māori-unfriendly process. What we want to do with our amendment is simply refer to the Māori Land Court any proposed arbitration matter involving Māori land or general land owned by Māori as defined in Te Ture Whenua Maori Act of 1993.
Despite the low uptake of arbitration, and despite the tragic history of arbitration processes being determined by the Crown without consultation with Māori and without their informed consent, the Māori Party remains, perhaps foolishly, optimistic that all things being equal, arbitration may just be a very effective dispute resolution process. This bill will let the parties decide whether arbitration is the most appropriate form of dispute resolution, and, when determining the best forum, the parties can still, if they wish, refer the dispute to the disputes tribunal. So we are pleased to see that options are available, and that both parties are equal partners in determining arbitration. The precedent established by Wai 145, Te Whanga-nui-a-Tara claim, reminds us of a situation where the Crown failed to put in place a fair process for arbitration, failed to consult over the terms of arbitration, and failed to determine whether arbitration was even acceptable to Māori. Where that happens an injustice arises, and society carries the cost of that injustice until such time as it is properly resolved.
So we move forward on this bill, having been clearly forewarned. We look forward to the varied experience of Māori litigants, claimants, mediators, judges, lawyers, and others who will help to refine the bill through the select committee process. The bottom line for everyone must be that if this bill helps to reduce the number of disputes that go before the courts and the cost of that exercise, then it has to have been successful. We will support the Arbitration Amendment Bill being referred through to the select committee, with a cautionary endorsement from Santayana that those who do not learn from history will, indeed, be doomed to repeat it. Kia ora.
NICKY WAGNER (National) : The Arbitration Amendment Bill is designed to improve the operation of the Arbitration Act 1996. Arbitration is an effective method of dispute resolution, which involves the settlement of a dispute by an independent person appointed mutually by conflicting parties. The use of arbitration has increased markedly over recent years, and although there are no statistics on the total number of arbitrations, the number of defended civil cases filed in the High Court dropped by 40 percent between 1999 and 2003. This would seem to indicate that parties prefer arbitration before proceedings reach court, and anecdotal evidence tells us that the cost and the speed of arbitration are attractive.
The amendments in this bill are designed to encourage further the use of arbitration as a means to resolve disputes privately in New Zealand. National fully supports this aim and the use of arbitration as a means to streamline and manage the cost and timeliness of dispute resolution in civil proceedings. The use of arbitrators who have technical skills or qualifications adds another valuable facet to this method of dispute resolution.
The bill’s amendments to the Act are based on the recommendations made by the New Zealand Law Commission’s report of 2003. Although in that report the Law Commission concluded that the 1996 Act was generally working well, several problems were identified that, if addressed, could significantly improve the operation of the law. As most arbitration is for private commercial or contractual disputes, confidentiality is considered to be one of arbitration’s major attractions. But the Law Commission identified two issues concerning confidentiality—the default rule and the open justice issue—that the commission recommended should be refined.
The default rule is concerned with the original section 14 of the 1996 Act. Under the Act, all arbitral proceedings are closed and confidential but for two exceptions. The first exception is where the parties otherwise agree. The second exception permits disclosure of such information to a professional or other adviser of any party if the publication, disclosure, or communication is contemplated by the Act.
These present exceptions are very narrow and do not permit disclosure of information to interested parties—for example, a professional or other adviser of one of the parties—disclosures required by law or by a competent regulatory body but not contemplated by the 1996 Act, or disclosures for other legitimate reasons, such as the filing and prosecution of any application to a District Court or to the High Court. The Law Commission considered the clause “if the publication, disclosure, or communication is contemplated by the Act” to be unduly vague and it required clarification—a task for the select committee.
The open justice issue concerns the idea that confidential provisions should not extend to proceedings outside the arbitration process and, in particular, to subsequent court proceedings. The bill clarifies that as a general rule arbitral proceedings are private and confidential, while court proceedings are to be conducted in public. But exceptions may occur and applications could be made to the court. This is another area that needs select committee scrutiny, as it is important that we find the right balance between party autonomy and open justice.
Finally, another area that needs close scrutiny involves the provisions for selecting an arbitrator in cases of conflict between the parties, as confidence in the arbitrator selected is fundamental to the process. National supports this bill in its attempt to improve the 1996 Act and as a first step in the process to find the most cost-effective and efficient way to resolve disputes. Thank you.
- Bill read a first time.
- Bill referred to the Justice and Electoral Committee.referred to Justice and Electoral Committee
Securities Legislation Bill
- Debate resumed from 14 September.
Clauses 1 and 2 (continued)
PANSY WONG (National) : I am very pleased to take a second call in this part of the debate on the Securities Legislation Bill. National is happy to support the speedy passage of the bill. One of the complaints we have about the bill’s passage is the length of time the Labour Government let the bill sit on the Order Paper, when out in the public there is great demand, for example, for increased confidence in the capital markets by the increased disclosure of financial advisers. The bill also deals with the restructure of the current insider trading regime and amends the current substantial security holders’ disclosure regime.
I particularly want to ask why, in light of the number of collapses of financial companies out in the market, and given that the National Party is prepared to cooperate fully with the passage of this legislation, the Labour Government has chosen to let this bill sit so long on the Order Paper. We learnt, for example, in the case of the collapse of Provincial Finance, that when that company withdrew its prospectus for investment, $9.5 million of investors’ money continued to go into that company. That called into question the competency and diligence of the advice some of the financial advisers had offered in the market.
But after saying all this, we are not confident that the passage of this legislation will achieve its objective of improving investors’ confidence in the capital markets. The reasons are very simple: the Labour Government continues to go down the track of not knowing what it is doing. It keeps on interfering, sacking commissioners that the Government itself has appointed—like the chairman of the Electricity Commission—and interfering in the operation of private enterprise. Without clear legislation and a vision for the future of major industry and infrastructure issues—without this type of clear Government direction—and with the constant interference of Government in the working of the markets and its tinkering in the legislation, the confidence of investors in the capital markets cannot be inspired.
So even though the Governor of the Reserve Bank continues to call on investors to diversify their investment away from the housing market, I am afraid that until the Labour Government stops interfering and stops sending out conflicting messages, I am not too sure that the objective of this bill will be able to inspire confidence. Nonetheless, this bill will go some way towards clarifying, and requiring the greater disclosure of, financial advice. For that, National is happy to support it.
LINDSAY TISCH (National—Piako) : This is important legislation, and my colleague Pansy Wong has articulated the importance of bringing confidence back into the market. For those small investors in our capital markets—the mums and dads, and the individuals—and, of course, the institutional investors who want to have confidence in the market and in the integrity of the market, that is what this bill is about.
A number of speakers have spoken to the parts of the bill, and I know that my colleague Mr Tim Groser played a very important part during the Committee stage. He was able to crystallise and articulate the importance of this legislation and tell us what it is about. But there are some reservations, of course. Although we can say that there will be confidence in the markets and that the legislation needs to bring back the integrity that we all look for, I ask whether the Government can be trusted to keep its hands out of it.
Darren Hughes: Yes.
LINDSAY TISCH: The member opposite says “Yes”, but we have seen plenty of examples where, if something does not go the Government’s way, what does it do?
Hon Member: Sack the commissioner.
LINDSAY TISCH: Well, there is the chairman of the Electricity Commission, for example. Reading back on the reports, when this bill was being looked at in the previous debate on its Committee stage, I ask what was happening. At the same time that the Government was talking about integrity in the market, Mr Hemmingway got the boot.
So although we are supporting this legislation, because we think it sends the right signals, we have to be very careful that when things do not go the Government’s way, it does not get out its sticky fingers and start changing the process. However, when we look at the confidence and at the integrity that all investors are looking for, big or small, then for those reasons National is supporting this legislation.
Hon GEORGINA TE HEUHEU (National) : I just want to add some comments as well to the very fine comments that my colleagues Pansy Wong and Lindsay Tisch have made. Of course, National supports this legislation, just as all the submitters and those who came to the select committee did. All of us, including those who look to make investments in the communications sector, need to see the understanding of the Government, and certainty and stability in the regulatory framework that surrounds the communications sector. We certainly support this bill, and the comments made by my colleagues Pansy Wong and Lindsay are also certainly supported.
- Clause 1 agreed to.
- The question was put that the amendment set out on Supplementary Order Paper 59 in the name of the Hon Lianne Dalziel to clause 2 be agreed to.
- Amendment agreed to.
- Clause 2 as amended agreed to.
- The Committee divided the bill into the Securities Amendment Bill, the Securities Markets Amendment Bill, the Takeovers Amendment Bill, and the Fair Trading Amendment Bill, divided into Securities Amendment Bill, Securities Markets Amendment Bill, Takeovers Amendment Bill, Fair Trading Amendment Bill, pursuant to Supplementary Order Paper58.
- Bill to be reported with amendment presently.
