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Volume 678, Week 6 - Tuesday, 20 March 2012
[Sitting date: 20 March 2012. Volume:678;Page:1053. Text is incorporated into the Bound Volume.]
Tuesday, 20 March 2012
Tonga—Death of King George Tupou V
Mr SPEAKER: Is there any objection to that course of action being followed? There is none.
Rt Hon JOHN KEY: I move, That this House express its sadness at the passing of the King of Tonga, King George Tupou V. On behalf of the Government and the people of New Zealand I take this opportunity to extend our sympathy to the royal family, Government, and people of Tonga on the passing of His Majesty King George Tupou V on Sunday evening in Hong Kong, aged 63. King George had close ties to this country. He was educated at King’s College, had close friends in New Zealand, and was a regular visitor here. King George came to the throne upon the death of his father in 2006, and in the brief 6 years of his rule Tonga has undergone a quite remarkable transition to democracy. That King George was the architect of that transition is even more remarkable. Three days before his coronation he announced that we would relinquish most of his powers and be guided by his Prime Minister. Those familiar with the sometimes turbulent events in Tonga around the time will recall King George’s decision to appoint a commoner, Feleti Sevele, to the office of Prime Minister with a clear mandate to chart a course to democracy. That course passed a critical milestone in November 2010 with the holding of democratic elections and the appointment of a Prime Minister based upon the confidence of the Parliament. Although there have been some speed wobbles along the way, the fact that such a dramatic transition could occur with the unambiguous support of the monarch makes this one of the most unusual stories of constitutional change in recent times.
I had the pleasure of enjoying the late King’s hospitality in Tonga in my first year as Prime Minister, and of meeting him in New Zealand subsequently. He was a unique character—extremely well educated, very widely read, and with strong views that he expressed with eloquence and force. In my dealings with him the sense of the special relationship that exists between New Zealand and Tonga was always present.
The passing of King George will cast a long shadow over Tonga. Although the role and the powers of the monarchy were irreversibly altered in his time on the throne, the deep respect and affection for the monarchy and for King George personally have remained unchanged. I telephoned Prime Minister Tu’ivakano yesterday to convey the sympathy of the Government and people of New Zealand, and we will, of course, be appropriately represented at His Majesty’s funeral. Today we also remember that the over 50,000 New Zealand who identify with their Tongan roots will be greatly saddened by the loss of King George. In the space of 6 short years the face of a small Pacific nation has been changed for ever for the better. The evolving democracy that is Tonga will be King George’s enduring legacy.
DAVID SHEARER (Leader of the Opposition) : I will join with the Government and all the members of the House in conveying the sympathies and condolences of the Labour Party to the royal family and the people of Tonga on the death of King George Tupou V. He died aged just 63. It is a loss that I know is felt keenly right across the Pacific—obviously, in Tonga, and also by all those Tongans living in New Zealand as well. His legacy will be a proud and democratic Tonga. It is a legacy that has set his country on a new course. That is a legacy that any leader would be proud to lay claim to. His emphatic response to the scenes of anger that he was confronted with early in his reign will not be forgotten by history. He will be remembered as a leader who listened to his people. We have only to pick up a newspaper to see what a rare quality that can be sometimes in leaders right around the world. He must have been proud to witness Tonga’s first democratic elections in November 2010.
The connection between our two countries—between New Zealand and Tonga—is very close, and the close relationship between the King and the people here is exemplified by the fact that he had his early education here in New Zealand. It was also on display just a few months ago during the Rugby World Cup 2011. It was a game that involved Tonga that brought the tournament alive that first day. It was in a sense the King’s legacy that that closeness was in fact seen there on the rugby field.
The King’s legacy, I think, is in some ways unfinished. It is a process, a reform in progress, that the next generation of leaders will have to pick up and continue. But today is a day to acknowledge the contribution of a leader to his country and to his people. Our thoughts and our prayers are with the people of Tonga, in Tonga, in New Zealand, and around the world today.
METIRIA TUREI (Co-Leader—Green) : The Green Party joins other MPs in this House in extending our condolences at this sad time to the people of Tonga, both in the islands and here in Aotearoa, and particularly to his whānau—the Queen Mother, the King’s sister, the Crown prince, and the rest of the royal family—who are deeply saddened by this loss. It is a real tragedy for Tonga that it has lost its second monarch in the space of just 6 years, so this is a very hard time for it.
The King led a very interesting and unusual life, and I think it is important to acknowledge and celebrate that as well. He will be remembered for guiding his country and supporting his country through a critical period of constitutional change ending 165 years of feudal rule, and for his great passion for modern technologies. As a former pupil of King’s College in Auckland, I think that he will be remembered by the Tongan community, but also by all New Zealanders and those who knew him best for his colourful personality. Whether it was his taste for wearing a monocle and a top hat, or for driving around Tonga in a black London taxi, these were all parts of his character that led him to be so deeply loved by his people, and they were parts of him I am sure that his community will celebrate, even as they mourn his tragic and too early loss. The rugby-mad monarch, he made an impression on the people who loved him. The sun of Tonga has set. May the prayers of the Tongan community be heard. Kia ora.
Rt Hon WINSTON PETERS (Leader—NZ First) : King Siaosi Tupou was an unusually interesting and fascinating man, frequently criticised by the outside media for his so-called foibles and extravagances, despite such behaviour being common in other societies and yet being so subserviently admired. In short, he came in for much criticism that was based, in most cases, on a feeling of superiority to the Tongan people and to him.
But he was an exceptional man in the context of history, for within 2 months of his predecessor’s death in 2006, Nuku’alofa was ablaze with riots. Eight Tongans lost their lives, and many shops were ransacked. That was ascribed to the dawdling pace of democratic reform in Tonga. But the King delayed his coronation, instead going for a mutual rebuilding, which saw his cousin leading a commission for reform to Australia, then to New Zealand, and then on, in the end, to the United States to consult with the Tongan people about constitutional change. And tragically, even then, for the Tongan people, his cousin was killed in a car accident in the United States.
The fact is that the King gave up much of his monarchical power—a legacy that is far more important than most leaders will ever leave their country. So our condolences go out to his people and our best wishes go to his successor.
Hon Dr PITA SHARPLES (Co-Leader—Māori Party) : Tēnā koe, Mr Speaker. Ka tū atu au ki te tautoko i ngā kōrero, ngā mihi, ngā poroporoaki ki te Kīngi o Tonga, a Siaosi Tāufa‘āhau Manumataongo Tuku‘aho Tupou te Tuarima, arā, te Kīngi o Tonga, te arikinui o tērā iwi, o tērā moutere i Te Moana-nui-a-Kiwa. I te mōhio au ki tērā tangata. Nāna ahau i manaaki i te wā au i Tonga, noho tahi, kai tahi, kōrero tahi, he tangata matatau ki ngā tikanga me ngā kaupapa whakahaeretanga o te ao. Nā reira, tino pōuri au ki te rongo atu kua hinga mai tēnei tangata.
Nui rawa tōna ōhaki ki tōna iwi, te iwi o Tonga, nāna i whakahoki ki tōna iwi te tino rangatiratanga i runga ake i te Whare Pāremata o Tonga. Kua oti kē tēnei kōrero i ngā kaiārahi o te Pāremata nei. I rongohia tō rātou karanga, kia whakaatu ki a rātou te mana kia whiriwhiria, kia whakatūria e rātau anō, ko wai kia tū hei mema Pāremata mō taua whenua, kia riro i a rātou he Kāwanatanga nā te iwi anō. Nā reira, tēnei ahau e pōuri ana, e tautoko ana i ngā mihi, ngā poroporoaki ki a ia.
Ngā mihi ki tōna whānau e noho pōuri ana. I te wā i tae atu au ki te nehunga o tōna pāpā, i kite au i te motu katoa, kāore he tangata kāre i ngā kākahu pango, katoa mai ngā tāngata Tonga e tangi ana mō tō rātou Kīngi kua ngaro atu. Nā reira, tēnei ahau e tangi tonu ki a ia.
Nā reira, kei te rangatira, haere. Haere ki ō tīpuna mātua, ki tō pāpā, otirā, ki tō tipuna, a Kuini Salote. Hoki aku mahara ki te wā i a ia e noho ana i Tāmaki-makau-rau i te wā i tae atu au ki te whare wānanga. Nā reira, tēnei ahau e tangi atu. Haere ki a rātau e kiia nei ko te iwi nui, kia noho koe i reira, tata ki te Atua-nui-i-te-Rangi i tōna taha, hai whāraki mā mātau. Nā reira ko te kōrero, koutou ki a koutou ngā mate, haere, haere, haere atu rā.
[Thank you, Mr Speaker. I rise to endorse the statements, tributes, and condolences made to the King of Tonga, Siaosi Tāufa‘āhau Manumataongo Tuku‘aho Tupou V, the King of that people and of that island of the great ocean of Kiwa. I knew that person. He looked after me when I was in Tonga. We lived, ate, and talked together and he was well informed on matters and protocols about global democracy. So I am greatly saddened to hear that this man has fallen.
His greatest legacy to his people of Tonga was to return to them the right of self-determination above that of the Parliament House of Tonga. Leaders of this Parliament have spoken about this already. Their call to cede to them the right to determine and appoint members of Parliament for that country was responded to so that they would end up with a Government that the people elected. So this is why I am mourning and supporting the tributes and eulogies to him.
I sympathise with his family, who are grieving. When I arrived there for his father’s funeral I saw the entire nation and there was not a person not in black clothing to be seen; everyone in Tonga was mourning for their King who had gone. And here I am still grieving for him.
So depart, the chief. Return to your ancestral forefathers, to your father, and to your ancestress Queen Salote. My thoughts go back to the time when she was living in Auckland at the time when I arrived at university. So here I am mourning. Go to them who are referred to as the multitude. You will remain there, close to the great God in heaven, and be a mat for us. So the saying goes: you, the dead, remain there among yourselves, depart, journey on, and farewell. ]
Hon JOHN BANKS (Leader—ACT) : The ACT Party extends its heartfelt condolences to the people of Tonga following the sad death of their monarch, King George Tupou V. King Tupou was a flag-bearer for democratic change and a loyal servant of his people. During my time as Mayor of Auckland I got to know the Tongan community very well. More than 50,000 Tongan people live in New Zealand, and they have made an immense contribution to our economy and to our culture. They are proud people, proud of their nation and its heritage. We witnessed, did we not, the extent of their patriotism last year at the time of the Rugby World Cup. King Tupou was a proud Tongan, and the Tongan people were proud of their King. The Tongan community will be grieving at this time, and we want them to know that they are not alone.
Hon PETER DUNNE (Leader—United Future) : On behalf of United Future I want to join with other members who have spoken, to express our condolences and sympathy to the Tongan royal family and to the people of Tonga throughout the world on the sudden, unexpected death of King George Tupou V.
His Majesty joins a great line of Tongan monarchs who have been revered by their people for the way in which they have served the interests of their country. In this he is no different from his late father or his much-beloved grandmother Queen Salote. But there was much more to King George Tupou than the idiosyncrasies of style and his personal eccentricities might have suggested. This was a man who, within a short period of time of becoming his nation’s King, instituted the most profound constitutional changes in his country’s history. Although at the time of his accession there were some who might have sneered at this rather strange-looking person who was assuming high office and fretted about the implications for his country, His Majesty quickly proved them wrong, and quickly proved that he could adapt to the circumstances confronting Tonga and work for the interests of his people. I think that is why, within such a comparatively short period as the monarch, he brought about such deep affection and such love from his people. He will be sorely missed.
Tonga faces many challenges ahead. We wish his successor the same good fortune in his role, but I am sure all New Zealanders would not only say to the people of Tonga today “We stand with you in your sorrow.”, but also say “We stand by you, as you seek to take your nation forward under the new leadership.” May the memory of King George Tupou V linger long, and may he rest in peace.
- Motion agreed to.
Elspeth Buchanan—Statements Made by Hon Pete Hodgson
Questions to Ministers
State-owned Assets, Sales—Prime Minister’s Statements
1. DAVID SHEARER (Leader of the Opposition) to the Prime Minister: Does he stand by all his statements with regard to asset sales?
Rt Hon JOHN KEY (Prime Minister) : Yes, including my statement that the Government would set out its mixed-ownership policy well in advance of election 2011. We did that. It was an election that saw National’s vote increase and Labour’s vote decimated.
David Shearer: Does he stand by his statement that “In the world of making the boat go faster, actually I don’t think selling off State assets is going to make the boat go faster.”?
Rt Hon JOHN KEY: I stand by that quote in relation to the context it was given when I said: “I personally think it’s not the issue that the current economy …”—actually, as we later went on to find out, Labour had so badly mismanaged the economy that we had a decade of deficits. I think it is actually one of 120 things that will help a little bit.
David Shearer: Did he say: “There is no motivation to sell assets;” 10 days after Merrill Lynch collapsed, 10 days after Lehman Brothers collapsed, and 6 months after Bear Stearns collapsed, when the world was going into recession?
Rt Hon JOHN KEY: Yes, as I said earlier, in the context of what I said, which was “I personally think it’s not the issue that the current economy faces.” Actually, the economy changed dramatically from there.
David Shearer: Does he stand by his statement in answer to question for oral answer No. 6 on 7 June last year that a brokerage fee for selling assets of 1.9 percent is very low?
Rt Hon JOHN KEY: Yes, because at the time I was referring to some advice that the Government had received about the range of fees, and they are up to about 10 percent, so 1.9 percent is quite low.
Michael Woodhouse: What reports has he seen on mixed-ownership models in other countries?
Rt Hon JOHN KEY: I have seen a very interesting report about a country that has well and truly embraced the mixed-ownership model. That country—wait for it—is Finland. The large energy company Fortum is 51 percent owned by the Finnish Government and 49 percent owned by a mix of other investors, including Finnish mums and dads. The national airline is 56 percent owned by the Finnish Government, and the balance is owned by Finnish mums and dads and others. This is the same country that is repeatedly held up as a shining example of where New Zealand should be going by none other than David Shearer.
David Shearer: Is it his view that a $150 million fee—[Interruption]
Mr SPEAKER: Order! I apologise to the Leader of the Opposition. I want to be able to hear this question.
David Shearer: Is it his view that the $150 million fee for selling State assets is very low, and is it a low amount to pay merchant bankers Goldman Sachs, Macquarie Capital, and Credit Suisse?
Rt Hon JOHN KEY: It is not confirmed that the fee would be of that magnitude. I certainly do not know that today. But what I do know is that to release $6 billion to $7 billion worth of capital to be used for other assets is a good idea. I think it will lead to a brighter future. That is something that David Shearer and I both want, so maybe he should just cut to the chase and vote National.
Michael Woodhouse: What other reports has he seen on mixed-ownership models in other countries?
Rt Hon JOHN KEY: Well, I have seen a report that one of the directors of the mixed-ownership energy company Fortum, which is 51 percent owned by the Finnish Government, is none other than the former Finnish Prime Minister Esko Aho. This is the same Esko Aho who is held up as an example of being a “wise Prime Minister making bold decisions to make his country a better place” last week by David Shearer. As I say, if he wants a brighter future he should just vote National.
David Shearer: Is $150 million a “very low” amount to pay merchant bankers Goldman Sachs, Macquarie Capital, and Credit Suisse, and how does it compare with spending just $2.8 million to enable local family violence services to continue providing services?
Rt Hon JOHN KEY: You simply cannot draw a comparison. Everybody knows that you will have to pay a fee to release that capital, but let us look at what that capital is going to be used for: $1 billion for 21st century schools, $400 million to lift New Zealand’s GDP for irrigation of the South Island and North Island—we know that Labour do not like farming. David Shearer said—
Mr SPEAKER: I think that was sufficient answer. What Labour might or might not think is not the right honourable Prime Minister’s responsibility.
Accident Compensation Corporation—Release of Personal Information
2. KEVIN HAGUE (Green) to the Minister for ACC: Does she consider an independent inquiry into ACC’s management of the incident in which personal information relating to 6,700 claimants was sent to Bronwyn Pullar is needed; if not, why not?
Hon JUDITH COLLINS (Minister for ACC) : Yes; that is why I fully support the Privacy Commissioner undertaking a review of both the August incident, when a data spreadsheet was wrongly sent to an ACC claimant who did not return it, and of ACC’s privacy policies and processes.
Kevin Hague: Does she not agree that a fully independent inquiry is now needed, given that neither ACC’s interim report on the matter nor the scope of the inquiry announced by the Privacy Commissioner are adequate to cover the now public facts of the involvement of former National Party president Michelle Boag and former ACC Minister Nick Smith in the matter?
Hon JUDITH COLLINS: The Office of the Privacy Commissioner is an independent statutory office, established under section 12 of the Privacy Act 1993. It is absolutely independent. If the member has any other queries in relation to these issues, I suggest he takes them up with the Privacy Commissioner.
Kevin Hague: When did she discover that former Minister for ACC Nick Smith had written a letter on official letterhead, drawing attention to his role as Minister for ACC, supporting Bronwyn Pullar?
Hon JUDITH COLLINS: I received an Official Information Act request from the New Zealand Herald, which I think was yesterday, alerting me to the fact that there was a letter of reference, and today I was able to read that letter because it had been released and was put on to a website.
Kevin Hague: Has former ACC Minister Nick Smith’s letter concerning Ms Pullar been used in any ACC-related claim?
Hon JUDITH COLLINS: I would not be aware of that, but I am sure that the Privacy Commissioner’s review will be able to determine any of that.
Kevin Hague: Would she write a letter in support of an ACC claimant while Minister?
Hon JUDITH COLLINS: As Minister for ACC no, and I am sure that the member is aware that Dr Smith has said that he regretted the lapse in judgment. [Interruption]
Mr SPEAKER: Order! I want to be able to hear Kevin Hague.
Kevin Hague: What investigation is currently under way into whether the former Minister intervened in any other ACC claims involving friends of his?
Hon JUDITH COLLINS: I am not aware of any.
Kevin Hague: How can the New Zealand public possibly have confidence in the institution of ACC or in ministerial independence unless and until every aspect of what has occurred is independently investigated?
Hon JUDITH COLLINS: The member seems to ignore the fact that the Privacy Commissioner is independent. The terms of reference are still to be decided, but my view is that they need to be as wide as the Privacy Commissioner believes they should be, and that they should be very full. As the member should have seen by the fact that ACC released its report to me on Friday just gone and I asked ACC to release it on its website straight away, I will expect transparency.
Better Public Services—Economic Programme
3. PAUL GOLDSMITH (National) to the Minister of Finance: How will the Government’s programme for delivering better public services within tight financial constraints contribute to the Government’s economic plan?
Hon BILL ENGLISH (Minister of Finance) : It will contribute in a couple of ways. The first is that the public sector makes up about a quarter of the New Zealand economy, so it makes a large contribution to our economic performance. Increases in productivity and skills in the public sector will benefit the whole economy, as well as those New Zealanders who expect public services to be maintained, even though there are tight financial constraints.
Paul Goldsmith: What specific steps is the Government taking to ensure the Public Service is more innovative, efficient, and focused on delivering results?
Hon BILL ENGLISH: With the size and complexity of the public sector, the Government has been taking a large number of steps since it took office back in 2008, but more recently the Prime Minister announced three changes that will sharpen the public sector’s focus on delivering better services for New Zealanders. The Prime Minister has set 10 challenging and specific results for the public sector to achieve over the next 3 to 5 years. The Government has lowered the cap on full-time equivalent positions in core Government administration and created a single, dedicated Government department that will service business, indicatively called the Ministry of Business Innovation and Employment.
Chris Hipkins: Does he agree with the conclusions of the Better Public Services Advisory Group that better delivery of public services requires a clear understanding of the Government’s priorities; if so, which set of priorities does the Government want the public sector to focus on: the National Party’s six-point brighter future plan, the revised six-point brighter future plan with 41 actions, National’s 120-point action plan, the four priorities in the Speech from the Throne, the Prime Minister’s 10-point plan, Steven Joyce’s eight-point plan, Nick Smith’s eight-point plan, Bill English’s five themes for Government priorities, or any of the other multiple-action plans, strategies, and priority lists the Government is releasing, or will he simply admit that the Government cannot even get its own priorities set out straight, so how on earth is the public sector supposed to follow them?
Hon Paula Bennett: What a busy Government.
Hon BILL ENGLISH: What a busy Government—there is no doubt about that. The member, of course, will understand that, for instance, the Ministry for the Environment will be focusing on things we want to achieve in respect of natural resources. That is logical enough, and they will be a bit different from what the Ministry of Social Development is focusing on. What I can tell the member is that no Government, including the previous Labour Government, has put itself to the test in respect of the 10 results that the Prime Minister announced last week. They will enable us to get to grips with long-running difficult issues in New Zealand, such as crime, reoffending rates, violence to children, and long-term welfare dependency. And I will welcome the member’s participation in providing ideas about how we can achieve those results better.
Paul Goldsmith: What will be the main focus of the 10 results set by the Prime Minister for the public sector?
Hon BILL ENGLISH: The main focus of those results is to simply test whether the tax paid over by taxpayers and spent by Government actually makes a difference. It is one thing to stand around wringing hands and writing strategies, like the last Labour Government did; it is another thing to test whether all our actions and all our funding are actually leading to change. Because the fact is, under the previous Government, with a huge upsurge in spending, many of our social problems got worse, not better.
Chris Hipkins: Has the Minister seen reports that Treasury, which has no front-line staff, has increased its staff numbers by over 13 percent in the last 3 years and that the number of staff earning over $100,000 at Treasury has increased by 8 percent, and that in the Department of the Prime Minister and Cabinet, which, coincidentally, also has no front-line staff, personnel costs have increased by over 13 percent and the department had an $800,000 budget blowout? And why is it that his department and the Prime Minister’s department are growing fatter while the rest of the Public Service, which provides genuine front-line public services, is having its funding cut?
Hon BILL ENGLISH: The member’s last statement is wrong. I could point out to him that Treasury and the Department of the Prime Minister and Cabinet have overseen a fairly significant event called the Christchurch earthquake, which has required the deployment of $9.5 billion of public money. If Treasury has been able to supervise that with the addition of a few staff, then it is doing an extremely good job.
Paul Goldsmith: How will progress towards meeting each of the Public Service targets be measured?
Hon BILL ENGLISH: It is important to measure our progress, because good intentions simply are not enough. It is not enough to say that we care about children, or enough to say we think welfare dependency is a problem. So the results the Prime Minister has announced will require measurable and stretching targets. They will be public, and the public will have the opportunity not just to monitor progress but actually to participate. For instance, having a safer environment for our children will require the neighbours to make as much of a contribution to that child’s safety as Government bureaucrats. It will help us all understand our respective responsibilities.
Local Government Reforms—Implementation of Review Recommendations
4. Hon ANNETTE KING (Labour—Rongotai) to the Minister of Local Government: What recommendations from at least three government reviews of local government since 2006 are yet to be implemented, and if any have not been implemented yet, why not?
Hon Dr NICK SMITH (Minister of Local Government) : There were two reports in this period to the previous Labour Government and one to this Government. The report to this Government was from the royal commission of inquiry into Auckland governance. It had 169 recommendations, and we have largely implemented these. The debates at the select committee and in Parliament record why some recommendations were not implemented. The previous Government received two substantive reports. The first was the rates inquiry done by former Labour candidate David Shand in 2007. The then Government did very little with it, and I am not privy as to why. A key recommendation was that central government provide a share of GST to local government. Sadly, when we came into office the cupboard was bare, and that was not an option. We also believe the answer is not in shifting the costs, but in actually getting the steep rise in local government costs under better control. The third report was also received by the former Government and contained no substantial recommendations regarding legislative change. The one legislative change this recommended is included in yesterday’s announcements, and that is in respect of greater flexibility about the sizing of rural wards.
Hon Annette King: Is he aware the Local Government Rates Inquiry panel said that although it received submissions suggesting amendments to the Local Government Act 2002 have led to increased costs because councils have moved into activities outside their core business, the panel could find little evidence to support this; and what new evidence has he received since last Tuesday, when he told me that he had no reports from local authorities on new core activities?
Hon Dr NICK SMITH: The rates inquiry in 2007 concluded that the very steep increase in rates between 2002 and 2007 was the transitional cost of implementing those new 2002 Act requirements, and that it expected in future years the rates increases would taper off. In fact, in the 5 years since we have seen rates increases continue to compound at 7 percent every year, and the conclusion that this Government comes to is that the 2002 very politically correct Local Government Act, which was put in place by members opposite, has proved to be a very expensive experiment for New Zealand landowners.
Hon Annette King: When he said on radio this morning that councils’ job is not to replicate the private sector or the role of the Government but to “focus on those things only councils are able to provide”, will councils now need to sell their housing, bus services, and ownership of airports and ports, and remove subsidies for early childhood centres and so on because these are all activities the private sector is involved in; if not, where is the list of services that are in and those that are out?
Hon Dr NICK SMITH: The current provision in the Local Government Act is that councils are to provide for social, economic, environmental, and cultural well-being, and that is why councils can do absolutely everything: buy farms in Australia, be involved in greenhouse gas targets, run schools, run hospitals. The new provision in the law is going to be simply this: the core role of councils is to provide good quality local infrastructure, to provide local public services, and to provide regulatory functions. My view—and, interestingly, the widespread comment I have heard from all around New Zealand today—is that change is being broadly welcomed.
Hon Annette King: I raise a point of order, Mr Speaker. I used the Minister’s own quote on what local government would do, and then asked him, would it now mean that local government will have to sell its housing, bus services, and ownership of airports and ports, and remove subsidies from early childhood centres because they are provided by the private sector; if not, what is the list that they would do? The Minister raved on about what was in his proposal—
Mr SPEAKER: Order! The member was not doing too badly until she accused the Minister of raving on. [Interruption] Order! The Minister said that the new bill, if I heard correctly, would lay down what local government would be involved in, and that the list included local public services—and local public services cover a number of the issues that the member included in her letter. I cannot ask the Minister to answer in any particular way, but I think he made it pretty clear what his proposal would cover.
Hon Annette King: Did he decide to include fiscal responsibility requirements in his eight-point reform plan on the advice of his coalition partner the Hon John Banks, who, in his last term as Mayor of Auckland, oversaw a trebling of the Auckland City Council’s debt from $135 million to $738 million, excluding debt associated with the formation of the super-city; or was it just a lapse of judgment?
Hon Dr NICK SMITH: My colleague John Banks has been one of a group of Ministers, particularly in his role in regulatory reform, who have advocated for stronger fiscal discipline within local government. I would just suggest to the member opposite that since the 2002 Act, which Labour put in place, local government debt across New Zealand has grown from $2 billion to $8 billion. I ask members opposite to reflect on the assurances they gave ratepayers in 2002 that their changes would not result in increased rates—and they have done exactly that.
Hon Annette King: Does he think it is fair to criticise councils for increasing their debt from $2 billion to $8 billion in 10 years, when his Government holds the record for increasing debt from $8 billion to $50 billion in just 4 years?
Hon Dr NICK SMITH: When we came to Government we faced a decade of deficits from the fiscal mess left by the profligate Labour members opposite, and I must praise the Minister of Finance and the team that works in that area for setting out a clear plan for debt reduction. The difference between local and central government is that local government’s debt is projected to continue to increase, whereas this Government has set out a very clear plan to reduce borrowing.
Mr SPEAKER: I say to members that a little bit of steam has been let off, but the noise is—[Interruption] Order!—unacceptable.
Te Ururoa Flavell: Tēnā koe, Mr Speaker. Kia ora tātou katoa. Can the Minister confirm that one of the outcomes from the review of local government was that local bodies should consult with whānau, hapū, and iwi in matters of mining licences to prospect, explore, and develop, for example, the East Coast of the North Island; and what evidence would he expect to be available to ensure that this happens?
Hon Dr NICK SMITH: I want to acknowledge the representations that the Māori Party has made to me as Minister of Local Government and as Minister for the Environment, and also to my colleague Phil Heatley around the importance of Māori being included in decisions around resources such as minerals. I know that there are specific consultation provisions that have been set down in respect of minerals. The member would also be aware of the very specific provisions that have been included in the exclusive economic zone legislation that has also been a consequence of the strong advocacy of the Māori Party.
Hon Annette King: Is the difference between council debt and Government debt that councils have borrowed for vital infrastructure within their communities, whereas this Government has borrowed to give tax cuts to the wealthiest in New Zealand?
Hon Dr NICK SMITH: It is ironic that members opposite have repeatedly objected to every measure this Government has taken to get fiscal costs under control, and that they have continuously argued, including in the election campaign, for more Government spending, not less. So I do not think there is any question in the House that it is members on this side of the House who represent fiscal prudence both in central and in local government.
Local Government Reforms—Rates and Debt Increases
5. NICKY WAGNER (National—Christchurch Central) to the Minister of Local Government: What steps is the Government taking to address the average national 7% per annum rate increase and the quadrupling of local government debt from $2 billion to $8 billion since the major reforms of 2002?
Hon Dr NICK SMITH (Minister of Local Government) : Yesterday the Prime Minister announced an eight-point programme of local government reform. This includes refocusing the purpose for councils, introducing fiscal responsibility requirements, stronger governance provisions, and a streamlined process for council reorganisation. It includes a comprehensive work programme on the compliance costs for local government on infrastructure, on development levies, and on local regulations, with important work being done by the Productivity Commission and also from the Auditor-General. I am confident that these better local government reforms will help slow the escalating rates bill that we have seen since 2002.
Nicky Wagner: What response has the Minister received to the Better Local Government reform package from key sectors like Local Government New Zealand, Business New Zealand, Property Council New Zealand, Federated Farmers, or mayors, councils, or chief executives?
Hon Dr NICK SMITH: The President of Local Government New Zealand, Lawrence Yule, says that the councils are broadly supportive of these proposals. Business New Zealand welcomes the reforms; it said that they were overdue and would be overwhelmingly positively received by business. Property Council New Zealand applauded the reforms and the overhaul of local government law, and Federated Farmers said that these changes could not come soon enough. I have also received numerous positive responses from individual mayors and councils. Although there is a broad and diverse view across the sector, the vast bulk of them realise that the sector needs to change with changing times.
Nicky Wagner: What is the substantive change intended by the new purpose clause of the local government legislation, and how does it differ from the 2002 and previous 1974 Act?