Communications Legislation Bill
Part 1 Amendment to Telecommunications Act 2001
PANSY WONG (National) : Part 1 of the Communications Legislation Bill is, in fact, a very short-focused part. It states that it will extend the 5-year time line that the Government set up in 2001 to enable 12 communications services to be so-called designated—that is, services are to be regulated by the Commerce Commission. But let us reflect on that, because in 2001, when the Government assigned those 12 designated services, the Minister of Commerce at that stage was the Hon Paul Swain. He actually said, no ifs, no buts, that in 5 years’ time those 12 designated services or issues related to that would have been dealt with, but today we are standing here, 5 years later, extending 10 out of the 12 designated services.
Well, I invite the Minister in the chair, David Parker—I do not know how many Ministers there have been since, but there is now another Minister in the chair—to take a call and explain to the public why, after 5 long years, we are here debating again the extension of 10 out of the 12 designated services. What happened in those 5 years? What happened to the certainty and the orderly market that was promised by the Hon Paul Swain? That was why National supported this measure 5 years ago. We were told that in 5 years’ time all the issues relating to those 12 designated services would be sorted out.
National, reluctantly, will support this legislation because we do not want to cause further uncertainty by denying the sector this legislation. But I think that the Hon David Parker still owes it to the public to take a call to explain why, with the passage of 5 long years, we are here tonight in this Chamber debating the extension of time. What confidence do we have that this issue will be sorted out once the time period has been extended? Well, in fact, yesterday the Commerce Commission announced further that, even though the commissioner has a lot on his plate in sorting out the telecommunications industry, he has decided he will take on another investigation—into the mobile phone market.
So while we are debating this legislation, one cannot help thinking how many times we will be summoned back into the House and to the select committee to continue to do a patch-up job, because the Government in the first instance, obviously, has not got it right. That has already been well demonstrated in the bundling and unbundling issue, which has been a flip-flop and a U-turn all along the way.
So I ask whether the Minister in the chair could take a call and give the public some reassurance that, with the cooperation of the National Party, we will not be back in the House again, having to support further time extensions just because this Government is incompetent in terms of charting a way forward for the telecommunications sector. In effect, we have seen very little progress in the last 5 years on giving certainty for the operators in the telecommunications sector.
I do not think that the Minister should just sit there waiting for us to ask the question and not give the public the benefit of knowing that cooperation on this legislation will lead to some real commitment on the part of the Government to make sure that an extension will not be further required. In fact, among all the submissions, we had only one—I think it was from TelstraClear—that supported the bill.
Hon GEORGINA TE HEUHEU (National) : I am very pleased to follow my colleague Pansy Wong to make a contribution in the Committee stage of the Communications Legislation Bill. As we indicated right at the start, we support the amendments being proposed here, but I do echo my colleague’s call to the Minister. We have a different Minister in the chair tonight, the Hon David Parker, but we have become used to that over the last 5 years—there has been one Minister after another, with no Minister actually delivering what he or she said would be delivered. It is only fair, as my colleague has said, that this Minister takes a call to explain to the New Zealand public why it is that, 5 years on, the time line the Government sought back in 2001, which National agreed to, is now insufficient.
Part 1, as we know, amends the Telecommunications Act. The amendments will prevent the early expiry of the regulation of 10 particular telecommunications services. That is a reasonable thing to do, but it is not reasonable that 5 years on, in an environment where it is absolutely essential to have stability and certainty, we are now back in this Chamber to agree to an extension to 7 years, with no explanation. The Minister needs to stand up tonight and reassure this Committee, the market place, the consumers out there, and those who rely on a stable regulatory framework that within 2 years this Government will be capable of not only setting the pathway forward—and making that clear—but also implementing it.
This Minister has shown in the House, particularly during question time, that he loves getting to his feet, so let us see him get to his feet tonight. He likes to give an indication that he knows everything, so let us see whether he does know everything, and let us see whether he can give an assurance tonight that the extension we are now agreeing to—from 5 years to 7 years—will be sufficient, and that within that extension the Government will get the job done that it indicated it would do in 2001. It is not good enough, at all. I ask members to think about the Government’s record in this whole area. We still have the unbundling bill before the Finance and Expenditure Committee, and, gosh, the way the Government has dealt with that issue has been a chaotic mess. It has changed its mind and sacked messengers, all over the place. That is the history of this Government—it is not a good way to conduct business.
This Government—and particularly the Prime Minister—is great at making reference to the transformation of the economy. The delays and the tardiness of the Government in the communications sector certainly gives no confidence that this economy will be transformed any time soon. We know that, but we have put a little bit of faith in the Government tonight by supporting these amendments, and we have put a little bit of faith in the Government to get things moving and lay the building blocks for transforming the economy. But, so far, I have not seen any building blocks laid, at all—not one. There has been a lot of talk since 2001, but no secure building blocks have been put in place to transform the economy.
Time is running out for this Government. Of course, that is good for the Opposition—we are very happy with that. Labour has had its turn; it will be gone in 2 years’ time, and rightly so. It has not been able to give us any certainty and stability in this critical area of infrastructure. It is interesting that the Government has asked for 2 more years to extend the period of regulation. It must know that it is going out in 2 years. National has no confidence whatsoever that the Government, having set a time line of 5 years, will now complete the review in 2 years.
TIM GROSER (National) : Unlike my two distinguished predecessors, Pansy Wong and Georgina te Heuheu, I do not have their long background to give a historical view on the Communications Legislation Bill. But when I saw it on the Order Paper and realised that I usually speak on anything that has the whiff of a bipartisan approach—whether in respect of trade, arts, culture and heritage, or whatever—I thought: “I know that the whip will pick me to take a call on this item.” So I guess I have to apply the great democratic process to the matter of the efficient regulation of the electromagnetic spectrum.
It is on occasions like this that I and others have to remind ourselves that in the past people have literally died to preserve my right to speak on the efficient regulation of the electromagnetic spectrum. I must say that if any of those souls who paid the ultimate price are, in some sense, listening to this debate tonight—way up there above the upper troposphere, in some ethereal sense—by the time they have finished hearing my intervention they may have regretted their decision.
The great challenge for members coming to this topic brand new is to say anything remotely new, remotely interesting, or even vaguely controversial or provocative about the Communications Legislation Bill. It has been extensively described as a small and technical bill—and we are not referring to the official in the cardigan who wrote the bill but the bill itself. It is clearly deeply uncontroversial, so can we relate it to the everyday concerns of our electorates? Well, if we stick to the Standing Orders and the purpose of the bill, the answer is: only with difficulty. But there is one exception, and it relates to the matter of inappropriate receivers.
New Zealand is actually the second-largest market in the world for the import of second-hand Japanese cars. We used to be the largest market in the world, until the trade between Vladivostok and Osaka and Tokyo really took off, and Japan discovered that the much larger population of Russia was also in the market. I myself have benefited from this for a little over a year. I got a nice little motor, with 93,000 kilometres on the clock. It has done me very well, but I have had one problem—that of the inappropriate receiver on my motor vehicle. Until I started to research this bill, about an hour and a half ago, I had put this down to a combination of my, at best, only average techie skills, plus the fact there was no instruction manual in the glove box of the car when I bought it. As any other member who has bought an imported Japanese car will know, since the instruction manuals are in Japanese, manufacturers rarely bother to include them for the average New Zealand consumer.
But now I know that the problem was not due to either of those reasons; rather, it is technically impossible to accurately programme those inappropriate receivers. So I spent a lot of time pushing buttons, dialling knobs in Auckland—like other Aucklanders, though I myself probably would be more accurately described as a weather refugee from Wellington—trying to tune into classic rock FM, Flava, Planet FM, or the wonderfully named Wicked Latino. In fact, it is technically not possible to do that. So it might be a tough decision, in a sense—
Maryan Street: I raise a point of order, Mr Chairperson. Can you clarify whether we are currently debating Part 1 or Part 2, because I think the member is speaking to Part 2—for all his research.
The CHAIRPERSON (H V Ross Robertson): We are, in fact, speaking to Part 1. The member should address that. I thank the member for bringing up that point. We are debating clauses 3 and 4.
TIM GROSER: The basic thing is that we support the bill. It is a very small technical step. It is something that has to be done in a sensible way. We have no particular problem with the way this issue has been approached, although we wonder sometimes why the Government has taken so long to get around to it. I will be speaking to the other matters later on, at later stages. Thank you.
Darren Hughes: Showing up his own colleague.
CHRIS TREMAIN: —and to add to the wonderful comments of Mr Tim Groser, who, I might add, spoke exceptionally well the other night in my electorate of Napier when addressing members of Rissington Breedline. He did a fantastic job, and I thank him. Part 1 deals with the expiry of designated services under section 65 of the Telecommunications Act 2001. We are dealing with an omnibus bill. Part 1 amends the Telecommunications Act and Part 2 amends the Radiocommunications Act 1989.
Before I debate Part 1 in any detail, I refer to a quote made by Minister David Cunliffe when he introduced the bill. He said: “This bill maintains a commercial environment of certainty and confidence for both telecommunications services and use of the radio frequency spectrum.” Well, that is why National is supporting this bill, because we see that it maintains some certainty. But if one puts that statement into the context of David Cunliffe’s announcement about recent changes to Telecom, one would argue that he has his wires twisted somewhat, because he managed to wipe a couple of billion dollars off the value of Telecom’s shares in the space of a few days. I would argue that that does not give certainty and confidence either to shareholders of Telecom or to potential future investors in this country.
In focusing back on Part 1, I say we are talking about a largely technical measure. It is designed to prevent an unintended consequence, and it deals with some timing issues. The bill is narrow in scope. Part 1 is extremely narrow; it deals with one issue. Part 1 amends the Telecommunications Act by extending by 2 years the regulation of 10 of the 13 telecommunications services that were originally regulated under the Act. Clause 4 lists a number of examples: in new section 65(1A)(a), interconnection with Telecom’s fixed public switched telephone network; in new section 65(1A)(b), interconnection with fixed public switched telephone networks other than Telecom’s; and going right through to new sections 65(1A)(g) to (j), dealing with local telephone number portability service, cellular telephone number portability service, national roaming, and co-location on cellular mobile transmission sites.
I have had a fair bit to do with the last four of those items in terms of the Telecommnications Amendment Bill, which we are examining in the Finance and Expenditure Committee. Those issues will have a big impact on the telecommunications environment going forward, particularly as New Zealand tries to get more competition into the mobile phone market place. That was highlighted by the flamboyant figure of Tex Edwards from Econet, who came before the select committee and talked about his struggle to get his company up and running, despite, I might add—
Darren Hughes: Whose fault was that?
CHRIS TREMAIN: I take that on board, entirely. The select committee, to a T, turned around to Mr Edwards and put the blame where it was due: back in Mr Edwards’ court.
I acknowledge the work of former Minister Swain, who had a fair bit to do with the 2001 bill at that point in time, and who gave new competitors the opportunity to get into the market. But they had to establish that they could get 10 percent coverage before they could get national roaming and co-location on sites around the country. That was good legislation, because a company like Econet had to establish a level of investment in the country. Even though Econet has invested about $20 million - odd—although I could be corrected on that—into spectrum to buy its rights and although it has coupled up with a local iwi trust, it has not made the investment that is needed to go forward. So I would be interested to hear the Minister’s view of the extension of these designated rights for 2 years, of how that impacts on a company like Econet, and of whether that company would still have the opportunity to follow through—if it ever does.
PHIL HEATLEY (National—Whangarei) : I would like to contribute to Part 1, which amends the Telecommunications Act, and particularly clause 4, “Expiry of designated services and specified services”. I must say it is with some disappointment that the National Party sees that the Minister in the chair, the Hon David Parker, through lack of leadership, has now got a situation where the Commerce Commission has to have 2 extra years to deal with the complexities of the 10 provisions in clause 4.
The Minister might see that as some source of amusement, but I can tell him that there are constituents, citizens, right throughout this country—they do not measure in the hundreds, they do not measure in the thousands, and they do not measure in the tens of thousands; they measure in the hundreds of thousands—who are very frustrated indeed about local telephone number portability; frustrated about national roaming; frustrated about cellular telephone number portability; frustrated about retail services offered by means of Telecom’s fixed telecommunications network, as part of a bundle of retail services; and frustrated about the myriad issues that have not been addressed by his Government since, I believe, Paul Swain was the Minister. Paul Swain spoke about the Telecommunications Amendment Bill, back in 2001. The Minister, Mr Parker, might want to take time to do the maths now: that is 5 years ago. Paul Swain said, at that time, that “for the first time we have established a framework for ensuring that the telecommunications industry can move forward in an orderly way”. He never said it can move forward in a snail’s orderly way. He never said it can move forward in the orderly way such as a turtle would move. He never said it would move forward in the orderly way of a rock. He said it would move forward, and we suspected it would move forward with some haste.
But it is now half a decade on. In those 5 years the voice of the member for Kapiti has broken. He has started shaving. Any time now we will hear a maiden speech from him. He will actually speak in this House. He will not just stand up to move that the bill go to the next stage; he will actually make a speech in the House. In those 5 years the National Party would have liked to see more progress than simply the Minister coming cap in hand to the House to ask for a 2-year extension. I do not think that Paul Swain had that in mind.
On the key issue of increasing New Zealand’s broadband uptake, the Telecommunications Commissioner, Douglas Webb, began his investigation into unbundling in 2002. In September 2003 Webb released his draft recommendations. His final report in December 2003 recommended only unbundled bitstream access. The Government accepted this report in 2004, and hurriedly announced its decision in 2006. This, of course, brought into question the role of the Telecommunications Commissioner, and the Government’s commitment to the process and the original time line. But it never brought into question the Government’s commitment to provide telecommunications access for not hundreds, not thousands, not tens of thousands of New Zealanders, but hundreds of thousands of New Zealanders. It never brought into question its commitment, except today we see a 2-year extension. The Minister is requesting another 2 years for those hundreds and thousands of Kiwis who want decent telecommunications in a First World country.
COLIN KING (National—Kaikoura) : In speaking to Part 1 of the Communications Legislation Bill I can go forward on my colleague’s comments. The progress that has been made under this present Government is totally underwhelming. Quite frankly, when we look at just how many submissions addressed the issues around Part 1, we can see that only one did. That is rather serious because it alludes to the fact that there is a total lack of direction coming from this present Government and, unfortunately, even worse, a tolerance of inefficiency around the communications sector. The company that put forward that submission made the point that the experience of the Commerce Commission’s previous investigations and determinations suggests that the commission’s proposed timetable may slip, and that any such slippage may be significant. So that is the existing mindset under the communications realm of this Government at the moment. That has become the standing order of the day, as it were. The Government tell us, within this bill, that it will provide us with certainty. I would venture to say that it does nothing but provide us with uncertainty.
Like my colleague Tim Groser, I had to do an hour and a half’s research on this bill, and on Part 1 especially, but it was not until I read Maurice Williamson’s first reading speech that I had some understanding and grasp of the bill. I then read the speeches of Pansy Wong and Georgina te Heuheu, and I was adequately empowered and enthused to be able to come down to the Chamber to speak and to hold this Government to account. The Minister in the chair, David Parker, is grinning, but he has very few answers to the questions that have been raised from this side of the Chamber.
I will concede that we are working with a hugely challenging medium. That is the point Maurice Williamson made—this is not a situation where we can take our eye off the ball and expect to remain in control. When we do our sums in Part 1, we see that only three of the particular areas that the Commerce Commission has been looking at have been concluded. The other 10 are in need of extra time, so the Government has given the commission 2 years more. As my learned colleague Georgina te Heuheu pointed out, this is obviously a de facto “throw up the white flag and surrender” situation. The Government is passing the ball, and by 2008 it will be the National Party’s problem. [Interruption] We will. We have the heart, the mind, and the fresh eyes to do so. The Government can choose the time and the place.
So it is with great sadness that I stand here, concerned for those people who have invested enormous amounts of money and who are making but one simple request—that we get certainty and some clarity around where we are going to head. This situation is very similar to many that are going on within this Government at the moment. The Government is definitely scaring the horses. Part 1 does not do a lot to instil confidence for those investors. If we want to transform this economy—which we know can potentially occur under the Communications Legislation Bill, and under Part 1 especially—then 2 years will not do it. This is just a stopgap measure. The procrastination will continue; the confusion will increase. I must say that this Government that we have at this moment is not serving the best interests of the nation. It is not taking this country in the direction we need to go in to change this economy into a First World economy. To grab the words of Georgina te Heuheu again, I say that this is nothing but a Third World economy.
PANSY WONG (National) : Thank you, Mr Chairman. It is very kind of you. My National colleagues continue to be disappointed that, despite our hard work, we have not heard any noise from the Labour benches. Those members have not even bothered to speak. I think they are embarrassed. They are ashamed that they have had to come, cap in hand, to ask for an extension. They have been duped; they have been misled by their own Minister. In 2001 the Hon Paul Swain convinced his Labour colleagues that he would sort it out, that in 5 years’ time all those 13 designated services would have been sorted out by the Commerce Commission.
But I would like to introduce another perspective into Part 1. It seems to me that lots of the public have shown some concern about the inconsistency. I would use the words “double standard”. When the Labour Government could not execute a task to meet that deadline, what did it do? It has come back into the Chamber simply to ask for an extension. I think that for anybody—a business or an individual out there—who was dealing with the Commerce Commission, if the commission set down a time line for them to make a submission, it would be 2 weeks, or 3 weeks. I doubt very much whether they would get the same tolerance if they were to continue asking for the extensive goodwill of pushing that time line out. It seems to me that it is one law for the Government but then, when it comes to the public and business, they never enjoy the same type of latitude.
I want to compliment my hard-working colleague Colin King. In the few short hours he had he absolutely showed up the Labour members, because they have not bothered to take even a simple call. Colin King has gone around and identified that there was only one submission, made by TelstraClear. That was the only company that made a submission on Part 1, which pointed out the obvious and asked: “Why, in the first instance, was 5 years set down as the original time line?”. It said that that competition actually takes a while to happen. So, firstly, TelstraClear questioned whether the original time line, in itself, was realistic.