Hon Dr NICK SMITH: The new clause makes plain that the role of councils is to provide that good quality infrastructure, local public services, and local regulatory roles at the least possible cost to households and businesses. Councils will have wide discretion within these in determining what infrastructure and public services are appropriate for their community. However, it is not nearly as broad and open ended as the 2002 Act that let councils buy farms in Australia, and let them run schools or hospitals or any number of services. I want to emphasise, though, that we are not intending to return to the quite prescriptive 1974 Act; our approach is balanced, common-sense, and provides the right framework for our councils to play their important role.
6. CHRIS HIPKINS (Labour—Rimutaka) to the Minister of State Services: Does he agree that few problems are solved by significant reorganisations—in fact many more tend to be created and it is easy to underestimate the amount of energy and inspiration soaked up by institutional change, as well as the loss of personal and institutional knowledge?
Hon Dr JONATHAN COLEMAN (Minister of State Services) : Yes, but I also agree with what the Prime Minister said last week, which was that “We’ve always said that there’ll be a high hurdle for structural change in the public sector. My speech is not going to be about mergers for mergers’ sake. So we are not looking at wholesale restructuring, but there is one area of the public sector’s operations where we think that structural change is needed.” I would add that the case for the new Ministry of Business, Innovation and Employment clears that hurdle, and the potential benefits are clear.
Chris Hipkins: What is his definition of “significant reorganisation”?
Hon Dr JONATHAN COLEMAN: Well, when you are talking about significant reorganisation, you could ask how long is a piece of string. But the point we are making here is that this makes sense. And there is support from Labour. Mr Cunliffe—
Mr SPEAKER: Order! The member was asked what he understood by “significant reorganisation”, and went on to talk about Labour.
Hon Dr JONATHAN COLEMAN: Well, they do need significant reorganisation.
Mr SPEAKER: Order! The member will resume his seat. And while I am on my feet, he will not offer me advice.
Chris Hipkins: I raise a point of order, Mr Speaker. I wonder whether the Minister could now answer the question, which is what is his definition—
Mr SPEAKER: Order! It seemed to me the Minister did answer. He seemed to liken it to the length of a piece of string. So it seems that that was an answer.
Chris Hipkins: Does he believe that multiple departmental mergers, 2,500 job cuts, and the closure of several regional offices by Public Service agencies amount to significant restructuring; and if so, why does he not believe that the Prime Minister should have fronted up and said before the election that they were intending to do such significant reorganisation, rather than reinventing after the election what he said?
Hon Dr JONATHAN COLEMAN: No, but what I do know is that the Public Service grew by 40 percent under Labour. It was getting very bloated and inefficient, and, frankly, something has to be done about it so it supports New Zealand business and gets the economy going ahead, and that is what we are going to do.
Chris Hipkins: Does he believe that the staff working for the Ministry of Science and Innovation or the staff working for the Department of Building and Housing policy unit would view the disestablishment of their agencies less than 2 years after they were significantly reorganised by his Government as amounting to significant restructuring; and if not, why not?
Hon Dr JONATHAN COLEMAN: There will be a range of beliefs across the Public Service, but what I do know is that the majority of public servants know that we do need some reform of the Public Service, and they also knew they were not going to get it under Labour.
Dr Paul Hutchison: What reports has he had of overseas precedents for a Ministry of Business, Innovation and Employment?
Hon Dr JONATHAN COLEMAN: I have read reports of a Ministry of Employment and the Economy, which is responsible for innovation, for the functioning of the labour market, for employment, and for economic development. It was the result of a 2007 merger of three Government departments and it has been very, very successful. It is in a country that Mr Shearer is very keen on, and that country is Finland.
Chris Hipkins: How does he reconcile the Prime Minister’s statement that the establishment of this new superministry is not change for change’s sake when two of the departments being merged into the new superministry have already faced significant restructuring by his Government, or is he admitting that his Government got it wrong the first time?
Hon Dr JONATHAN COLEMAN: Quite easily.
Rt Hon Winston Peters: Can the Minister tell us how he expects to solve problems, for example, offshore when we will have in our offshore bases in the Ministry of Foreign Affairs and Trade 2½ times to 2¾ times fewer people than, say, countries like Singapore and Norway in a modern commercial setting?
Hon Dr JONATHAN COLEMAN: Well, that member must have some information from the Ministry of Foreign Affairs and Trade old boys, because, quite frankly, the proposals are out for discussion and no decisions have been made.
Rt Hon Winston Peters: I raise a point of order, Mr Speaker. He is the Minister; I am asking him. How does he think the problem is going to be better solved with dramatically fewer people and with a disparity of that type between those leading countries?
Mr SPEAKER: The Minister’s answer, though, is a fair answer in saying that no decisions have been made and therefore he cannot comment on such alleged reductions. That is a reasonable answer from a Minister. I suspect the time may come when it will not be, but for the moment that is a reasonable answer from the Minister.
Rt Hon Winston Peters: Is the Minister aware of a significant step change in 2008 in the Ministry of Foreign Affairs and Trade, which saw a significant investment made in our people and resources offshore, which now seems to be imperilled by his Government’s recent statements?
Hon Dr JONATHAN COLEMAN: What I am aware of is that that member secured a whole lot of funding to open embassies, which would shore up his own position, and we are now having to—
Mr SPEAKER: Order! [Interruption] There will be silence. The question asked was not an unreasonable question, and I do not think it deserved an abusive answer. I invite the Minister to answer the question within the Standing Orders because it was not an unreasonable question. I think the answer was heading down a totally unacceptable track.
Hon Dr JONATHAN COLEMAN: Would you like to ask it again?
Rt Hon Winston Peters: Is the Minister aware of the step change organised by yours truly in 2008 for the Ministry of Foreign Affairs and Trade—
Hon Steven Joyce: Extra expenditure, you mean?
Rt Hon Winston Peters: —I beg your pardon—and a significant investment in both personnel and resources offshore for the Ministry of Foreign Affairs and Trade, and does he not understand that all the recent statements from the Government where the Ministry of Foreign Affairs and Trade is concerned imperil that investment?
Hon Dr JONATHAN COLEMAN: I am aware that that investment might not be fit for New Zealand’s overseas strategic interests 4 years on from that member’s tenure as Minister of Foreign Affairs.
Better Public Services—Welfare Reforms
7. TIM MACINDOE (National—Hamilton West) to the Minister for Social Development: How will the current welfare reforms support the Government’s better public services programme?
Hon PAULA BENNETT (Minister for Social Development) : One of the 10 Better Public Services result areas is reducing long-term welfare dependency. The Government believes the investment we are making in welfare reforms will reduce welfare dependency, by moving to a future liability model; changing how we support people into work, and when we support people into work and work with different groups; making major changes to welfare system settings; and creating a new organisational structure to deliver these reforms.
Tim Macindoe: What other result areas will welfare reforms contribute towards?
Hon PAULA BENNETT: We expect welfare reforms will also contribute towards supporting vulnerable children, by reducing child assaults and increasing participation in early childhood education; boosting skills and employment, by helping to increase the proportion of 18-year-olds with a National Certificate of Education Achievement level 2 qualification or similar; and ensuring New Zealanders can complete their transactions with the Government easily in a digital environment, by using an advanced version of our current payment card.
Tim Macindoe: Has the payment card already led to efficiencies in the payment of benefits and other assistance?
Hon PAULA BENNETT: Yes. Since November 2009 we have saved taxpayers $6.4 million in those 2 years by putting special-needs grants for food on to payment cards. This is from a combination of staff time, administration costs, and Crown savings. In addition, it has also made it easier for retailers, has given us better data on that spend, has been more convenient for users, meaning less time spent at Work and Income New Zealand, and has freed up staff by saving up to 8 minutes per transaction.
Jacinda Ardern: Can she assure the House that her Government’s value-for-money or public services programme will not lead to the closure, or what she might call mergers, of any Work and Income offices?
Hon PAULA BENNETT: As the member would know, we have picked up the Community Link programme, which her own Government started, and we have actually merged a whole lot more services into Community Link over the last 4 years anyway. We have seen the Inland Revenue Department, housing and budgeting services, the Salvation Army in some cases, and different organisations actually merging into the same building as it is. It happened under her Government; it is happening under this one.
Accident Compensation Corporation—Release of Personal Information
8. ANDREW LITTLE (Labour) to the Minister for ACC: Will she set up an independent inquiry to reassure all New Zealanders that ACC and its Ministers act with the utmost integrity when in possession of people’s intimate and sensitive information?
Hon JUDITH COLLINS (Minister for ACC) : I am confident that the independent Privacy Commissioner’s review will outline the next steps for the ACC’s handling of personal information, and I encourage anyone with concerns or allegations around this to make a complaint to the Privacy Commissioner.
Andrew Little: Is it correct that up to the time of the meeting in December 2011 of two senior managers from ACC, ACC claimant Bronwyn Pullar, and former National Party president Michelle Boag, ACC had no knowledge of the mass privacy breach of 6,700 ACC claimants?
Hon JUDITH COLLINS: I believe that the member is correct. I believe that ACC was not aware—from the report that it has given me, which I had released last Friday—of the nature of the alleged breach, and, consequently, it was not able to get that information back.
Andrew Little: If ACC had no knowledge of the mass privacy breach, at the time of the December 2011 meeting, why did ACC send two senior managers to a meeting with an ACC claimant?
Hon JUDITH COLLINS: I suggest that that is going to come out in the Privacy Commissioner’s review, and I further note that ACC has sought the assistance of the New Zealand Police.
Andrew Little: What actions were taken—between the time of the December 2011 meeting and 12 March 2012, when the mass privacy breach became public—by ACC to recover the wrongly released information?
Hon JUDITH COLLINS: That information has already been released in the report that was put on the ACC’s website last Friday. I am surprised the member has not read it, because it is quite clear in that report that—
Hon Trevor Mallard: Come on, this is Parliament. Answer here, not on a website.
Hon JUDITH COLLINS: I am happy to table it, if the member would like me to. It is quite clear that ACC wrote to the claimant and asked to get back any information that she had—confidential information that she should not have had in her possession—and that she had not given back to ACC.
Andrew Little: What assurances can she give that the undertaking given on the ACC website that “any information” collected by the sensitive claims unit “is seen only by sensitive claims unit staff and in some cases an independent assessor.” is being observed?
Hon JUDITH COLLINS: Quite clearly, with the information that was inadvertently provided to the claimant, who then did not give the information back to ACC, there was some information relating to some sensitive claims unit claimants. I think that is an appalling breach, quite frankly, of their privacy. So I am not yet convinced that all the steps that need to be taken have been taken, and that is why not only is the Privacy Commissioner conducting a review of what has happened and the way forward but also there is going to be a review of all the processes to make sure that this does not happen again. But I would say to that member that over the years there has been the odd instance where there has been a privacy breach. This was one inadvertently made by ACC, and I do not think that anybody would think that the staff member, who had this spreadsheet attached to the email, did so deliberately.
Andrew Little: How many other privacy breaches is the Minister aware of involving a former Minister for ACC writing on behalf of a single claimant, and a former president of the National Party and other people being involved in it?
Hon JUDITH COLLINS: I am not aware of any in those particular circumstances. However, I am aware of a former Minister in the previous Labour Government releasing confidential information.
Business Growth—Government Initiatives
9. COLIN KING (National—Kaikōura) to the Minister for Economic Development: What actions is the Government taking to drive business growth in New Zealand?
Hon STEVEN JOYCE (Minister for Economic Development) : For New Zealand to succeed and grow more strongly, we need more and bigger companies that can successfully compete around the world. That is why the Government is focusing its actions across a number of inputs into businesses to help those businesses to become more competitive. For example, in the innovation area the Government is investing significantly larger sums in science and research to help develop New Zealand’s knowledge base, and is building an ultra-fast broadband network to change the way companies do business. In the export markets area, the Government is working very hard to negotiate free-trade agreements to open up further new markets for exporters. It has set up a new agency to market international education on the country’s behalf, and it is running a series of ministerial trade missions to help companies take their products to new markets.
Colin King: What action is the Government taking to accelerate implementation of the business growth agenda?
Hon STEVEN JOYCE: The Government is taking many actions, including, as it announced last week, bringing various Government agencies closer together to assist in advancing our business growth agenda more quickly. Currently, for example, we have a number of smaller agencies spread across Government dealing with the issues faced by business. By merging a number of these agencies together into the Ministry of Business, Innovation and Employment we will achieve better coordination and better quality advice, and give businesses one agency to talk to. By merging together, this new agency will give the Government a greater ability to deal with important cross-agency problems such as innovation, developing skilled workforces, and lifting productivity and competitiveness.
Housing Quality and Availability—Māori Child Health Concerns
10. HOLLY WALKER (Green) to the Minister of Housing: Is he concerned that poor quality and overcrowded housing is contributing to high rates of infectious and respiratory diseases among Māori children?
Hon PHIL HEATLEY (Minister of Housing) : Yes. That is why this Government has, over the last 4 years, invested in more than 55,000 upgrades of State houses, including more than 32,500 upgrades relating to insulation, energy efficiency, and heating. The Government is also committing to the insulation of all State houses, where practical, by the end of 2012-13.
Holly Walker: What specific steps is he undertaking to reduce household crowding, given that the incidence of rheumatic fever—an entirely preventable disease for which household crowding is a major risk factor—has increased rapidly under his Government’s watch, especially amongst Māori children?
Hon PHIL HEATLEY: When we took over the housing portfolio, we discovered that a third of the State houses across New Zealand were in the wrong place, of the wrong size, or in a serious state of disrepair. We are currently going through a reconfiguration of State houses, meaning that where there are larges houses with one or two people in them, those tenants are being offered smaller houses, so we can shift larger families in. We have discovered that at every turn, though, every time we try to shift one person out of a large house or redevelop a quarter-acre or half-acre section, other parties in this Parliament oppose it.
Katrina Shanks: What other initiatives has the Government implemented to help increase the quality of people’s housing?
Hon PHIL HEATLEY: The Government has also introduced the very successful Warm Up New Zealand campaign to assist renters not in State houses and homeowners with insulation and clean heating. My very close colleague the Minister of Energy and Resources informs me that this has resulted in the retrofitting and insulation of 140,000 homes, of which 77,000 belong to people on low incomes. I would like to congratulate that Minister and also acknowledge the help that he has had from Hekia Parata and Gerry Brownlee.
Holly Walker: Does he consider that housing availability is at crisis point in Auckland and now Christchurch, with families reporting doubling up in houses, sleeping with whole families in single rooms, and housing family members in cars and garages due to a lack of affordable State and private rental housing?
Hon PHIL HEATLEY: Yes, we recognise that there are pressure points, particularly in those two cities. In Auckland we have announced that we will be increasing the number of State houses there, but of course there are other areas of the country where we do not require State houses. Unfortunately, other parties in this Parliament oppose our selling State houses in areas of low need and rebuilding houses in areas of high need. They oppose our shifting people out of large houses, and even when vandals and gang members abuse their neighbours, the other parties oppose us in this Parliament. We are looking at the problem. We want to house the right number of people in the right-sized house, and that is what we are doing.
Holly Walker: Why will his Government not address this housing availability crisis, reduce the incidence of infectious diseases, save millions of dollars in health care costs, and create up to 9,000 new jobs by adopting the Green Party’s plan to build 2,000 new State and community houses by 2014?
Hon PHIL HEATLEY: I think I made it clear that we are going to insulate, where practical, every single State house in this country—up and down this country—by the end of 2012-13. Furthermore, we are reconfiguring the State housing stock, so that we do not have single people rattling around in four bedrooms and other families crowded into two. The Green Party opposes every single practical move that other New Zealanders see as sensible, including redeveloping half-acre and quarter-acre sections. That is what we are doing. The Green Party opposes it, and I cannot do anything about that.
Kevin Hague: I raise a point of order, Mr Speaker. My colleague’s question was specifically about whether or not the Government would take up the suggestion of building 2,000 more State houses. The Minister’s answer was an interesting one, to another question about what the Government was going to be doing instead of that. He did not actually address the question.
Mr SPEAKER: It is something of a shame that the member’s colleague did not leave the question at that point, instead of inviting the Minister to comment on Green Party policy. It is a dangerous move for members asking questions to invite comment on their own party’s policy. The Minister, clearly, in answer to the first part of the question—he had better correct me if I am wrong—said that no, the Government’s strategy was to do other things than build a whole lot more State houses. If that is not a correct response to the first part of the question, then the Minister had better correct that. But on the second part, he was simply offering his views, as invited, on the Green Party policy.
Holly Walker: I seek leave to table the key findings of a University of Otago report on the health of Māori children and young people, which shows that Māori children are 23 times more likely to contract rheumatic fever than non-Māori children.
Mr SPEAKER: Leave is sought to table that document. Is there any objection? There is no objection.
- Document, by leave, laid on the Table of the House.
Road Safety—Changes to Give-way Rules
11. JAMI-LEE ROSS (National—Botany) to the Associate Minister of Transport: What is the Government doing to raise awareness about upcoming changes to the give way rules?
Hon CHRIS TREMAIN (Associate Minister of Transport) : The Government is investing $1.2 million in an intensive public awareness campaign, including leaflets, television and radio ads, web resources, published articles, and media releases. The New Zealand Transport Agency resources have been available since February for councils, police, the Automobile Association, driving instructors, and other key organisations to ensure a consistency of message. It is very important that drivers take extra care at intersections once the give-way rules change on 25 March.
Jami-Lee Ross: How many people have been reached by the public awareness campaign?
Hon CHRIS TREMAIN: The public information campaign was launched on 15 March, and will run for 17 days. It is estimated that TV ads will reach 90 to 95 percent of road users at least once, and 80 to 85 percent of road users at least three times, and that print, radio, and website advertising will reach at least 70 percent of road users.
Jami-Lee Ross: What messages are being promoted by the campaign?
Hon CHRIS TREMAIN: That is an excellent question. The advertising focuses on highlighting the date of the change, and provides a simple overview of the new rules, with the following key messages. At cross-intersections—
Hon Trevor Mallard: Who wrote this rubbish?
Hon CHRIS TREMAIN: You might want to listen to this, Trevor, so you do not get yourself into trouble. At cross-intersections, if you are turning right, give way. The second rule is, at T-intersections, “The top of the T goes before me.” Simple stuff, Trev; even you should be able to understand that.
Maternity Services—Minister’s Statements
12. BARBARA STEWART (NZ First) to the Minister of Health: Does he stand by all his statements as Minister of Health?
Barbara Stewart: How does he reconcile his statement of 5 May 2011 that he is committed to providing “the best possible services to protect the safety of mothers and babies,” with the latest news that Wanganui mothers have to drive to Palmerston North to have their babies?
Hon TONY RYALL: The member is confusing the current status of a consultation that is under way in both the Whanganui District Health Board and the MidCentral District Health Board, which is in response to very longstanding concerns about the provision of maternity services in Wanganui. Communities have had an opportunity to have a say, and the board will be considering that within, I think, the next couple of months. The board’s priority and my priority is that the safety of mothers and babies must be paramount.
Barbara Stewart: What instructions is the Minister giving to the Whanganui District Health Board to ensure that safe delivery facilities are available to mothers-to-be in the Wanganui district and its surrounds?
Hon TONY RYALL: The Whanganui District Health Board, as the member will know, has had a long history of difficulty of obtaining obstetric support—having enough obstetricians to be able to ensure that it can continue to provide the sort of quality service that we would want. As a result, doctors, nurses, and midwives from the area have worked on a proposal that they think will provide improved safety and quality for mothers. That is being consulted on. My advice to the Whanganui District Health Board and MidCentral District Health Board is that the Government’s major concern is that the safety of mothers and babies should be paramount, and we expect that in all their considerations.
Rt Hon Winston Peters: Has the Minister received any requests or entreaties from the Whanganui-based Minister for Whānau Ora offering to return $5 million from Whānau Ora for family reunions and the like—
Hon Christopher Finlayson: Leave it to Barbara. She’s much better.
Rt Hon Winston Peters: I beg your pardon?
Hon Christopher Finlayson: Leave it to Barbara.
Mr SPEAKER: Order! I just ask the member to resume his seat for one moment—
Rt Hon Winston Peters: Oh, I see, a new Māori best friend wants—
Mr SPEAKER: Order! I ask the member to resume his seat for one moment. Members know that if they make interjections at inappropriate times, members on their feet are likely to respond, and it is not helpful. The Rt Hon Winston Peters may commence his question again.
Rt Hon Winston Peters: Has the Minister received any requests or entreaties from the Whanganui-based Minister for Whānau Ora offering to return $5 million from Whānau Ora for family reunions and the like back to the health budget so that women in Whanganui, and Māori women as well, may have a safe birth in their own town rather than having to travel miles to Palmerston North?
Hon TONY RYALL: No, the Minister has not specifically made that point to me, but I think Mrs Turia has reflected the concern of a lot of people that it does sound a big ask to ask significant numbers of women to travel to Palmerston North to have their babies. But at the same time we have a service in Wanganui that we want to be able to make sure we can give an assurance of quality and safety. That is why the doctors, the nurses, and the midwives have worked on a plan that is being consulted on that they think can provide long-lasting surety to those mothers and babies.
Rt Hon Winston Peters: I seek to table a report from the Office of the Auditor-General dated 15 June 2011, page 3, showing $5 million going from Vote Health to Whānau Ora.
Mr SPEAKER: I presume this is a document that is actually available to all members as part of the Auditor-General’s reports to Parliament, is it? Can I just check with the right honourable member, because we do not table documents that are available to all members. Can he just confirm for me whether or not that is the case.
Rt Hon Winston Peters: This was an Office of the Auditor-General briefing to the Māori Affairs Committee. Presumably if they all went to their colleagues they could get a copy, but it is not generally—
Mr SPEAKER: Briefings to parliamentary committees are available to all members. We do not seek leave to table those.
Accident Compensation Corporation—Release of Personal Information
Mr SPEAKER: I have received a letter from Grant Robertson seeking to debate under Standing Order 386 the release by the ACC of private details of ACC clients. The release is a particular case of recent occurrence for which there is ministerial responsibility. The requirement of recent occurrence refers to when the member became aware of the matter rather than when it actually occurred. Given the nature of the matter, I consider it important enough to warrant the immediate attention of the House by way of urgent debate. I therefore call on Ross Robertson—
Grant Robertson: Grant Robertson. Withdraw and apologise!
Mr SPEAKER: I withdraw and apologise. I therefore call on Mr Grant Robertson to move that the House take note of a matter of urgent public importance.
GRANT ROBERTSON (Deputy Leader—Labour) : I move, That the House take note of a matter of urgent public importance. The president, the Minister, and the party public relations person—it could not get much murkier. To hear the Minister for ACC, Judith Collins, stand up in the House today and say that an inquiry is being launched because the Privacy Commissioner is going to look at it is simply not enough. The Privacy Commissioner is just going to say she will deal with matters of privacy. She will not be able to deal with what role the Hon Dr Nick Smith has played in this situation.
How can a Minister come in front of the New Zealand public and say that they are being transparent, that they are behaving in a way that is in line with the Cabinet Manual, when they write a letter on behalf of someone that they knew had a longstanding complaint with ACC? They knew all along—the Minister knew for some time. He has acknowledged that he knew that Bronwyn Pullar had a longstanding issue with ACC. So how can the Minister write a letter that includes statements like this: “To the best of my knowledge she did not have any health or other conditions or issues that would have compromised her capacity to work.”? What is the one thing that ACC is interested in, in a case like this? The capacity of a person to work. The Minister’s letter goes to the heart of Bronwyn Pullar’s complaints that she has towards ACC.
The Minister goes on. He finishes his letter—on ministerial letterhead as the Minister for ACC—[Interruption]
The ASSISTANT SPEAKER (H V Ross Robertson): I am sorry to interrupt the honourable member but there is far too much chatter going on, which is disrespectful to the member who is trying to address the House. I suggest that people who want to have private conversations do so in the lobby.
GRANT ROBERTSON: The letter that the Hon Dr Nick Smith writes on ministerial letterhead, as the Minister for ACC, concludes with the statement: “I wish to put this on record so to assist in any comparative assessment of Bronwyn’s current health.” What else would a comparative assessment of someone’s health be used for other than in their ACC case? The Minister is conflicted here.
The Minister says he has made an error of judgment. I would suggest it is much more serious than that. Nick Smith has been around politics for a very, very long time and he knows that writing this kind of letter on ministerial letterhead is completely inappropriate. It creates a conflict of interest. It puts ACC in an extremely difficult position when the Minister is writing in situations like this. There is only one possible reason that a note like this would be written, and that reason is to influence ACC. That is the only conclusion that can be drawn from a note written on ministerial letterhead that says that Nick Smith is the Minister for ACC where he discusses a person’s capacity to work, and he discusses a comparative assessment of that person’s health. That is the only conclusion that can be drawn.
This Minister, Nick Smith—the Minister for ACC when he wrote this letter—has acted inappropriately, against Cabinet Manual guidelines. The question today for John Key is what standard is acceptable for his Ministers. John Key came into being Prime Minister saying he was going to lift the standard of behaviour of Ministers. The problem is that this behaviour from Nick Smith falls well below any standard that should be acceptable for Ministers, especially in dealing with ACC. As every member in this House will know, ACC cases are difficult, they can be very sensitive, and they require the highest standards of integrity and judgment from everybody involved in the case. Nick Smith has shown low standards of integrity and low standards of judgment in writing a letter on behalf of someone who he has said was a friend, who he said he knew had a complaint with ACC. He has breached all manner of protocols that bind ministerial behaviour.
In ACC what we know is that it is the situation here, where we have very sensitive information that has been released. I want to put on the record from the Labour Party side of the House that our hearts go out to the 6,700 people whose sensitive information has been put into the public arena. Every single member of this House, I would venture to suggest, if they have not already, by the time they finish their career in Parliament will have dealt with a sensitive ACC case. They often come on the back of years and years of suffering for people. They are at a stage in their lives sometimes when they are still coming to grips with actually what has happened to them, let alone what they might be able to do to recover, to rehabilitate. This breach of that trust, this breach of that privacy, is among the most serious things that could happen to someone who has a case with ACC. So our hearts do go out to those 6,700 people. I myself have spoken to two of those people who are my constituents, and this has hurt them.
We need to take that seriously. We need to take it seriously enough, Minister, that an inquiry that is limited just to the privacy aspects is not enough. Yes, that is an important element, to see what privacy issues have been raised by this case, but—it is certainly not a laughing matter, Minister. It is certainly not a laughing matter as to whether privacy has been breached for 6,700 people. How their details came to be in the public arena needs an independent inquiry that is not limited to just privacy.
I would suggest that in fact the Auditor-General is probably the person who should look into this, because the Auditor-General can look into the actions of Nick Smith, of Judith Collins, and of the ACC managers, and, indeed, into the privacy breach as well. But limiting this inquiry to the Privacy Commissioner is an attempt by the National Government to ensure that its people—Nick Smith, Michelle Boag, its people—do not get drawn into the inquiry. Well, that is not good enough—that is not good enough. In a situation like this, Judith Collins needs to put aside her loyalties to Michelle Boag, put aside her loyalties to Bronwyn Pullar, put aside her loyalties to Nick Smith, and actually front up and let New Zealanders—
Hon Judith Collins: Ha, ha!
GRANT ROBERTSON: The Minister is cackling away over there. In a situation where the privacy of some of the most vulnerable people in New Zealand has been put at risk, all Judith Collins can do is laugh. That is all Judith Collins can do. New Zealanders who have been through harrowing experiences—harrowing experiences—are having their information put into the public arena, and Judith Collins laughs. I think that is a disgrace.
The release of this data and this information is mixed in with a very, very murky situation. What was Michelle Boag, a former president of the National Party, doing in these sorts of meetings? Bronwyn Pullar is somebody whom members on the other side of the House have clearly got close relationships with, and why was Michelle Boag in there, making sure that there was an outcome? Now we have claim and counterclaim about what occurred at that meeting in December. On one hand we have Michelle Boag saying that there may possibly have been a deal, that there may possibly have been a discussion of a deal. Bronwyn Pullar seems to think there was, and ACC is saying there was not. We need to clear that up, because this cuts to the heart of Government administration in this country. It cuts to the heart of a neutral Public Service.
ACC is dealing with difficult cases; ACC is dealing with sensitive cases. What it needs is a Minister and a Government that will support ACC to undertake its work. What it does not need is a Government that is writing letters on behalf of complainants. What it does not need is a former National Party president coming in to throw her weight around in the situation. What ACC needs is to be allowed to get on and do its job.
It is my judgment that in this case the National Government has let down not only ACC but every single one of those 6,700 people who had sensitive claims. It is simply not on for Judith Collins to stand up in this House today and tell New Zealanders that she has accepted Nick Smith’s error of judgment and that it is just a privacy issue. It is not. It is an issue about the ethics of this Government, and it is an issue that is focused on ministerial responsibility and what is appropriate for a Minister to do. It is, quite simply, inappropriate for a Minister to write a letter on ministerial letterhead in this situation.
This morning Nick Smith said he had done nothing wrong. That is what he said on the radio this morning: he had done nothing wrong. Three hours later suddenly he has done something wrong, and he has to apologise for it. What happened in the 3 hours? He got found out. That is what happened in the 3 hours. That is not good enough. That is not a standard of behaviour that we New Zealanders should expect from a Minister, to say at the start of the day that he has done nothing wrong, and then when it emerges that the letter that we have here is on ministerial letterhead, suddenly to say “Oh, I’ve done something wrong.” That is not on. That is not the standard of behaviour that we would expect from Ministers.
There are a number of issues here that need to be worked out. As my colleague Andrew Little said in question time earlier today, what happened between the meeting in December, when it was discovered by ACC that the details had been leaked out, and March, when suddenly we move into overdrive and the matter has been released by Judith Collins into the public arena? What happened in that period? What were Ministers doing then? What communications did Judith Collins have with Nick Smith during that period? What was understood by the ACC managers? Why were two senior ACC managers sent to a meeting with an ACC complainant if they did not know about the privacy breach at that point? Why would that happen? Most of us have dealt with ACC cases, and I have even been an advocate myself, prior to being a politician, for somebody in an ACC case, and I can guarantee you that senior managers do not show up. So why was that, Judith Collins? Why did those managers attend that meeting? What did ACC do in the intervening months? These are the kinds of questions that need to be answered in a fully independent inquiry, not one undertaken by the Privacy Commissioner where the terms of reference can be narrowed down to be about just the policies and processes of ACC.