It further pointed out that its observation of the previous commission investigation and determination was that the timetable always slipped. Not only did the timetable slip, but it slipped in a very significant way. National, reluctantly, will support the bill because we do not want to cause any more uncertainty for the people out there, but we want to put on record that we totally agree with TelstraClear’s observation that the way the Government has not been able to meet its timetable is incredible. That timetable was not missed by just an inch. Actually, just now, my diligent, hard-working, and articulate colleague Phil Heatley said that the Government moved at a snail’s pace. [Interruption] Tortoise? I say that is an insult to a tortoise!
This Labour Government has certainly demonstrated to the public that it knows how to miss timelines, but it has never made allowances for businesses to adhere to the same standard. It never gives businesses the same latitude it gives itself when it comes to rushing through legislation and saying the commencement date is in 2 months’ time. It seems to think businesses exist to serve the Labour Government’s whim whenever it wants to pass legislation. So if there are compliance costs, Labour members say: “Oh well, what compliance costs? It is a privilege for a business to operate.” If the Government wants to commence a time line, it simply names a day and asks why the business cannot comply.
Hon GEORGINA TE HEUHEU (National) : I pick up the point made by my colleague Colin King, who referred to some comments that Maurice Williamson made in this House—I think in the first reading debate—about this area being a fast-moving one. It is a hugely fast-moving area. Not very long ago—10 years ago—did we all, as New Zealanders, have mobile phones? Probably not. Suddenly there has been an explosion of uptake of the mobile phone by New Zealanders, from the elderly right through to the young. When there is an explosion in that direction, then, obviously, normal people look very, very quickly for advancements and enhancements. It does not take long to come to terms with the technology, particularly if there are younger people around who are using it. Those of us like myself sometimes have a little difficulty in getting on to the new technology, but there are always young people—or a young person—nearby who can help us to get there very quickly. I do not think this Government has any idea, really. I am willing to say that I get very challenged.
Part 1 of the Communications Legislation Bill refers to a “local telephone number portability service”, to cellular telephone “roaming”, and to “co-location”. We as New Zealanders demand those things now. It is not the case that we will just wait around and think that no doubt the Government in good time will make sure those things are made available to us—no, we demand them now. We demand them in our everyday lives, both at a personal level and, particularly, in terms of professions and businesses. We have to have those things in place, and I wish this Government would get a sense of urgency into this area. There have been reviews, and all sorts of papers have been prepared over the past 5 years, but have we seen any urgency? No, not at all. The only reason this bill is in the Chamber now is that the period of regulation expires in December, so somebody had to get off his or her chuff and bring a bill into the House in order to get the time line extended. Is there any guarantee, based on this Government’s performance in the last 5 years, that Government members have any sense at all of urgency in the communications area? New technology will soon be upon us and we still have not come to terms with the services listed here in clause 4.
I do not know whether the Minister in the chair, David Parker, has sat there before in the Committee stage of any bill. He is a relatively new Minister, because he had a gap when he was put out of the ministership, but then, for some reason—I am not sure why—was put back in again. National urges the Minister to get on his feet and say something that gives some confidence to us all that he is aware of the complexity of and the urgency associated with this sector, that he is aware of the need for stability, and that he is aware of the need for the likes of Econet—I know a little about Tex Edwards, even though I was not on the Commerce Committee. I understand that that submitter is a rather colourful character. I know a little about that particular company’s activities, simply because Mr Edwards is in partnership with iwi in terms of the spectrum they received.
Darren Hughes: That’s a very bad example.
Hon GEORGINA TE HEUHEU: The member from Otaki—
Darren Hughes: It’s “Ōtaki”. Say it right!
Hon GEORGINA TE HEUHEU: I know how to say it; I will say it how I like. In terms of the comments that that member is making, he can joke about all of this, but it ain’t a joke.
It is not a joke that 5 years on, this Government still has not achieved what Paul Swain laid out in 2001. Paul Swain was a very good Minister, I add. What a shame it is that he is not still there. He might have got this thing moving—it does not look as though it is going to move now. The Minister cannot even get to his feet; there is no movement there. What a pity; what a shame! No matter how many times tonight we ask him to stand and give us some reassurance, he looks as though he is just going to sit there like a great lump and say nothing at all.
LINDSAY TISCH (National—Piako) : National has supported this bill right through. It disturbs me to know that tonight, when National is prepared to support this bill right through the Committee stage, we will be voting on Part 1 only. What about Part 2? What about the title and commencement? The reason is that the Government does not have the support of the other parties to be able to get this bill right through the Committee stage.
The CHAIRPERSON (H V Ross Robertson): Part 1.
LINDSAY TISCH: I am coming back to Part 1. We are debating only Part 1 tonight because the Government does not have support from the other parties to have a Part 2 vote. We cannot discuss Part 2, or the title and commencement.
Let us look at why we are talking about Part 1 only. It is because a Supplementary Order Paper in the name of New Zealand First has come up in relation to clause 6 in Part 2. Here is a Government that wants us to have confidence in the integrity of the process, and to give that certainty we have talked about to all those consumers who are very dependent on communications and telecommunications, yet it is not prepared tonight to allow us to finish the Committee stage, which National is supporting.
We will be able to vote on Part 1 only. The question I ask is why. It is because, in my view, the Government does not have the support of the other parties. When I look at this Supplementary Order Paper that New Zealand First has tabled, I suggest that there is probably some question mark over this bill, and that is why we will not be proceeding with Part 2 and the title and commencement. Of course, the Minister has a Supplementary Order Paper, as well. Maybe we will see, when we look at the Minister’s Supplementary Order Paper, that those parties whose support the Government needs to get its legislation through have some doubts about it.
So although National is supporting this legislation, and has done so through all the stages, it is very disconcerting to find that we will be able to talk tonight about Part 1 only. In Part 1, the principal Act is defined as the Telecommunications Act. Part 1 makes amendments to the Telecommunications Act, and I needed to go back to the statute book to find out what changes are being contemplated here. There are only two clauses in Part 1—clauses 3 and 4. Clause 4 relates specifically to section 65 of the principal Act. I got out the principal Act to see what that clause actually means. Section 65(1A), inserted by clause 4, states that the 5-year period will be taken out to 7 years: “In subsection (1)(a), 5 years must be read as 7 years …”. There is an extension of 2 years, so that is a change. There are a number of other changes made to subsection (1)(a), in the form of paragraphs (a) to (j).
But, at the end of the day, the confidence that subscribers around the country are expecting will be found short. We looked earlier at a piece of legislation called the Securities Legislation Bill, which National supported, and talked about confidence in the integrity of the system. That is what subscribers look for. That is what developers want when they are doing their subdivisions. Yet we see that this legislation is falling well short of the mark. This is an indictment on the Government. There is huge demand out there for telecommunications services, and in the area I represent some areas and some subdivisions are just not being catered for.
|Ayes 71||New Zealand Labour 50; New Zealand First 7; Green Party 6; Māori Party 4; United Future 3; Progressive 1.|
|Noes 48||New Zealand National 48.|
|Motion agreed to.|
- Part 1 agreed to.
|Ayes 71||New Zealand Labour 50; New Zealand First 7; Green Party 6; Māori Party 4; United Future 3; Progressive 1.|
|Noes 48||New Zealand National 48.|
- House resumed.
- The Chairperson reported the Securities Legislation Bill with amendment, and that the Committee had divided it into four bills, and progress on the Communications Legislation Bill.
- Report adopted.
Sports Anti-Doping Bill
Hon TREVOR MALLARD (Minister for Sport and Recreation) : I move, That the Sports Anti-Doping Bill be now read a second time. This bill was introduced in December last year in order to modernise New Zealand’s anti-doping system. New Zealand is a leader in the fight against doping in sport. This country was a founding member of the World Anti-Doping Agency, and has been a strong supporter of the development of the World Anti-Doping Code. A New Zealander, David Howman, is currently the chief executive of that organisation. We were the fourth country in the world to ratify the International Convention Against Doping in Sport, late last year.
In order for our athletes to compete internationally at Olympics, Commonwealth Games, world championships, and other events, our athletes need to comply with the World Anti-Doping Code. The burden of compliance with the code is a challenge for most small sports organisations, many of which are voluntary and are run on the smell of an oily rag. That is why successive Governments have supported the New Zealand Sports Drug Agency to provide drug testing and education about the harmful side effects of performance-enhancing drugs.
This bill will help our athletes and sports organisations comply with the World Anti-Doping Code by updating the functions of the New Zealand Sports Drug Agency. The agency will be required to make sports anti-doping rules. Sports will be able to adopt these rules in order to implement the World Anti-Doping Code. Although the rules will provide for a simple and efficient way for sports to implement the code, they will not be compulsory. Sports will still be able to implement the code in other ways if they so wish.
I would like to thank the Government Administration Committee for its consideration of the Sports Anti-Doping Bill. I understand that the cross-examination of officials by Mr Connell was quite extensive. However, the select committee received few submissions on the bill. Athletics New Zealand made a submission in support of the bill, recognising that it would make it easier for New Zealand athletes to comply with the World Anti-Doping Code, and recognising that New Zealand needs a strong anti-doping network if our athletes are to compete on a level playing field with overseas athletes who have access to advanced doping techniques.