We on this side of the House and New Zealanders right around the country want to have some confidence that this Government is acting in a transparent manner. They want to have some confidence that this Government is actually administering sensitive claims in a way that befits how sensitive they are. I can say on behalf of this side of the House that this has been a debacle on behalf of the Government—[Interruption]
The ASSISTANT SPEAKER (H V Ross Robertson): Will the Serjeant-at-Arms please deal with that situation.
- A disturbance took place in the gallery, and a member of the public was removed.
GRANT ROBERTSON: These situations that are being dealt with here by ACC are sensitive and they are difficult. New Zealanders need to know that the highest standards are being applied in the management of this. Nick Smith has failed that. He has completely failed his role as a Minister. The Prime Minister needs to take some responsibility for this.
It is quite clear that this Government is not interested in transparency. We have seen it time and again. We have seen it with the Skycity deal. We have seen it with Radio Live. We have seen it with New Zealand On Air. This Government is not interested in transparency. Well, from this time forward, when it comes to ACC, we on this side of the House will be demanding transparency. New Zealanders deserve accountability. The 6,700 people who have had their details leaked deserve some respect from this Minister—not laughing, but actually getting to the bottom of what has happened.
Hon JUDITH COLLINS (Minister for ACC) : The people I feel very sorry for in this situation are the 6,700 claimants who awoke on Tuesday last week, 13 March, to a Dominion Post front-page story alleging that all sorts of private information had been released to another claimant, wrongly, and alleging all sorts of things. All these people suddenly thought that their information had been put out in the public domain. These people had done nothing wrong. The first thing I knew about the situation was on Tuesday morning when, just like them, I read about it in the Dominion Post. The chief executive found out about it at the same time. He knew on the Friday that there was a query from the Dominion Post, but it was not particularly specific what the query was about.
We have had all these people contacted by ACC individually, and where they have not been able to be phoned they have been written to, to be told what information was actually in that data spreadsheet. It was not full files and it was not full details; it was a data spreadsheet around the appeals that these people had brought. However, they should not have had that happen to them. I do not think anybody in this House should take any pleasure in what was quite clearly an inadvertent mistake by a staff member at ACC. Our staff member at ACC was distraught over what had happened, and I would have thought any person with an ounce of decency who had received that information would immediately give it back to ACC and alert it to the situation. Or, if they were so worried about the privacy provisions, provisos, and policies of ACC, then they could give the information to the Privacy Commissioner along with a complaint. However, that did not happen.
ACC undertook a review of the situation for me and a report, and that report was released not only to the media but also to the public on ACC’s website this last Friday. By the end of a few days the information was out. I now understand that the person who had the information—a Miss Pullar—refutes the contents of the report, and of course she can take whatever action she likes. But I would say this: anybody with a scrap of decency would have given that information back. I cannot believe that anybody who had it would not do that. I do not care what the excuses are. I do not care what the excuses are about what happened in her case or whatever. At the end of the day, mistakes happen. Mistakes are also made by MPs. I am not going to stand up here and defend a letter written by my colleague the Hon Dr Nick Smith. I am not going to defend it. He has already said it was an error of judgment and that he should not have done it. We understand that.
At the end of the day, though, there is a genuine concern now over the privacy provisions of ACC. I am personally—not only as the Minister, but personally—concerned that people are worried about this, and I think we need to deal with that issue. The Privacy Commissioner was brought in on Tuesday, as soon as the situation was known, and she is working on terms of reference with ACC to go into everything about this.
Andrew Little: It was known in December.
Hon JUDITH COLLINS: The member says: “Oh, they knew about it.” No, they did not. They did not know about this one. They were told in the meeting, and according to the report—and I wish that member would read the report and stop trying to make fun out of this situation—they were told that there was information that was alluded to in a meeting, but not actually what was released or where it was. I think that is a situation that should have been followed up better after that meeting on 1 December, and the report from ACC admits that. They should have escalated it further up the scale in terms of ACC to more senior management. In my opinion, if ACC had these threats made to it, then it should have instantly referred them to the New Zealand Police, which is the action that I would take in those circumstances.
The fact is that ACC over the years apparently gets threats all the time. This is not acceptable. Those staff at ACC work very, very hard to do a great job for the vast majority of the 1.6 million claimants whom they deal with each year—1.6 million claims each year. That is what they deal with. The fact is that sometimes ACC is going to get people who will not accept what it is trying to do. It is absolutely right that if people do not accept ACC’s decisions, they can have meetings. They can have meetings with particular managers, they can have appeals, and they can do all sorts of things. But at the end of the day, in my opinion, the ACC staff are trying to do their very best, and the last thing that ACC needs to do is what has now happened. ACC has now had to put huge numbers of resources and staff on to contacting every single one of those 6,700 people. That is the right thing to do. However, if that information had been given back straight away, it would not be necessary. Also, all of those claimants should not have had to go through that worry.
The only good thing that I can see out of all this is that there will be a full and thorough review of ACC’s privacy provisions, what policies it has, and what it has been doing.
Andrew Little: Who’s going to investigate Nick Smith’s actions?
Hon JUDITH COLLINS: This will go through all of these actions. The New Zealand Police has been brought in by ACC, and I have to say—that member keeps asking what is going to happen on various things—I actually happen to think that the independence of the Privacy Commissioner and the New Zealand Police is, frankly, above reproach and should be above reproach in this Parliament. I am surprised that that member does not seem to think that either of those organisations, as statutorily independent from Parliament, should be able to actually conduct their inquiries.
I would say to that member who asked the questions that if he actually has any information, then why does he not make it available to the Privacy Commissioner? Why does he not make it available? If he thinks there is anything that should be taken further, why does he not front up with it instead of just sitting there making baseless allegations?
I am surprised that the deputy leader of the Labour Party, who has resumed his seat, should allude to asking what I knew. I am happy to tell them what I knew. I found out on Tuesday that there was a situation. I took action, as a Minister should do in those circumstances. I asked ACC to sort this out, to find out what was going on, to report, and to make that report public, because I did not want anything being hidden from the public. And I do not think any person in my situation would have done anything other than that. We had 6,700 claimants whose privacy had been breached—yes. Was it done knowingly? No, not by the person from ACC. Was it breached by someone else? I think so. However, the Privacy Commissioner will no doubt look at that too. I would say to anybody that if there is any information that they have relating to this matter that they think will actually help the Privacy Commissioner in her deliberations and her report, then I urge them to bring this information to her. If they send me any information, I will instantly send it on to ACC or the Privacy Commissioner or both, as I see fit. Any information on ACC sent to me is sent straight away to ACC, which is what I think should happen. If questions have come out about various things, that is what happens.
So in terms of where we go to from here, I think we should all be looking at the privacy issues of ACC, because it has such sensitive information, and because it has so much information on so many people. But I am also aware that technology consistently changes and that there are ways in which we need to be able to address that. I can say that the next step that ACC is instantly taking is to set up its own privacy team. It has established a dedicated 0800 number and a team of specialist staff to respond to questions following what has happened. It is putting out a press release today about that, and I can tell the House that the contact number for this is 0800 745 254. This information will, of course, be available on the ACC website.
This is not something that the ACC staff members wanted to happen, but it is not something that has not happened in the past. It certainly happened under other Governments, and if the members really wanted me to talk about that, I could. But the fact is—
Michael Woodhouse: Go on.
Hon JUDITH COLLINS: Well, no, I am not going to go on about it, unless they want me to—really want me to—because at the end of the day this is actually not a fun matter. This is a very serious matter. I am very concerned that people have been put to a dreadful amount of stress and strain, plus ACC has been upended in terms of having case managers come off their work to sit and ring people and let them know what is going on, which is the only thing they could do in the circumstances, in my opinion. I am pleased that the new chief executive fronted up straight away on Tuesday once he realised what had happened and took responsibility for it, and set in train the steps that need to be taken to be able to have this matter resolved, so that people can once again have confidence in the ACC privacy systems.
I will say to members too, though, that many people who have worked in these sorts of areas—either in law, as I have myself, or as members of Parliament—will know that we come across some people who are incredibly focused on their issues. They are so focused that they can see conspiracies everywhere and they do not accept that sometimes decisions are going to be made that they find difficult to live with. OK, maybe some of these decisions are the wrong decisions, but the fact is that sometimes someone has to make a decision, then it can be appealed or efforts can be made to overturn that decision. There is nothing wrong with that. There is absolutely nothing wrong with people saying: “I want to appeal. I want to speak to senior managers. I want to do these things.” There is nothing wrong with that, at all. But when one receives private information that is clearly not one’s own—clearly not one’s own—it is absolutely wrong to not return that straight away or destroy it. Or they could advise, or send it through to, the Privacy Commissioner.
As I say, with all the talk that has been going on today, if anyone has any information I would like them to please send it to the Privacy Commissioner. My view is very clear. The Privacy Commissioner has wide-ranging powers. The terms of reference, I suggest, of any report or inquiry should be as wide as possible so that people can be given confidence in the system.
In terms of the police matter, of course, I cannot comment on that, because these matters are with the police, and it would be wrong for anyone in this Parliament to try to comment on matters that are with the police.
In essence, this is a difficult situation. I think ACC has fronted up to it properly and it has admitted fault. It is putting in steps, measures, to try to deal with this and to alleviate the distress of the 6,700 claimants who have been treated so badly—so badly—but it is also looking at how this happened, how it can prevent a repeat of it, and how it can give confidence to people in the ACC system.
KEVIN HAGUE (Green) : I think I might begin where the Minister for ACC left off. Certainly it is true that ACC has now fronted up and admitted fault, but it has taken it some 3 months to do so, and I think that that alone suggests a fundamental lapse in process on ACC’s part.
ACC claimants represent a wide range of people—you know, someone who has perhaps injured an elbow through to someone who has experienced very severe disability as a result of an accident, or, indeed, mental harm as a result of sexual abuse or rape. Each of those people relies on ACC for professionalism and relies on its trustworthiness over their information. For each of those people, regardless of whether their injury has been small with minor consequences or a major injury with really dramatic consequences for a person’s life, that trustworthiness of ACC is now absolutely under question, and that is something we cannot tolerate. We must, therefore, have an independent inquiry with a view to actually returning ACC to the position it should be in as a trustworthy agent—the friend—of those who have been injured.
It is an institution with a very proud history. It represents a social contract between the State and New Zealanders, who gave up something in order to have ACC. We gave up the right to sue and formed that social contract with the State, and in return, New Zealanders were guaranteed the Woodhouse principles: a no-fault scheme, universal access, full rehabilitation, administrative efficiency, and the rest of it. It is a scheme that the rest of the world has come to envy. They come to New Zealand to have a look and see how it works, and wish that they could emulate our system. We, sadly, have allowed it to atrophy.
In particular, under this Government we have seen a change to ACC: the adoption of what I call a culture of disentitlement, in which the good people who are working in ACC are gradually being squeezed out by requirements that come down from on high for a culture in which claimants are seen as the enemy and in which the purpose of interaction with claimants seems to be to disentitle them from rehabilitation and compensation. What we need desperately for ACC is to return it to those Woodhouse principles—to return it to a culture of public service.
This whole episode, starting with the breach of privacy—this extraordinary breach of privacy of some 9,000 instances, and 6,700 people affected—that began, I guess, in August of last year with the leaking of this spreadsheet with these people on it, represents an extraordinary breach of the social contract that New Zealanders have with ACC. There are some questions that emerge from that. Grant Robertson has referred to a few of them, and I will refer to a few others. Why, for example, was this information all on a spreadsheet? What was the purpose of the information being held? Why did that staff member have it? It is a piece of information that is curiously absent from the discussion to date, and I hope that will be addressed by the Privacy Commissioner.
Further, why, when ACC has, I have to say, a track record of previous privacy breaches—and the Minister has referred to them—had the organisation not taken the basic steps required to better protect the data that it was holding about people? Why, for example, was this information not encrypted? Why was it that names and client details were not disaggregated so that privacy could not be breached? Another question that emerges for me is why it is that we have not heard about what has happened about the, I think, 45 breaches of good process that Ms Pullar and Ms Boag brought to the attention of ACC’s senior management. Why have we not heard what has occurred about those breaches of good process? That is yet another example that occurs to me.
I freely admit that I have said to some journalists that I am actually quite pleased that this has happened to a National Party insider. I feel sorry for Ms Boag and Ms Pullar, certainly, but I am pleased about it because, actually, this routine breach of process is something that many ACC claimants experience as a matter of course and it is entirely minimised by the Government.
Two senior managers from ACC met with them, and I agree with Grant Robertson that there are some important questions about that. They now claim that Ms Pullar and Ms Boag effectively attempted to blackmail ACC—a claim that is denied by Ms Pullar and Ms Boag. Another question that occurs to me is, if that is what ACC believes, why on earth did it not complain to the police at that time? Instead, we see that a conciliatory letter was sent to Ms Boag. Well, that is not really credible, is it? Secondly, here we have two senior managers becoming aware of this gross invasion of privacy, this gross breach of trust on the part of the organisation, and yet we are asked to believe that those two senior managers did not bring that to the attention of their chief executive officer, their board, or their Minister. Well, I have worked in the Public Service in a senior capacity and I would have to say that I find that entirely unbelievable. It is astonishing that those people were not brought into the loop when such an extraordinary risk to the organisation and its clients was brought to light. So there are some very important questions.
Since the beginning of last week I have had literally hundreds of people calling my office and emailing my office with their very deep concerns about breach of privacy, in some cases relating their stories—the stories of the harm that caused them to be having their interaction with ACC in the first place. It has been an absolutely harrowing experience for them, and yet what we have heard from them is that in the calls they have had from ACC staff to tell them they were on the spreadsheet, in those interactions they have felt not listened to, they have felt that ACC has minimised their concerns and not taken them seriously, and they have felt that, in fact, the error has been compounded.
I particularly draw the House’s attention to the impact of that on sensitive claimants for whom the very fact that they were on this list comprises an extraordinary breach of their privacy. Consider for a moment those who did not get the call—who did not get the call from ACC. How are they supposed to feel? What they have learnt is that their information, the fact of their sensitive claim, is not being held secure by ACC. It could be breached at any time. Further, we have learnt that the facts about sensitive claims are not held in this extraordinarily secure way within the sensitive claims unit; actually, they are routinely available to a very wide range of people within ACC.
So I am very, very supportive indeed of the Privacy Commissioner’s inquiry. There are very many issues that need to be addressed: the breach of privacy in the first place, the lack of management of the breach by ACC, and then the poor way in which ACC has gone about trying to fix the breach. But I take issue with the Minister’s answers to my questions today. The matters related to the previous Minister for ACC, the Hon Nick Smith, will not be considered by the Privacy Commissioner in her inquiry; they cannot possibly be found to be within scope. They will not be addressed by that inquiry, and we need a properly independent inquiry to address those issues. In 1999 Deputy Speaker Ian Revell resigned over the improper use of the Deputy Speaker’s letterhead. If Nick Smith were the Minister today, I would say he ought to be sacked. Right now, he needs to be stood down while this matter is under investigation. He is not a junior Minister; he is a senior, experienced Minister and this is an absolutely fundamental breach of the Cabinet Manual and ministerial responsibility. This entire thing is a circus and requires a fully independent investigation. I called on the Auditor-General’s office earlier today to undertake that inquiry.
Rt Hon WINSTON PETERS (Leader—NZ First) : Over a matter of a few days it has become crystal clear to New Zealand First and the people of this country that this is a Government of National Party people, by National Party people, for National Party people, and the Privacy Commissioner conducting the review will not get at the facts, because this has long gone past a matter of privacy or confidentiality.
An unseemly controversy has exploded into the light of day with all the usual National Party suspects: Nick Smith, John Key, and Michelle Boag—always Michelle Boag, the former National Party president put in all sorts of Government-appointed jobs: the Broadcasting Commission; you name it; the whole lot. And blow me down, who comes as the confidante at court to help this woman? It is Michelle Boag. There they are with their fingerprints, their footprints, and their DNA all over it. And there is the victim, by some strange coincidence a National Party activist and apparatchik, Bronwyn Pullar, who tried to get some kind of deal from ACC. All of a sudden they have a marvellous memory on the part of Michelle Boag as to what was not said. But not much has been told to us about what was said at the meeting—just what was not said. That has got a ring to it, if you are conducting any sort of investigative work, that there is something amiss here.
Nick Smith, you know, wrote a letter of support for the victim to ACC. I wonder how many other ACC people have written to him over the years when he was the Minister, asking him to do something about what they would think was their plight—being unfairly treated by this outfit that is called ACC. You might say “Well, what is wrong with that?”. And the answer is nothing, if you are a member of Parliament, or a local body councillor, or a lawyer, or somebody who is a social worker. But what is wrong is that he was the Minister for ACC. And is Mr Key paying any attention as to how serious this is? Oh no, one rule for the rest of the politicians in this House, and a different rule for the so-called noblesse oblige—although they have not got any characteristics of nobility. One rule for the noblesse oblige and a different rule for everybody else. They think themselves to be a special class above the law and above ordinary scrutiny. This means that the Minister for ACC leaned on ACC, to push the case of another National Party member to get some payments. And just in case that was not enough, they pulled out a former president of the National Party, just to give it a run to see what greater pressure they could exert, as well.
Hon Member: Disgusting.
Rt Hon WINSTON PETERS: It is disgusting, but it is typical.
Who knows, there may have been some merit in the case of Ms Pullar, but it was not Nick Smith’s place to push this case. He has been around a long time. You can tell that by looking at him. He did not arrive here yesterday—
Paul Goldsmith: Not as long as you.
Rt Hon WINSTON PETERS: We all know that. We all know that. What a rapier-like wit that man from Epsom has got. What a rapier-like wit. I might have been around here longer than Nick Smith, but it does not look like it, does it—not when you look at Nick? Here is the point: there may have been some merit in Ms Pullar’s case, but it was not Nick Smith’s place to push her issue. It was a distinct conflict of interest. It was the case of a National Cabinet Minister doing a favour for a member, and a formerly highly placed member, of his own political party. But that has got a ring about it, has it not: the cronyism, the sleaze, and the jobs for the boys—and the girls. In every appointment, line your own people up—position them. It was the case of a National Minister doing a favour for a member of his own political party. For this he should have been sacked immediately from Cabinet when it was known by Mr Key that he had done that.
It is no use coming along and saying “I made a serious error of judgment.” Where is the accountability? Where is the ministerial responsibility? If it was on that basis, half the Cabinet would be gone tomorrow, because they are making serious errors of judgment every day. They are too inexperienced. Look at them. They have been here only 5 minutes, and by some raffle they have got themselves a Cabinet post. I know that there are far more capable guys on the backbench, but apparently they have not been browning enough for the guys at the top. I know that there are more capable guys in the back here, but they have not been chosen because they are not all total yes-men like the one who is hiding behind that white paper over there right now. It was a distinct conflict of interest, doing a favour for one of his mates in his party. Mr Smith should be sacked now that that detail is out, and that is not going to be what the Privacy Commissioner is charged with finding—because it is not a privacy matter now; it is a separate political matter of a grave breach of the Cabinet Manual. He should be gone, and that is the fact of this matter here now.
But the plot thickens. It turns out that John Key, the Prime Minister, knew the National Party activist. He talked to her on not one occasion but a number of times, apparently—a number of times, apparently. And so did the former National Party president Michelle Boag. So this is the case: in July 2011 Nick Smith wrote a reference letter for Bronwyn Pullar, a former National Party official, whilst he was Minister for ACC. But here is the real point: he was saying that a critical aspect of ACC’s judgment must have been wrong, because in his opinion, although he is not a medical doctor, she was in every way sound and fit before the accident, and that there was no cause for her current condition other than the accident. He was putting his reputation on the line as Dr Smith on ministerial letterhead, just to make sure that people did not think there was a lot—because there are a lot of Dr Smiths around in this country. They wanted to make sure they got the real Dr Smith, the Minister for ACC.
This letter was used to support Ms Pullar’s case for ACC compensation after a cycling accident. In December 2011 Ms Pullar held a meeting with ACC, at which her friend former National Party president Michelle Boag was her support person. That is amazing, is it not? You would not go into your local town and get a lawyer, someone qualified, of course. No, no, you get the former National Party apparatchik and president Michelle Boag—
Andrew Little: The well-known social worker.
Rt Hon WINSTON PETERS: —the well-known social worker, who trucked into this Parliament two leaders, first Don Brash and then John Key, from overseas to depose a guy called Neeson, backstabbing him in his west Auckland electorate, to get the job in the first place. Michelle organised that. So she is no bit player. Oh no, she is the person behind the whole scheme in the first place.
By the way, Ms Pullar was accidentally sent information about 6,700 other ACC claimants. Well, that is a privacy matter, but it has gone a long way beyond that. And we do not want to have another snow job from the National Party—another snow job from the National Party, where you can say “Well, this commissioner who was charged with limited terms of reference has made this decision about confidentiality, but no one addressed the question of the propriety of the Hon Dr Nick Smith being involved.” That data that was leaked identified some as making sensitive claims for injuries, resulting from rape or other forms of sexual assault. So there it is: a scandal from within the Government, caused by the Government that holds itself up as being cleaner than the driven snow. It is always cleaner than driven snow. All its mates downtown in the commercial market know that is not true, of course, but it always poses as being that. It is a shabby little case involving blackmail, sex, and a Minister with a conflict of interest, and he should go now.
CHRIS HIPKINS (Labour—Rimutaka) : This has been a massive breach of privacy and I have full confidence that the Privacy Commissioner will thoroughly investigate that aspect of this matter and will report fully on that aspect of this matter, and we can have confidence that that will happen. This suggests a systemic breakdown within the ACC that may well lead to significant further repercussions for ACC, and I have confidence the Privacy Commissioner will investigate that fully. What I do not have confidence in is the fact that the Government is taking this seriously, when a Minister in this Cabinet has shown such a lack of judgment—the Minister for ACC—that they were willing to write a letter of support for an individual ACC claimant. Nick Smith showed not only a lack of judgment; it was completely appropriate. He should resign from his post as a Minister, and if he does not resign, John Key should sack him. John Key promised that he was going to raise the bar for ministerial accountability, and what he had this morning was Nick Smith saying that he did not do anything wrong. This is what Nick Smith said this morning before he was caught: “Ministers still have friends and providing there is no inappropriate influence, it is quite appropriate for them to provide information or evidence for medical assessment, and other legal processes.”
That is from the Minister for ACC. He was providing advice and support to someone to support their ACC claim, and he did not think that was inappropriate. Then he turned round and said that it was an error of judgment, particularly putting the letter on ministerial letterhead. Ministerial letterhead is not the issue. It would not have mattered if he had written it on a napkin. It was inappropriate for Nick Smith as the Minister for ACC to be going in to bat for an individual ACC claimant. That is what took place here, and Nick Smith should resign as a Minister. He does not have the judgment to be a Minister, and if he does not resign, then John Key should sack him.
But there was another aspect of this issue that is equally disturbing, and that is the role of the former National Party President Michelle Boag. It is an issue that amounts to, if allegations are correct, one of blackmail, one of a claimant using information aided and abetted by the former National Party president and trying to blackmail the ACC. This is an incredibly serious issue. This claimant was given information by accident, and we should get to the bottom of how that happened, but they then tried to use that information, supported by the former National Party president. And with the full knowledge that they had a letter of endorsement from Nick Smith, the former Minister for ACC, in their back pocket, they effectively tried to blackmail the ACC, and that is not good enough. That should be fully investigated. That is not something this Government should have its paw prints all over; this is something that the Government needs somebody independent to fully investigate.
This is an incredibly serious matter. It is a question of whether or not the ACC was blackmailed or whether somebody tried to blackmail the ACC using information they were not supposed to have. They were not supposed to have that information, and the National Party’s fingerprints are all over it. Nick Smith is tangentially involved in this because he had supported that very ACC claimant. He had written a letter claiming that to the best of his knowledge they did not have any health or other conditions that would have compromised their capacity to work prior to the accident, and in fact he provided that information so that there could be a comparative assessment of that person’s current health. There only can be a comparative assessment of that person’s current health for what other purpose than an ACC claim, and this was written on the ministerial letterhead of the Minister for ACC. It would not matter, though, whether it was on ministerial letterhead at all; it was still the Minister for ACC. Does Nick Smith seriously have such bad judgment that he thinks that if he had written it on a plain piece of paper, the people at ACC who got it would not know that the person who had written it was the Minister to whom they were accountable?
Andrew Little: He should go.
CHRIS HIPKINS: This Minister should go. If he does not resign, the Prime Minister should sack him. Nick Smith does not have the judgment to be a Minister in Government. John Key said he was going to raise the bar for ministerial accountability. Well, now it is time for him to put up or shut up. If Nick Smith does not resign, John Key should sack him.
MICHAEL WOODHOUSE (National) : Sometimes people make mistakes. ACC is a very large corporation, dealing with about 1.8 million claims a year and billions of dollars of taxpayers’ and levy payers’ money. I cannot imagine the sheer horror that must have been experienced by the ACC staff member on the realisation that he or she had inadvertently emailed a document to a person who did not have any right to have the document. I am actually a bit surprised by the lack of empathy from the deputy leader of the Labour Party about this, the so-called shadow Minister for Bureaucrats. In his long call, he made very little, if any, mention about the staff member concerned. But I have some compassion for that staff member. I have worked for ACC; it is a big, complex organisation. There are many balls in the air being juggled—a bit like being a senior whip, I suppose—and sometimes a ball is dropped. But that is not why nearly 9,000 people are upset and disappointed that potentially private information has been disclosed. They are upset and disappointed because the person to whom that information was sent—in an email that probably had a trailer on it that said “Information contained in this, if it is not for the recipient, should not be used and should be sent back to the sender”; That is a pretty standard sort of trailer that gets put on every single email, and according to the information that has so far been disclosed, that did not happen. There will be a police investigation, and there will be a Privacy Commissioner investigation, but to me that lies at the heart of why those 9,000 people are now going through the stress and upset that they are.
Mr Robertson talked about ACC performance—that this is an issue about performance. Mr Hague also said that this was an issue about ACC performance, and I absolutely agree with him. In the 3½ years since I have been in this House the shadow spokespeople for ACC—Maryan Street, Chris Hipkins, and now Andrew Little—have said an awful lot about ACC, but the one thing they have not said is the thing that the public have been dying to hear, and that is an apology; an apology for the appalling mess that was left by them when they left office, for their contribution to $7.2 billion of financial deficit that was left as a legacy by a softening Labour Government that saw ACC as a social cash cow for people in the grey area between accident and medical. I have direct knowledge of that.
I heard Mr Hague, in his call, talk about a culture of disentitlement. What I would suggest is that this is about a culture of more accurate entitlement according to the Woodhouse principles, which he espoused. I can give him an absolute assurance that those principles remain sound and that this Government is committed to them. But it has simply got to an unacceptable level, and the level of acceptance of claims on ACC in dubious circumstances was simply not able to be continued. The unfunded liability that this Government was left with, the billions of dollars of levies—extra—that had to be paid by levy payers in this country, which, thankfully, this Government has turned round, is what it is about in terms of ACC performance, and if members want to have an urgent debate, I would suggest that that is really what this is about. The Labour Opposition continues—
Andrew Little: Tell us about Nick Smith.
MICHAEL WOODHOUSE: Nick Smith has very little to do with the actions of Bronwyn Pullar. I feel very sorry for that claimant. I have had a number of people, thanks to Labour members in Dunedin sending all their ACC clients to the National office in Dunedin, and based on the experience I have had with them, they have had very good outcomes with an excellent ACC team down there on extremely difficult issues. But let us be very clear about what this is about. This is about the actions of a member of the public exploiting a mistake made by an ACC officer. The questions raised by Mr Hague in question time today do a disservice to the Privacy Commissioner and her independence. I have every confidence that she will get to the bottom of what has happened and that some very good outcomes will come from it. But this is about ACC performance, and we are still waiting for the “sorry” from Labour.
DAVID BENNETT (National—Hamilton East) : I would just like to follow on from my colleague Michael Woodhouse with regard to this matter. I think everybody in our community, and especially in this Parliament, understands the pressures that ACC has in the work that it does. It is not an easy organisation to run, and it is not easy work for those within ACC to undertake. They have a very vital role in our community. Many years ago this Parliament made a decision on how it would deal with accidents and injury, and ACC was born out of that. The Green Party member mentioned the Woodhouse principles, and my colleague just mentioned the fundamental basis of ACC. In doing that complex job, there will sometimes be mistakes made. I am sure that those involved would like to have their time again and not make those mistakes, but at the end of the day things like that have happened and do happen, and then it is up to, really, this Parliament and also the corporation to deal with those mistakes. The mistake has translated into a bigger result than I guess it could have been if the email was returned and no action was taken by the recipient. But at the end of the day we are in this position now, and I think everybody recognises the pressure that will be on ACC in this regard.
The Minister has made it quite clear that there will be a review, and that the review process will look at ways forward, and I think it is important for this House to focus on that. We want to be able to help ACC as much as possible. In any organisation there is learning within, and development of, that organisation, and sometimes through the mistakes that are made an organisation or individuals can learn and grow. Through this process I am sure there will be some suggestions made, and those suggestions will be for the best interests of the corporation and all those individuals who may be claimants or may be working within the corporation. There will be claimants who will feel that this information should not have been released or that this issue should not have got to this stage of the process, in the sense that it is becoming a very public issue for them. Our thoughts are with those people, because it is their personal information and they will be very guarded about it, and rightly so.
But it is a situation that has arisen. It is a situation that many people involved within the corporation, and also those individuals who may have had their cases exposed in the public arena, would wish had not happened. That is something that we cannot change in this House. But we can look forward, and we can look at ways we can deliver better services and a better corporation going forward. I think that is the focus of what we need to do here today and looking forward through this situation. A corporation like ACC has to deal with over a million cases a year, which is a big drain on any organisation, and that will stretch the ability of any individual or corporation to be able to deliver perfect services all the time. That is something that I think we need to be mindful of in the sense of the proportionality of what ACC deals with. It is a very big organisation, and it deals with very sensitive and individual issues and information. Nobody wants a situation to arise where that personal information gets into the public arena. It is very unfortunate that that may happen, but in some cases, as in this case, that is the unfortunate result. We need to be aware of that and look forward to what we can do to make sure that these situations do not arise in the future. Also, we need to be aware of, and have regard for, those who may have been affected during this situation.
CHRIS HIPKINS (Senior Whip—Labour) : I raise a point of order, Mr Speaker. In the speaking list for the urgent debate the next call is set down as a 5-minute call for the Māori Party, and I am aware that the Māori Party has not taken a call in the debate. I therefore seek leave for us to move on to the next call on the list, which is a Labour call—a 10-minute call—and if the Māori Party chooses to take its call subsequently, it can have its 5-minute call then.
MICHAEL WOODHOUSE (Senior Whip—National) : According to the order of debate set out when the urgent debate is called by the Labour Party, the Māori Party would have its call at slot No. 5, and therefore that has already passed, albeit that the order of calls remains at the Speaker’s discretion. So I do not think there is actually any need to seek leave for Labour to take its 10-minute call now.
Mr DEPUTY SPEAKER: I am bound to give a 5-minute call for the next one, because it has not taken place. So leave has been sought. Is there anyone opposed to that course of action? It appears not. Leave is granted.
ANDREW LITTLE (Labour) : The last two speakers from the Government side have tried to minimise this issue. This is not a small issue. And it is not about a mistake by one manager inside ACC mistakenly sending information to another person.
Let us start at the beginning. This is about ACC, one of the most important institutions in New Zealand, revered around the world because of what it does. It is absolutely essential to the health of our community, so that when people do have accidents and get injured they can have a quick recovery without having to worry and stress about it. But absolutely crucial to the good functioning of ACC and its relationship with the community and this country is the very high trust that is placed in it by people when they make claims. We all do it, whether it is for a sprained thumb or whether it is for something more serious. We have to provide information to ACC through our medical advisers—through our doctors. Trusting ACC is absolutely essential, and that is what is at stake here.
Information on 6,752 claimants was wrongly and mistakenly sent to a person who simply should not have had it. The Minister for ACC is right, and I support her stance when she says that that person has acted wrongly—she has. Let us put that aside for now. But let us also understand this: I—like, no doubt, many MPs—have been getting information from people who have had their phone call, or got their letter, and they are being told different information from what appears in the report that went to the Minister last Friday. They say that it was not just their names, it was not just their numbers, it was not just the status of their reviews; other information has been disclosed as well. We need to have that clarified. That is not a matter for the Privacy Commissioner; that is a matter for a proper independent inquiry into what has gone wrong.
The other issue—and the very serious issue that lies at the heart of this and the privacy issues—is what has happened to those 131 people who have made sensitive claims. They make those claims because they are victims of sexual abuse. They make those claims because they suffer mental injury as a result. That is how serious those claims are. When I talk about the trust that people must place in ACC, there could not be people who need to place more trust—whom we rely on to place the utmost trust—in ACC than those who make sensitive claims to the sensitive claims unit. The ACC website says to those who make sensitive claims that their information will be seen by only the small number of people who work in the sensitive claims unit and, perhaps, an independent assessor. But what we have seen in this case is that somebody outside the sensitive claims unit has access to that information. In fact, the report to the Minister on Friday said it was a spreadsheet that was circulated to all ACC managers. How many is that? How many hundreds of people are getting access to information that ACC says, to those making sensitive claims, that only a small number of people will see? That is a crucial issue. The Privacy Commissioner might deal with that, but he or she will not deal with the myriad of other issues that arise in this particular case.
What has happened? I accept what today’s Minister for ACC has said. We know that with the management of data today, there is so much of it, and it is easy to make a mistake. We know that. We understand that. But it is what happened here in this particular case that matters. There are real questions that need to be answered. Looking at the disclosure in the first place, why was a person—a manager in the recovered persons unit, or whatever that one is called—handling this spreadsheet and all of this information in the first place? Why did they have it? We know that that was disclosed in August 2011. Why was the sensitive claims information included in that spreadsheet? What is the assurance that has been given to those people now to give them some comfort and security?
The next piece of information we know is that there was a meeting in December that involved two senior managers from ACC, who say that they did not know there had been a privacy breach up until that time; there was Bronwyn Pullar, the person who had received the information and had a long-time grievance against ACC; and there was the former National Party president Michelle Boag, who is not well known in ACC circles as far as I am concerned. I have done a bit of ACC advocacy work. I have not seen Michelle Boag’s name on the list of advocates and others who have represented people in ACC. How is it that in an ACC system where many people struggle to get a meeting with their case manager, Bronwyn Pullar can get a meeting with two senior managers from ACC? That gap has not been filled. That question is not answered in the report that went to the Minister on Friday. We just do not know, but I smell a rat, and it is a big one and it is a stinky one.
We need to know what it is that prompted ACC to send two senior managers to meet with Bronwyn Pullar, an aggrieved claimant, and a former National Party president, Michelle Boag. There is more to this than meets the eye, and we need to know what it is. The Privacy Commissioner will not answer that question, but we need to know what was really going on. What was discussed at that meeting? We are now getting conflicting information. The report to the Minister says one thing, Bronwyn Pullar says another, and we have the letter from Michelle Boag, who remembers some things but not others. What happened at that meeting? That is not a matter for the Privacy Commissioner, but it would be a matter for a proper independent inquiry, which should take place, and which the Minister has in her power to set up and get under way.
We then see that nothing happened for 3 months. A letter was written—that is right. A manager who was at the December meeting sent a letter, and nothing else happened for more than 3 months. This is the institution that we must trust so much, that every New Zealander—not just the 1.7 million claimants each year, but every New Zealander—must trust. Here was a manager of ACC who knew that there had been a breach of privacy—they say they did not know the extent of it, but they knew there had been a breach of privacy—and very little was done. That is not good enough, and we need to know why it was not.
Was it the presence of Michelle Boag that made them afraid to take further action? Was it the fact that they now would have known that this woman Bronwyn Pullar was a National Party activist? Was it because they then saw that there was a letter from then Minister for ACC, Nick Smith, and they were too afraid to act—frozen in the headlights? That is what happens. When Ministers write letters on their letterhead, using their ministerial titles, on behalf of individuals, going into the bureaucracy of which they are part, they know the effect that that is meant to have. It is meant to have a chilling effect. It is meant to make senior officials freeze in the headlights, and I suspect that that is what happened in this case. We need to know the answers, because we are not getting them. We did not get them in the ministerial report on Friday, we did not get them in the answers to Parliament today, and we are entitled to have them for the confidence of all New Zealand in this most important of institutions.
We then go to the role of the former Minister for ACC. This current Minister for ACC is clearly responsible, and I accept that she was not to blame, but the former Minister is not just responsible, but he is to blame as well. What on earth was that Minister doing using the full power of his office and his title to advocate for a single person within the department for which he was responsible? That is unheard of. That is unheard of. Not even Bob Semple went that far, and that was a long time ago. Nick Smith wrote a letter, and said in it that he was not trying to influence ACC, but then he put the argument that was all about influencing the ACC decision. That is how disingenuous this Minister was. It is such a flagrant breach—such a flagrant breach—of the Minister’s duties and responsibilities, and of the standards of conduct we are entitled to expect of a Minister, that that Minister must go. He must go from this Cabinet.
If John Key is serious, and if he as a Prime Minister expects the nation to take him and what he says about the conduct and the standard of conduct of Ministers seriously, then he must see to it that Nick Smith is sent out of Cabinet, because we cannot trust him any more. We cannot trust him not to abuse his position. We cannot trust him not to use his office to curry favour with whatever National Party activist asks for it next. What other favours has he given Bronwyn Pullar? Who knows? That is not a matter for the Privacy Commissioner, but that is a matter for a proper inquiry that is about giving integrity back to this Cabinet, to this administration, and to this Prime Minister. You do not start a letter off “To whom it may concern,” and claim it was addressed to the medical adviser. That was a letter intended to carry weight, intended to carry influence, and intended to change the ACC decision that had been made. It was improper process and improper procedure.
The Privacy Commissioner’s inquiry is not enough. It is a good start for the privacy issues concerned, but it is about how this happened. What was the environment that was happening here? What was the National Party involvement here? A lot of National Party personalities seem to have been tied up in it. We need to know. We need to know about the conduct of Nick Smith. We need to know about the conduct of Michelle Boag. We need to know about the conduct of the director of ACC, who so far remains nameless, and about what he knew and why he did not disclose that to the chief executive—
Mr DEPUTY SPEAKER: Order! The member’s time has expired.
Hon CRAIG FOSS (Associate Minister for ACC) : Firstly, let me acknowledge the original incident, as it has unravelled in this Chamber and across the media over recent days, and reiterate what Minister Collins said. I think, as do most members, that the release, accidental or otherwise, of the information was unacceptable, unsatisfactory, and simply not good enough. Quite simply—
Andrew Little: Well, we’ve got that. [Interruption]
Hon CRAIG FOSS: Yes, members, but let us just acknowledge that, because there is some politicisation happening here, which is starting to go away from the core issue.
Andrew Little: It started with the National Party.
Hon CRAIG FOSS: The previous speaker made his points, and I will start to make mine. But I reiterate that it is simply not good enough.
I will come to a point about what has happened since these revelations came to the attention of the Minister in charge, and how that has been reacted to—managed. That is not to say that other issues may not have arisen, as some members have been speaking of, about what else has been going on. But I do note, and I am very cautious and I do urge other members to note, that there is one investigation, or possibly two investigations, going on here about different parts of this scenario, if you want. As to the paper that was released on Friday, the Minister announced the papers, and ACC is cooperating fully with the Privacy Commissioner to discover, to learn, to share, to find out how it happened, and maybe why it happened. The terms of reference are still being worked on, I understand. The reaction to what was an unacceptable event—I would like to think an accidental unacceptable event—with consequences that we are discussing now has been addressed. I think we really do need to separate those issues, because the police are possibly also investigating some of the other issues in this space, which the other member was talking about.
That is fine, but let us just kind of reiterate, if you want, what is going on. The key issues in events like this are to understand and acknowledge what has happened, and try to learn how it happened—intentional or otherwise—and about problems or gaps in a system. They may have been there for many years. We just do not know, actually; we are yet to find out. And then there are some of the other issues that are clouding this space right at this moment. I have been as surprised as other members about some of the events that seem to have been portrayed out there.
But I will agree with the previous speaker about much of what he says. It is about trust. That is quite right. So to hold, regain, earn that trust is what Minister Collins and ACC, with the Privacy Commissioner, and the inquiry into how this has happened are about. It is all about holding trust. The member is right: New Zealanders do, and do need to—and by and large I think they do—have a large amount of trust in not only the ability of ACC to manage an accident, whatever that may be, and the issues in and around that but also the ability of ACC to fulfil its obligations under its Act over a lifetime. It can be 20 or 25 years. The member did note the need, and I just urge members—they can speak quite laterally, I know—to exercise caution about standing on a ladder of righteousness, or something, around sensitive claims. They are exactly that; they are very, very sensitive. I appreciate that members of Parliament have many issues come across their desks, but let us make sure we treat everything with respect and dignity, regardless of what may or may not have happened to that particular individual and the circumstances, whatever they are, that have put them into a place where their name, their review lodgment date, their client name, their file reference number or their branch identification category, and perhaps a review outcome has been sent—inadvertently, let us just assume for the moment; I am quite sure that is the case, and I certainly hope so—to some other party, and then there is a bit of activity after that, as far as ACC is concerned.
I just want to go back to what has happened subsequent to this. Yes, here we are having this urgent debate in the House and members have raised their points. To be fair, there is a general theme of surprise at this event—this is the ACC’s inadvertent release of information—the need for there to be trust, and then there has been some politics, sure, at the margin, and some other events have come through. I have here some statistics of what ACC has done since. As at last Thursday, when around that time the Minister and everyone became aware of this issue, ACC acknowledged that it needed to contact 6,752 clients whose earlier details may have been sent in one way, shape, or form to the recipient. Let us just leave it there for the moment. ACC has tried, as at last Thursday at 10 o’clock in the morning, to contact 4,457 of them. It has successfully spoken to 2,611 of them, and was unable to communicate with 1,846. That was last Thursday. That is not to dilute in any way, shape, or form what has happened. My point is about the trust that New Zealanders, and I think most of the House, maintain in ACC from the reaction to what has happened here and what system solutions are being put in play to fix it, to remedy it. I acknowledge Minister Collins’ leadership here in putting in place the machinery, if you want, for this to be addressed.
I think we have to be so careful about theories about what might have gone on, and the next layer of what may have gone on, and some connections, and some influence. Yes, some members are able to allege those if they want, but I trust ACC to do the job it is charged to do. On the whole it does a fantastic job. This is certainly a bump in the road, which I do not think the ACC needed or required. New Zealand did not need nor require it, not because of political reasons but simply to maintain trust in such a great and solid entity, which is now in a very strong financial position.
Finally, just pursuant to the rebuilding of trust or the need for people to help engage—and I know that other members have pointed a few things out—I do endorse that any person who believes that their details, basic though they might have been, have been shared inadvertently or their privacy breached via ACC in the particular item we are talking about does call the 0800 number, to engage with and discuss it with ACC. I acknowledge, as that previous member said, that different messages were being sent out. We need to look at that, and I would be interested to hear a bit more about that, if in fact that is what is happening from ACC’s point of view. So if anyone is aware of anyone, or thinks they may just share the 0800 number with them, let us make sure that members are not breaching the trust and the privacy of those people, particularly the sensitive claims part of this—inadvertently, I am sure—as the politics of this thing play out in this House. Thank you.
LOUISE UPSTON (National—Taupō) : I have heard some fantastic contributions from this side of the House on this topic of urgent debate. I just do want to reiterate the fact that we have such enormous confidence in the Minister for ACC and her ability to act on this so quickly. Because as the previous speaker, the Hon Craig Foss, has mentioned, the thing that is really central to this is that New Zealanders at large have a confidence in ACC and its ability to deal with an issue like this when it arises. If we think about the number of people who have had their information released in this unfortunate manner, what they need to know straight away is that there is a Minister who takes it seriously, that there is an organisation that is pulling out all of the stops to get on top of the issue, and to not only deal with those who have been directly affected by it but also to take the necessary steps to make sure that this kind of issue cannot occur again.
As we have heard in the House today, the Minister has received a comprehensive report. There will be further information that comes to light with the terms of reference that ACC is working on with the Privacy Commissioner, as it is just really important that they are able to work together on this to progress it. The Minister has received the initial report, as Craig Foss was talking about. We now have a situation where ACC has set up this 0800 number, which people affected are able to ring, and it has a specialist team who are responding to the people who have had their privacy breached, and those respondents are a specialist pair of people who are trained to deal with this type of situation. I am confident that they will be dealing with this most carefully and responsibly. The fact is that there is a press release that has gone out earlier today, which has all the details about it. If there is anyone who is listening to Parliament today who has been directly affected, I would encourage them to contact that specialist team on 0800 745 254. That number is available and being operated from 8.30 in the morning until 5 p.m. This is about a direct process whereby people are able to get the support they need, because it is that confidence in ACC that is really important.
We have seen from the Minister the fact that she is on top of this issue. ACC has acknowledged that it made a mistake, and I think that is the first thing you do, if you handle something badly—to front it and acknowledge the errors that have occurred. Rather than getting into the politics of it, the focus is actually on those people who have been affected. For those constituents who are affected up and down New Zealand, the first priority, rather than squabbling about the politics—which I know is what the other side of the House is always wanting to engage in—is actually to deal with the issue at hand to make sure that those people who have been affected are able to get the support that they need.
The Minister is also happy that ACC has outlined very clearly some changes that need to be put in place, to make sure that this sort of issue does not occur again, and to be able to implement them. Mr Deputy Speaker, I know that you have heard a lot about this particular issue and the fact that the Minister and ACC are doing what needs to be done to resolve this, so I shall leave it at that.
- The debate having concluded, the motion lapsed.
Appropriation (2010/11 Financial Review) Bill
Intelligence and Security Committee
Hon ANNE TOLLEY (Deputy Leader of the House) on behalf of the Leader of the House: I seek leave to take Government notice of motion No. 1 on behalf of the Leader of the House and the motion in his name concerning the terms of reference for the Intelligence and Security Committee as one debate.
Mr DEPUTY SPEAKER: Is there any objection to that course of action? There appears not.
Hon ANNE TOLLEY: I move, That under section 8 of the Intelligence and Security Committee Act 1996, this House endorse the following as members of the Intelligence and Security Committee: Hon John Banks and Hon Peter Dunne, nominated by the Prime Minister under section 7(1)(c) of the Act; and Dr Russel Norman, nominated by the Leader of the Opposition under section 7(1)(d) of the Act.
I further move, That—(a) the Intelligence and Security Committee will examine the Estimates Vote for each intelligence and security agency (Standing Orders 244, 245, 246, and 333 are to be read and applied accordingly); (b) the Intelligence and Security Committee will examine the Supplementary Estimates for each intelligence and security agency (Standing Orders 244, 245, 246, and 336 are to be read and applied accordingly); (c) the Intelligence and Security Committee will conduct a financial review of the performance in the previous financial year and the current operations of each intelligence and security agency (Standing Orders 244, 245, 246, 339, and 340 are to be read and applied accordingly); (d) no select committee can examine an intelligence and security agency; (e) a bill or other matter relating to an intelligence and security agency may be referred by the House to the Intelligence and Security Committee (Standing Orders 244, 245, 246, 247, 248, 272, 273, 274, 275, 284, 285, 287, 288, 289, 291, 292, 294, 295, and 296 are to be read and applied accordingly); (f) the Clerk will allocate any petition relating to an intelligence and security agency to the Intelligenceand Security Committee (Standing Order 366); (g) for the purposes of this order—intelligence and security agency means the New Zealand Security Intelligence Service or the Government Communications Security Bureau; and Intelligence and Security Committee means the Intelligence and Security Committee established by section 5 of the Intelligence and Security Committee Act 1996.
GRANT ROBERTSON (Deputy Leader—Labour) : I rise to support the two motions here. Firstly, with reference to the establishment of the Intelligence and Security Committee, the process for doing that is laid down in the law, and has been undertaken by the various parties. In terms of the Opposition parties, the Leader of the Opposition is by statute a member of that committee, and there is a process of consultation that needs to take place to appoint the second member. That has been undertaken, and Dr Russel Norman is put forward as the other nominee from the Opposition. I want to thank all Opposition parties for their cooperation in going through that consultation process.
The composition of the committee is perhaps not the major issue of the day in terms of this particular debate on these motions. What I do want to discuss is the role of the committee that is contained within the second of the two motions that are up for debate today. By nature, the work that this committee does is going to have an element of secrecy. It is in the name; it is part of what happens when we look at the work of intelligence services. There will be occasions on which the work of that committee does need to be kept confidential and comment about it needs to be kept to a minimum in order to protect the important role that security intelligence agencies play.
The reality is that in our society we do need intelligence services. I would love to live in a society where we did not need to have the Security Intelligence Service and the Government Communications Security Bureau. The activities that they undertake present a challenge to those of us who are strong believers in civil liberties, but the truth is that in our society from time to time there is a reason for intelligence agencies to undertake the kind of work—the covert work, I guess, if you want to call it that—that is part of their core business. That is required, and from time to time the committee will be required to look at that, to respect the way in which information has been delivered to the Government and to the agencies, and to talk about it in a confidential manner.
But there has to be a balance in that—there has to be a balance. When the work of these agencies challenges the civil liberties that we all have, it behoves this whole Parliament, and the Government in particular, to be extremely cautious and careful with how those powers are used. There is little more important in our society than our ability to go about our daily business free of interference, the ability to have contact with our friends and with our associates and not feel that in some way or another we are being watched unfairly or without due cause. So any attempt by these agencies to go about their work, which, as I say, is legitimate work, needs to be monitored carefully, and there needs to be a degree of transparency and accountability about that.
The example that occurred in the last Parliament when this committee was considering the New Zealand Security Intelligence Service Amendment Bill was one that on this side of the House we felt very uncomfortable about—the fact that there was a lack of public submissions. There was a lack of openness and transparency about an important aspect that actually was changing the way in which these agencies were doing their work, and that deserved and merited better public participation and some greater levels of transparency. As I say, there will be times when that level of transparency will not be possible, but a bill that was fundamentally changing the way that that work was done—not a specific subject, not a specific investigation, but the methods and means of the work—deserves greater transparency. When the challenge to those of us who care passionately about civil liberties is taken by that kind of action, we need to see that, and, of course, in the last Parliament we did not see that level of transparency from the Government.
The Human Rights Commission, in its submission on the bill, raised these serious concerns, and I just want to quote briefly from it. It said that at the point in the process when it wrote the submission “It is unclear whether the Committee intends to hear oral evidence. As the Bill may have significant impact on the lives of New Zealanders, and other people within New Zealand, the Commission strongly urges that public hearings on the Bill to be held.” That was the Human Rights Commission saying to the Intelligence and Security Committee that it is important that there is a level of transparency around, in this case, a piece of legislation that went to the committee. Those calls from the Human Rights Commission should be heeded in the future, so that there is transparency where that is appropriate, and I do believe that in matters like this, and in a number of other matters, it will be appropriate that there is that level of transparency.
It was confusing to those of us on this side of the House, when we looked at the role of the Intelligence and Security Committee and looked back in previous debate, to find that in its very early days Jenny Shipley when she was the Prime Minister made clear in this House that in a similar situation there should be transparency, and there should be public submissions. So National when it was last in Government and involved in this committee seemed to believe that there should be a level of transparency in the activities of this committee, yet this time around when it came to the New Zealand Security Intelligence Service Amendment Bill there was not that level of transparency, and it is disappointing that that would occur.
We do say that in the future we need to see a greater level of transparency. We would like to work within the frame of the committee to achieve that, and we would like to see Parliament be able to, in the future, adopt some measures that will enhance the transparency of this work. This is not to undermine in any way the work of the committee; it is actually to support it. It is to give it some kind of greater accountability that the public will have confidence, they will know a little more about the activities without compromising the actual investigations that are undertaken by our intelligence services.
As we have seen from examples from around the world, intelligence services are not perfect. They are not suddenly able to always get it exactly right. They are not going to get the information and read it perfectly every single time. Sometimes they are going to misunderstand information. Sometimes they will be given false information. They are not perfect. They do need a level of scrutiny. This committee provides some of that, and it is why we support the motions on the Table. But over the next few years I would like to think that Parliament could return to these issues and actually create a different environment that has a great deal more transparency.
Now is the time to do that from this Government’s point of view because it runs the risk of having a reputation of not being transparent and not being accountable. If we look at the deal around the legislation with Skycity, if we look at what has been going on with Radio Live—the loan to Radio Live; the Prime Minister’s broadcast—if we look at the Crafar farms and the role of Landcorp, and if we look at the whole question of New Zealand On Air and the role of the Prime Minister’s electorate chair, there is building up a record of lack of transparency here. We have got Nick Smith today in the House—the debate around the question of what he did in his role, compromising his role as a Minister.
That level of transparency is not good enough in this Parliament, and when we are dealing with intelligence and security measures, if we have got that background of behaviour and activity from the National Party, it does not give me confidence in the Intelligence and Security Committee that it, in the last Parliament, did not even allow submissions on a significant bill.
We want to see a greater level of transparency and accountability. We want to see that right across the work of the Government. In security and intelligence it will always need to be balanced against the best interests of New Zealand, but it is vitally important that this committee have the ability to look at that balance and, from time to time, create the situation where there are public submissions, where the public can learn more about the activities of these agencies. We are supporting these motions, but we do believe that there is work to be done to create the appropriate transparent environment in which this committee works.
Dr RUSSEL NORMAN (Co-Leader—Green) : I rise from the Green Party to speak to the motion. I think it is fair to say that the Green Party is pretty sceptical about the level of oversight of our security services. However, we are participating in this committee and we thank the Leader of the Opposition, David Shearer, for nominating us on to this committee. But, like the previous speaker, we think there needs to be tremendously improved oversight of the security services because it is very difficult for the current committee to properly supervise or provide any kind of oversight of the security services in New Zealand.
The Intelligence and Security Committee is not a select committee of the House like other committees. It does not have parliamentary control like other committees. It is a committee established by statute—the Intelligence and Security Committee Act. That is how it is established. The Intelligence and Security Committee has five members: the Prime Minister, who is also the Minister responsible for the security services, and two nominees from him, and the Leader of the Opposition and one nominee from him. So this is a five-person committee established by statute whose job is meant to be to provide some oversight of the activities of the security services.
However, the Intelligence and Security Committee has very few powers to do anything much to make the security services answer questions. For example, if the chief executive officer of a security service declares any information to be sensitive then we cannot ask any further questions about it. That is written in the Act. We do not know what the information is, but if the chief executive officer of any security service says “No, the question you are asking is of a sensitive nature; it is sensitive information.”, then they do not have to answer any questions about it. So it is fundamentally different to the select committees established under the Standing Orders of this House.
Unlike select committees, the chair of the Intelligence and Security Committee is the Minister responsible for the security services. The way select committees are established in this House is that the chair is always independent—it is not the Minister—so that the chair of the committee, which is meant to be keeping these Government agencies accountable, is at arm’s length from the Minister. What this means is that very few people know what the security services do. It is very difficult for the Intelligence and Security Committee to get to the bottom of what the security services do, because we do not have the powers. It means that the chair of the committee is actually the Minister, so it puts us in a very difficult situation.
Other jurisdictions do not do this, of course. Other jurisdictions have much better parliamentary or congressional oversight of their security services. I just quote for you the former director of the Central Intelligence Agency William Colby. Mr Colby said: “We in the intelligence and security services can work under a system of parliamentary control. We can do our job and in fact we are stronger because when we make mistakes and get in trouble, the responsibility is shared with the legislative committees. The intelligence service can do its important work, and yet be under the control of our democratic system.” That was a quote from the former head of the Central Intelligence Agency from the United States. What that says is that the system we have, where there is not democratic oversight of the security services—not in any effective way—is not the only system that you can have.
This is particularly the case because our security services have a terrible record of, basically, taking sides in politics. For example, there were some documents that were released to my former colleague Keith Locke that showed that in the 1980s the security services were taking a very unhealthy interest in anyone who opposed apartheid in South Africa. So the SIS seemed to take the view that if you opposed apartheid in South Africa you were a threat to the New Zealand State, so you needed to be investigated.
The SIS has made a habit of targeting law-abiding political dissenters. For example, it targeted Aziz Choudry. It burgled his home. The reason we know that is it was caught burgling Aziz Choudry’s home. That went to the courts, and when it went to the courts the Security Intelligence Service lost the court case, and unspecified damages were awarded against the SIS to Aziz Choudry.
David Bennett: It’s a conspiracy theory. You might as well join New Zealand First.
Dr RUSSEL NORMAN: Mr Bennett over there says it is a conspiracy. Well, this is actually on the public record, Mr Bennett, and you should try reading it some time. It might actually help you a little bit. At the time the Inspector-General of Intelligence and Security, Laurie Greig, said it was reasonable for the SIS to break into—to burgle—Aziz Choudry’s house. However, the courts disagreed and overruled him.
A further case where we have concerns about the activities of the SIS would be the long-term persecution of Ahmed Zaoui. This is a well-documented case and the courts repeatedly upheld Mr Zaoui’s rights against the SIS, and the SIS breaches of his rights. Mr Zaoui was an Algerian democrat who was being hunted by the brutal Algerian dictatorship. He was the classic political refugee that members of this Parliament should support because he was an advocate for democracy, and that is why we were very disappointed when the Labour Government participated in the persecution of Ahmed Zaoui over many years. What happened was the Algerian dictatorship provided false information that Zaoui was a terrorist to the French Government, which then passed it to the New Zealand SIS, which stupidly believed everything it was told. It took massive intervention by the courts—court case after court case after court case—to prevent the SIS from essentially deporting Mr Zaoui to serious harm offshore. At the time the Government of Helen Clark backed the SIS 100 percent in pursuing, persecuting, and wrongly imprisoning Mr Zaoui, as the courts ultimately came to the conclusion.
Keith Locke is another who was targeted by the SIS for being a law-abiding dissident—something we should encourage. In fact, there are hundreds of law-abiding New Zealanders whose political beliefs happen to disagree with those of the SIS, and hence they have become the target of surveillance. In a free society it is wrong for the State security services to target people because of their political beliefs, yet there is a repeated pattern of the New Zealand security services doing exactly that. Some people say that we have the Inspector-General of Intelligence and Security, who is meant to be the safeguard to oversee the SIS. Because the Intelligence and Security Committee cannot do it, because it is too constrained, the Inspector-General is meant to be the safeguard. However, the Inspector-General operates in secret so we do not really know what he does. We do know that one of the few times we have seen the Inspector-General in action was when Laurie Greig was reviewing the decision of the SIS to issue a security risk certificate against Mr Zaoui. Laurie Greig, who was at the time the Inspector-General of Intelligence and Security, told the media that Mr Zaoui should be sent overseas—he should be “outski”. He clearly had a predetermined view of the issue.
So although the Intelligence and Security Committee is very limited, and that is the body that we are appointing with this motion, the Inspector-General is meant to be the safeguard. But on the one occasion when we saw what the Inspector-General was doing, we discovered that the Inspector-General, who is meant to be an independent check on the activities of the security services, was completely biased. This went to court, and the courts ruled that the Inspector-General had to step down from reconsidering the case against Mr Zaoui because the Inspector-General at the time was clearly biased. The courts ruled him to get out of the case.
This is the so-called independent check on the security services. That is what is meant to be the independent check on our security services, because the Intelligence and Security Committee, the parliamentary oversight, is so weak. Yet we know that the one time we saw what the Inspector-General got up to, he was very, very biased against someone who turned out to be actually a political refugee and the kind of person whom people in this Parliament should support, because he was a democrat. After that, the Inspector-General actually resigned because the courts found against him.