Three professional players’ associations, representing cricket, rugby, and soccer, raised some concerns about the bill and the rules. I want to address those concerns briefly. The first was that the bill would affect the employment relationship between athletes and their sports by imposing penalties on athletes who were caught cheating with drugs. That concern was based on the misunderstanding that the bill would make the World Anti-Doping Code compulsory. It will not. It provides a mechanism for sports to comply with the code, and it does not affect the employment relationship between athletes and sports. Of course, as those relationships develop, as things are written into them, and as sports move forward, then clearly cheats will have problems with their employment relationships. The problems will not be caused by this bill, but rather by the code, and of course, by the cheating.
Another concern raised by professional players’ associations was that the bill does not require the New Zealand Sports Drug Agency to consult with athletes. The Government Administration Committee has recommended an amendment to the bill to address this, and athletes will be consulted, along with the national sports organisations and the Privacy Commissioner. Another concern was that the bill would affect the privacy of athletes by leading to the publication of names of athletes who have been caught cheating. Again, this is based on a misunderstanding. Publication requirements are set out in the code, not in the bill.
The select committee has also recommended that the name of the New Zealand Sports Drug Agency be amended to Drug Free Sport New Zealand. The Government supports the select committee with its suggestion. The name will more accurately reflect the agency’s task of promoting sport free from drugs.
I understand that the select committee spent some time considering whether the agency should be required to let police know about positive drug tests for classified substances. I am glad that the committee decided not to pursue this idea. The police are not interested in being swamped with information about positive tests for a number of drugs that athletes have been prescribed by their doctor or have been given as part of hospital treatment. On the other hand, police are interested in any intelligence about cases that are serious enough to justify the allocation of investigation resources, such as where there is useful evidence of organised drug use or smuggling of classified substances into the country.
It is not necessary to amend the bill to allow Drug Free Sport New Zealand to pass this information to the police, as under the Privacy Act it is already possible to share personal information to “avoid prejudice to the maintenance of the law by any public sector agency, including the prevention, detection, investigation, prosecution and punishment of offences.” As the committee noted, a requirement to share drug test results with the police will be fundamentally contradictory to the basic principles of the anti-doping regime, and could threaten the agreements between athletes and national sports organisations that underpin the whole anti-doping process. I agree with the select committee.
Therefore, I support all the select committee’s recommended amendments and thank the committee for its consideration of the bill.
SANDRA GOUDIE (National—Coromandel) : I would like to begin by commending my colleagues Shane Ardern and Brian Connell for the excellent work that they did in the scrutiny of this bill to ensure that the appropriate level of protection, the right incentives, and the right enforcement procedures as far as New Zealand is concerned, to play our part in the world of sport, were in place. Of course, for such a small country New Zealand does extraordinarily well. There was, indeed, robust discussion on some aspects of the bill, with appropriate amendments made to strengthen the integrity of the bill before it became an Act.
Concerns were raised in regard to the privacy of individuals, the sharing of test results with police, and the broadening of the consultative requirement of the Sports Drug Agency to include athletes. I thought that was a particularly pertinent point raised in discussions with submitters. I could not see any reason why athletes should be left out of the consultative processes, and I think that requirement is certainly a step in the right direction. This will allow not only national sporting organisations but also athletes a reasonable opportunity to comment on any proposed rules. We recommended an explicit requirement to give athletes in national sporting organisations a reasonable opportunity to comment on proposed rules.
The Sports Disputes Tribunal of New Zealand is to be renamed the Sports Tribunal of New Zealand with the deletion of the word “Disputes”, which will make it appear to be a less confrontational body. I think that is to be applauded because we want people to feel confident that it is an agency that will look at all sides of the issues and all the facts of the case, and make a judgment accordingly. The New Zealand Sports Drug Agency’s name is to be changed to Drug Free Sport New Zealand in order to reflect the agency’s current trading name.
The bill was hardly contentious with only two submissions being received, and those two submissions were presented to the select committee, with discussions resulting. Advice was also sought from Sport and Recreation New Zealand officials, who had some good knowledge, to contribute to the few concerns that were raised about the bill.
National is pleased to support the Sports Anti-Doping Bill because we believe in fair play and playing by the rules with integrity, honesty, and courage. We believe in the strengthening of character by meeting challenges openly and honestly, free of the taint of any subterfuge or fraudulent or corrupt practice, and in this instance, of course, the use of drugs. We totally deplore the use of drugs in sport.
There is nothing better than preparing oneself, along with one’s team if one is in a team situation, for the challenge of meeting an opponent or an opposing team. I am glad that I actually had the opportunity in earlier years to swim competitively, to play softball, rugby, squash, indoor basketball, and like my most excellent colleague Eric Roy—who made a wonderful speech during the first reading—to compete in high school discus throwing competitions. However, I did not advance to the lofty heights of my most excellent colleague Eric Roy. I thought it was quite interesting that we both had some skill at throwing the discus.
Talking sport, I was delighted to catch up with the Silver Ferns and their outstanding coach, Ruth Aitken, here in Parliament tonight. Ruth just happens to live in my electorate. I am definitely very fortunate to have such a wonderful person be part of my electorate. I think we need only to look at the Silver Ferns to see what can be achieved in excellence in sport at the highest level—and that is without any taint of anything that might even hint at drugs or any sort of subterfuge in achieving the lofty heights that the team has reached in the sport of netball.
National is very pleased to support this Sports Anti-Doping Bill. We think it will go a long way in curbing any future transgressions. Drugs are becoming far too prolific in sport. We need to be much stronger in making sure that sport maintains its integrity and is free of any form of drug use. My colleague Brian Connell was concerned that anyone indulging in recreational drugs was going to be able to get away with that; that even though those people might be detected using recreational drugs in a sporting context, there was no provision in the bill for that information to be passed on to the police for further treatment through the judicial process. This concern was raised in the select committee. It was felt at that stage, though, that it should be left out. However, I wonder whether we have made the right choice, and whether we should not be putting through an amendment to allow information on people using illegal recreational drugs to be passed on to the police for appropriate action to be taken. This may come about in due course.
People might decide that an amendment to the legislation is required. I think it is something that is worth considering, because so often now people in our communities are resorting to drugs. The drugs are staying in people’s systems for a lot longer and are affecting their performance at all levels, and if they are playing sport it will certainly have an effect. We should take a very tough stance and a very strong position on that with, in my view, zero tolerance. I am very pleased to be part of National’s support for this Sports Anti-Doping Bill, and I commend my colleagues once again for their excellent efforts.
ERIC ROY (National—Invercargill) : I would certainly like to take a call on the second reading of the Sports Anti-Doping Bill. I was certainly very keen to speak at the first reading, too. I think every single New Zealander has an attitude of fair play; it is a significant part of the way we do things. We like to operate on a level playing field and we like to have, I believe, the best interests of our young people at heart; I believe this bill does those things. It is important that we stay abreast of what is happening internationally and therefore we need to have a programme of regimentation, control, and anti-doping regulations that is in keeping and in accordance with the best practice in the world. This legislation brings us up to that level.
There are a few things that I think are quite pertinent. At the first reading I spoke of the impact of drugs on athletes—the shortening of life, and the distortions of the body. I used my own instance of when I received steroids medically—not for playing sport—and the impact of my hands and feet growing two sizes. These drugs distinctly distort the natural functions of the body. Yes, the drugs are, in part, part of us but when the system is overloaded with these drugs in the pursuit of excellence and winning, then the distortions that can occur in the body can be lethal. There are a number of illustrations of that. So there is the element of danger. We should be saying to our athletes that this is not something they can do. If they attempt to do it, they will be caught, and if athletes are competing with someone else who is using drugs, they will be caught. Let us have a level playing field.
Our motivation for this legislation is simply this: we want to protect sportspeople. There are incentives to win and today, with the level of professionalism, winning brings money, it brings glory, it brings adulation, it brings contracts, and it brings sponsorship—it brings a whole lot of things. It is important that we tell sportspeople that they deserve those rewards if they are good enough, but to use drugs is cheating.
I do not know at what stage drugs started entering into the whole realm of athletics and sport. Certainly when I was young, and my heroes were people like Don Oliver, we did not hear of drugs being involved. Initially, their use started in the bulk sports—weightlifting—and the field events. As the need for stamina and recovery came along, there were refined drugs that assisted people in a whole lot of ways. There was shock, disappointment, and anger when people found out the level at which some of my heroes of the 1970s and 1980s were involved in drugs,
There is a sense of frustration for those who are actually playing the game—those who are not cheating by using drugs. We recall the Olympics where Ben Johnson, I think, broke the world record, got the gold medal, and then—hey presto—came up with a positive drugs test. He said he had put his drink bottle down and when he got it back it tasted sticky. Even at that stage chemists could tell what drugs people had been using, how long they had been using them for, and most probably—with the sorts of concentrations that had been taken—they could take an imprint, going back. So Carl Lewis was elevated—the great Carl Lewis who won four gold medals and was the best thing since Jesse Owens—and subsequently, in later years, there are some very serious questions to be answered about his association with drugs.
Again, the use of drugs just dims that whole aspect of our heroes and sends the wrong message to our young people. We need to say that the use of drugs is simply not on. It is not on because of health reasons. Basically it is not on because it means people are cheats. I recall four or five Olympics ago when someone won the silver medal at fencing. Fencing is electronic and when a player contacts with an opponent a light goes on. This fencer had installed some kind of circuitry that overrode what was happening when there was a contact, and he won a silver medal. Shock, horror—that was cheating. No one reckoned he should have been anywhere near the medal. He was a reasonable, passable fencer, but what he did was cheating. So is using drugs to enhance performance; it is the same thing, it is cheating. Let us not dress it up in any other way; it is simply cheating.
Similarly, I am trying to think of the name of the baseball player in the United States who beat Babe Ruth’s record. It was subsequently found that he had a corked bat. I do not know much about baseball but a corked bat helps to hit the ball further. That player was a cheat and he should not have had the record; we understand that. Using drugs is exactly the same thing. So it is right and proper that New Zealand stands alongside the international body that says drugs must not be used in sport. If drugs are used, those using them will be caught and if they are caught, there will be penalties and those cheating will have no right to stand on the winners’ podium.
It is probably true, because of the money involved, that the best chemists are creating the drugs and the agents masking them, and the second-best chemists are trying to catch them. That is probably the case. I am not sure how that can be turned round. What we have to do is to make every attempt to restrict, limit, catch, and punish those people who are cheating by using drugs.
I am pleased that there is a high degree of unanimity over this legislation. As Sandra Goudie mentioned, there were only two submissions to the select committee. That shows a high degree of approval since people who approve of legislation generally do not take the effort to write a submission. As I said, most New Zealanders have a belief that our sportspeople should be operating on a level playing field and that they do serious damage to themselves if they embark on a drug career.
I note one or two things about the bill. I was interested in the Minister’s comments with regard to the involvement of the police. Yes, I accept his statement that there is no point in overloading the police force with a lot of irrelevant information. I note that under the Privacy Act 1993 Drug Free Sport New Zealand does have the power to disclose information if something shows up—there might be some recreational drugs that are banned. Again, this is an interesting paradox. Society is more and more accepting of recreational drugs as the years go by, even though in many cases they are not allowed by law, and socially, there is a high degree of tolerance. In a way, that can dim our awareness or our vigilance in the sports arena. In my view, there should be no tolerance anywhere; the law should be the law and we want to be quite clear about that. There are people like Simon Poelman who got caught—finally—for smuggling recreational drugs into New Zealand in a teddy bear or some other toy. Surely, if he was a recreational drug user that must have shown up somewhere in the tests that he had. It is my view that the police could have, and should have, been able to get involved in that case much, much more quickly than they did.
I conclude by saying that tonight members were at a function when the best netballers in the world—those of Australia and New Zealand—were recognised here in the Banquet Hall. They were rightly recognised and wished well, and everything else. On the night that we extol the best in the world in netball, it is appropriate that we are having this second reading. Members want every athlete who is performing in New Zealand to perform well. We want them to be the best in the world. But we do not want them to cheat. If they attempt to cheat by taking drugs they will be caught, and we as a Parliament approve of the fact that we will catch them and punish them. National supports the second reading of this bill.
JOHN HAYES (National—Wairarapa) : It is a pleasure to be here in the House this evening with very few dopes, where we are engaged in debating this legislation on an anti-doping convention. But I have to say that the Government is in complete disarray.
At 1748 hours this evening the Government released a press statement under the name of the Minister, the Hon Trevor Mallard, announcing that New Zealand leads the way on the anti-doping convention. The press statement states: “ ‘New Zealand is one of the first countries to become party to the UNESCO International Convention against Doping in Sport,’ … Trevor Mallard announced today.” That was before this legislation was debated in the House. He announced in the press statement that we formally became a party to this convention last weekend. It seems to me to be ironic that we are joining things before we actually have the legislation in place to underpin them. In fact, I think it is a damn outrage.
Then when I thought about the Minister’s statement I noticed the originality of this Labour Government. I will read from the Hansard in the name of one Chris Tremain, my colleague from the next electorate north, in Napier. He said during the first reading of this bill: “As a result, the National Party supports the introduction of the bill. We believe that it will seek to preserve what is intrinsically valuable about sport, which is characterised by values such as honesty, ethics, fairness, health, respect, courage, commitment, and solidarity.”
I ask members to remember those words, because tonight in the press statement being used by the Labour Government, the Minister states “… where honesty, ethics, fairness, health,”—have members heard those words before—“respect, and courage drive outstanding performances, …”. Labour members are stealing National Party words and promoting them as their own, such is the bereft nature of this administration.
From a foreign affairs perspective I would just like to recall that in February 1999—this is now 2006, 7 years later—the IOC convened the first world conference on doping in sport. It was attended by the sports movements and Governments of the world to consider the problem of doping. As a result of that sportspeople came together and countries came together, because it was recognised that the issue of doping in sport, just like the bad behaviour of our young people in our electorates, cannot be tackled by one party alone. There are some actions that sports organisations can take and some they cannot—and similarly with Governments. But by sport and Government joining forces, the problem of doping in sport could be better tackled for the good of sport throughout the world.
It is on that basis that I am here tonight to support this legislation on the part of the people in my electorate, the Wairarapa. “Be true to yourself, be true to your sport” is the message I want to deliver to New Zealand sportspeople, to coaches, to teachers, to family, and to community members who are involved in sport. That message is geared towards reminding sports participants about the need to engage in sport in an ethical manner, to respect the principles of fair play, honesty, and respect for diversity, and to be completely doping free. I have the same expectations of young people in my electorate who, earlier in the week and last week, I talked about as being somewhat out of control.
I rise tonight on behalf of the people in my electorate, which, as you know, Mr Deputy Speaker, goes from Cook Strait through to the back of Te Mata peak. My constituents on the southern east coast of the North Island are strong supporters of sport. Whether it is the Wairarapa Bush rugby team, which is doing so well at the moment, or one of 750 cyclists who rode around Lake Wairarapa on a beautiful day last Sunday, people in my community are opposed in all respects to the use of drugs in sport. My community is opposed, as well, to the production of drugs, particularly P, which I know to be taking place in my electorate.
Accordingly, as a member of the National Party—the next Government of New Zealand—I rise to support a legislative framework to facilitate our country’s compliance with the World Anti-Doping Code. For listeners beyond this House I would just say that what we are talking about here in relation to this business of doping is the use of performance-enhancing drugs such as anabolic steroids, particularly those that are forbidden by the organisations that regulate competitions.
Eric Roy: Testosterone.
JOHN HAYES: Yes, testosterone is a drug. I tell my colleague from the deep south that the first recorded attempt to enhance the performance of a sportsman occurred as early as the 8th century BC when ancient Greek Olympians ate sheep’s testicles. Today we would recognise that as being a source of testosterone, and we have a lot that in the Wairarapa, too.
Eric Roy: Very tasty.
JOHN HAYES: It is very tasty, yes, I am well aware.
Eric Roy: Prairie oysters!
JOHN HAYES: Yes, it could be a substitute for Viagra. As early as the late 19th century, professional cyclists were using substances like caffeine, cocaine, and ether-coated sugar cubes to improve performance, reduce pain, and delay fatigue. In 1904 Olympian Thomas Hicks from America won the marathon at St Louis and collapsed. It took hours to revive him. He had taken brandy mixed with strychnine—I know of some other people who could use that. Anyway, he took it to help him win a gold medal. The Nazi German athletes were rumoured to use rudimentary testosterone—advanced from the state of sheep appendages—in the 1936 summer Olympics. At the world weightlifting championships of 1954 there were the first unconfirmed testosterone injections by Soviet athletes—the doping attempt ended in the Soviets’ winning the gold medal in most weight classes and breaking several world records.
During the 1967 Tour de France Tom Simpson collapsed during the ascent of Mont Ventoux. Despite mouth-to-mouth resuscitation and the administration of oxygen, plus a helicopter airlift to a nearby hospital, he died. Two tubes of amphetamines and a further empty tube were found in a rear pocket of his racing jersey. The famous case of drug use in the 1988 summer Olympics also comes to mind, with the name Ben Johnson being prominent in most people’s minds. We need to bring these things to a halt. For this reason National is very, very supportive of this bill.
Sport is about competing. It is about performing to the best of one’s ability; the pursuit of human and sporting excellence. Taking prohibited substances or using prohibited methods is cheating, it is unfair, and it is contrary to the ethics of sport and fair play. Doping undermines the fundamental spirit of sport and severely damages the integrity, image, and value of sport. We firmly stand against it—as we stand against a Government that plagiarises the words of its opponents to use in its press statements, and as we stand against a Government that signs up to agreements offshore without first having the legislative framework go through this Parliament so that it can act honourably.
We note tonight the total silence in this debate on the part of the Government. It concerns me greatly, and it should concern the people of New Zealand, that the Government is silent on this issue, just as it is silent in our communities on bringing and encouraging our young people to play sport and to develop standards, ethics, and behavioural patterns that are acceptable. I am really concerned about the damage being done in our communities by the policies of this Government, which taxes our parents so heavily that they have to spend their whole day at work and they are ignoring their kids. Their kids are not in organised sport. Their kids are exposed to drugs.