We recognise that the security services do some good, that they have an important role; we are not naive about it. But we believe, along with Mr Colby from the CIA, that there should be parliamentary oversight of the security services, and currently we do not have it. One victory for the Intelligence and Security Committee, in the last committee, was the inclusion of some human rights provisions in the Act governing the SIS. Along with the Prime Minister, I think I am now the longest-serving member of the Intelligence and Security Committee—the current one—and that was one of the victories that came out. By law I cannot tell you what happens inside the meetings of the Intelligence and Security Committee, but you will know that there was at least a majority inside that committee to support human rights provisions being added to the New Zealand Security Intelligence Service Act. How else could it have appeared in the committee recommendations that came back to Parliament? So that was, I thought, one small, significant thing that we have achieved.
I would say to progressive activists and agitators, to people who stand up for freedom and democracy and human rights—the people who are the targets of the security services traditionally—to not sleep easy in your bed, thinking that the Greens are providing good oversight of the security services because we have one person on the Intelligence and Security Committee. There are very real limits to what this committee can do, and so it is essential, if you wish to protect your freedom, that you should be as vigilant as possible. We will do the best job that we can on the committee, but there are real constraints on it. Thank you very much.
- Motion endorsing members’ nomination agreed to.
- Motion concerning terms of reference agreed to.
Search and Surveillance Bill
- Debate resumed from 7 March.
Part 3 Enforcement officers’ powers and orders (continued)
Hon PHIL GOFF (Labour—Mt Roskill) : Part 3 of the Search and Surveillance Bill is an important part of the bill. It deals with the powers and the orders that enforcement officers are going to use. It looks at warrants for surveillance devices, and in particular it looks at the use of production orders.
I want to say, first of all, that Labour supported the introduction of this bill. In fact, it was introduced by Labour. When Labour looked at this bill, we did not take the steps that were included in our bill lightly. It was based on 6 years of work by the Law Commission, and it was based on a widespread view that comprehensive reform was necessary of a series of laws that had been subject to ad hoc changes, which had led to real confusion and a lack of coherence. Some of these laws were 50 years old and simply did not cover the technological changes that had occurred. So the first principle that Labour followed was that we recognised that in fighting crime we have to give our enforcement officers adequate tools and powers, particularly reflecting changes that have occurred technologically. But there was a second principle, which the National Party, when it took over the bill, did not seem as concerned about. That principle was that, equally, you must recognise that when you give coercive powers to enforcement agencies, you make sure you do not unreasonably undermine basic civil rights and liberties.
The thing that worries me about the way National has gone about this bill is that it had 2½ years to actually act on it and put in place Labour’s reforms, and it did nothing. National sat on it; it did nothing. Then at the last moment, as a result of a court decision in Hamed, National decided, in a panic-stricken way, to introduce new powers and not worry at all about how these powers could be misused. The fact was that in the legislation that came in last year, National was going to rush legislation through this House without reference to a select committee, without the ability of any individual or organisation to make submissions on it and to improve or change that legislation. Fortunately, National did not have the numbers to do so. It did not have the numbers to do so, so the changes were temporary.
When the Justice and Electoral Committee looked at these details, the select committee—and I am talking about the whole of the select committee; National as well as Opposition members—acknowledged that the bill that National had introduced went far too far. It had no balance, and it needed to be, and has been, significantly redrafted. Not only have changes been made in the select committee, but the Minister of Justice has come back to this House with 92 pages of a Supplementary Order Paper—92 pages. How badly wrong did the National Party get this legislation? The truth is that but for the work of the select committee and the insistence of Labour that the bill go to the select committee, that original bill would be on the statute book today and it would be wrong. National Party members on the select committee admitted that many of the powers went over the top, were disproportionate to the offending, went to too many agencies, and went too far.
I do acknowledge that some changes have been made that make this part of the bill more palatable. We have reduced the surveillance period without warrant. I think that is an important safeguard. We have limited the retention of surveillance data on people who are quite innocent of any offending. It is absolutely repugnant that you would be keeping on tape video surveillance of people, intruding on their privacy, who were doing nothing wrong. It is really important that we protect the privacy of individuals who are innocent of any offending against the law and against other people. And the bill imposes more stringent reporting requirements. But this still does not go far enough, which is why Labour is not supporting the part.
There are amendments in the name of my colleagues Charles Chauvel and David Parker, which we will be supporting, but in particular we want to focus in this debate on the use of production orders. Production orders are orders that require a person to produce information or documents. That is, in effect, overriding what we would regard as the right to silence. No person is normally forced to produce documents that might or might not be incriminating against them. In fact, it is only the Serious Fraud Office that has the power to issue production orders prior to this legislation coming into effect. When we looked at how those powers were being used by the Serious Fraud Office, we found—in fact, the Law Commission commented on it—that there was a tendency, because we gave these powers to the Serious Fraud Office, for it to overuse them. It did not use conventional investigation techniques. Its first instinct was to use these extraordinary powers, regardless of whether or not they were appropriate in the circumstances.
This brings me to the point that I think is most important in this debate, and that point is this: in this country, Parliament acts to hold a Government accountable, but there is also the fourth estate, the media, which has the vital role of holding a Government to account. For the media to be effective in the use of its authority, then people who give information to the media must be confident that the information they provide will be made and kept confidential. It is vital to protect that confidentiality and the freedom of the press. That is why we are concerned that the Serious Fraud Office used production orders against the National Business Review during its inquiry into South Canterbury Finance. Serious Fraud Office staff went into the news room and seized the documents. Is it any wonder that an international rating agency saw New Zealand’s rating in terms of media freedom drop from eighth in the world to 13th? That is a significant drop. We are talking about international agencies that no longer regard New Zealand as a country that will protect the freedom of the media. And, by God, have they not got information to back that up?
During the election campaign, what did we see? The Prime Minister using a complaint over the teapot affair to get the police to go into news rooms again. We saw the Prime Minister misusing his power in terms of going on a Radio Live programme, even though he was advised by the Electoral Commission not to. We saw the appointment of the Prime Minister’s electorate chairman, a direct political and politicised appointment, on to New Zealand On Air, and his opposing documentaries that might show the Government in a bad light. It is against that backdrop that these powers available to the Serious Fraud Office and the police have got to be met with concern.
Labour wanted the Government to tighten the use of production and examination orders by the Serious Fraud Office at the same time as similar powers were being conferred on the police under this bill. Regrettably, the Government was not prepared to show the flexibility and the common sense to agree to that. If it had agreed to that, then in all likelihood this piece of legislation, which is controversial and which risks intruding on the privacy of individuals, could have gone through with the overwhelming support of this House. That would have been a sign that we have got the balance right: the balance between giving enforcement agencies the powers they need and protecting the privacy of innocent individuals. We offered cooperation to get that consensus support. It is not too late now for the Minister in the chair, Chester Borrows, although he might be reluctant to override the Minister in charge of the bill, Judith Collins, to say “Minister, come to your senses on this legislation. We can get the overwhelming support of the House for it, but let us protect the role of the fourth estate in making sure that the Government is held to account and that people’s privacy is being protected.”
That is what Labour is asking for. It is not unreasonable, and if the Government finally makes the decision to make that compromise, to show that flexibility, to have that common sense, to respect the role of the media in our society, and to get the balance right between giving police and other enforcement agencies the powers they need and protecting the right of New Zealanders, ordinary New Zealanders, to privacy in their life, then we could give support to this bill. I urge the Government to make that change.
The CHAIRPERSON (Lindsay Tisch): There is too much noise coming from the Government benches. If you want to have discussions, go out into the lobbies. That is what the lobbies are for. It is difficult to concentrate and to hear what members are saying.
DAVID CLENDON (Green) : I am pleased to take another call on the Search and Surveillance Bill, and on Part 3, to once again affirm the Greens’ opposition to this bill. There is a very slim margin majority—or has been up to now—in the House for this bill. It is becoming very obvious in the media and in public generally that people understand what this bill is intending to do, and that the majority in the street and in the public domain are very much in opposition to this bill. We are very happy to join that opposition and to voice it in this Committee.
We have no problem with some of the stated intentions of this bill, which are to rationalise what is admittedly a very convoluted, complex array of legislation. We recognise, of course, that the police and other bodies need investigative powers and, on occasion, they need covert investigation powers. But as has been very eloquently stated by the previous speaker, Phil Goff, this bill simply goes too far. This bill sets out deliberately to be a catch-all bill. It sets out to give the maximum possible powers to State agencies, rather than taking the view that we should give the State agencies the fewest powers that they need to fulfil their obligations, to do their job, and to ensure public safety.
I will move directly to some of the clauses of the bill, specifically under clause 44, the part of the bill that talks about surveillance warrants, devices, and so on. The focus in this particular part of the bill is on the ability of State agencies—be it police or any other—to install surveillance devices on private property without warrants for a defined period of time. Yes, that time has been reduced from 72 to 48 hours, but it is extraordinary that agents of the State should have the power under this legislation—and indeed under the proposed Supplementary Order Paper in the name of the Minister of Justice—to enter people’s houses; to break into people’s premises, areas, or vehicles; to interfere with vehicles; to install, using whatever force is necessary, covert surveillance devices; and, to add insult to injury, to even plug into the electricity of somebody’s home or business premises to power up these devices.
It is extraordinary that the State, a police officer, or other State agencies should have the power to actually break into people’s homes and steal their vehicles and then return them, or to put in these devices, unknowing, on suspicion—reasonable suspicion, which is a reasonably low bar, we must say—that a crime has been committed, is being committed, or indeed might be committed. Those are very, very low bars to protect the right to privacy. Basic civil liberties are at stake here, and we think it is important that people are aware of the very, very considerable powers in this part that would be given for warrantless intrusion into people’s homes, their business premises, and their vehicles—places where people ought to feel that they have a reasonable level of security and privacy. The fact that this can be done without a warrant, even for a shorter period of 48 hours, we think is simply a step too far.
There is absolutely no proven necessity for these quite Draconian measures that this bill proposes and that this part of the bill proposes. We are in a place where we are not under immediate threat from major terrorist groups, despite the best efforts, on occasion, to paint certain individuals in that light. The need simply does not exist for these extraordinarily powerful provisions in this bill—for example, around the warrantless insertion of surveillance devices, even in people’s homes.
The issue of production orders has excited considerable interest in the media, among other places, and I think that is appropriate. The editorial in the New Zealand Herald—which is not noticed as the most radical media outlet that has ever been seen, and which enjoyed the appellation “Granny Herald” at one time—acknowledges that this bill simply goes too far.
There is a clear indication in the provisions around production orders about self-incrimination, and this was referred to by a previous speaker. Within the provisions of this bill, a person who is absolutely a person under suspicion—so-called reasonable suspicion—can be obliged to incriminate themselves or to involve other people in incriminating themselves. For a very, very long time—for centuries—there has been a common law assumption, a belief, a convention that people ought not to be obliged to incriminate themselves.
That is the job of the police and the courts. The role of the police is to bring evidence, to accuse, and to deliver evidence of wrongdoing, and, of course, the courts’ role is to judge on that. The notion that people should be obliged to be complicit in their own conviction is simply anathema. Yes, we understand that we want to prevent the commission of crime. We want to ensure that people who undertake criminal activities should be taken to task and should suffer the penalty. But going against a centuries-old convention, for what reason? For reasons that are not adequately described in this bill. We do not have a situation where we ought to be compromising these very, very long-held conventions that protect people against being obliged to incriminate themselves. There is no justification given in this bill.
For what this bill does—and, in particular, in this part, in the warrantless surveillance provisions, in the issues around production orders, and in the provisions that are made explicit in terms of production orders—the case has not been made that we need these sorts of provisions. They are major assaults on civil liberties, on the privacy of individuals and of businesses, in fact. The expectation of most New Zealanders is that they can go about their business with a reasonable assurance of privacy. This bill does go too far. These provisions go far beyond the pale, and we will continue to oppose them. Thank you.
DENIS O’ROURKE (NZ First) : New Zealand First does not oppose the intent of Part 3 of the Search and Surveillance Bill relating to surveillance powers and declaratory orders. But New Zealand First certainly does have some reservations about the manner in which those powers will be used, and those have been referred to already by some of the previous speakers.
As some previous speakers have already said, there does need to be a balance between enforcement, especially using modern techniques—and bearing in mind some of the crime that today the community is facing—on the one hand, and also the right to privacy, on the other. That is a very difficult balance to reach and requires very careful consideration. In particular, this is necessary where trespass surveillance is to be authorised, and of course the bill takes some trouble to address that. However, I note that only offences punishable by a period of imprisonment of 7 years or more will be subject to those provisions. So, on balance, the New Zealand First position would be that, subject to some of the reservations that have been expressed and which I express here as to the methodology by which these powers are to be enforced, New Zealand First would say that in respect of this part of the bill the balance has probably been correctly arrived at. So we would not, for that reason, oppose that part of the bill.
We note also that the bill now provides some protection for the freedom of the press, especially by confirming the privilege to protect sources contained in clause 130, but I would have to ask, does that really in practice provide a significant protection? It is all very well for clause 130 to simply state that that privilege exists. However, the reality is that if a search was conducted of a news media organisation and information about the sources of information was uncovered, there would have to be a period of time within which the news media organisation could challenge that search and the use of that information.
I am not satisfied that in practice, therefore, the bill actually does protect the freedom of the press in respect of the media’s need to protect their sources, and I would like to have seen the bill go somewhat further than it does. So I would have to agree with some of the previous speakers when they say that the bill goes too far in some of the methods it authorises and some of the agencies that it authorises to have some of these powers.
However much New Zealand First supports the need for effective enforcement, we cannot agree with the bill overall simply because, as I have said in previous speeches, it includes a very serious issue, which is examination orders and production orders that seriously breach the ancient right to silence. That is not something that New Zealand First could agree with. That has compromised the whole bill and, as a result, New Zealand First is unable to support it overall.
You see, it is not just a matter of balance when it comes to the protection of very important democratic rights, such as the right to silence. No form of balance, no consideration of balance, is relevant to that. It is quite simple: rights of that magnitude must be protected. People have fought wars to protect rights of that kind and our democracy as a whole, and there is no way that this should be chipped away at in the form it is in this bill and in similar sorts of legislation. I would remind the Committee that in clauses 31 and 32 a senior police officer is given the right—
The CHAIRPERSON (Lindsay Tisch): Order! That is Part 2. We are on Part 3. You cannot—
DENIS O’ROURKE: I was just moving on to that, Mr Chairperson.
The CHAIRPERSON (Lindsay Tisch): Just stay on Part 3. That is what we are debating—Part 3.
DENIS O’ROURKE: Well, Part 3 cannot be agreed to, simply because the bill as a whole cannot be agreed to. I would have to repeat that in a non-business context, where those rights—
Hon DAVID PARKER (Labour) : The first issue I would like some clarification on from the Minister in the chair, the Associate Minister of Justice, relates to clause 57 of the Search and Surveillance Bill and the effect on declaratory orders of the Hamed decision, which came out after the drafting of this legislation. This point became unclear to me when I heard an address from Charles Chauvel when the Committee stage of the bill was in process during a previous sitting of Parliament, when he asked what the proper role is for declaratory orders.
We heard from the Minister of Justice in earlier stages in the debate that a declaratory order might be used when the police want to carry out some activity that is not specifically able to be authorised through a warrant because it might not have been using a technology that was thought of at the time when this legislation was passed. They could go to the court and seek a declaratory order, which is a statement by a judge that he or she is satisfied that the use of the device specified in the order is, in the circumstances, reasonable and lawful—to paraphrase the clause.
Charles Chauvel quite rightly raised the question as to whether this was an appropriate power at all, which made me think about the effect of Hamed on this. This bill was drafted at a time when the advice that we had at the Justice and Electoral Committee—and the Hon Chester Borrows, who is in the Minister’s chair, will remember this, because he was chair of the select committee at the time—was that where there was no express power because the technology was not in existence at the time the statutory provision conferring the warranted powers was enacted, there was a residual power arising from common law for the police to do it anyway. Well, that was thought by the Law Commission to be a bit loose, and so officials in the Law Commission came up with a precursor to this declaratory order form—and now this form—to give some process to try to cause some judicial oversight of these new processes.
But, of course, Hamed came along and said that there is no such thing as an unwarrantable legal trespassory power of surveillance. So you cannot get a declaratory order, I would say to the Minister in the chair—and I ask him to respond—because how can you get a declaratory order in respect of something that is now illegal in light of Hamed? I would say, then, that the only way in which the declaratory order process can be of any utility is in respect of non-trespassory procedures, because trespassory procedures that are not authorised expressly in any form of legislation are, according to Hamed, illegal. They are in breach of the New Zealand Bill of Rights Act. So except to the extent that there might be some exercise of judicial discretion not to exclude evidence because of the seriousness of the crime, it seems to me that in respect of trespassory surveillance operations this is a useless clause, because Hamed has overtaken our understanding of the law as it was explained to us at the select committee. I ask the Minister in the chair to advise me whether I am correct in that analysis—and he being a learned man and a former policeman I think he might agree with me.
The other issue I want to address relates to the amendment in my name, which is an amendment to clause 69(1A) of the bill. It suggests that the Serious Fraud Office director be made, by this amendment, “an enforcement officer for the purposes of obtaining a production order.”, which would then mean that all of the protections, such as they are in this legislation, relating to production orders that are sought by the police would flow through to production orders sought by the Serious Fraud Office. I do not know whether you were in the Chair at the time when we were last having this debate, Mr Tisch—I think you were. You will be aware that there is a residual concern of the Opposition that even if you accept—and I heard the New Zealand First contribution in respect of production orders and examination orders in this context—that production orders might be justified sometimes, they are never justified without appropriate protections of media freedoms. And that is what this amendment seeks to address by making the same protections that apply in respect of production orders sought by the police also apply in respect of production orders sought by the Serious Fraud Office.
Since we have had those early stages in the debate, we have had some editorials come out from the major newspapers in New Zealand that have been considering these issues. I would like to reflect again on what a production order does. A production order effectively requires the person who is served with the production order to hand over documents. They do not have a discretion; they must hand over the documents to the police and also, at the moment, to the Serious Fraud Office along with the police. The police have to get a warrant, the warrant has to be from a judge, the person can claim media privilege, and there are certain protections—inadequate in the view of the press—in respect of police actions, but none of those protections arises in respect of the Serious Fraud Office.
What does the New Zealand Herald editorial of 8 March say? I will read just a couple of extracts: “The rights of reporters to protect confidential sources will be seriously restricted.” So it is saying that this legislation, if passed, seriously restricts the ability of the press to protect their sources, and I think we in this House should be worried about this. Then it refers to the fact that “It is proposed that when the media invoke that essential right (which lawmakers call a privilege),”—here it is talking about media privilege—“a High Court judge will decide whether they can withhold identifying material.” As the media note: “Worse, media must first surrender the material to the police who will be able to make copies of it and supply it to the High Court for the judge to decide whether the police can make use of the material.”
The Minister can clarify for me whether the effect of the Minister’s amendments is to make it a requirement that those materials must be held in a secure place before the judge reviews the claim to privilege. But, even then, the newspapers make the point that you are trusting the police not to copy the information on the way past, and we are also trusting that the media know their rights—and they will not all know their rights—to demand that that information be secured in the meantime.
The media then make a wider point and say: “Powers of search, seizure and surveillance are necessary tools of law enforcement but they need to be carefully balanced with civil liberties. The bill strikes a fair balance for the most part, requiring external authorisation before any agency’s officers can search private property or set up surveillance devices. Examination orders”—and production orders are the same—“are more disturbing. Professionals providing personal services may be content to be relieved of a duty of confidentiality sometimes but news media serve a public interest. If informants cannot be protected at times, their concerns might not come to light.” So they are saying that there is a special case to be made for the media because there is a public interest in preserving the confidentiality of media sources and because there is a public interest in those bad stories—they might reflect poorly on Governments or other powerful people in society—but they none the less ought to come to light for the long-term protection of the health of our democracy.
Then they go on to say—look, there’s another thing here—“News media are no different from the ordinary law-abiding person when it comes to rights and freedoms. When laws are proposed that need to provide special treatment for media, it is usually a warning for everybody’s rights.” Can I pay tribute to the comment that we had before from the New Zealand First speaker Denis O’Rourke, because this is effectively what he is saying. I am going to repeat that, because I think it is quite an important point: “News media are no different from the ordinary law-abiding person when it comes to rights and freedoms. When laws are proposed that need to provide special treatment for media, it is usually a warning for everybody’s rights. The right to silence is a cornerstone of civil liberty. This bill goes too far.” That is what the New Zealand Herald says.
This bill goes too far, according to the New Zealand Herald, in respect of police powers, even with the protections around them, and I am sure it would agree that in respect of the Serious Fraud Office the issue is even worse, because those protections that exist in respect of the police exercise of powers with production orders are not there for the Serious Fraud Office. That is what my amendment tries to make a little bit better. It does not take away the power of the Serious Fraud Office to get a production order, but it does say that for the purposes of this legislation, when obtaining a production order, the Serious Fraud Office director is an enforcement officer, and all of the provisions in the bill that apply to the commissioner in respect of production orders apply to the Serious Fraud Office director.
CHARLES CHAUVEL (Labour) : I want to begin by thanking my colleague for taking the Committee through the history and the context of clause 57 and the subsequent parts of the Search and Surveillance Bill. I spoke a little earlier in the debate about this particular part of the legislation. I found it puzzling and I now have some context for the provisions. But I would, notwithstanding the fact that the Minister in the chair, the Associate Minister of Justice, is not the Minister with carriage for the bill, be very grateful if he could ask the officials for some advice on whether, particularly in light of what we have heard from the Hon David Parker, it makes any sense to retain clause 57 and the clauses that follow relating to declaratory orders.
Clearly what appears to have happened, just following the text of the bill, is that there was an original proposal for what were called residual warrants. I know that the Minister in the chair was on the Justice and Electoral Committee—I was not, but he and David Parker were—and clearly what happened here is that there is a recommendation from the Justice and Electoral Committee to strike out the provisions relating to residual warrants and a decision to replace those provisions with one relating to declaratory orders. This was a set of provisions that will allow, if we enact this legislation, law enforcement to go to the High Court or a District Court and ask for an opinion from the court about the legality of any particular type of surveillance.
This drafting has not changed since the Hamed decision was handed down and Parliament applied what we might colloquially call a temporary fix last year to this situation, which we were alerted to because of Hamed. Notwithstanding Hamed, we have still got provisions around getting these declaratory orders in place. As David Parker has pointed out, these provisions are now virtually redundant, except in respect of one type of surveillance, thanks to Hamed. So I think we need to hear from the Minister in the chair about whether it is desirable to still retain clauses 57 through to 61, because we are really in danger, I think, of enacting provisions that do not have any meaning, as a result of a judicial decision that we have now had some time to consider.
I said that it was helpful to have had the history and the context of the legislation explained, because I think it does show that we probably do not need these provisions, and I think that if we are taking our responsibilities seriously as a Committee of the whole House, we should be looking at the question of whether to retain these provisions.
I have some more serious concerns about them, and I alluded to them in my previous remarks on Part 3. I am going to just reiterate those concerns for the Minister in the chair. We do not, as a rule, in common law countries put the courts in the position of giving opinions. Our system, as the Minister knows, is one where there is a dispute of facts that goes before the courts, and the courts pronounce definitively by applying the law to it. That is the way things are done. In New Zealand we have never constitutionalised that, but in Australia, for example, the Commonwealth constitution makes it very clear that that is the judicial role; it would be unconstitutional in Australia to enact this sort of provision, where the courts are put in the position of being advisers to the executive. I still have a major reservation about the propriety and wisdom of doing this here.
Independently of the fact that we have now learnt in this debate that the provisions are probably redundant in any event, what happens if an abstract request for an opinion goes before the High Court, and the High Court, under these provisions, delivers itself of an opinion, as it would be obliged to do on the face of the clauses, and then the opinion from the court, being expressed as advisory only, is brought up in a subsequent real case, a real dispute, over the legality of a particular type of surveillance in a District Court? What sort of position would the District Court judge be put in in that real-life dispute situation? What sort of discretion would that judge have in any real sense in the face of a High Court advisory opinion on similar hypothetical facts? The reality is the judge would have none. Thanks to our doctrine of stare decisis, even though this is all expressed to be advisory, the judge would not in reality have any freedom to do anything other than apply the so-called advisory opinion given on a previous occasion in a hypothetical situation by the High Court.
That is an indication of why we do not generally enact law in this way, why we do not put the courts in the position of trying to give advice to the executive. We have a Crown Law Office and we have Crown solicitors. They are perfectly capable, and, as the Minister knows, every day they give this sort of advice in practice to the police and to prosecuting authorities. We should not ask the courts to somehow become advisers to the executive. That violates the notion of the separation of powers, and, as I have tried to show, it will result, if these powers are ever used in any extensive way, in embarrassing and uncomfortable situations as far as the courts are concerned.
Finally, as the Minister knows, the courts have enough to do at the moment. We are constantly trying to find ways in this House of easing their burden and their workload, rather than adding to it. I just do not understand, particularly given what we have heard about the Hamed decision and the fact that these provisions are now, largely, moot anyway, why we would then legislate in this way. I appreciate that it is difficult for the Minister in the chair, because he has to take carriage of this legislation temporarily, but—I think this is important enough, and it is certainly not an attempt to spin the debate out—this is a very serious question. I would not be taking time on it unless I thought it was well worth the consideration of removing these provisions from Part 3, which we are now debating. In fact, if there is time in the debate, I think I ought to move formally that the Committee do that, because it seems to me, as I say, given what we have heard, that clauses 57 to 61 are not only moot but actually undesirable.
Hon CHESTER BORROWS (Associate Minister of Justice) : Just in response to the points that have been made, it is pertinent to note that where the genesis of this provision came from was the fact that technology had moved faster than the law had. So law enforcement agencies were able to draw on new abilities that were given by new technologies, and they were using those in investigations where it was questionable as to whether or not there was the ability to do so.
In response to the query raised in respect of declaratory orders, the point has been made that they are advisory, and I understand the point that the member has made. It is up to the courts to determine the impact of the Hamed decision in respect of that declaratory judgment, and then in subsequent matters as they are raised before them, case by case.
As the member Charles Chauvel noted, the declaratory order regime was recast from the residual warrant regime by the Justice and Electoral Committee when it considered the bill. I should note that declaratory orders do not give the police or any other enforcement officers new powers. However, and I will come back to this in a moment, the regime futureproofs the bill by enabling enforcement agencies to undertake investigation of a crime in the modern era while keeping pace with technological advancement, which is a provision that has not been available in the past.
Declaratory orders will be made ex parte—in other words, as with application for warrants on the papers and without notice to another party—and there will be no adversarial process. The only respondent in a case involving declaratory orders would be the person against whom the proposed device or technique or procedure was going to be used. So by giving them the opportunity to speak, obviously, the police or the courts would be forewarning them of the interest, and so would be stymying the whole need for the application for the declaratory judgment.
As noted by the member, declaratory orders are advisory in nature and can be made by either a District Court judge or a High Court judge. However, they are persuasive. It is inappropriate that declaratory orders should be binding, as at a later date a court will have the benefits of all the facts and the context in relation to the actual use of the device as used at an earlier stage. That is the point that was made by the honourable member Charles Chauvel. The declaratory order is around a hypothetical matter, but the later, subsequent court case will be about actual facts for which the courts will have to make their own decision, albeit in light of the declaratory judgment made on the earlier application.
Hon DAVID PARKER (Labour) : I will just follow that issue through a bit with the Associate Minister of Justice, because clause 57(1) of the Search and Surveillance Bill says that a declaratory order can be made by a judge only when he or she is satisfied that the activity is reasonable and lawful. The Hamed decision said that trespassory search and surveillance that did not have express legislative authority is unlawful. That is the effect of the Hamed decision. So this can never work in respect of a method of search and surveillance that involves trespass on private property, be it a car or a house, in a way that was being envisaged when the bill was at the Justice and Electoral Committee. This whole thing has turned round, because one of the ways in which this was justified at the Justice and Electoral Committee was that we were told where there was no express authorisation of a surveillance technique that required it to be warranted, that surveillance technique was, as a consequence of common law decisions, legal because it was not required to be warranted. The Hamed decision said that that proposition was wrong. So when this declaratory order provision was being thought through, it was being seen as a way to protect civil liberties by perhaps encouraging the police to go for some sort of judicial oversight of what was lawful but might be unreasonable if done a certain way, but done another way might be both lawful and reasonable. We now know that, in respect of trespassory search and surveillance that is not expressly authorised by legislative authority for the enforcement officer, it is unlawful, and therefore clause 57(1) cannot apply. So I think, Minister, that that can never apply, except in respect of non-trespassory surveillance where Hamed says that you can have non-trespassory surveillance that is not expressly authorised and that does not infringe the New Zealand Bill of Rights Act. So that is my first point.
My second point develops the theme that Charles Chauvel was developing. I listened to Charles and I thought that that was right, and I am convinced by that argument that we ought not to have this advisory role for the courts. He was referring to the effect of a higher court decision on, in practice, the decision that is subsequently taken by a lower court. But let us just consider the actual case in point. Let us say that the evidence was gathered, and then was challenged by the accused at trial. Are we saying in respect of the later decision as to whether that evidence ought to be admitted under the judicial discretion to admit illegally obtained evidence that is so serious as to warrant being admitted despite the fact that it is illegal evidence—and that discretion does exist as law, as we have seen in respect of Tame Iti and others in the Tūhoe case—that we are so naive that we think that that exercise of discretion at trial will not be influenced by the declaratory order? Well, I think it would be naive to say that, and if it is naive and if it would influence it, well, that is wrong. We have an adversarial system, but here, on an ex parte basis, just one side is being heard. In this case, the police, telling the judicial officer what they think without the other side of the case being put on behalf of the accused—who may be innocent; they are an accused, not a guilty party; merely an accused—would be wrong.
The Labour Party has prepared an amendment—and we would encourage the Greens, New Zealand First, the ACT Party, and others to consider it carefully—to expunge these particular provisions from Part 3 so that declaratory orders are not carried forward. This will cause no great hole in our justice system. There have never been declaratory orders in existence until now. Declaratory orders were not needed in order to preserve the admissibility of the evidence in respect of some of the serious offences alleged in the Tūhoe case. Illegally obtained search and surveillance evidence was none the less admitted to court under the discretion that the court has to admit evidence even though it has been illegally obtained. So there are lots of protections for the public out there already. We do not need this one as well to confer additional powers on State agencies to embark on search and surveillance measures. So I would ask the Minister in the chair, the Associate Minister of Justice, to address this issue as to what is the effect of this, in light of Hamed, when it is not lawful.