Children in my community display unacceptable behaviour, and in my own experience there is no support from parents because they are too busy. There is no support from the police force at a community level to deal with this situation and to help children define boundaries. I think the time has come to hold this Government to task to deliver decent outcomes to our young people, as well as to our sportsmen. Thank you.
RON MARK (NZ First) : Pretty much all that needs to be said on the bill has been said thus far. It is interesting listening to the debate. New Zealand First supports the progress of the Sports Anti-Doping Bill through to the Committee stage. From sitting here, the different speakers who stand up to speak on sport are noticeable. Some, like the honourable Eric Roy, who has returned to the House—and I am pleased to see that he is back here—have an extensive sporting background. Even today he still tramps the hills, and they still talk about him down in Southland and how active he is in outdoor recreation, hunting, and shooting. There are others like my colleague Damien O’Connor, who still plays rugby with me in the parliamentary rugby team.
But I do note that very often the only time people making comments on sport are seen anywhere near a sportsground is when they are out there trying to glad-hand their way through an election, trying to score some votes. It tends to make me take with a handful of salt what they have to say about sport and recreation in general. I know they are non-participants. They are the proverbial couch potatoes of New Zealand who have a lot to say about sport from the comfort of their armchairs, and they tend to reflect that in the way they appear.
It was interesting to hear the previous speaker, John Hayes, straying off the subject and attacking the Government for this, that, and every other thing. I am not here to be an apologist for the Labour Government, but I say to the member who has just spoken that when he talks about whole families having to work day in, day out and not being able to attend sporting events together, he should remember the name of one Ruth Richardson.
David Bennett: Oh, a great MP!
RON MARK: The National Party new boy—the lad who cannot keep his mouth shut during question time, during points of order—says she was a great MP. Let me tell that member that not everyone in New Zealand looks upon the years of Ruth Richardson with the same rose-tinted glasses he has.
When Mr Hayes wants to criticise the situation we have today, where people have to work day in, day out, and do not get time to spend time with their families on the sports fields watching their children, he should reflect back on what happened in this country between 1990 and 1996. I have to say that I did my level best for New Zealand when I stood against Ruth Richardson and helped reduce her margin from a majority of about 7,000 down to 540 on the night. She was so badly punished by the electorate for the way she handled the New Zealand economy and for the way, through her “Ruthanasia” policies, she denied young families the opportunity to spend quality time together, that her leader, Jim Bolger, fired her as the Minister of Finance. She spat the dummy and resigned. That is probably the most unsporting conduct I have ever seen from someone—that having lost her job as a Cabinet Minister, she spat the dummy, resigned, and walked away from Parliament altogether. It did the country a favour. It caused a by-election and we moved on.
So when we talk about the inability of families to spend quality time with their children, and when we talk about the inability of New Zealanders to put as much time as possible into voluntarily supporting sport and recreation—being on the netball club committee, being a coach, assisting to move children in the morning from one venue to another to partake in sport—let us be absolutely clear. Mr Hayes himself used words such as “standards”, “ethics”, “morals”, and “honesty”. Well, let us have some standards, some ethics, and some moral fortitude. Let us have some honesty and put our hands up and say that, yes, the National Government, between 1990 and 1996, played as big a part in destroying that as anybody else that member might like to criticise today. [Interruption] The new boy on the block just cannot keep his mouth shut when it comes to interjections. He has a lot to say, but we are waiting to hear something of value come out of his mouth. We are waiting and waiting.
Let us remember what we have done in our past, when we stand up and dare to flick criticism. Members talk about standards, ethics, moral behaviour, and honesty. I looked at the membership of the Government Administration Committee. On it are three Labour Party members and three National Party members: Shane Ardern, Brian Connell, Sandra Goudie, Russell Fairbrother, Ross Robertson, and the Hon Dover Samuels. A paragraph on page 2 of the commentary talks about information sharing. I note with interest: “The majority of the committee are satisfied that it would be undesirable for the bill to be amended to require the Agency to share information with the Police about the results of blood or urine tests.” It says “the majority of the committee”—which has three National and three Labour members. It does not say “unanimous”; it says “majority”. That suggests to me that, to get a majority, three on one side had to be supported by one on the other. I would like to know who it was on the National Party side, or on the Labour Party side, who did not agree with his or her colleagues. Clearly, someone believed that that information should have been able to be passed to the police. Members can see that on page 2 of the commentary.
So the question is that if we are to stand up and talk about the problem of drugs in our community, as Mr Hayes did, and say how terrible it is that we are promoting tolerance towards recreational drugs and how that affects sports anti-doping legislation and the practice of doping in sport, then why can we not be honest about who on the committee did not want the police to have the information about who in the sporting fraternity was using drugs? Clearly, it was not a unanimous view. Someone on that committee—with three National members and three Labour members—did not agree with his or her colleagues. Someone on that committee said: “To heck with this. If they’re taking drugs, the police should know.” I would like to think it was my mate Brian Connell, because Brian Connell is an honest man. Brian Connell cannot tolerate lawbreakers. I say this because I have served with Brian Connell on the Law and Order Committee for so long. My heart tells me that he would have a totally uncompromising view on drug use.
But someone in his party does compromise his or her view. Someone thinks that the police should not know, and it would be really interesting to know who it was, given National’s long-touted view on law and order and its opposition to drug use. Someone on that committee does not share Brian Connell’s view. I would love to know who. Was it Shane Ardern? I doubt it. Was it Sandra Goudie from Coromandel? Well, hello! We all know about Coromandel. I would love Sandra Goudie to come clean. Did she side with the Government? Did that National member Sandra Goudie side with the Labour members on the Government Administration Committee and determine that drug cheats should not be allowed to be exposed to the police? I am looking—as Mr Hayes said—for honesty, integrity, openness, and a high standard of moral behaviour.
I would like Sandra Goudie to come down to the House, because my heart tells me that Brian Connell would dob in drug cheats to the police as quick as a flash. My heart tells me that Shane Ardern would dob them in to the police as quick as a flash. My heart tells me that Shane Ardern and Brian Connell would not want these drug cheats to be able to hide from the law. But someone in National sided with Labour and said that, no, this information should be kept confidential. Mr Hayes gave a good speech. He preached high on honesty, on ethics, and on morality. I am now calling upon the member of the National team who voted with Labour to guarantee anonymity and secrecy on the question of who is using drugs and what the results of the blood or urine tests say.
KEITH LOCKE (Green) : The Green Party is supporting the Sports Anti-Doping Bill. The discussion has been a good one. The very bad consequences of drug use in sport have been outlined by previous speakers. The health effects are substantial.
Two of the most prominent cases of drug use in New Zealand sport that led to what appears to be early death involve Robin Tait, the discus thrower, and Graham May, the weightlifter. Those people died young, probably as a result of drug use in their sports. We have to realise why drug use takes place. It is not just a case of individuals taking drugs for their own gratification. One of the problems is the nature of sport, particularly the nature of professional sport, in the world today. A huge amount of money is involved. One can become a multimillionaire overnight and famous throughout the world. Very often sport is tied up with national pride, so pressure is put on the officials as well as the athletes to bend the rules and engage in drugs in sport.
Even New Zealand, in its own way, can encourage that situation by the way it sometimes promotes sport. I am referring here to the controversy that happened after Sport and Recreation New Zealand announced its grants for high-performance sports. The criteria for receiving these grants seemed to include sports that New Zealand could win at internationally. When the approach of winning is taken as being the main criterion, the door is opened to the use of drugs in sport. I am not saying that would be the case in New Zealand, but it would be the case in some other countries. For example, Sport and Recreation New Zealand gave money to sports that would most likely win at the Olympics or the Commonwealth Games, and left aside the most popular participation sport in New Zealand today in terms of the number of kids playing—soccer. It is obvious that because soccer is an international sport, and we are a country of just over 4 million people, we would be very unlikely to win the World Cup. But we should still encourage high performance in this sport, just as other countries do. Other countries take pride in their small successes in soccer, and they do not have the goal that they have to win or it is nothing. So I think Sport and Recreation New Zealand is going down the sort of track that has encouraged the use of drugs in sport overseas.
It is very disheartening for people competing in international sports such as athletics—particularly for women in athletics, from the sprint events through to middle distance—to know they are very unlikely to break a world record. The world record holders in women’s athletics are all from Eastern European countries, China, and the United States. Those countries engaged heavily in drug use for their sportspeople, and this was encouraged by officials. The records of Florence Griffith Joyner in the 100 metres and 200 metres, of Eastern Europeans such as Jarmila Kratochvilova, and of the Chinese runner Qu Yunxia in the 1,500 metres were set quite a while ago and are very unlikely to be broken, because they were so drug-induced. Well, that is the suspicion; there is no proof, because we did not have the testing regime at that time. It is good that we are bringing forward a bill like this one, because we need that testing, nationally and internationally, to be able to stop that sort of thing from happening in the future.
However, there could still be a problem. Examples have been raised already about the cheating that has been encouraged for a period by the American athletics authorities. It seems that those authorities have upped their act, and they now have some good people in their sports drug agencies. But there have been scandals, with the most recent one involving the 100 metres world record holder Justin Gatlin. Previously, scandals involved Tim Montgomery and, as was mentioned by a previous speaker, Carl Lewis. There is a history of drug scandals, so we cannot even trust the men’s world records completely, given that they all come from the United States—if we go from the 100 metres through to the 400 metres and include the hurdles. So that is a problem for young athletes.
It is important to have people motivated and to have role models, but it is very hard to have those things if there is not a level playing field and if the world records that athletes are competing against were set through the use of drugs. There have been a number of scandals recently in other sporting areas like cycling. The most recent example occurred during the Tour de France, when Floyd Landis was found to have taken drugs, and on many occasions there has been suspicion about the previous winner of the Tour de France, Lance Armstrong.
We are dealing with a serious problem, and it is important to try to set a bit of a lead in the world on this issue in terms of adhering to the world anti-doping code. I think that with our example, and by working with other countries, we can perhaps bring countries like China along. In the past, China has been engaged in drugs in sport at the level of officials and athletes. Hopefully, China is moving beyond that, although, obviously, the national pride element comes in and the Chinese will want to do well in the 2008 Olympics. So the pressure of the world community will, hopefully, stop that from happening.
We should encourage very serious penalties, such as lifetime bans, for athletes who are found to be using drugs in sport. It is disheartening to see that some of the bans last only for a year or two before those athletes are back in their sport. We have to be very serious about the bans. It is good that this bill has a clause stating that New Zealand athletes have to be involved in decision making on drug rules, because athletes definitely do not want to compete against people who are influenced by drugs. So athletes will help to strengthen the procedures and the penalties.
It is a big battle because often the chemists for the cheats are one step ahead of the testers. But if the world works together, we can help to reduce that gap. There are various techniques we could use, like keeping blood and urine samples for some time into the future so that we can apply new tests on earlier samples. There are ways to reduce the use of drugs in sport that I think the Sports Anti-Doping Bill will enhance. The Greens support this bill. Thank you.
TE URUROA FLAVELL (Māori Party—Waiariki) : Kia ora, Mr Deputy Speaker, kia ora tātou. The Māori Party is pleased to stand and support the Sports Anti-Doping Bill in our desire and commitment to promote health, fairness, and equality for athletes throughout the globe. We do so with genuine pleasure because sport is one area where the statistics for tangata whenua are exceptional, and I stand as an example of that.
Indeed, although the majority of Māori adults are active—apparently around 67 percent—this is an area where Māori men in particular come into their own. I must say that following the somewhat depressing kōrero associated with the Succession (Homicide) Bill earlier today, it restores the spirit to be able to stand in this House and share the achievements of Māori men in regard to this bill, for Māori men spend more time being active per week than all other adults in the country as a whole. The record shows that young Māori men particularly excel in this area. Seventy-one percent of young Māori spend, on average, 7.7 hours per week taking part in sport and active leisure. That is a whole hour more than members have spent in the Chamber today, so it is quite a big period of time. And we are not just busy being fit—information from Sport and Recreation New Zealand states that even in our downtime we are busy looking for a new sport or active leisure activity. More than half of Māori adults have the desire to be even more fit than they currently are.
Given this profile, the Māori Party will support the implementation of the World Anti-Doping Code as a key means of being able to preserve the fundamental rights of athletes to participate in dope-free sport. It is also in light of this profile that we strongly support the recommendation from the Government Administration Committee that Drug Free Sport New Zealand consult with, advise, and assist Sport and Recreation New Zealand and athletes. Although the sporting bureaucracy, namely local bodies, the New Zealand Olympic Committee, and national sporting bodies, etc., will no doubt have the expert experience to do everything necessary to comply with and implement the rules of Drug Free Sport New Zealand, the perspectives of athletes themselves must be considered as a unique and necessary source of advice.
As a case in point, I want to consider one of the world’s fastest-growing sports, waka ama. In March of this year the Waka Ama IVF Va’a World Sprint Champs 2006 attracted up to 5,000 international competitors from 26 countries, including Pacific nations, the United States, Canada, and countries in Asia and Europe. On a scale as significant as this, the importance of ensuring harmonised, coordinated, and effective anti-doping programmes is critical if we are to retain our international reputation. In line with the constitution of Ngā Kaihoe o Aotearoa, the governing body, the taking of specified drugs is banned from this sport. The emphasis in the testing places importance on the identification of performance-enhancing drugs, although a full, broadband test is also administered at any event. If a positive test is confirmed, the paddler concerned appears before the Ngā Kaihoe o Aotearoa disciplinary committee, by whom particular penalties may be imposed. The penalty imposed may be that the paddler is suspended from all competition in the sport in any national or international event for a minimum period of 2 years. Re-entry into the sport can occur only on the basis of a negative test.
I draw upon this example for two reasons. The first is that in a bill that jumbles up a whole lot of quangos and agencies—the Sports Disputes Tribunal, Drug Free Sport New Zealand, Sport and Recreation New Zealand, the New Zealand Olympic Committee, and so on—it is important to understand how the system practically impacts on the individual athlete in any sporting arena.
The second reason I draw on the case of waka ama is, of course, the recent phenomenon associated with this elite sport and the unique capacity that tangata whenua have demonstrated to excel in it. I remember hearing earlier this year of a Māori woman describing how the children of Tai Rāwhiti had left home as schoolchildren and returned home after the waka ama event as world champions. They attributed their success to the traditional training they benefited from through wānanga. The traditions associated with waka are interspersed throughout our whakapapa. They demonstrate our proud history of entrepreneurship, of risk taking, and of adventure, and, in a more contemporary sense, they show us Māori realising our potential through sport. So it is probably no surprise that New Zealand was placed second after Tahiti for the number of gold medals won, and first overall, with 63 medals in total. It is therefore an excellent example to put before this House of a sporting body, of athletes, and of constitutions that are achieving international status and, at the same time, doing all they can to comply with international agreements and arrangements concerning doping in sport to which New Zealand is a party.
I want to raise one other significant issue in the context of this bill, and that is the complex and highly sensitive issue associated with the testing of bodily fluids as directed in the anti-doping rules and principles that are accepted by most of the world’s international sporting organisations. Matters concerning the storage, returning, and disposal of DNA are of utmost relevance for tangata whenua in our respect for whakapapa and the preservation of mana tangata, mana tupuna. Whakapapa guides us in knowing who we are, from whom we descend, and what our obligations are to those who come after us. It is because of the sacred significance of whakapapa, the unique genetic blueprint for every human life, that we would seek particular caution in the handling of large amounts of body fluids. The implementation of the anti-doping sporting code involves, of course, the collection of genetic samples and data from athletes, including indigenous peoples. Our commitment to preserving the unique design of whakapapa leads us to scrutinise any research so as to ensure that it complies with the protocols that protect human rights.
It is not long ago that the Genographic Project proposed to take over 100,000 blood samples and historical knowledge from indigenous peoples around the world. The project of the National Geographic Society, IBM Corporation, and the Waitt Family Foundation sought to collect blood and other bodily tissue samples from over 700 different indigenous communities. It was, of course, in Aotearoa that 150 participants from 14 UN nation States developed the Mātaatua declaration in June 1993, which calls: “for an immediate halt to the ongoing ‘Human Genome Diversity Project’ (HUGO) until its moral, ethical, socio-economic, physical and political implications have been thoroughly discussed, understood and approved by indigenous peoples.”
Strangely enough, despite international resistance and the eventual cancellation of the Human Genome Diversity Project, a 5-year project recently emerged to reconstruct a genealogy of the world’s populations. As I said earlier, the project of the National Geographic Society and IBM Corporation aims to collect 100,000 blood samples from indigenous populations around the world. According to its supporters, the project would help map humanity’s genealogy. However, the Indigenous People’s Council on Biocolonialism has voiced its opposition to the project and the genetic testing. We urge the international community and the United Nations to participate with indigenous peoples in developing international policies and conventions that protect all life forms from genetic manipulation and destruction.
We can, of course, appreciate how scientists and biologists of the world would want to look at indigenous populations in order to grow the perfect child. It goes back to the start of my speech—to the outstanding example of tangata whenua as a model specimen for health and fitness. The influence and promulgation of dope—of any illicit drug, of course—stands to ride roughshod over that ideal model.
Finally, I pick up on the point made by the Hon Phil Goff this afternoon, in response to Ron Mark, when he referred to the drug that most worries the police—the drug called alcohol. I also refer to a recent statement made by the Prime Minister: “what I know is that tobacco smoking is as addictive and habit-forming a behaviour as addiction to any hard drug like morphine and heroin.” The Māori Party will be interested to see whether attention is drawn in the Committee stage to these other legal, but perhaps more lethal, drugs that serve to threaten the body beautiful. We in Aotearoa have a lot to be proud of, but our major success in the sporting area will be proven by setting a standard internationally that could result in further progress of our sport on the world stage. That means a drug-free and alcohol-free sport. Kia ora tātou.
- Bill read a second time.
- The House adjourned at 9.47 p.m.