KRIS FAAFOI (Labour—Mana) : Thank you very much, Mr Chair, for the call as we debate Part 3 of the Search and Surveillance Bill. I do feel slightly inadequate following my two learned colleagues in the legal sense, but I do have some experience in the—
Hon Member: We know that; you don’t have to tell us about it.
KRIS FAAFOI: That from the member who feels inadequate all the time when he stands to speak. I do have some experience in the media, which has been raised by Mr Parker in an earlier contribution. Part 3 does pertain to powers of officers, and the obtaining of warrants and production orders when enforcement officers are dealing with relatively serious cases. This is my first contribution at the Committee stage, and I just want to say that although we do agree with a number of the measures taken in Part 3, it is, as Mr Goff mentioned in his contribution, unfortunate that we have not been able to come to an agreement on a number of the issues we have raised in order for us as Labour members to give support to this bill and in order for a bill of such significance to have widespread support across the Parliament.
As a number of contributors have said during this debate, it is time for change in this area. The current legislation around the obtaining of search warrants for surveillance is a patchwork, and the Law Commission outlined that fact in its report some years ago. It is at least a positive move that some measures have been made, although we do highlight that a number of our concerns have not been addressed, even though I understand that during the select committee process some significant changes were made, and I do acknowledge the Minister in the chair, the Associate Minister of Justice, for his stewardship as chair of the Law and Order Committee.
I want to talk about two amendments that are pertaining to Part 3. The first is in the name of my colleague David Parker. It is an amendment to insert new clause 69(1A), and it will enforce that the Director of the Serious Fraud Office becomes an enforcement officer for the purposes of obtaining a production order. The Serious Fraud Office at the moment is an outlier in terms of the powers it has to get production orders. At the moment we do have a live case where the Serious Fraud Office did not have to seek permission to search the offices of the National Business Review, and a number of contributors on this side of the Chamber have mentioned that it is a very dangerous move when we give a law enforcement agency pretty much carte blanche to decide whether or not it can enforce a production order on our fourth estate. We did highlight this in our minority report from the select committee process, and I would like to point out that we said that the Serious Fraud Office is currently, as I said, the only agency with a power to issues examination orders and production orders without having to seek approval from a higher power. We do believe in a number of instances that the Serious Fraud Office has used that power on too many occasions. It was not the intent of this Parliament for the Serious Fraud Office to take the liberty to use those powers, especially against our media.
As I alerted earlier, having a free media is a very, very important part of a democracy. A healthy democracy absolutely relies on making sure we have a free media. I think that giving the Serious Fraud Office the power to compel media outlets to provide evidence, to provide documents, really goes to the core of media being able to protect their sources. Sources give information to the media hoping that they can stay as secret as possible. I know that around this place that is very important. When we speak to the media we want our communication with them to remain confidential. But giving the Serious Fraud Office that power to compel our media to produce documents, sources, and any other kind of technology—video or audio recordings—for its purposes really does go to the core of that main tenet of media freedom around the protection of sources. It will be a very, very sad day if people or organisations in this country do not feel that they can go to the media to highlight issues that are worthy of the media highlighting, whether it be us as parliamentarians who are being put in the spotlight or whether it be Government agencies, or whether it be—
Andrew Little: ACC Ministers.
KRIS FAAFOI: —ACC Ministers, yes, or whether it be private institutions. It will be a very sad day when we introduce, or let continue, legislation that puts at risk that freedom for individuals or agencies to go to the media to highlight things that we all would agree should not be happening. We need to have confidence that our media can carry out their job—to investigate, to expose, and to educate our communities, our society. But the Serious Fraud Office having the power to compel media to gather any piece of documentation would be a very, very sad move indeed. It is one that we do not support, and it is why we do not support this legislation as it stands, and it is why David Parker has introduced an amendment to Part 3, in order to see whether we can remove that power, which the Serious Fraud Office has on its own at the moment. The police do not have that power to go in and compel news media to supply documents, so why do we let the Serious Fraud Office go into an office—and this is a live issue, as I said, with the case of the National Business Review—and demand that they give up evidence? It is not as though the media will have the right to silence or to say no; that right will no longer be available to them. They will be forced, compelled, to give up that information.
I would also like to briefly touch on an amendment that Charles Chauvel has lodged, and that is an amendment to insert new clause 42AA(1)(a), if I am right—
The CHAIRPERSON (Lindsay Tisch): I am sorry to interrupt the honourable member but the time has come for the dinner break.
- Sitting suspended from 6 p.m. to 7.30 p.m.
KRIS FAAFOI: Taloha ni, Mr Chairperson. I do not intend to take up too much more of the Committee’s time speaking to Part 3.
Hon Lianne Dalziel: Oh please—you were great.
KRIS FAAFOI: I do intend to complete the point I was making just prior to the dinner break, which was on clause 42AA, on which my colleague Charles Chauvel has presented an amendment to the Committee. Clause 42AA covers the approval of trespass surveillance in instances where material could be collected. At the moment, the bill says that it is for offences punishable by imprisonment of 7 years or more. The substance of Charles Chauvel’s amendment is that we seek to increase that imprisonment duration from 7 years to 10 years. The rationale simply is that we believe that because of the nature of the powers that are afforded to agencies in this bill, we should use it on the rare occasion and for only the more serious offences.
Because of the spirit in which the passage of this bill has gone through the House, we ask that the Minister in the chair, the Minister of Justice, give that amendment due consideration and, possibly, support. If we did pick up that amendment as well as the amendment that has been put forward by David Parker on the powers of the Serious Fraud Office, I think we will go some way to having pretty much solid support from Labour members in order for this bill to have significant support across the House, especially for such important legislation.
In finishing up, we do support the general thrust of what is happening and what is proposed in Part 3. There have been some changes, both at the select committee and also through the Supplementary Order Paper and amendments that are on the Table now. We do support a number of those, but we do, as I want to point out again, seek some changes via the amendment from Charles Chauvel on the length of imprisonment that we take into account when we are looking at trespass surveillance orders being granted, and also the powers of the Serious Fraud Office under the amendment being proposed by David Parker.
I just want to speak very briefly to clause 57, which has already been traversed well by both David Parker and Charles Chauvel, and talk about the uncertainty about the lack of declarations and opinion that is being sought by the judiciary around some of the new technology that may be afforded in some of the stranger situations that we might find ourselves in, where applications may be sought for surveillance. If those changes could be considered, I think that would go a significant way for this side of the Chamber to support this bill. We hope that the Minister in the chair might consider that. Thank you.
Hon LIANNE DALZIEL (Labour—Christchurch East) : I want to take over from where my colleague Kris Faafoi left off, which is to talk on the declaratory orders clauses, clauses 57 through to 61. I want to ask the Minister of Justice a few questions about this. It is not my area of expertise, so I may not necessarily have a good grasp of this, but I would really appreciate the Minister responding to this. The concern that I have is this whole area about requiring or enabling a court to give a declaratory order. It is not an expression that I am familiar with, and I do not know whether they appear in other legislation. Perhaps my more learned colleagues will know the answer to that question; it is new ground. The problem I have with a declaratory order is that it is not like a declaratory judgment. With a declaratory judgment, you have two parties who have a set of agreed facts upon which they ask the judge to adjudicate. It is the same as taking a case, essentially, because you have a set of facts that are put before you—
Hon David Parker: Both sides argue.
Hon LIANNE DALZIEL: Both sides argue their particular point. In fact, we had a declaratory judgment last year, where the Earthquake Commission basically lost to the insurance companies, and it is costing the country an absolute fortune. But that was a declaratory judgment that was taken, that was the outcome, and that is what we have to live with.
A declaratory order, though, is when the police are able to go to the court and basically ask whether something is lawful. Am I reading this in the correct way? Perhaps colleagues can again assist me. The problem with doing that is that the court makes a declaratory order, which is an advisory order telling them that, yes, it is within the law, but then a case is taken further down the track when the particular provision is utilised, and a defendant in a trial then challenges the very basis of the utilisation of the device, technique, or procedure, or the carrying out of an activity specified in the order. That, to me, sets up a really difficult situation, because, in fact, the court has been asked to predetermine a position against which counsel for the defence in that particular case will not have the opportunity to argue their cause. So I am really worried about the nature of these provisions and whether they are, in fact, appropriate provisions. I think this is why we have asked for these particular clauses to be removed from this part of the bill.
Charles Chauvel: I’ve tabled an amendment for that.
Hon LIANNE DALZIEL: You have tabled an amendment to do that. My colleague Charles Chauvel has tabled an amendment to do that. I think that that is a very reasonable step to take, because when we think about the circumstances that arose in the Hamed case—and I suspect this is the reason that the bill dealt with this in this particular way, without having taken into account the case, because, of course, the drafting of this bill preceded the case in question—I guess the law is probably more settled now than it was when this was being drafted. I think that it really does need to be reviewed.
In the current legal framework there will have to be sought a court order before particular surveillance can be undertaken. Therefore, the reason for seeking a declaratory order really does not make much sense in light of where technology has already come. So it may be something that we would have looked at several years ago, but it actually does not make any sense to me why we would have such a declaratory order provision.
When I read the report back from the select committee, it made the point—I think it was on page 14 of the commentary on the bill—that it was going to call it a “residual warrant regime”, and it changed that to the “declaratory order regime”. But I think in so doing it has identified the specific problem with it, and the problem is that a declaratory order regime is actually not appropriate. It is not appropriate for a judge to be making a decision on a particular regime such as this without, in fact, ensuring that—well, it is inappropriate to provide judicial clarification, as it has said, in such a manner—
CHARLES CHAUVEL (Labour) : I raise a point of order, Mr Chairperson. I may have misunderstood a brief conversation with the Minister in the chair, the Hon Judith Collins, prior to the debate beginning, but she did indicate to me that she had had the officials have a look at this question over the dinner break and that she, as I understood it, was prepared to explain to the Committee whether or not the concerns raised by Labour members were correct. If there were that opportunity, I know that members on this side of the Chamber would be interested in hearing from her.
The CHAIRPERSON (H V Ross Robertson): Thank you. I will just restate it. The question is that the question be now put. As many of that opinion will please say Aye, to the contrary No. The Ayes have it. A party vote is called for? Please conduct a party vote. Thank you.
|Ayes 64||New Zealand National 59; Māori Party 3; ACT New Zealand 1; United Future 1.|
|Noes 57||New Zealand Labour 34; Green Party 14; New Zealand First 8; Mana 1.|
|Motion agreed to.|
- The question was put that the following amendments in the name of the Hon Judith Collins to the proposed amendments set out on Supplementary Order Paper 12 in her name to Part 3 be agreed to:
to insert in clause 59(c) “(if available)” after “activity”; and
to insert in clause 61(2)(c) “(if available)” after “activity”.
|Ayes 61||New Zealand National 59; ACT New Zealand 1; United Future 1.|
|Noes 60||New Zealand Labour 34; Green Party 14; New Zealand First 8; Māori Party 3; Mana 1.|
|Amendments to the amendments agreed to.|
- The question was put that the amendments as amended set out on Supplementary Order Paper 12 in the name of the Hon Judith Collins to Part 3 be agreed to.
|Ayes 61||New Zealand National 59; ACT New Zealand 1; United Future 1.|
|Noes 60||New Zealand Labour 34; Green Party 14; New Zealand First 8; Māori Party 3; Mana 1.|
|Amendments as amended agreed to.|
- The question was put that the following amendments in the name of Charles Chauvel to clause 42AA be agreed to:
to replace clause 42AA(1)(a) with:
(a)that is punishable by imprisonment for a term of 10 years or more; or; and
to replace clause 42AA(2)(a) with:
(a)that is punishable by imprisonment for a term of 10 years or more; or.
|Ayes 57||New Zealand Labour 34; Green Party 14; New Zealand First 8; Mana 1.|
|Noes 64||New Zealand National 59; Māori Party 3; ACT New Zealand 1; United Future 1.|
|Amendments not agreed to.|
- The question was put that the following amendment in the name of Charles Chauvel be agreed to:
to delete clauses 57, 58, and 60.
|Ayes 57||New Zealand Labour 34; Green Party 14; New Zealand First 8; Mana 1.|
|Noes 64||New Zealand National 59; Māori Party 3; ACT New Zealand 1; United Future 1.|
|Amendment not agreed to.|
- The question was put that the following amendment in the name of the Hon David Parker to clause 69 be agreed to:
to insert after clause 69(1):
(1A)The SFO Director is an enforcement officer for the purposes of obtaining a production order. All of the provisions in this Act which apply to the Commissioner in respect of production orders shall apply to the SFO Director in respect of production orders sought by the SFO Director.
|Ayes 57||New Zealand Labour 34; Green Party 14; New Zealand First 8; Mana 1.|
|Noes 64||New Zealand National 59; Māori Party 3; ACT New Zealand 1; United Future 1.|
|Amendment not agreed to.|
|Ayes 61||New Zealand National 59; ACT New Zealand 1; United Future 1.|
|Noes 60||New Zealand Labour 34; Green Party 14; New Zealand First 8; Māori Party 3; Mana 1.|
|Part 3 as amended agreed to.|
Part 4 General provisions in relation to search and inspection powers
CHARLES CHAUVEL (Labour) : What I want to do in my contribution on this part is speak to the amendment I have put forward that would amend clause 139. I think it is tolerably clear from the debate that members on this side acknowledge that the Minister of Justice has, in many ways, tried to accommodate a number of the concerns that we have put forward. Unfortunately, we are not there on the Serious Fraud Office, and that is going to prevent Labour members from voting for the legislation, but it is the case that the amendments contained in Supplementary Order Paper 12 do allay a number of concerns that we have expressed over the course of a year or two to National.
The relevant difference here is what should happen in a case where the police are concerned that a member of the news media has information that might assist them in the investigation of criminal offending. Under the original provisions of the bill as reported back, what would happen in that situation would be that the police would apply to search and seize the material concerned, the media organisation would have the power to file an objection to the application to search and seize the material on the basis of the privilege or confidence of the news medium’s source, and that objection would be heard by a District Court judge and resolved either way. The judge would either uphold the privilege and protect the source—and we all know how important it is that journalists have a degree of protection under the law for their sources in order to be able to conduct proper investigative reporting; it is a key element of the freedom of the media—or the confidentiality would not be upheld, according to the judge’s assessment of the legal position. That was the bill as reported back from the Justice and Electoral Committee.
The problems with that regime were twofold, in my view. First of all, the forum in which the objection would be determined was a District Court. Frankly, questions of journalistic privilege can involve complicated issues of law. They often involve questions relating to the application of the New Zealand Bill of Rights Act 1990. Because of the way that the Act is drafted, it is often increasingly the practice to refer to North American cases on, in the case of the United States, the first amendment, and, in the case of Canada, their protections relating to the media. The provisions of our New Zealand Bill of Rights Act are essentially drawn from the United States Bill of Rights and from the Canadian Charter of Rights and Freedoms, the documents that are often influential in assisting our judges to interpret what exactly our New Zealand Bill of Rights Act means on any particular occasion, but also what common law privileges such as journalistic privilege might actually amount to in any particular circumstance. So there can be difficult, complex arguments involving often sophisticated overseas authorities.
It is clearly better, from the point of balancing journalistic freedom on the one hand with the interests of law and order on the other, for those competing interests to be weighed in the High Court rather than a District Court. I thank the Minister for agreeing to that. That is a request that David Parker originally put to Simon Power. It was rejected by him, but acceded to by Judith Collins.
The second problem with the bill as reported back on this score was this: the police have the material from the journalistic source while they are arguing about whether or not privilege should apply to it. Even the most virtuous member of law enforcement on the planet is going to find it difficult not to want to take a peek at the material while they hold it, and there was nothing in the bill as reported back to stop them from doing that. They might not be able to use the material in a legal case, they might not be able to admit it in evidence before a court, but they would know its content, because they had seized it and they had read it.
So, again, in response to a concern that we had raised about this particular point, the Minister was at pains to try to accommodate the concern, and she has, via Supplementary Order Paper 12, sought to deal with that concern via a proposed provision that would prevent the material being searched while it was in the custody of law enforcement. It would effectively be surrendered into the custody of the court while the privilege claim was being determined one way or the other.
We are still concerned about whether or not the provisions are sufficiently robust, so the amendment in my name to clause 139 would go one step further and make it an offence punishable by up to 1 year in prison for anybody to breach the provisions inserted by the Supplementary Order Paper that the Minister has proposed. So there would be teeth—symbolic teeth, admittedly, not teeth that are likely to be used in any particular case. But it would be a signal we could send as a legislature that we think that these provisions are sufficiently important.
Other speakers have spoken eloquently about the importance of journalistic freedom. It is an absolute bedrock of our free and democratic society. It is a matter of concern that in the world press freedom rankings New Zealand has fallen from eighth to 13th in the space of a year. All of us who believe in living in a free and democratic society, and in the importance to us of that, should be concerned about it. What Supplementary Order Paper 12, taken with the amendment that I have lodged, would do is rebalance the issue here to make sure that there was sufficient protection in place where a journalist really felt that it was important to protect a source and material supplied by the source, and it would ensure that we were sending a sufficient signal that we thought it was important, and that it was a freedom that was worth upholding.
I really do not want to say any more than that on this point. The provisions of Part 4 are significantly improved by Supplementary Order Paper 12. Journalistic freedom is better protected, and I do acknowledge, as I have said, that the Minister has been amenable to listening to the concerns that have been raised on that point.
Hon Nathan Guy: A great Minister.
CHARLES CHAUVEL: Yes, well, it is a shame that we have not quite got to the Serious Fraud Office being included, but I will not bang on about it. I will just make the point that, if we were to make the amendment that would actually give teeth to the provision around the need to not search material that was seized until the court had determined the question of journalistic privilege, we would have much better legislation than what sits on the Table at the moment and is under debate.
Hon DAVID PARKER (Labour) : At the risk of banging on about it, to use my colleague Charles Chauvel’s words, I am going to return to the issue of the Serious Fraud Office, because it is a serious issue, and it comes up again in relation to clause 106 of the Search and Surveillance Bill. Clause 106 sets out the people whom the Attorney-General may authorise to issue warrants, and it sets out various protections that either were in the bill or were added by the Justice and Electoral Committee. The select committee said there were some provisions that needed to be added to the rules relating to who could issue a warrant—who could authorise the issue of a warrant to an enforcement officer.
Warrants are necessary for most search and surveillance procedures by the police. In fact, for all search and surveillance procedures that are trespassory, unless they are in an urgent situation during the commission of a crime, effectively you need prior authorisation from a justice of the peace, judge, community magistrate, registrar, deputy registrar, or other person. This is clause 106. At the select committee we heard submissions on this and we thought that it needed tightening because the words “or other person” meant that the class of persons who could authorise the issue of a warrant was too broad. We tightened that up by making it clear in clause 106(1A) that the Attorney-General may not authorise an enforcement officer to act as an issuing officer. So a policeman cannot authorise the issue of a warrant to another policeman.
Further, we added clause 106A to say that “An issuing officer who is employed or engaged by a law enforcement agency must not consider, or perform any function in relation to, any application made by a law enforcement officer employed or engaged by the same law enforcement agency as the issuing officer.” That is to get around the situation where someone might be a justice of the peace working for the fisheries department, for example. They ought not to be able to authorise the issue of a warrant to the fisheries department, because clearly a justice of the peace, who could be in quite a junior role in the fisheries department, could come under the influence of a more senior person in that same organisation. Again, the Government has agreed that that is an appropriate limitation on who can issue warrants.
Contrast that with the position of the Serious Fraud Office. The Serious Fraud Office is its enforcer. It does not have to go to someone who is not an enforcement officer to exercise its powers; it does it by an internal administrative act. So again, Minister, I ask you to justify why clause 106 is proper in respect of all of the enforcement agencies in New Zealand except two. All of the arms of the Crown except two will be covered by this. One exception is the Security Intelligence Service. It has separate legislation, and its actions, if it is going to exercise search and surveillance operations, have to be approved by the—what is the—
Charles Chauvel: Commissioner of Security Warrants.
Hon DAVID PARKER: —the Commissioner of Security Warrants, Charles Chauvel tells me—I had forgotten the exact term myself—who is generally a retired High Court judge. So it has a specialist High Court judge who oversees the issue of warrants to the Security Intelligence Service. The other exception is the Serious Fraud Office, and it does not have to go to anyone; it does it internally. So, Minister, where is the principle that underlines what I think is the stubborn refusal of the Government to bring the Serious Fraud Office into line with the processes that have to be followed by every other State agency before they exercise some of these intrusive powers?
Can I also turn to how this links into the recognition of privilege, because the recognition of privilege that is provided for in Subpart 4 of Part 4 of the bill, at clauses 130 onwards, lists the sorts of privileges that people can claim: legal professional privilege, privilege with legal advisers, privilege for the preparation of materials for proceedings, privilege for settlement negotiations or mediation, privilege for communications with ministers of religion, privilege for information obtained by medical practitioners and clinical psychologists, privilege against self-incrimination, privilege for informers, and rights conferred on journalists under section 68 of the Evidence Act. Those are the different classes of people who can sometimes claim privilege. Behind that privilege lies a public interest in non-disclosure that outweighs the public interest in the police being able to get the information. Can those sorts of claims of privilege ever be made in respect of the Serious Fraud Office? No, because the Serious Fraud Office provisions are not subject to this part of the Act.
I want to make it clear that if there is a dishonest purpose—and you see it in those famed cases in America where you have crooked lawyers or crooked journalists who are part of some Mafia conspiracy—those sorts of cases, where the journalists or the lawyer are actually part of the dishonest purpose, are expressly excluded from privilege. So we are not protecting bad people here; we are actually just protecting the public interest in the privilege that traditionally—or which has grown in common law and is recognised in statute—protects certain sorts of information and relationships. This is where there is a public interest in those communications being kept private that outweighs the public interest in the police being able to get at that information. I invite the Minister to say what the difference is for the Serious Fraud Office.
Hon JUDITH COLLINS (Minister of Justice) : Thank you very much for the opportunity to speak in the Committee stage of this bill, the Search and Surveillance Bill. First I would like to thank the members who have spoken on this part, Mr Chauvel and the Hon David Parker. They have been good contributions, and I would like to thank them for the work they have been doing to try to get as much agreement as we can on this. There are a couple of issues that have been raised by them.
Mr Chauvel has raised an issue around the safety, or security really, of documents that have been seized by police under a warrant where a claim of privilege has been raised. There has been some concern that once the documents are in the possession of the police or the court they are effectively disclosed. I do not agree with that. The police or other agency must not search the thing secured, and that is in clause 139(c) in the bill itself.
The courts are generally trusted with highly sensitive matters on a very regular basis—for example, with details that are suppressed. If we do not trust our courts with this information then we would be in a very sorry state, and I am pleased to say that we do trust the courts. In all cases a hearing would be held to determine whether the claim of privilege should be upheld. If it is not upheld the police or other agency could use the document or computer file containing the name, or the journalist would be required to tell the police the name in the case of an examination order.
If the police or other agency did search the document computer file, this would itself be a breach of the law. Of course, as we know with electronic footprints, it is pretty easy to tell these days exactly who has been looking in what and where things have come from, and I believe very much that that would be disclosed. In addition, it is an offence under the bill to disclose information acquired in the exercise of a search or surveillance power production order or examination order other than in the course of a person’s duties, functions, or powers.
There are also other avenues of redress, including complaints to the Independent Police Conduct Authority, and police also conduct internal investigations when officers breach procedure. For many officers, if they undertook that work they would, in fact, essentially lose their jobs. So I do not think that we should think that police officers cannot comply with the law. In fact, they do all the time.
Another issue that the Hon David Parker has raised, and I think it is a valid issue, is around the Serious Fraud Office, and I am happy to address that. There are a couple of issues here. He wrote, as he told us before, to the former Minister of Justice about the Serious Fraud Office, and he wanted the Serious Fraud Office included in this bill. One of the issues with that is that the Serious Fraud Office has never been included in this bill, and I understand the reason why, which was that the Labour Party was committed to bringing the Serious Fraud Office into part of the police, so, in fact, it would actually receive the powers under this bill when it went through.
But let us be frank here. This bill has been hanging around since 2007. It has been a long time. This Government is being quite committed to the bill, and we are now in year 4 of the term. If we had, in fact, waited for this bill to come into force and got rid of the Serious Fraud Office, as the Labour Party wanted us to do, we would have spent 3 or 4 years—4 years in this case—waiting for some of these powers to be available for the police.
So we would have had the police not being able to undertake examination orders or production orders, and if the Serious Fraud Office was not there, it would not have been doing it either, at the very time when we have had disclosed some of the worst financial crimes that we have seen since the 1980s. So I think, really, to say “Get rid of the Serious Fraud Office.” at that time was somewhat premature, given that search and surveillance legislation and the production orders and examination orders regime were not actually in place. I understand what those members are doing, and there is a lot of logic in what they are saying, but it is about having things in the right order. It would have meant that we would not have had that power available to police.
The other issue they have raised is this: why can I not bring the Serious Fraud Office in now? For a start, I actually think process is relatively important on things like this. The Serious Fraud Office has never been part of the bill, and therefore the public have never been asked to submit on whether or not the Serious Fraud Office should be under this regime, or whether or not it should remain with the powers it has had since 1990. I think to suddenly, at this late stage—and I acknowledge that the Hon David Parker wrote to my predecessor about this—
Hon David Parker: A year and a half ago. At a late stage—a year and a half ago.
Hon JUDITH COLLINS: The member says it was a year and a half ago, but I would also ask whether the member followed it up.
Hon David Parker: I did, on a number of occasions.
Hon JUDITH COLLINS: Since I have been in? I think it is fair to say, though, that at this late stage and as the new Minister of Justice I am not prepared, overnight or even over a month, to decide to change the powers of the Serious Fraud Office without that matter having first gone to a select committee. It is the sort of thing where we have discussed what we should do with the Serious Fraud Office over the powers. We have had allegations made, and I think we have heard those, around alleged misuse of the powers by the Serious Fraud Office. The only example given to me was when the Serious Fraud Office served production orders on the National Business Review, once, last year.
Just on that one issue I do not think we should be completely changing the law that has been in place since 1990, and which, by the way, was brought in by the then Labour Government to deal exactly with the same issue that we have just dealt with over the last few years, which is massive financial crimes that were discovered as a result of the financial meltdown in the 1980s. Let us not kid ourselves. These crimes were happening before. They were simply discovered, and the discovery really came about because there was, in fact, a run on money and therefore they got discovered.
We have also now got the Financial Markets Authority in place, which I think is doing a far better job than its predecessor, the Securities Commission. So we do know we have some better processes in place. But I do not think it is right for me to come along and make a decision to rein in the powers of the Serious Fraud Office without some serious debate in public in the select committee.
The other issue in relation to those Serious Fraud Office powers is that they are very, very refined in terms of whom they serve the orders on. We are not talking about everybody who has contact with the New Zealand Police. We are talking about a very select group of people. I believe that the same reason that these powers were brought in, in the first place, is still there now—the same need.
But also, a production order is essentially a bit like a search warrant, except that instead of having a police officer charging through, looking at everything that you have got in your property, they ask you for what it is that you have. So, in other words, it might be something like: “I want these reports from this, this, and this.”, and for a person subject to it, that is a whole lot different from, and a lot less onerous than, a full search warrant where everything can be looked at.
So I think just because lots of the public do not know that there are production examination orders, that does not mean to say that they necessarily are very scary and difficult things. It is simply that most people, thankfully, have never had to be subject to them because they are not the people whom the Serious Fraud Office is after.
DAVID CLENDON (Green) : I would like to take a call just to reflect on some clauses in Part 4 of the Search and Surveillance Bill that support our proposition that this bill is intended and designed to maximise the powers of the police and other agencies—an extraordinary number of agencies—to delve into people’s privacy. There is very little in this bill, clearly, that seeks to maximise the opportunity for people to protect their privacy. This is a catch-all bill. It is a sledgehammer bill seeking to cover every eventuality.
A simple example of that is in some of the definitional clauses. Clause 87AD talks about what is actually a computer for the purpose of this particular part, which is very much the nitty-gritty. This is how various agencies will go about the matter of delving into people’s private matters. For the purpose of this part, it talks about computers. We know that computers are a primary target where search warrants or production orders or whatever are being executed. It goes to great lengths to include anything that might possibly be deemed to be part of a computer system, and defines a computer system as “a computer; or … 2 or more interconnected computers; or … any communication links between computers or to remote terminals … or … 2 or more interconnected computers combined with any communication links … to any remote terminals or any other device; and … includes any part of the items … and all related input, output, processing, storage, software, or communication facilities, and stored data”.
That is quite a remarkably adept attempt to think about how we can possibly broaden the definition of what is a computer. Clearly, any electronic device—a computer, an iPad, a telephone, a smartphone, a smart drive, a data stick—any and all of these items, which are perfectly legitimate items for anybody to own, become accessible to a search and to an investigation. There is no effort in this bill to minimise the scope of what might be legally investigated if this bill passes.
Similarly, I think it is interesting to put on the record the range of bodies and individuals who might be empowered to conduct searches, to exercise search warrants, and so on, under this bill. Indeed, in clause 87AC we learn that an enforcement officer, in relation to the provisions in this part, includes a constable—yes; logically it would. A constable is defined as any sworn police officer, of no matter what rank. That is as we would expect. It also goes on to say that an enforcement officer can be any persons authorised in column 3 of the schedule of this bill.
It is quite interesting to go and have a look at the individuals or the people who might be described as enforcement officers. The first person you see pop up in the schedule is an “ACVM officer”. I had to go away and discover that that is actually a person empowered under the Agricultural Compounds and Veterinary Medicines Act. We go on to discover that it includes animal welfare inspectors, high-seas fisheries inspectors, special inspectors with some sort of power under the Antarctica (Environmental Protection) Act, anti-personnel mines officers, people executing powers under the Anti-Personnel Mines Prohibition Act and the Biosecurity Act—people exercising authority under that Act. Designated persons may search for evidence of offences against the Commodity Levies Act. I struggled to find anybody, any Government agency, that might be excluded from the right to exercise the extraordinarily invasive powers that are given by the various provisions of this bill.
In clause 130 and the following clauses there is this question of privilege, and this has been referred to in various contexts. I would just like to highlight, as Mr Parker made mention of in another context, the question of privilege. It encompasses the relationship between a person and their lawyer, medical practitioner, minister of religion, or clinical psychologist, and it encompasses journalists. The Minister has assured us that information that is privileged will be protected, because no police officer acting honourably will search or investigate material if they believe privilege might—
Dr CAM CALDER (National) : I appreciate the opportunity to take a brief call on the Search and Surveillance Bill, on Part 4 particularly. It is worthwhile recognising that Part 4 is to do with the general provisions in relation to search and surveillance powers, and possibly to remind the previous speaker, David Clendon, of the purpose of this bill. I crave the indulgence of the honourable member Charles Chauvel, because I am actually going to take a couple of words from the introduction here, just to remind Mr Clendon that we are dealing with search and surveillance powers and inspection powers amended by the bill, which go across 69 Acts—69 Acts. It is obviously going to deal with arcane officers to do with veterinary medicine and fisheries, etc., as he pointed out. It is intended as a comprehensive reform of search and surveillance legislation.
Part 4 is a good case in point. It deals with consent searches, application for search warrants, issuing of search warrants, search powers, detention of persons at the search scene, and, of course, we have heard that it deals with examination orders, production orders, and surveillance. I would like to come back briefly to examination orders. This bill does have an examination order regime. We have heard quite exhaustively from the Opposition about how the Serious Fraud Office currently has the power to apply for an examination order. We heard from the Minister of Justice that this, in fact, is a power that it has had since 1990. The bill will also allow the police to apply for them.
We know that examination orders are recognised as a serious power and that additional safeguards will be in place. What will these safeguards be? The police may apply for an examination order in a business context to investigate an offence punishable by 5 years’ or more imprisonment. Examination orders allow the police to require people who acquire information in the course of business, such as accountants, to cooperate with the police without being guilty of breaching professional or fiduciary obligations. In a non-business context, the examination orders may be applied for to investigate serious fraud punishable by 7 years’ or more imprisonment.
It is important to respond to some concerns—and I do acknowledge how open-minded the Minister has been to concerns that have been raised; she has specifically mentioned the Hon David Parker and Charles Chauvel for some of the help that they have given on this bill—raised concerns about the impact of this on civil society and the right to protest. The 7-year threshold in non-business contexts means that examination orders are not available to investigate such crimes as protesting, trespass, disorderly behaviour, or unlawful assembly—a very good point, I thought.
In addition, only a judge can make an examination order upon application from a police officer of the rank of police inspector or above. This is a tangible acknowledgment of the seriousness of this. This ensures that examination orders do not become a routine tool for investigation.
The privilege against self-incrimination is something that was raised by a number of speakers. This has been the subject, as we have heard, of a particular Supplementary Order Paper 12, where we have dealt with this. We are particularly keen to defend media impartiality and media sources. A key change has been to significantly improve journalists’ ability to protect the identity of their sources and enhance their journalistic privilege. This has been made in recognition of the media’s role in a free and democratic society and the need to protect that role and preserve the important principle of media freedom.
At the moment, the media cannot prevent material from being seized during the search and therefore viewed and accessed. This Supplementary Order Paper will make that a lot less likely to occur. The bill will allow a journalist to claim privilege over information contained in documents, preventing the documents from being searched. The documents would then be secured and taken to the High Court for safe keeping, where the claim of privilege can be determined. Effectively, the Search and Surveillance Bill recognises journalistic privilege and provides greater protection for journalists’ sources. Journalists can also refuse to answer questions.
Hon LIANNE DALZIEL (Labour—Christchurch East) : I could not really resist joining the debate after listening to that contribution from Mr Calder. I am sure it was well meaning, but unfortunately it was somewhat misleading. The reason it was misleading is that it completely missed the point that we have been kind of banging on about ever since this debate got started on this particular bill, the Search and Surveillance Bill, which is that these provisions about requirements to get a warrant do not apply to the Serious Fraud Office. What we have been asking for consistently throughout this is to have the bill extended to cover the Serious Fraud Office. I thought it was a bit unfortunate that the member concerned commented about the provisions in relation to police and then implied that they also applied to the Serious Fraud Office when, in fact, they do not—and that is exactly our point.
I want to traverse some of the history of this, because I also heard the Minister of Justice make the point in her contribution that this had been raised very much at the last minute. Well, actually, the only thing that has been raised at the last minute has been the opportunity to address this problem in a way that could have been addressed at the Justice and Electoral Committee if we had the Standing Orders then that we have now. That is all that has changed. We have the opportunity to put right a wrong that was done not, I think, deliberately, but simply by reason of the fact that the select committee was given the advice—correctly at the time—that it could not make the amendments to bring the Serious Fraud Office within its ambit, because at the time it was not within the scope of the legislation.
In fact, if one refers specifically to the commentary and to the Labour minority view in this report, one sees that it states: “The Labour Party enquired of the Government via select committee members and officials whether the Government was willing to tighten the use of production and examination orders by the SFO at the same time as similar powers were being conferred upon the police under this bill. Officials advised that the Government was not willing to do so.” That was when it was reported back from the select committee, which I think was actually some time ago, probably—
Charles Chauvel: November 2010.
Hon LIANNE DALZIEL: In November 2010 the bill was reported back to the House, with an interim report back having been made on 6 August 2010. The position of the Labour Party on this particular part of the bill has been well known for a long time.
But let me talk about the letter to the then Minister of Justice, the Hon Simon Power, signed off by our then shadow Attorney-General, the Hon David Parker, who has already contributed a lot to this particular debate. In this letter, which he wrote on 9 November 2010, he made it very clear about the Serious Fraud Office, and he talked about why it had not been included in either the Law Commission’s report or, in fact, our legislation that we were going to be introducing at the time when we were in Government.
He states the history quite clearly. He states: “The genesis of this lies in the proposal by the last government to merge the Serious Fraud Office … into a new Organised Crime and Serious Fraud Unit within the Police.” That is exactly what the Minister herself, from the chair, accepted was the case. The letter continues: “At the time the Law Commission advised the then cabinet that the SFO was in the habit of routinely using their powers to use production and examination orders.” So her statement that this was just a one-off event involving the National Business Review is simply not accurate. It does not reflect the history, nor does it reflect what we were advised by the Law Commission.
We were advised that, in fact, this was a routine habit of the Serious Fraud Office. The point was made in this letter that “These orders do erode the right to silence, and should be used sparingly. They were never intended to be a substitute for normal investigative practice, but rather were intended as a reserve power to be used to unpick serious fraud when normal investigative means will not suffice.”
The decision was reached by our Government that we would proceed with providing these powers to the police, but at the same time, with the decision to fold the Serious Fraud Office back into the framework of the police, that it would be picked up by those powers. So those appropriate restrictions that would operate around the use of those powers would apply to the Serious Fraud Office, as they would to the police, for that reason. That is a point that the Minister really has not, I think, responded to fairly, because she has sort of implied that this has been raised so late in the piece that there was nothing that she could do about it.
Well, I want to refer to the Hon Simon Power’s response. The Hon Simon Power sent his response to the letter of 9 November 2010 on 25 November 2011.
Hon David Parker: The day before the election.
Hon LIANNE DALZIEL: The day before the election.
Hon David Parker: Received after the election.
Hon LIANNE DALZIEL: It was actually received after the election, because it was received on 28 November 2011. I do not know what that then Minister of Justice was doing, but I do not think this Minister of Justice would have let a letter lie around for that long before it got a response.
She is actually mentioned in this particular letter, and I will just read the section in relation to the Serious Fraud Office examination order powers: “I have consulted with the Minister responsible for the SFO, Hon Judith Collins, on this matter. The SFO’s view”—the Serious Fraud Office’s view; not the Minister’s view, but the Serious Fraud Office’s view—“is that their powers were enacted in the SFO Act with agreement by both sides of the House 20 years ago, and have operated with relatively little controversy since.” Well, I can probably find legislation that was agreed to all around the House 20 years ago that none of us would want to have a bar of today. I am sure there are plenty of examples of where things have changed over 20 years. The letter went on to say: “Accordingly, the SFO does not consider that an ad hoc change to one very specific provision in its Act is desirable and could potentially have an adverse impact on the effectiveness of its wider operations.”
Well, I think I just want to return to what Mr Calder said earlier, because he said that this bill was “intended to implement a comprehensive reform of search and surveillance legislation, both as regards the core substantive law enforcement powers, and the way search powers are exercised across the statute book.” This bill does not live up to its expectation, at all, and it does not live up to it for this very reason. Having absented the Serious Fraud Office from the coverage of this particular piece of legislation, we are unfortunately in a situation where the introductory comments on the commentary of the Government bill do not match the reality of the bill. That is why we have made it absolutely our position from start to finish—and it has not just been a recent position; it has been our position throughout—that this legislation should extend to cover the role of the Serious Fraud Office.
The recent examples that we have had in relation to the National Business Review are not the only examples. As I said, quoting from the letter from David Parker to Simon Power back in November 2010, the Law Commission advised Cabinet then that the Serious Fraud Office was in the habit of routinely using its powers to use production and examination orders, and if we are going to have this comprehensive reform, then it is important that the Serious Fraud Office is included within its framework.
I think that with regard to the Minister’s point, I understand that it might have been a position that could have been adopted if it had not been addressed at the select committee, but it was addressed at the select committee and there were submissions received on it. In fact, the question went back to the Government from the select committee to ask specifically whether that addition could be made. At the time, our Standing Orders would not have allowed for this debate to occur at the Committee stage—
Hon David Parker: But we could have agreed at the Business Committee.
Hon LIANNE DALZIEL: —but we could have agreed through the Business Committee to do it. There was willingness, I think, right around the House, with one exception, and really the grounds for the exemption for the Serious Fraud Office simply do not stack up when one looks at the intention of this particular legislative reform. So even at this very late stage I know that members on this side of the Chamber would really like to see the Minister come to the party on this particular provision, because we would have agreement then.
If we were to have legislation like this, where you have got substantive agreement across the House—I know that some Ministers might think that it is not important to have that level of agreement on such fundamental legislation—I think it actually stands in really good stead the weight that is given to legislative change when you can see the range of support that it gathers across the House. I think in measures such as these, we should be looking at gaining pretty much universal support in the House where we possibly can. We were so close to getting that achieved in the discussions that we have had; I think it is not too much to ask for that further step to be taken.
STEFFAN BROWNING (Green) : This bill, the Search and Surveillance Bill, has outrageous powers, and many parts of it, if it is to go ahead, need to be withdrawn. I notice one of the Government members suggested that protesters would not be caught up in this bill. We have just had very, very recently Lucy Lawless up the top of a ship, and she has been charged with burglary. She would have been eligible under this bill to come totally under it in terms of search and surveillance. So would members of this House who have had something to do with Greenpeace in the past; so would members who have had something to do with her family, her friends. They would all be open to the powers of this bill.
It is good to see that false applications of this bill would be penalised. However, failing to comply with an examination order or a production order, as in clauses 165 and 166, would give an individual up to 1 year’s imprisonment and would give a body corporate—which I would imagine would be Greenpeace—something like a $40,000 fine. If they did not give the password or whatever for their computers, there would be potentially 3 months’ imprisonment if they were not compliant with that.
This bill does go right down. We are talking about media here, quite often, but what about the non-governmental organisations, which actually do hold this Government, this Parliament, to account on a continuous basis? The outrageous search powers also go to persons called in to assist, whoever that might be. Does that also go to businesses such as Thompson and Clark Investigations Ltd, the private investigators that Solid Energy and others would use on people like Greenpeace, Lucy Lawless, and other protesters?
This bill needs to be biffed. It goes far too far. We have seen how the terrorism legislation was attempted to be used. This bill comes in to try to do the surveillance that was illegal. The Green Party can only oppose this bill when powers such as this go right into the core organisations and community organisations that try to keep this country free and democratic, and that also look after the environment. So the Green Party will continue to oppose this bill as it stands.
Hon DAVID PARKER (Labour) : Perhaps you are right in the Green Party to oppose the Search and Surveillance Bill, Mr Browning, but I hope you do not do it on the basis that this would affect Lucy Lawless, because she was actually there publicly waving to be seen and there was no covert surveillance or search involved in that case.
I want to further reply to the Hon Judith Collins’ statement about this being a late change, and some assertion that there would somehow be a vacuum of powers in the meantime. Well, there would not have been a vacuum of powers, because until the bill was passed amending the powers of the Serious Fraud Office, its existing powers would have carried on and there would have been not one iota of a vacuum. So that is, with respect, a vacuous argument, rather than arguments about vacuums.
As to the point as to abuse of powers, the only time that I am aware that the Serious Fraud Office has abused its powers in respect of the issue of a production order against the media is in respect of the National Business Review. But its abuse of its powers by using this short cut route, where it whacks out a production order or an examination order rather than seeking a warrant or using normal investigative techniques, is a more widespread abuse of its powers, according to the advice that we received from the Law Commission when we were in Government and the advice that I received when concerns were raised about these issues. I visited Queen’s Counsel, who were acting both for the Serious Fraud Office at times and for accused persons. They said, whether they were Serious Fraud Office lawyers on occasions or defence counsel, that the Serious Fraud Office was abusing its powers by using them when they ought not to, or by using them too broadly. It is very easy for them to whack out a broad production order or an examination order, and, effectively, go on a bit of a fishing expedition to see what is around, rather than have a more specific production order or pursue normal investigative techniques.
As to the suggestion that this would be a late, on the hoof amendment, this issue was raised at the Justice and Electoral Committee and the Hon Lianne Dalziel has already outlined that by reading from the select committee report. It was raised by me in communications with the Hon Simon Power, with constant reminders, and there was a somewhat cynically late reply designed not to be received until the days following the election.
But also I note that the issue was raised with the now Minister of Justice in her role as the Serious Fraud Office Minister by the National Business Review, and I read from the National Business Review of 9 March 2012, page 1, its article “Bill retains ‘draconian’ SFO Powers”: “Mr Gibson”—who is the editor of the National Business Review—“recalled that in 2010 he asked then SFO Minister Judith Collins to amend legislation empowering the SFO’s rights of seizure of media dossiers.”
So the suggestion that this was raised late in the piece is wrong. The suggestion that it could not be fixed even though it is late in the piece is wrong, because we put forward amendments that would fix it. The suggestion that this would be poor process is made to look pretty thin when we consider that there is a 100-page Supplementary Order Paper that the Minister brought forward, which was produced and tabled, I think, the day before the Committee stage began—is that right, Mr Chauvel? It was the day before this Committee stage began. The idea that even a week ago, even the week before this, they could not tidy up this particular part of the legislation and apply the same rules to the Serious Fraud Office as applied to other agencies of the Crown is nonsense and it ought not to be given any credibility.
|Ayes 63||New Zealand National 59; Māori Party 2; ACT New Zealand 1; United Future 1.|
|Noes 57||New Zealand Labour 34; Green Party 14; New Zealand First 8; Mana 1.|
|Motion agreed to.|
- The question was put that the following amendments in the name of the Hon Judith Collins to the proposed amendments set out on Supplementary Order Paper 12 in her name to Part 4 be agreed to:
to replace in clause 124(b) “circumstances” with “circumstances; and”; and
to delete the amendment to clause 169(2)(a).
- Amendments to the amendments agreed to.
- The question was put that the amendments, as amended, set out on Supplementary Order Paper 12 in the name of the Hon Judith Collins to Part 4 and the following amendments in her name to Part 4 be agreed to:
to replace in clause 126(6)(b) “subsection (1)(b)(i)” with “subsection (1)(b)”;
to replace in clause 127(1)(b) “section 126(1)(b)(i)” with “section 126(1)(b)”; and
to replace in clause 127(3) “section 126(1)(b)(i)” with “section 126(1)(b)”.
|Ayes 61||New Zealand National 59; ACT New Zealand 1; United Future 1.|
|Noes 59||New Zealand Labour 34; Green Party 14; New Zealand First 8; Māori Party 2; Mana 1.|
|Amendments as amended and further amendments agreed to.|
- The question was put that the following amendments in the name of Charles Chauvel to clause 139 be agreed to:
to insert in paragraph (c) “; and” after “determining the claim of privilege”; and
to insert after paragraph (c):
(d)commits an offence punishable by a term of imprisonment not exceeding one year if the person breaches the provisions of this section.
|Ayes 57||New Zealand Labour 34; Green Party 14; New Zealand First 8; Mana 1.|
|Noes 63||New Zealand National 59; Māori Party 2; ACT New Zealand 1; United Future 1.|
|Amendments not agreed to.|
|Ayes 61||New Zealand National 59; ACT New Zealand 1; United Future 1.|
|Noes 59||New Zealand Labour 34; Green Party 14; New Zealand First 8; Māori Party 2; Mana 1.|
|Part 4 as amended agreed to.|
Part 5 Amendments, repeals, and miscellaneous provisions
Hon DAVID PARKER (Labour) : In this part of the Search and Surveillance Bill I am going to speak in favour of some of the standardisation of rules that apply to different agencies. There are, as the Minister of Justice has previously said, a large number of slightly different legal tests that apply to the search and surveillance powers under various pieces of legislation. To give you an idea of the breadth of the legislation I will just read out a few of the different Acts that we are amending: the Agricultural Compounds and Veterinary Medicines Act, the Animal Products Act, the Animal Welfare Act, the Antarctic Marine Living Resources Act, the Antarctica (Environmental Protection) Act, the Aviation Crimes Act, and the Boxing and Wrestling Act 1981, which I had completely forgotten about until I read it in the schedule. The list goes right through: the Driftnet Prohibition Act, the Land Transport Act, and the Trade in Endangered Species Act. The list is of Acts being amended so that the powers and the protections that are surrounding the powers that these different organisations have are standardised. The list runs to eight pages, from page 11 to page 19 of the description at the start of the bill. That is just the list of sections in the Acts that are being amended, and the relevant sections that are being amended run to a large part of this very long bill.
It is good that we are standardising these protections and rules that surround the use of search and surveillance powers that have been conferred by Parliament on all these difference agencies; I think that is a good thing. But it does, again, highlight the fact that we have this inconsistency, that we are not doing it for the Serious Fraud Office.
One of the benefits of the Committee stage of the debate is that as members we all learn things. I found this debate quite interesting. I have learnt some things. It has helped me and my colleagues in our thinking as to where we think the line should be drawn in respect of production and examination orders, not just for the Serious Fraud Office but for the police as well. We have also listened to the debate that has been outside of this Parliament, including the opinions that have been expressed by the media freedom committee. I thought that the editorial from the New Zealand Herald, which I suspect was written by Tim Murphy—I do not know that to be the case, but I know he is chair of the media freedom committee on behalf of the members of the media, and he will have had a hand in—was quite persuasive.
I think I have got to the position where I can accept that we need the Serious Fraud Office to have some of these powers that undermine the right to silence, by allowing them in situations relating to commercial transactions and business records that show complex fraudulent transactions. They need to be able to unpick them by going to the people who hold those records and saying: “Please give us those records. Please explain what those records mean.” It effectively allows those people to be released from their duty of confidence. I agree that that is appropriate. I also think that the police should have that power in that same context.
I am uncomfortable with the police having that power in respect of the criminal investigation of the primary suspects in a crime, because it undermines the right to silence. The people who are forced to give evidence are likely to lie anyway, so the reliability of the evidence they gather is not good. That is one of the reasons why traditionally we have not forced people to answer, because when they are forced to answer, rather than when they answer voluntarily, they are more likely to lie. As well as that, we undermine this relationship between the police and the public if we force members of the public to give evidence against their loved ones, which can be very difficult. In fact, it is not that long ago when in respect of charges against a spouse, the other member of the family, the husband or wife, was not even competent to give evidence, even if they wanted to. The public interest in that was that it was a ridiculous law, and eventually Parliament changed that and said that the spouse should be competent to give evidence against their husband or wife or partner, but they should not be forced to. Yet what we are doing with production orders and examination orders is going that step further and saying that people must answer, and that undermines the relationship between the public at large and our enforcement officers. In the end it places those enforcement officers in one place or another in greater danger as they go about their duties, which they go about in order to protect us.
I do not want to undermine the relationship of trust and confidence and cooperation that lies behind the way in which we have public interaction between law enforcement officers and members of the public. Most information that law enforcement officers get is through that relationship of cooperation, because people know and see it as their civic duty to ordinarily cooperate with the police authorities or the other arms of the State, whether it is the Ministry of Agriculture and Forestry looking into foot-and-mouth allegations, or whoever it is. The public feel an obligation to cooperate with the police. That sense of obligation is undermined and that sense of social duty is undermined if people lose confidence in the police because they are forced to answer questions about their loved ones. They are put into the difficult position of telling the police information about their son or their daughter, their husband or their wife, their partner, or their best friend. At the moment, people can say: “No, I’m not going to say anything.” They cannot lie, but they can say that that are not going to say anything.
I listened to some of the contributions from New Zealand First and the Greens in this debate, but particularly the contributions from New Zealand First, and I have been quite moved that they are aware that this right to silence that we have in New Zealand is really important. Where I have got to in this debate is that my own understanding of these issues has improved. I have got to the point where in the business context, fine, I think these powers are at times necessary. But outside of the business context, I do not think they are appropriate and I do not think we should be conferring them in that context.
It is interesting that when former Commissioner of Police Howard Broad first came before the select committee, and, indeed, before that to Cabinet—and I was in Cabinet at the time—I can remember Mr Broad saying that he did not think that the powers of compulsion that are conferred by production orders and by examination orders are necessary for the police. He thought normal investigation techniques, which have stood the test of time through the 100 years that they have been in existence—those are the powers that they have operated under until now—sufficed. I think that is the position that I am getting to. Having said that, I do agree that the standardisation of powers across these various agencies is desirable. It is too confusing for everyone involved to have legal tests that are in tiny, little ways different from one agency to another.
CHARLES CHAUVEL (Labour) : I want to commend what David Parker said. I think it is true that as the debate has progressed, our understanding of this very complex legislation has greatly improved. I think the interplay of Supplementary Order Paper 12, which dates from Tuesday, 6 March—so it is just over 2 weeks old—with Part 5 of the Search and Surveillance Bill is a pointer to the complexity of the legislation. The complexity was brought home to me when I worked with David Parker to try to come up with some amendments to achieve the aim that we had discussed with the Minister the Hon Judith Collins but not managed to get agreement on, which was the inclusion of the Serious Fraud Office. Part 5 is the part of the legislation that deals with all the other Acts of Parliament and all the other agencies that we are conferring a standardised set of rights and duties on in the search and surveillance area, and David Parker mentioned some of them. We are amending legislation as complex as the Dairy Industry Restructuring Act 2001 and as banal as the Dog Control Act 1996. That is a pointer to the complexities here.
But the other complexity relates to the interplay of the bill itself with the substantive Supplementary Order Paper 12, the 93-page set of amendments to the bill itself. I do have to say this in passing, Minister: although I have praised you for your willingness to negotiate, it would be in my view a little bit over the top to claim too much regard for process as an excuse not to deal with the Serious Fraud Office in this context. Given that your Supplementary Order Paper makes a series of pretty significant amendments to the substantive Act, which have never been near a select committee or a public consultation process, let us just not make too much of that point, if it is to be used as a reason for not dealing with the Serious Fraud Office itself.
The Supplementary Order Paper itself basically makes most of Part 5 of the Act redundant. What it does is replace many of the references to the various agencies and powers with a new schedule to the legislation. In order to try to fit the Serious Fraud Office into the bill, my amendment first of all would insert a new clause, clause 276A, into the bill. The reason that it would appear there is all due to the alphabet. It would insert amendments to the Serious Fraud Office Act 1990 between amendments to the Resource Management Act 1991 and amendments to the Sale of Liquor Act 1989, in alphabetical order.
The amendments would be these. We would start off by repealing sections 5 and 9 of the Serious Fraud Office Act. Again, to correct a point that the Minister made from the chair a little earlier, this would not create any vacuum or lacuna in the powers of the Serious Fraud Office. It would happen on the enactment of this legislation, and not before. So it would not lose any of its present powers. It would continue with its present powers up until this legislation got the Royal assent. But what the amendment would do would be to repeal sections 5 and 9 of the Serious Fraud Office Act. We have canvassed what those sections do, but I think it was obvious from an exchange between Dr Calder and my colleague Ms Dalziel that we still have not managed to get this across. Section 5 of the Serious Fraud Office Act, as it is framed now, allows the Director of the Serious Fraud Office to require the production of any piece of paper. This requirement does not need to go before a court, and it does not need a warrant. It does not need any safeguards. He can just say: “I want this piece of paper.”
Hon David Parker: Or all these pieces of paper.
CHARLES CHAUVEL: Or “All these pieces of paper.”, or “This electronic version of the piece of paper or pieces of paper.” The director does not have to go to a court. He does not have to make a case. He does not have to undergo any process or safeguard in order to do that. He simply—and it is a he at the moment—issues this requirement and it must be complied with. So that is the first section that would go, under this proposed amendment. The second section that would go is section 9, which gives a further power to the director, again without any safeguard and without any need to persuade a judge or to get a warrant: “I want you in my office to answer questions at this time.” He can say that to anyone on any occasion, and, again, there are very limited opportunities to object and certainly no requirement for prior judicial approval for the exercise of that power. So those sections would go and they would be replaced by two very simple provisions. Basically, they would be replaced by existing sections 6 and 10, which would each be amended as follows. They would have the following words put in: “the provisions of Part 4 of the Search and Surveillance Act 2012” as it will be “apply.”
So all that happens is that exceptional powers would be repealed and the Serious Fraud Office would be brought into the same regime that would apply to every other State agency bar the SIS, once this legislation comes into force. It is a very simple, surgical exercise, and as David Parker told the Committee in his previous contribution, this was something that was raised and discussed at the select committee. It was raised, as I understand it, by submitters as a desirable thing to be done. It was raised with the officials, certainly by David Parker as something that he would like advice about it, and, as we know from the news media source he quoted, it is something that was canvassed with him as the previous Minister, and has now been canvassed with his successor, the Hon Judith Collins. We have her response.
It is OK that that response is no. We understand that. We do not like it, and we do not agree with it, but OK, it is no. But let us not dress it up as a no that is based on any particular respect or regard for procedure or process. Let us just understand that it is a no. What members on this side of the Chamber are trying to do in this debate—and we have tried to do it in a civilised and restrained way—is point out that, yes, Dr Calder, it makes a lot of sense to provide all these safeguards across the board in this bill. What it does not make sense to do is to leave the Serious Fraud Office out, from the time that this bill starts to apply, because you have one major agency of the State, probably, in light of what David Parker said, the major agency that we need to have working well in this area.
We want organised financial crime to be prosecuted and dealt with appropriately, but it will stand out from the regime that we are putting in place in this bill. So all the good stuff, all the protections, all the procedures that you rightly praised, Dr Calder, still will not apply to this major agency. Those Draconian powers under section 5 and section 9 will continue to apply outside the framework of this bill. No dressing up of any arguments around process and procedure can hide the fact that that just does not make any sense. It is not logical. It leaves a major hole in the code that this Parliament now intends to enact relating to search and surveillance powers. Everyone else has protection. Everyone else must go to the court. Everyone else must get a warrant. Every one else must make a case to a judge—except the Director of the Serious Fraud Office. Again we can hear general claims about how important it is for these powers to continue, but it does not make any sense within the scheme of this legislation.
Hon JUDITH COLLINS (Minister of Justice) : There are a couple of issues I want to deal with. The first is the issue around the New Zealand Herald editorial that Mr Parker praised so widely. I just want to share with the Committee something about that editorial. I thought that, clearly, whoever wrote it had not read the Supplementary Order Paper that I put forward, and had not read the press releases that I had put out about what was in the Supplementary Order Paper. And I thought, frankly, that no matter what the sentiments, it was actually just wrong on a couple of issues.
I thought it would be a good idea to visit the editor and just go through the issues, and find out what their concerns were. Well, apparently, freedom does not extend to me writing a letter to the editor. I wrote a letter to the editor saying “This is where I think you’re wrong. I’m sorry that you didn’t read the press releases. This is where there is actually an enhancement, in the Supplementary Order Paper, to protect press privileges.” I rang up the New Zealand Herald when they did not print my letter to the editor, and they said they did not print it, because they did not like it. I thought that was probably not that helpful. So then I thought I would go and see them and talk this thing through, because I think it is important. They are a major arm of the media and it is important that they understand my Supplementary Order Paper, which I thought was addressing the concerns. And, I have to say, I had worked on it with Charles Chauvel. We had tried to get some agreement and we thought we were doing well on that part.
Charles Chauvel: And for the future you’re going to want the New ZealandHerald on side!
Hon JUDITH COLLINS: Yes, we want the New Zealand Herald to understand what we are trying to do. I thought it would be a good idea, and because I was in Auckland for 4 days last week I thought it was a good chance to do it. Well, could we get an appointment? No. I have not given up, though, and the invitation is still there.
There is also the issue that the Law Commission is currently looking at some of the media regulation. It is looking at those issues, and I think it is really important to engage with the media, particularly the, let us say, more mainstream media, around these issues. We do not want to end up having legislation that does not get a broad agreement from the people who would be most interested, if that is possible. So the invitation is still there to the New Zealand Herald editor. They are welcome to publish my letter to the editor, which would not have changed from the last one I sent them, which they would not publish because, essentially, they did not like it; they did not agree with it. I suppose I should have re-sent them a copy of my press release, which might have explained again what I had already sent out. However, less about me; let us get back to the Search and Surveillance Bill. But the invitation is still there, and I am happy to go through those matters with them.
Part 5 of the Search and Surveillance Bill is very much a technical part, applying the bill’s general search powers outlined in Part 4 to search powers in other legislation, and also repealing provisions that are being replaced elsewhere in the bill. It is a very technical part. However, it also has a very important clause. That is the final one, clause 316. Acknowledging that the bill represents a comprehensive reform of search and surveillance laws, clause 316 provides for the Act to be reviewed approximately 4 years after it becomes law. The Minister of Justice must refer the Act to the Ministry of Justice and the Law Commission for review by 30 June 2016. The review must then be completed 1 year after the reference is made. The bill is based in large part on the Law Commission’s 2007 report on search and surveillance powers, and it is therefore appropriate that the Law Commission be involved in the review of the bill. The review will consider how the provisions in the Act have operated in practice, whether the provisions in the Act should be retained or repealed, and whether any provision should be amended. I think this is an extremely important clause, and I think it is something that many members in the House will take some comfort from.
- The question was put that the following amendments in the name of the Hon Judith Collins to the proposed amendments set out on Supplementary Order Paper 12 in her name to Part 5 be agreed to:
to replace in clause 237A(2), in the heading to new section 239A, “239A” with “293A”; and
to insert in clause 267(3) and (4) “of Part 4” after “subpart 2”.
|Ayes 61||New Zealand National 59; ACT New Zealand 1; United Future 1.|
|Noes 59||New Zealand Labour 34; Green Party 14; New Zealand First 8; Māori Party 2; Mana 1.|
|Amendments to the amendments agreed to.|
- The question was put that the amendments as amended set out on Supplementary Order Paper 12 in the name of the Hon Judith Collins be agreed to.
|Ayes 61||New Zealand National 59; ACT New Zealand 1; United Future 1.|
|Noes 59||New Zealand Labour 34; Green Party 14; New Zealand First 8; Māori Party 2; Mana 1.|
|Amendments as amended agreed to.|
- The question was put that the following amendment in the name of Charles Chauvel to Part 5 be agreed to:
to insert the following new clause:
276AAmendments to Serious Fraud Act 1990
(1)This section amends the Serious Fraud Office Act 1990.
(2)Sections 5 and 9 are repealed.
(3)Section 6 is amended by repealing subsection (2)(a) and (3) and substituting the following subsection:
“(3) The provisions of Part 4 of the Search and Surveillance Act 2009 apply.”
(4)Section 10 is amended by repealing subsection (2)(a) and (6) and substituting the following subsection:
“(6) The provisions of Part 4 of the Search and Surveillance Act 2009 apply.”.
|Ayes 56||New Zealand Labour 34; Green Party 14; New Zealand First 8.|
|Noes 63||New Zealand National 59; Māori Party 2; ACT New Zealand 1; United Future 1.|
|Amendment not agreed to.|
|Ayes 61||New Zealand National 59; ACT New Zealand 1; United Future 1.|
|Noes 59||New Zealand Labour 34; Green Party 14; New Zealand First 8; Māori Party 2; Mana 1.|
|Part 5 as amended agreed to.|
The CHAIRPERSON (Lindsay Tisch): The amendment in the name of Charles Chauvel to Supplementary Order Paper 12 is ruled out of order as being inconsistent with a previous decision of the Committee.
- The question was put that the following amendment in the name of the Hon Judith Collins to the proposed amendment set out on Supplementary Order Paper 12 in her name to the item relating to section 68(1) of the Human Tissue Act 2008 be agreed to:
in column 4, to insert “All” before “(except subpart 2 and sections 114 and 115)”.
|Ayes 61||New Zealand National 59; ACT New Zealand 1; United Future 1.|
|Noes 59||New Zealand Labour 34; Green Party 14; New Zealand First 8; Māori Party 2; Mana 1.|
|Amendment to the amendment agreed to.|
- The question was put that the amendment as amended set out on Supplementary Order Paper 12 in the name of the Hon Judith Collins to replace the schedule be agreed to.
|Ayes 61||New Zealand National 59; ACT New Zealand 1; United Future 1.|
|Noes 59||New Zealand Labour 34; Green Party 14; New Zealand First 8; Māori Party 2; Mana 1.|
|Amendment as amended agreed to.|
The CHAIRPERSON (Lindsay Tisch): We now come to debate on the clauses. The question is that—
METIRIA TUREI (Co-Leader—Green) : I raise a point of order, Mr Chairperson. I did not want to interrupt the voting process just to ask this question of clarification. Is it legit for National to vote on behalf of the ACT Party when the ACT Party member is in the Chamber and in his seat and available to vote? [Interruption]
The CHAIRPERSON (Lindsay Tisch): Order! There is a point of order being dealt with. The answer to that is yes, and I did seek advice on that matter. So that is in order. We have come to the debate on the clauses.
Clauses 1 and 2
Hon DAVID PARKER (Labour) : I am not going to take a long call on this. The points that have been made as to our objection to the Search and Surveillance Bill have been made in respect of the various parts that have been discussed previously, particularly our concerns about production orders and examination orders, generally, but also in relation to the Serious Fraud Office version of those powers, which is without the protections that are in this legislation in so far as the police have been conferred similar powers. I think it is sad that a piece of legislation that is so fundamental to the balance of power between individuals and the State is being passed tonight on a majority of 61 to 59. I think it is pretty clear that if there had been some movement of the Government on the part of Serious Fraud Office powers, you would have had a very big majority for this legislation. This sort of legislation ought to enjoy large parliamentary majorities, rather than slip through at a majority of 61 to 59.
The introductory note in the commentary from the Justice and Electoral Committee says: “This bill is intended to implement a comprehensive reform of search and surveillance legislation, both as regards the core substantive law enforcement powers, and the way search powers are exercised across the statute book.” As my colleague Charles Chauvel said when he quoted that same provision earlier in the debate, the fact that this is not doing that is, I think, lamentable. We have one institution in New Zealand that can exercise its powers without needing to get a warrant from a judge in respect of the exercise of serious powers, including powers that override the right to silence, and that one institution is the Serious Fraud Office. Not the Security Intelligence Service; it has to get a warrant from the retired High Court Judge who oversees its processes. Not the police; they have to get a warrant. Indeed, for production and examination orders they cannot just get a warrant from a registrar; they have to get a warrant from a judge. Yet we have this exception for the Serious Fraud Office, which does not need to get a warrant from anyone. It has abused its powers in the past by using them against the media, and has abused its powers more often by utilising the production order and examination order route, which is easier for the Serious Fraud Office, because it can do it by internal administrative act rather than going for a warrant or using normal investigative processes. Those orders can be quite broad and put quite a lot of administrative costs on the people who are in receipt of those production and examination orders.
I am not going to say anything more than that. I think, other than that, broadly this legislation does strike the right balance between the civil liberties that we should be protecting for people and the powers that the police, on occasions, need to investigate crimes so as to keep our public safe.
|Ayes 61||New Zealand National 59; ACT New Zealand 1; United Future 1.|
|Noes 59||New Zealand Labour 34; Green Party 14; New Zealand First 8; Māori Party 2; Mana 1.|
|Clause 1 agreed to.|
- The question was put that the amendment set out on Supplementary Order Paper 12 in the name of the Hon Judith Collins to clause 2 be agreed to.
|Ayes 61||New Zealand National 59; ACT New Zealand 1; United Future 1.|
|Noes 59||New Zealand Labour 34; Green Party 14; New Zealand First 8; Māori Party 2; Mana 1.|
|Amendment agreed to.|
- Bill reported with amendment.
- Report adopted.
Regulatory Reform Bill
Regulatory Reform (Repeals) Bill
Hon JOHN BANKS (Minister for Regulatory Reform) : I move, That the Regulatory Reform Bill and the Regulatory Reform (Repeals) Bill be now read a second time. Both bills form a key part of this Government’s commitment to better and less regulation; better and less regulation for business—the lifeblood of the New Zealand economy—for those who create the wealth, from the farmers, to the manufacturers, to the retailers, and for the people who go out and commit their money, take the risks, produce the jobs, and pay the taxes.
As an aside, I would note, as the ACT MP for Epsom, these bills dovetail nicely with the concepts, philosophies, and principles of the ACT Party. These are the concepts of less regulation, smaller government, and free enterprise. Before we can spend, we first have to sell, and ACT believes that a more prosperous New Zealand will be one that unleashes business from unnecessary and unwanted regulation by the Government.
As Minister I would like to acknowledge the work of the previous Minister for Regulatory Reform in getting these bills to this stage. His commitment to improving our regulatory environment is seen in these bills. I would also like to thank the Commerce Committee and all those who made oral and written submissions on the Regulatory Reform Bill.
The committee’s report includes some sensible recommendations to further reduce compliance costs for business. My role in life here in this ministry and coalition is to further reduce compliance costs for business. This Government is a Government for small business, for the 420,000 business people up and down the country who employ fewer than five people. This Government is committed to addressing the barriers, big or small, that hold back New Zealand businesses from reaching their fullest potential. The challenging economic environment makes reducing compliance costs more important than ever.
I know that the people of Epsom will be very happy to see what their local MP is doing in his role as Minister for Regulatory Reform to get the Government off their backs and out of their pockets. And if this crowd opposite was in charge, it would not be getting off their backs and out of their pockets; it would be heavier on their backs and deeper into their pockets as it borrowed more and spent more money that it had not produced.
The Regulatory Reform Bill improves the quality of regulation in New Zealand. It recommends small but important amendments to 13 Acts to reduce the regulatory burden on business. It reduces those 13 Acts, which produce regulatory impediments to the spirit of free enterprise and the people who create the wealth across this country. The bill was introduced under the former Standing Order 259(a), as the amendments can be regarded as implementing a single broad policy. The Regulatory Reform (Repeals) Bill repeals—listen to this—31 unnecessary and spent Acts of Parliament on the statute book tonight. This bill was introduced under the former Standing Order 259(b), as the amendments are of a similar nature to each other.
I endorse the Commerce Committee’s commitment to canvass a number of options to ensure that the progress of these bills is as efficient as possible. I particularly want to acknowledge the efforts of the committee chair, the Hon Lianne Dalziel, to save this House time. It is not easy, but I do acknowledge her work and give her thanks and praise for helping out small businesses up and down this country, which say the Government is too heavy on their backs and too deep in their pockets.
It is pleasing that the Business Committee, which I am a member of, has agreed to my request that the bills be treated as cognate bills under Standing Order 266. The Commerce Committee also recommended that the Committee of the whole House stage be dispensed with for the Regulatory Reform (Repeals) Bill, and it is pleasing that the Business Committee also agreed with this request, and the bills can now be progressed very efficiently.
Hon Lianne Dalziel: Must have had a very good chair.
Hon JOHN BANKS: Well, we are from the Government, we are here to help small business, and the people listening to this debate on their crystal sets up and down the country tonight will be pleased that a businessman is the Minister for Small Business.
I turn now to the Regulatory Reform Bill. Most submitters were supportive of the Regulatory Reform Bill, and the Commerce Committee has not recommended any substantive changes. How good is that? I would like to focus on the most significant issues addressed by the committee. The committee recommended changes to the amendments to the Agricultural Compounds and Veterinary Medicines Act 1997. My colleague from Epsom knows that Act, as he knows the Animal Products Act 1999 and the Wine Act 2003, and he wants less regulation in business, less red tape, less difficulties, and less Government interference. That is what my colleague from Epsom—my mate from Epsom—recommends as well.
The committee has recommended changes to the amendments to the Companies Act 1993, clarifying that companies may send—listen to this; as if we would have to do this—hard-copy materials, as well as electronic material, for communications, meetings, and voting. The Government was involved in that. As if it is the Government’s business as to where and how companies can send electronic material for communications.
The committee also recommends changes to clarify that a shareholder may appoint more than one proxy for a meeting, as long as there is only one proxy exercised for any particular share. The committee recommended changes to clause 50, which enables regulation to impose time frames on concessions processing under Part 3B of the Conservation Act 1987. This change will allow for the rolling on of expired concessions where an application has been made for a new concession. It is amazing that we even have to do that. Why would that have been put in the statute in the first place, so that it needs to be changed by the Minister for Regulatory Reform in circa 2012? But I am glad I am doing it, and I am glad the House—and this side of the House—supports it, as, indeed, does the other side of the House. It is very encouraging for small businesses up and down the country that the Labour Party would be supporting small-business enterprise up and down the country.
Jami-Lee Ross: That’s new.
Hon JOHN BANKS: It is novel, but it is welcome. Small businesses up and down the country, which I represent from the powerhouse seat of the New Zealand electoral system, the Epsom electorate, say that they want less regulation and they want the Government to get off their backs, and that is what this about.
Submitters were mainly supportive of the changes to the Films, Videos, and Publications Classification Act 1993. One submitter sought a change to the commencement date, Part 5, to ensure that industry can gain benefits from the amendments as soon as possible, and the committee said that is not a bad idea. Lianne Dalziel said we can tick that off, and she has, and full marks for that. The Government is committed to ensuring that industry can take advantage of reduced compliance costs as swiftly as possible. As we come out of the second wave of the global recession, businesses need the Government to get off their backs and out of their pockets, and this bill does that.
Part 7 of the bill removes requirements under the Friendly Societies and Credit Unions Act 1982. I was in this Parliament when we debated that bill. We felt that the friendly societies and credit unions needed an Act of Parliament applying to credit unions, and now we are addressing those silly parts of that silly piece of legislation enacted so many years ago that are an impediment to small business. This National Party and ACT coalition, with its friends, believes in getting off the backs and out of the pockets of small business.
The committee recommended the removal of clause 113 of the bill. This clause amended section 20 of the Takeovers Act 1993 to add international comity as an objective to the Takeovers Code.
Now to the Regulatory Reform (Repeals) Bill. The final change recommended by the Commerce Committee that I will comment on is the inclusion of a new schedule 2 to the Regulatory Reform (Repeals) Bill. The schedule contains three additional regulations to be automatically revoked, as the Acts that they are made under would be repealed by this bill, and that makes sense, and people will welcome that. This is a great night for small business up and down the country.
Hon CLAYTON COSGROVE (Labour) : The Labour Party will support this legislation—I want to make that very clear—given that the originator of this legislation, back when we were in power, was our then Minister of Commerce, Lianne Dalziel, who put this in place. Mr Banks’ predecessor, Mr Hide, came to this Parliament and gave a very similar speech, actually, to Mr Banks’, saying that this was going to be an earth-shattering reform. We support the concept of this legislation. It is a good process and a good concept. What we are going to highlight tonight are some of the absurdities. You would think that this legislation was going to change the constitutional business framework of this country, the way Mr Banks trumpeted it. Really, what it is, is lightweight content in a heavyweight process. It is lightweight content in Parliament.
If this is Mr Banks’ first salvo as the Minister for Small Business, small-business men and women on their so-called, to quote him, crystal sets will be hanging on every word tonight, I am sure, as they read through the 31 Acts that are a spent force and will be repealed by the Regulatory Reform (Repeals) Bill. I went and asked the Clerk, because I am not a lawyer, and I said to the Clerk: “Am I right? Does a spent Act mean basically it has been dealt with, it does not exist, it has no compliance cost, and it has no impact on anybody except Mr Banks and his sort of internal emotions?”. The answer was yes, it is basically like an Act that has been repealed. So the first great contribution from Mr Banks, as he came out of the political crypt and into this Parliament, has been to repeal 31 Acts that have no effect and no compliance costs on any small business, or on anyone. I should move that we have a minute’s silence in respect of Mr Banks’ great contribution. He is the man who came to this House and who, in his speech, talked about getting the hands out of the pockets of small-business people, getting off their backs, and stopping these grotesque spending and compliance costs.
I too am an ex - small-business person, and can I say that this is coming from the biggest spender in Parliament, other than Bill English, whose last claim to fame as Mayor of Auckland before they booted him out, was to treble the debt that Auckland City had with his spending, not including the debt that the new super-city took on. That was Mr Banks—“Hey, big spender”. So I just say to Mr Banks congratulations, what a great contribution to the Parliament it is to bring in really good legislation, a good process.
The Regulatory Reform Bill was called the Regulatory Improvement Bill, then Rodney Hide made an equally staggering, substantive contribution to this Parliament by changing its name from the Regulatory Improvement Bill to the Regulatory Reform Bill. I know that every small-business person around the country that Mr Banks represents will be getting their hands out of their pockets and putting their hands around the back into their back pocket, grabbing their wallet, and thanking Mr Banks from the bottom of their heart for changing that one word from “Improvement” to “Reform”. How much compliance cost will that save a small business? I imagine that it is millions of dollars, although I would have thought that the wording on some of the forms might have had to be changed.
But the great contribution—the first kick-off contribution—from the big spender from Auckland is to repeal 31 spent Acts that have no compliance costs, because they do not have any effect on anyone or anybody, or on any business in New Zealand. I say that this man deserves a knighthood. What a great contribution. He has made history in this place. The dinosaur has come back. It is Jurassic Park all over again. He has made history in this place by repealing 31 Acts that have no effect on anybody. Actually, this could be Yes, Minister all over again. Obviously he has read all the briefing papers the officials have put in front of him. The officials have convinced him: “Minister, this is your big day. This is your big hit. This is your penultimate hit. You have just been appointed Minister for Small Business. You can kick a goal for the people of New Zealand and small business by repealing 31 Acts that have no effect on anyone or on any small business.”
I just say this: as we are trying to reduce, slash, and burn compliance costs through this legislation, I wonder whether Mr Banks has gone to his small-business folk and said “This is the amount of parliamentary time and your money, small-business people—because you are taxpayers—we are going to take to repeal 31 spent Acts that do not have an effect or a cost on anyone.” That is a compliance cost, Mr Banks, that every small to medium sized enterprise that that Minister represents is going to pay. I invite the Minister, given the detailed and substantive Minister that he is, to maybe go and cost the amount he has spent on time-wasting by bringing in this amount of lightweight piffle—apart from, I will say, some decent provisions in here in respect of credit unions.
And there are one or two other provisions, like the amendment to the Companies Act, which Mr Hide himself said would save New Zealand companies—most of whom tend not to be small to medium sized enterprises by the strictest definition, but I am sure that Mr Banks knows that—$1.5 million. Well, $1.5 million is a lot of dough; I accept that. But when you spread that over the thousands of people in small to medium sized enterprises—they are pretty practical folk, and they try to work it out in dollars and cents. They are not into this sort of fluff; they want to work out how much this will save them. I reckon if you spread $1.5 million in cost savings over every small to medium sized enterprise in the country, it would not come to a hell of a lot. This measure, of course, deals with voting and proxies, and the particular provision here deals with whether you can use electronic shareholder participation. I do not know how many one and two-person plumbing firms—and, you know, the odd carpenter, the odd electrician may have three or four people working for him, or a couple of young apprentices—are going to sit there tonight and say “Hell’s teeth, what a wonderful provision! I can now choose to lodge my documentation as a shareholder and participate electronically.” What a brilliant, awe-inspiring, genius, I say. I think this is a moment we should cherish.
Then, of course, we have another provision that I think is a good one—the amendment to the Films, Videos, and Publications Classification Act 1993 to modernise labelling. I concede, for those in that trade—and I offer this as an olive branch to the senior old codger over there, the old Minister, the old tumbleweed—that Mr Hide said that that would save $2.4 million in its first year, going up to $3.1 million in year 5. I do not know how many video firms there are in the country, but that will be of some assistance, I grant you, to them. Likewise, the issues that the Minister outlined around friendly societies and credit unions will assist.
I say that the process that we as the former Government brought in is a good process and a good legislative framework. It is something we should do. But let us not get too carried away. This legislation was trumpeted by Mr Banks and his predecessor, old Rumpelstiltskin, who is now floating around Auckland, Mr Hide. He was going to slash through red tape, and slash through compliance costs. This is what he was going to do. He sent Uncle Fester in, as the nightwatchman from Epsom, Mr Banks. Mr Banks equally gets up and says he is going to slash through red tape, slash through compliance costs, and assist the small to medium sized enterprises. Millions of dollars would flow back into the pockets of these small to medium sized enterprises, through Mr Banks’ good works in slashing compliance costs. And then we pick up the bills. They have got a bit of weight to them, I suppose. There are a few pages in them. We pick them up, and what do we find? Yet again, mutton dressed up as mutton. That is what it is: mutton dressed up as mutton. I was not referring to the Minister; I would have said pork. But I was not referring to him; I was speaking in respect of the legislation.
Then what do we find? We find the big hit, the big moment in the sun. I am going to go out to all my small to medium sized enterprises in Canterbury. Ms Dalziel will too, and she will say “Look, this Minister is akin to Mother Teresa in political terms. Do you know what he has done? He has repealed 31 Acts basically that have no effect on him.” I am sure they will carry Mr Banks through the streets of Canterbury and Epsom in Auckland, showering him with rose petals, laurel leaves, the lot, in Romanesque-like proportions, celebrating what a great champion of small to medium sized enterprises this great man is. Then they might also ask why it was that he trebled the debt of the Auckland Council in 3 years. That is an achievement. That is an achievement that will have more impact on small to medium sized enterprises, I wager, than anything in this legislation that we pass.
So I say to Mr Banks that he has stepped forward with the old cricket bat, tried to slug one over the boundary for six runs, and got caught in the slips behind. It was not a good effort, not a good start, not a bad rousing speech, but I say to Mr Banks that the one thing you have got to remember—and maybe you have been away from the small to medium sized enterprises movement too long, and you have had your nose in the trough of local government for too long—is to think of this. Small to medium sized enterprises, Minister—through you, Mr Assistant Speaker Tisch—are not stupid. They know and they can smell bull when they see it, and this is seriously high-quality bull.
TODD McCLAY (National—Rotorua) : Where does one start? Can I say it is a pleasure to rise to speak to the Regulatory Reform Bill and the Regulatory Reform (Repeals) Bill. I want to start by saying that the National-led Government is working hard to secure a brighter future for all New Zealanders—a brighter future for all New Zealanders. I say to the Minister for Regulatory Reform, who gave an excellent speech just a few moments ago, that I have heard that phrase “brighter future” used recently on television. Who was that?
Jonathan Young: David Shearer.
TODD McCLAY: Very good. Others who are watching television tonight are wondering who the man was they were talking about, the man who was speaking of the brighter future; it was Mr Shearer. Can I say to the last speaker in this debate that our red tape moves are cutting more than $200 million. Here we have two pieces of legislation before this Parliament. The first is to repeal 31 Acts of Parliament. It is interesting because we have heard that repealing legislation that is not useful any more and not used is actually a waste of time. Well, the New Zealanders who voted last year did not believe that. Look at the changes in this House. Some people have returned, but on the other side of the House others have left. New Zealanders decided that useless pieces of space were better to be freed up.
Thirteen pieces of legislation are to be reformed. The best part about this reform is that it is delivering benefits directly to New Zealanders and to New Zealand businesses by reducing red tape and compliance upon them, which is something that so many businesses asked us for and so many businesses will be thankful is being delivered for them. I congratulate the Hon John Banks on bringing this legislation back to the House and on steering it forward.
Mr Cosgrove made reference to two former Ministers. One was Ms Dalziel, who first started along this road to make reform and to recognise that. The second was Rodney Hide, whom he likened to Rumpelstiltskin. Can I say, even Rumpelstiltskin is laughing at that one. But a number of Ministers have been involved.
This is very important legislation for New Zealanders. Why is that? Some of the changes that will be made will put more money in the pockets of these businesses, and what is it that businesses do? They employ people. When do they decide to employ more people? When there are additional funds available to them, when they can be more competitive, and when they can be more productive. The one thing I think we do know is that when businesses are bound by unnecessary red tape, they must do other things and focus on their raison d’être, their reason for being, which is to produce and manufacture goods and export them.
I want to touch on just one part of this before we move on, and that is an amendment to the Companies Act. Actually, there are a number of changes that are coming through this bill that will free up businesses to get on in a new environment of the internet and the way that business is done. The first will be to change the Companies Act to enable companies to hold shareholder meetings over the internet and allow electronic voting. Well, actually, that is a reasonable thing. Let us say that there is a saving there, and the early estimates are $1.5 million. This is about allowing businesses to do the things that they want to, and where they want to do this within the realms of the legislation, and I think that is a good thing. We should not underestimate the saving to small companies—even an insignificant saving to some in this House—and the difference that will make to them. A number of other changes are to the Conservation Act, some more sense; changes to the Statistics Act; and amendments to the Films, Videos, and Publications Classification Act. Did I hear a member of the Opposition talking about that? Mr Jones—no, he is not here.
I want to commend this bill to the House. I look forward to being able to go into it in greater detail when we get to the Committee stage. Again, to the Hon John Banks I say well done for bringing this to the House and for a very strong speech that set out the direction that this Government should move towards: reducing red tape and compliance on businesses where it is unnecessary and backing businesses in New Zealand to get on and do a much better job. That is the way that we will have a brighter future, not stealing slogans and making them into speeches like last week. Thank you.
Hon LIANNE DALZIEL (Labour—Christchurch East) : I am happy to rise and speak to the second readings of the Regulatory Reform Bill in conjunction with the Regulatory Reform (Repeals) Bill. I thought it was interesting that the Minister for Regulatory Reform commented that, in fact, it was the Business Committee that had agreed to the cognate bill process, as if it were something that had been his jolly good idea. But I would like to refer to the commentary from the Commerce Committee and share this part of it with you. It says: “We recommend that Standing Orders be amended to allow more efficient and quicker progress of legislation through the House.
We also recommend that the Regulatory Reform Bill and Regulatory Reform (Repeals) Bill be treated as cognate bills for their second and third readings, and that in respect of the Regulatory Reform (Repeals) Bill the committee of the whole House stage be dispensed with.”
I was the chair of the select committee that put forward that proposal. My deputy chair, Peseta Sam Lotu-Iiga, is in the House this evening, and I hope he is going to take a call and back me up on this.
Peseta Sam Lotu-Iiga: Hurry up.
Hon LIANNE DALZIEL: No, I have got quite a lot to say, actually. Peseta Sam Lotu-Iiga was my deputy chair at the time, and I know that he will back me up on that, because we were actually quite disappointed with the advice that we received as to why these two bills had been introduced to the House as two separate bills with two separate first readings. The way that we could see things proceeding was their coming back to the House and our then dealing with them as two separate bills again. There would have been a lot of wasted time. It almost felt as if Mr Rodney Hide knew that he was not going to be returning to this place and had to have two speeches in those dying days of the previous Government.
But I just want to make the point about why we were disappointed that the two bills were not introduced under the same Standing Order. It does actually back up the point that my colleague Clayton Cosgrove made about the repeals bill being a complete and utter waste of time. I mean, it does not do anything that does not already not happen under the existing law, because all of the legislation that it repeals has been repealed or is spent because it has been replaced. I do not even know whether people realise what is being repealed in the Regulatory Reform (Repeals) Bill. I thought I would share just a couple of them. How about this. Do you remember the Economic Stabilisation Act? Well, this bill repeals the Economic Stabilisation Act Repeal Act 1987. Do you remember business development boards? Do you remember those? Do you remember who got rid of them? Max Bradford—remember that? Yep, well, guess what the Government is repealing here? It is repealing the Business Development Boards Act Repeal Act. So the bill repeals all of these pieces of legislation that simply do not exist; therefore, to suggest that it is adding any particular value is not correct.
But it does come back to this point of why the two bills were not introduced as one bill. The advice that had been given to the Minister for Regulatory Reform at the time—and the select committee, to be frank, did not agree with this advice, but this is what the Minister had been told—was that because the Regulatory Reform Bill aimed to reduce compliance costs and the regulatory burden on business, the bill was introduced under Standing Order 259(a), which allowed the introduction of an omnibus bill to amend more than one Act if the amendments deal with an interrelated topic that can be regarded as implementing a single broad policy. The Regulatory Reform (Repeals) Bill, on the other hand, would repeal 31 Acts that no longer have any effect or are out of date, which means that they did not fit within the context of reducing compliance costs or the regulatory burden on business. That was why they could not be introduced as a single piece of legislation. Well, I think that is a nonsense. If that is how the Standing Orders are being interpreted, then I think the solution is that the Standing Orders do need to change. So I am pleased that we were able to recommend a sensible way forward: for the two pieces of legislation to be dealt with as cognate bills for the remaining stages.
One thing I do want to say to the Minister for Regulatory Reform is that just because the portfolio the Minister has is “Regulatory Reform” was no reason to change the name of this type of bill. My colleague Clayton Cosgrove pointed out that when we were in Government, as part of the Quality Regulation Review process we decided that there had to be a mechanism for amending multiple statutes that did not fit within the Statutes Amendment Bill criteria, which are very strict. There has to be total agreement, and nothing controversial—nothing even slightly controversial—in the context of a Statutes Amendment Bill. But we needed something that gradually made improvements to the various regulatory frameworks that exist. That is not a reform process; it is a gradual improvement process. That is why we called the bill that we first introduced under this provision the Regulatory Improvement Bill. I think Rodney Hide, when he was the Minister for Regulatory Reform, decided that anything in his name should be called a regulatory reform bill, but it is a nonsense to suggest that this repeals bill is a reform. We have heard from the Hon Clayton Cosgrove a very good reason why you would not describe this bill as representing any form of regulatory reform in the true sense of that word.
The whole idea of making incremental improvements to regulatory frameworks within a single bill is actually a very positive one, and it is one that was promoted from this side of the House. That is why I find really unfortunate what this Minister for Regulatory Reform is saying. I remember his welcoming me to this House back in 1990 by telling me to get out from under the rock that I had crawled under, or words to similar effect, and now I feel equally hurt at the suggestion that we did nothing to improve the regulatory framework for business, because, in fact, we focused an enormous amount of attention on getting that framework right, and this process was one of the outcomes of that Quality Regulation Review. It was called the Regulatory Improvement Bill because it was designed to make incremental improvements to regulatory frameworks.
I think the Minister—and it was not this Minister; it was not John Banks who discovered this problem; it was his predecessor, Rodney Hide—discovered exactly the same problem that I discovered, which is that it is very hard to wrench these particular measures out of their individual departments and bring them into an omnibus bill. I cannot emphasise to this House enough how important it is to actually send the message out to the departments to let them go. Let them go, bring them to the Minister for Regulatory Reform, and enable these pieces of legislation to be more substantive than this. I mean, this legislation is pretty much on a par with the first Regulatory Improvement Bill, which I introduced as Minister, and I think we could do better than this in the future. But in order to get that level of change there has to be total agreement across Cabinet that an individual—
The ASSISTANT SPEAKER (Lindsay Tisch): I am sorry to interrupt the honourable member. The time has come for me to leave the Chair.
- Debate interrupted.
- The House adjourned at 10 p.m.